The Collateral Agent. (a) Secured Party hereby irrevocably appoints and authorizes the Collateral Agent to take such action as agent on its behalf and to exercise such powers under this Agreement as are delegated to the Collateral Agent by the terms hereof, together with all such powers as are reasonably incidental thereto. (b) The obligations of the Collateral Agent hereunder are only those expressly set forth in this Agreement. (c) The Collateral Agent may consult with legal counsel, independent public accountants and other experts selected by it and shall not be liable for any action taken or omitted to be taken by it in good faith in accordance with the advice of such counsel, accountants or experts. (d) Neither the Collateral Agent nor any of its directors, officers, agents or employees shall be liable for any action taken or not taken by it in connection with this Agreement (1) with the consent or at the request of Secured Party or (2) in the absence of its own gross negligence or willful misconduct. The Collateral Agent shall not incur any liability by acting in reliance upon any notice, consent, certificate, statement, or other writing (which may be a bank wire, telex or similar writing) believed by it to be genuine or to be signed by the proper party or parties. (e) Pledgor shall indemnify the Collateral Agent against any cost, expense (including counsel fees and disbursements), claim, demand, action, loss or liability (except such as result from the Collateral Agent’s gross negligence or willful misconduct) that the Collateral Agent may suffer or incur in connection with this Agreement or any action taken or omitted by the Collateral Agent hereunder. (f) Beyond the exercise of reasonable care in the custody thereof, the Collateral Agent shall have no duty as to any Collateral in its possession or control or in the possession or control of any agent, bailee, clearing corporation or securities intermediary or any income thereon or as to the preservation of rights against prior parties or any other rights pertaining thereto. The Collateral Agent shall be deemed to have exercised reasonable care in the custody and preservation of the Collateral if the Collateral is accorded treatment substantially equal to that which it accords its own property, and shall not be liable or responsible for any loss or damage to any of the Collateral, or for any diminution in the value thereof, by reason of the act or omission of any agent, bailee, clearing corporation or securities intermediary selected by the Collateral Agent in good faith (or selected by an agent, bailee, clearing corporation or securities intermediary so selected by the Collateral Agent or by any agent, bailee, clearing corporation or securities intermediary selected in accordance with this parenthetical phrase). (g) Any corporation or association into which the Collateral Agent may be converted or merged, or with which it may be consolidated, or to which it may sell or transfer its agency business or assets as a whole or substantially as a whole, or any corporation or association resulting from any such conversion, sale, merger, consolidation or transfer to which it is a party, shall, subject to the prior written consent of Secured Party, be and become a successor Collateral Agent hereunder and vested with all of the title to the Collateral and all of the powers, discretions, immunities, privileges and other matters as was its predecessor without, except as provided above, the execution or filing of any instrument or any further act, deed or conveyance on the part of any of the parties hereto, anything herein to the contrary notwithstanding.
Appears in 6 contracts
Samples: Pledge Agreement, Pledge Agreement (Goad Douglass C), Pledge Agreement (American International Group Inc)
The Collateral Agent. (a) Secured Party hereby By accepting a Note, each Holder will be deemed to have irrevocably appoints and authorizes appointed the Collateral Agent to take such action act as its agent on its behalf under the Notes Collateral Documents and to exercise such powers under this Agreement as are delegated to irrevocably authorized the Collateral Agent by to (i) perform the terms hereofduties and exercise the rights, powers and discretions that are specifically given to it under the Notes Collateral Documents or other documents to which it is a party, together with all such any other incidental rights, powers as are reasonably incidental thereto.
and discretions and (bii) The obligations of execute each document expressed to be executed by the Collateral Agent hereunder are on its behalf. The Holders may not, individually or collectively, take any direct action to enforce the Notes Collateral Documents. The Holders may only act by instruction to the Trustee, which shall instruct the Collateral Agent subject to the Pari Passu Intercreditor Agreement. The Collateral Agent will have no duties or obligations except those expressly set forth in this Agreement.
(c) the Notes Collateral Documents to which it is party. The Collateral Agent may consult with legal counsel, independent public accountants and other experts selected by it and shall will not be liable for any action taken or omitted to be taken by it in good faith in accordance with the advice of such counsel, accountants or experts.
(d) Neither the Collateral Agent nor any of its directors, officers, agents or employees shall be liable for any action taken or not taken by it in connection the absence of its own gross negligence, willful misconduct or bad faith. The Collateral Agent will be entitled to rely upon, and will not incur any liability for relying upon, any notice, request, certificate, consent, statement, instrument, document or other writing believed by it to be genuine and to have been signed or sent by the proper person. The Collateral Agent may also rely upon any statement made to it orally or by telephone and believed by it to have been made by the proper person, and shall not incur any liability for relying thereon. The Collateral Agent may consult with this Agreement legal counsel (1who may be counsel for the Issuer), independent accountants and other experts selected by it, and will not be liable for any action taken or not taken by it in accordance with the advice of any such counsel, accountants or experts. Without limiting the generality of the foregoing, the Collateral Agent:
(i) shall not be subject to any fiduciary or other implied duties, regardless of whether an event of default has occurred and is continuing;
(ii) shall not have any duty to take any discretionary action or exercise any discretionary powers, except discretionary rights and powers expressly contemplated hereby or by the Notes Collateral Documents that the Collateral Agent is required to exercise; provided that the Collateral Agent shall not be required to take any action that, in its opinion or the opinion of its counsel, may expose the Collateral Agent to liability or that is contrary to any Notes Collateral Document or applicable law;
(iii) shall not, except as expressly set forth herein and in the Notes Collateral Documents, have any duty to disclose, and shall not be liable for the failure to disclose, any information relating to the Issuer or any of its Affiliates that is communicated to or obtained by the Person serving as the Collateral Agent or any of its Affiliates in any capacity;
(iv) shall not be liable for any action taken or not taken by it (a) with the consent or at the request of Secured Party any Priority Agent or (2b) in the absence of its own gross negligence negligence, willful misconduct or willful misconduct. The Collateral Agent shall not incur any liability by acting bad faith or (c) in reliance upon any notice, consent, certificate, statement, on a certificate of an authorized officer of Holdings or other writing (which may be a bank wire, telex or similar writing) believed by it to be genuine or to be signed the Issuer stating that such action is permitted by the proper party or parties.
(e) Pledgor shall indemnify terms of the Collateral Agent against any cost, expense (including counsel fees and disbursements), claim, demand, action, loss or liability (except such as result from the Collateral Agent’s gross negligence or willful misconduct) that the Collateral Agent may suffer or incur in connection with this Agreement or any action taken or omitted by the Collateral Agent hereunder.
(f) Beyond the exercise of reasonable care in the custody thereof, the Collateral Agent shall have no duty as to any Collateral in its possession or control or in the possession or control of any agent, bailee, clearing corporation or securities intermediary or any income thereon or as to the preservation of rights against prior parties or any other rights pertaining theretoIntercreditor Agreements. The Collateral Agent shall be deemed not to have exercised reasonable care knowledge of any event of default under any series of Senior-Priority Non-ABL Obligations unless and until written notice describing such event of default is given to the Collateral Agent by the Representative of such Senior-Priority Non-ABL Obligations or Holdings or the Issuer; and
(v) shall not be responsible for or have any duty to ascertain or inquire into (a) any statement, warranty or representation made in or in connection with the custody and preservation Intercreditor Agreements or any other Notes Collateral Document, (b) the contents of any certificate, report or other document delivered hereunder or thereunder or in connection herewith or therewith, (c) the performance or observance of any of the covenants, agreements or other terms or conditions set forth herein or therein or the occurrence of any event of default, (d) the validity, enforceability, effectiveness or genuineness of the Intercreditor Agreements, any other Notes Collateral if Document or any other agreement, instrument or document, or the creation, perfection or priority of any Lien purported to be created by the Notes Collateral Documents, (e) the value or the sufficiency of any Collateral for any series of Senior-Priority Non-ABL Obligations, or (f) the satisfaction of any condition set forth in any Senior-Priority Non-ABL Debt Document or Notes Collateral Document, other than to confirm receipt of items expressly required to be delivered to the Collateral Agent. The use of the term “agent” herein with reference to the Collateral Agent is accorded treatment substantially equal not intended to that which connote any fiduciary or other implied (or express) obligations arising under agency doctrine of any applicable law other than as a “representative” as such term is used in Section 9-102(a)(73)(E) of the Uniform Commercial Code. BY ACCEPTING A NOTE EACH HOLDER WILL BE DEEMED TO HAVE IRREVOCABLY AGREED TO THE FOREGOING PROVISIONS OF THIS SECTION 12.1(A) AND SHALL BE BOUND BY THOSE AGREEMENTS TO THE FULLEST EXTENT PERMITTED BY LAW.
(b) Without limiting the Intercreditor Agreements, the Collateral Agent shall be subject to such directions as may be properly given it accords its own propertyby the Trustee and/or other Representatives from time to time in accordance with this Indenture, the Intercreditor Agreements and the other Notes Collateral Documents. Except as directed by the Trustee and/or other Representatives and as expressly required by this Indenture, the Intercreditor Agreements and the other Notes Collateral Documents, and in each case subject to the Intercreditor Agreements, the Collateral Agent shall not be obligated:
(1) to act upon directions purported to be delivered to it by any other Person;
(2) to foreclose upon or otherwise enforce any Lien securing the Notes or any of the Note Guarantees; or
(3) to take any other action whatsoever with regard to any or all of the Liens securing the Notes, the Note Guarantees or the Notes Collateral Documents or with regard to the Collateral.
(c) The Collateral Agent is authorized and empowered to appoint one or more co-agents or sub-agents or attorneys-in-fact as it deems necessary or appropriate in connection herewith and shall not be liable for the negligence or misconduct of any such agents or attorneys-in-fact selected by it in good faith.
(d) The Collateral Agent may perform any and all its duties and exercise its rights and powers by or through any one or more sub-agents appointed by it. The Collateral Agent and any such sub-agent may perform any and all its duties and exercise its rights and powers by or through their respective Affiliates. The exculpatory provisions of this Article XII shall apply to any such sub-agent and to the Affiliates of the Collateral Agent and any such sub-agent.
(e) Subject to the appointment and acceptance of a successor Collateral Agent as provided below, the Collateral Agent may resign at any time by notifying the Issuer and the Trustee. Upon any such resignation, the Trustee shall have the right, with the consent (not to be unreasonably withheld or delayed) of the Issuer, to appoint a successor; provided that during the existence and continuation of an Event of Default pursuant to clause (1), (2), (6) or (7) of Section 6.1(a) consent of the Issuer shall not be required. If no successor shall have been so appointed by the Trustee and shall have accepted such appointment within 30 days after the retiring Collateral Agent gives notice of its resignation, then the retiring Collateral Agent may, on behalf of the Holders and the Trustee, appoint a successor Collateral Agent which shall be a bank with an office in New York, New York, having a combined capital and surplus of at least $1,000,000,000, or an Affiliate of any such bank that is, so long as no Event of Default pursuant to clause (1), (2), (6) or (7) of Section 6.1(a) shall have occurred and be continuing, reasonably acceptable to the Issuer. Upon the acceptance of its appointment as Collateral Agent hereunder by a successor, such successor shall succeed to and become vested with all the rights, powers, privileges and duties of the retiring Collateral Agent, and the retiring Collateral Agent shall be discharged from its duties and obligations hereunder. The fees payable by the Issuer to a successor Collateral Agent shall be the same as those payable to its predecessor unless otherwise agreed between the Issuer and such successor. After a Collateral Agent’s resignation hereunder, the provisions of this Article and Article VII shall continue in effect for the benefit of such retiring Collateral Agent, its sub-agents and their respective Affiliates in respect of any actions taken or omitted to be taken by any of them while acting as Collateral Agent.
(f) The benefits, protections and indemnities of the Trustee in Sections 7.2, 7.3 and 7.7 of this Indenture shall apply mutatis mutandi to the Collateral Agent in its capacity as such, including, without limitation, the rights to receive and rely on Officer’s Certificates and Opinions of Counsel, reimbursement and indemnification.
(g) Each Holder, by its acceptance of any Notes, is deemed to have consented and agreed to the terms of each Notes Collateral Document, as originally in effect and as amended, supplemented or replaced from time to time in accordance with its terms or the terms of this Indenture; and authorizes and empowers the Trustee and (through the Intercreditor Agreements) each applicable Priority Agent to bind the Holders and other holders of Pari Passu Debt Obligations as set forth in the applicable Notes Collateral Documents to which they are a party and to perform its obligations and exercise its rights and powers thereunder. Notwithstanding the foregoing, no such consent or deemed consent shall be deemed or construed to represent an amendment or waiver, in whole or in part, of any provision of this Indenture or the Notes.
(h) Except as contemplated by the Notes Collateral Documents, neither the Trustee nor the Collateral Agent shall be responsible for the existence, genuineness or value of any loss of the Collateral or damage to for the validity, perfection, priority or enforceability of the Liens in any of the Collateral, for the validity or for any diminution in the value thereof, by reason sufficiency of the act or omission of any agent, bailee, clearing corporation or securities intermediary selected by the Collateral Agent in good faith (or selected by an agent, bailee, clearing corporation or securities intermediary so selected by the Collateral Agent or by any agent, bailee, clearing corporation or securities intermediary selected in accordance with this parenthetical phrase).
(g) Any corporation or association into which the Collateral Agent may be converted or merged, or with which it may be consolidated, or to which it may sell or transfer its agency business or assets as a whole or substantially as a whole, or any corporation agreement or association resulting from any such conversionassignment contained therein, sale, merger, consolidation or transfer to which it is a party, shall, subject to for the prior written consent of Secured Party, be and become a successor Collateral Agent hereunder and vested with all validity of the title of the Issuer or any Grantor to the Collateral, for insuring the Collateral and all or for the payment of taxes, charges, assessments or Liens upon the Collateral or otherwise as to the maintenance of the powers, discretions, immunities, privileges and other matters as was its predecessor without, except as provided above, the execution or filing of any instrument or any further act, deed or conveyance on the part of any of the parties hereto, anything herein to the contrary notwithstandingCollateral.
Appears in 4 contracts
Samples: Indenture (Community Health Systems Inc), Indenture (Community Health Systems Inc), Indenture (Community Health Systems Inc)
The Collateral Agent. (a) Secured Party hereby irrevocably appoints The Borrower agrees to pay, and authorizes the Collateral Agent shall be entitled to take such action receive, compensation for, and reimbursement for expenses in connection with, the Collateral Agent’s performance of the duties called for herein as agent on its behalf and to exercise such powers under this Agreement as are delegated to provided in the Collateral Agent by the terms hereof, together with all such powers as are reasonably incidental theretoFee Letter.
(b) The Collateral Agent shall have no liability for losses arising from (i) any cause beyond its control, (ii) any delay, error, omission or default of any mail, telegraph, cable or wireless agency or operator, or (iii) the acts or edicts of any government or governmental agency or other group or entity exercising governmental powers.
(c) It is expressly acknowledged and agreed that the Collateral Agent is not guaranteeing the performance of or assuming any liability for the obligations of the other parties hereto or any portion of the Collateral.
(d) The Collateral Agent hereunder are only those expressly set forth shall not be responsible for the preparation or filing of any UCC financing statements or continuation statements or the correctness of any financing statements filed in connection with this Agreement or the validity or perfection of any lien or security interest created pursuant to this Agreement.
(ce) In no event shall the Collateral Agent be liable for the selection of any investments or any losses in connection therewith, or for any failure of the relevant party to provide investment instruction to the Collateral Agent in connection with the investment of funds in or from any account set forth herein.
(f) The Collateral Agent may consult shall have no liability for any failure, inability or unwillingness on the part of the Investment Advisor, the Borrower or the Administrative Agent to provide accurate and complete information on a timely basis to the Collateral Agent, or otherwise on the part of any such party to comply with legal counselthe terms of this Agreement, independent public accountants and shall have no liability for any inaccuracy or error in the performance or observance on the Collateral Agent’s part of any of its duties hereunder that is caused by or results from any such inaccurate, incomplete or untimely information received by it, or other experts selected by it and failure on the part of any such other party to comply with the terms hereof.
(g) The Collateral Agent shall not be liable for bound to make any action taken investigation into the facts or omitted to be taken matters stated in any certificate, report or other document; provided, however, that, if the form thereof is prescribed by it in good faith in accordance with the advice of such counselthis Agreement, accountants or experts.
(d) Neither the Collateral Agent nor any of shall examine the same to determine whether it conforms on its directors, officers, agents or employees shall be liable for any action taken or not taken by it in connection with this Agreement (1) with face to the consent or at the request of Secured Party or (2) in the absence of its own gross negligence or willful misconductrequirements hereof. The Collateral Agent shall not incur be deemed to have knowledge or notice of any liability by acting in reliance upon any notice, consent, certificate, statement, or other writing (which may be matter unless actually known to a bank wire, telex or similar writing) believed by it to be genuine or to be signed by the proper party or parties.
(e) Pledgor shall indemnify the Collateral Agent against any cost, expense (including counsel fees and disbursements), claim, demand, action, loss or liability (except such as result from Responsible Officer of the Collateral Agent’s gross negligence or willful misconduct) . It is expressly acknowledged by the Borrower, the Investment Advisor, the Lenders and the Administrative Agent that the Collateral Agent may suffer or incur in connection with this Agreement or any action taken or omitted performance by the Collateral Agent hereunderof its various duties hereunder (including recalculations to be performed in respect of the matters expressly contemplated hereby) shall be based upon, and in reliance upon, data, information and notices provided to it by the Investment Advisor (and/or the Borrower), the Administrative Agent and/or any related bank agent, obligor or similar party with respect to the Collateral, and the Collateral Agent shall have no responsibility for the accuracy of any such information or data provided to it by such persons and shall be entitled to update its records (as it may deem necessary or appropriate). Nothing herein shall impose or imply any duty or obligation on the part of the Collateral Agent to verify, investigate or audit any such information or data, or to determine or monitor on an independent basis whether any issuer of the Collateral is in default or in compliance with the underlying documents governing or securing such item of Collateral, from time to time.
(fh) Beyond The Collateral Agent shall have no duty to determine or inquire into the exercise happening or occurrence of reasonable care any event or contingency, and it is agreed that its duties hereunder are purely ministerial in nature.
(i) Should any controversy arise between the undersigned with respect to the Collateral held by the Collateral Agent, the Collateral Agent shall, subject to Section 12.01(b) and Section 12.04, follow the written instructions of the Administrative Agent on behalf of the Secured Parties.
(j) The powers conferred on the Collateral Agent hereunder are solely to protect its interest (on behalf of the Secured Parties) in the custody thereofCollateral and shall not impose any duty on it to exercise any such powers. Except for performing the obligations expressly imposed on the Collateral Agent hereunder, the Collateral Agent shall have no duty as to any Collateral in its possession or control responsibility for ascertaining or in taking action with respect to calls, conversions, exchanges, maturities, tenders or other matters relative to any Collateral, whether or not the possession Collateral Agent has or control is deemed to have knowledge of such matters or taking any agent, bailee, clearing corporation or securities intermediary or any income thereon or as steps to the preservation of preserve rights against prior parties or any other rights pertaining thereto. to any Collateral.
(k) If State Street or the Collateral Agent is also acting in another capacity, including as Custodian or Securities Intermediary, the rights, protections, immunities and indemnities afforded to State Street or the Collateral Agent pursuant to this Article XII shall also be afforded to State Street or the Collateral Agent acting in such capacities; provided that such rights, protections, benefits, immunities and indemnities shall be in addition to, and not in limitation of, any rights, protections, benefits, immunities and indemnities provided in the Custodian Agreement, the Account Control Agreement or any other Facility Documents to which State Street or the Collateral Agent in such capacity is a party.
(l) The Collateral Agent shall be deemed not have any obligation to have exercised reasonable care determine if a Collateral Asset meets the criteria specified in the custody and preservation definition of the Eligible Collateral Asset or if the Collateral is accorded treatment substantially equal to that which it accords its own property, and shall not be liable or responsible for any loss or damage to any of the Collateral, or for any diminution requirements set forth in the value thereof, by reason definition of the act or omission of any agent, bailee, clearing corporation or securities intermediary selected by the Collateral Agent in good faith (or selected by an agent, bailee, clearing corporation or securities intermediary so selected by the Collateral Agent or by any agent, bailee, clearing corporation or securities intermediary selected in accordance with this parenthetical phrase)“Deliver” have been satisfied.
(gm) Any corporation or association into which the The Collateral Agent may shall not have any duties or obligations except those expressly set forth in the Facility Documents and no implied duties shall be converted read into this Agreement against or merged, or with which it may be consolidated, or to which it may sell or transfer its agency business or assets as a whole or substantially as a whole, or any corporation or association resulting from any such conversion, sale, merger, consolidation or transfer to which it is a party, shall, subject to the prior written consent of Secured Party, be and become a successor Collateral Agent hereunder and vested with all of the title to the Collateral and all of the powers, discretions, immunities, privileges and other matters as was its predecessor without, except as provided above, the execution or filing of any instrument or any further act, deed or conveyance on the part of any of the parties hereto, anything herein to the contrary notwithstandingCollateral Agent.
Appears in 3 contracts
Samples: Revolving Credit and Security Agreement (Goldman Sachs Private Credit Corp.), Revolving Credit and Security Agreement (Goldman Sachs Private Credit Corp.), Revolving Credit and Security Agreement (Goldman Sachs Private Credit Corp.)
The Collateral Agent. (a) Secured Party hereby By accepting a Note, each Holder is deemed to have irrevocably appoints and authorizes appointed the Collateral Agent to take such action act as its agent on its behalf under the Security Documents and to exercise such powers under this Agreement as are delegated to irrevocably authorized the Collateral Agent by to (i) perform the terms hereofduties and exercise the rights, together with all such powers as and discretions that are reasonably incidental thereto.
(b) The obligations of specifically given to it under the Collateral Agent hereunder are only those expressly set forth in this Agreement.
(c) The Collateral Agent may consult with legal counsel, independent public accountants and other experts selected by it and shall not be liable for any action taken or omitted to be taken by it in good faith in accordance with the advice of such counsel, accountants or experts.
(d) Neither the Collateral Agent nor any of its directors, officers, agents or employees shall be liable for any action taken or not taken by it in connection with this Agreement (1) with the consent or at the request of Secured Party or (2) in the absence of its own gross negligence or willful misconduct. The Collateral Agent shall not incur any liability by acting in reliance upon any notice, consent, certificate, statement, Security Documents or other writing (which may be a bank wire, telex or similar writing) believed by it to be genuine or to be signed by the proper party or parties.
(e) Pledgor shall indemnify the Collateral Agent against any cost, expense (including counsel fees and disbursements), claim, demand, action, loss or liability (except such as result from the Collateral Agent’s gross negligence or willful misconduct) that the Collateral Agent may suffer or incur in connection with this Agreement or any action taken or omitted by the Collateral Agent hereunder.
(f) Beyond the exercise of reasonable care in the custody thereof, the Collateral Agent shall have no duty as to any Collateral in its possession or control or in the possession or control of any agent, bailee, clearing corporation or securities intermediary or any income thereon or as to the preservation of rights against prior parties or any other rights pertaining thereto. The Collateral Agent shall be deemed to have exercised reasonable care in the custody and preservation of the Collateral if the Collateral is accorded treatment substantially equal to that which it accords its own property, and shall not be liable or responsible for any loss or damage to any of the Collateral, or for any diminution in the value thereof, by reason of the act or omission of any agent, bailee, clearing corporation or securities intermediary selected by the Collateral Agent in good faith (or selected by an agent, bailee, clearing corporation or securities intermediary so selected by the Collateral Agent or by any agent, bailee, clearing corporation or securities intermediary selected in accordance with this parenthetical phrase).
(g) Any corporation or association into which the Collateral Agent may be converted or merged, or with which it may be consolidated, or to which it may sell or transfer its agency business or assets as a whole or substantially as a whole, or any corporation or association resulting from any such conversion, sale, merger, consolidation or transfer documents to which it is a party, shalltogether with any other incidental rights, subject powers and discretions, and (ii) execute each document expressed to be executed by the Collateral Agent on its behalf. Each Holder agrees that the Collateral Agent shall be entitled to the prior written consent of Secured Partyrights, be privileges, protections, immunities, indemnities and become a successor Collateral Agent hereunder and vested with all of the title benefits provided to the Collateral Agent by this Indenture and all the Security Documents. The Collateral Agent will have no duties or obligations except those expressly set forth in the Security Documents to which it is party; provided, however that no provision of this Indenture shall be construed to relieve the Collateral Agent from liability for its own negligent action, its own negligent failure to act or its own willful misconduct. Notwithstanding the generality of the powers, discretions, immunities, privileges foregoing:
(a) The duties and other matters as was its predecessor without, except as provided above, obligations of the execution Collateral Agent shall be determined solely by the express provisions of this Indenture and the Security Documents and the Collateral Agent shall not be liable to any party hereto or filing to any Security Document to which it is a party by reason of any instrument or any further act, deed or conveyance failure on the part of any other party hereto or any maker, guarantor, endorser or other signatory of any document or any other Person to perform such Person’s obligations under any such document.
(b) The Collateral Agent shall not be responsible in any manner for the validity, enforceability or sufficiency of this Indenture, the Security Documents or any Collateral delivered under the Security Documents, or for the value or collectability of any Notes or for any representations made or obligations assumed by any party other than the Collateral Agent. The Collateral Agent shall not be bound to examine or inquire into or be liable for any defect or failure in the right or title of the parties hereto, anything herein Grantors to all or any of the assets whether such defect or failure was known to the contrary notwithstandingCollateral Agent or might have been discovered upon examination or inquiry and whether capable of remedy or not.
Appears in 3 contracts
Samples: Indenture (Goodrich Petroleum Corp), Note Purchase Agreement (Goodrich Petroleum Corp), Indenture (Goodrich Petroleum Corp)
The Collateral Agent. (a) Secured Party hereby irrevocably appoints and authorizes the The Collateral Agent to take such action as agent on shall have no liability for losses arising from (i) any cause beyond its behalf and to exercise such powers under this Agreement as are delegated to control, (ii) any delay, error, omission or default of any mail, telegraph, cable or wireless agency or operator, or (iii) the Collateral Agent by the terms hereof, together with all such powers as are reasonably incidental theretoacts or edicts of any government or governmental agency or other group or entity exercising governmental powers.
(b) The It is expressly acknowledged and agreed that the Collateral Agent is not guaranteeing the performance of or assuming any liability for the obligations of the Collateral Agent hereunder are only those expressly set forth in this Agreementother parties hereto or any portion of the Collateral.
(c) The Collateral Agent may consult shall not be responsible for the preparation or filing of any UCC financing statements or continuation statements or the correctness of any financing statements filed in connection with legal counsel, independent public accountants and other experts selected by it and this Agreement or the validity or perfection of any lien or security interest created pursuant to this Agreement.
(d) The Collateral Agent shall not be liable for interest on any action taken or omitted to be taken money received by it except as the Collateral Agent may agree in good faith in accordance writing with the advice Borrower. In no event shall the Collateral Agent be liable for the selection of such counselany investments or any losses in connection therewith (except in its capacity as obligor thereunder, accountants if applicable), or expertsfor any failure of the relevant party to provide investment instruction to the Collateral Agent in connection with the investment of funds in or from any account set forth herein.
(de) Neither The Collateral Agent shall have no liability for any failure, inability or unwillingness on the part of the Collateral Manager, the Borrower or the Administrative Agent to provide accurate and complete information on a timely basis to the Collateral Agent, or otherwise on the part of any such party to comply with the terms of this Agreement, and shall have no liability for any inaccuracy or error in the performance or observance on the Collateral Agent’s part of any of its duties hereunder that is caused by or results from any such inaccurate, incomplete or untimely information received by it, or other failure on the part of any such other party to comply with the terms hereof.
(f) The Collateral Agent shall not be bound to make any investigation into the facts or matters stated in any certificate, report or other document or electronic communication; provided, however, that, if the form thereof is prescribed by this Agreement, the Collateral Agent nor any of shall examine the same to determine whether it conforms on its directors, officers, agents or employees shall be liable for any action taken or not taken by it in connection with this Agreement (1) with face to the consent or at the request of Secured Party or (2) in the absence of its own gross negligence or willful misconductrequirements hereof. The Collateral Agent shall not incur be deemed to have knowledge or notice of any liability by acting in reliance upon any notice, consent, certificate, statement, or other writing (which may be matter unless actually known to a bank wire, telex or similar writing) believed by it to be genuine or to be signed Responsible Officer. It is expressly acknowledged by the proper party or parties.
(e) Pledgor shall indemnify Borrower, the Collateral Manager, the Lenders and the Administrative Agent against any cost, expense (including counsel fees and disbursements), claim, demand, action, loss or liability (except such as result from the Collateral Agent’s gross negligence or willful misconduct) that the Collateral Agent may suffer or incur in connection with this Agreement or any action taken or omitted performance by the Collateral Agent hereunderof its various duties hereunder (including recalculations to be performed in respect of the matters contemplated hereby) shall be based upon, and in reliance upon, data, information and notices provided to it by the Collateral Manager (and/or the Borrower) and/or any related bank agent, obligor or similar party with respect to the Collateral, and the Collateral Agent shall have no responsibility for the accuracy of any such information or data provided to it by such persons and shall be entitled to update its records (as it may deem necessary or appropriate). Nothing herein shall impose or imply any duty or obligation on the part of the Collateral Agent to verify, investigate or audit any such information or data, or to determine or monitor on an independent basis whether any issuer of the Collateral is in default or in compliance with the underlying documents governing or securing such item of Collateral, from time to time.
(fg) Beyond The Collateral Agent shall have no duty to determine or inquire into the exercise happening or occurrence of reasonable care any event or contingency, and it is agreed that its duties hereunder are purely ministerial in nature.
(h) Should any controversy arise between the undersigned with respect to the Collateral held by the Collateral Agent, the Collateral Agent shall follow the instructions of the Administrative Agent on behalf of the Secured Parties.
(i) The powers conferred on the Collateral Agent hereunder are solely to protect its interest (on behalf of the Secured Parties) in the custody thereofCollateral and shall not impose any duty on it to exercise any such powers. Except for performing the obligations expressly imposed on the Collateral Agent hereunder, the Collateral Agent shall have no duty as to any Collateral in its possession or control responsibility for ascertaining or in taking action with respect to calls, conversions, exchanges, maturities, tenders or other matters relative to any Collateral, whether or not the possession Collateral Agent has or control is deemed to have knowledge of such matters or taking any agent, bailee, clearing corporation or securities intermediary or any income thereon or as steps to the preservation of preserve rights against prior parties or any other rights pertaining thereto. The Collateral Agent shall be deemed to have exercised reasonable care in the custody and preservation of the Collateral if the Collateral is accorded treatment substantially equal to that which it accords its own property, and shall not be liable or responsible for any loss or damage to any of the Collateral, or for any diminution in the value thereof, by reason of the act or omission of any agent, bailee, clearing corporation or securities intermediary selected by the Collateral Agent in good faith (or selected by an agent, bailee, clearing corporation or securities intermediary so selected by the Collateral Agent or by any agent, bailee, clearing corporation or securities intermediary selected in accordance with this parenthetical phrase).
(gj) Any corporation or association into which In order to comply with the laws, rules, regulations and executive orders in effect from time to time applicable to banking institutions, including those relating to the funding of terrorist activities and money laundering, the Collateral Agent may be converted or mergedrequired to obtain, verify and record certain information relating to individuals and entities which maintain a business relationship with the Collateral Agent. Accordingly, each of the parties hereto agrees to provide to the Collateral Agent upon its request from time to time such identifying information and documentation as may be available to such party in order to enable the Collateral Agent to comply with such requirements.
(k) If U.S. Bank Trust Company, National Association, U.S. Bank National Association, or with the Collateral Agent is also acting in another capacity, including as Custodian or Securities Intermediary, the rights, protections, immunities and indemnities afforded to U.S. Bank Trust Company, National Association, U.S. Bank National Association, or the Collateral Agent or the Collateral Agent pursuant to this Article XII shall also be afforded to U.S. Bank Trust Company, National Association, U.S. Bank National Association, or the Collateral Agent or the Collateral Agent acting in such capacities; provided that such rights, protections, benefits, immunities and indemnities shall be in addition to, and not in limitation of, any rights, protections, benefits, immunities and indemnities provided in the Custodian Agreement, Account Control Agreement or any other Facility Documents to which it may U.S. Bank Trust Company, National Association, U.S. Bank National Association or the Collateral Agent in such capacity is a party.
(l) The Collateral Agent shall not have any obligation to determine if a Collateral Loan meets the criteria specified in the definition of Eligible Collateral Loan or if the requirements set forth in the definition of “Deliver” have been satisfied.
(m) The Collateral Agent shall not be consolidatedunder any obligation (i) to monitor, determine or verify the unavailability or cessation of any Interest Rate (or any other applicable index, floating rate, interest rate or Benchmark Replacement), or whether or when there has occurred, or to which it may sell give notice to any other transaction party of the occurrence of, any Benchmark Replacement Date, Benchmark Transition Event, Benchmark Transition Start Date or transfer Benchmark Unavailability Period, (ii) to select, determine or designate any Benchmark Replacement or other alternate benchmark rate, or other successor or replacement rate, or whether any conditions to the designation of such a rate have been satisfied, or (iii) to select, determine or designate any Benchmark Replacement Adjustment or other modifier to any Benchmark Replacement or other replacement or successor rate or index, or (iv) to determine whether or what Conforming Changes are necessary or advisable, if any, in connection with any of the foregoing.
(n) The Collateral Agent shall not be liable for any inability, failure or delay on its agency business or assets part to perform any of its duties set forth in this Agreement as a whole result of the unavailability of any Interest Rate (or substantially any Benchmark Replacement or other applicable index, floating rate or Base Rate) and absence of any Benchmark Replacement or other replacement index or floating rate, including as a whole, or any corporation or association resulting from any such conversion, sale, merger, consolidation or transfer to which it is a party, shall, subject to the prior written consent of Secured Party, be and become a successor Collateral Agent hereunder and vested with all of the title to the Collateral and all of the powers, discretions, immunities, privileges and other matters as was its predecessor without, except as provided above, the execution or filing result of any instrument inability, delay, error or any further act, deed or conveyance inaccuracy on the part of any other transaction party, including without limitation the Administrative Agent, the Borrower or the Collateral Manager, in providing any direction, instruction, notice or information required or contemplated by the terms of this Agreement and reasonably required for the parties hereto, anything herein to the contrary notwithstandingperformance of such duties.
Appears in 3 contracts
Samples: Credit Agreement (HPS Corporate Lending Fund), Credit Agreement (HPS Corporate Lending Fund), Revolving Credit and Security Agreement (HPS Corporate Lending Fund)
The Collateral Agent. (a) Secured Party hereby irrevocably appoints and authorizes The Collateral Agent will hold in accordance with this Agreement all items of the Collateral Agent to take such action as agent on its behalf and to exercise such powers at any time received under this Agreement as are delegated to the Collateral Agent Agreement. It is expressly understood and agreed by the terms hereofparties hereto and each Secured Creditor, together with all such powers as are reasonably incidental thereto.
(b) The by accepting the benefits of this Agreement acknowledges and agrees that the obligations of the Collateral Agent hereunder as holder of the Collateral and interests therein and with respect to the disposition thereof, and otherwise under this Agreement, are only those expressly set forth in this Agreement. In connection with its appointment and acting hereunder, the Collateral Agent shall be entitled to all rights, privileges, benefits, protections, immunities and indemnities provided to it under the Indenture.
(c) The Collateral Agent may consult with legal counsel, independent public accountants and other experts selected by it and shall not be liable for any action taken or omitted to be taken by it in good faith in accordance with the advice of such counsel, accountants or experts.
(d) Neither the Collateral Agent nor any of its directors, officers, agents or employees shall be liable for any action taken or not taken by it in connection with this Agreement (1) with the consent or at the request of Secured Party or (2) in the absence of its own gross negligence or willful misconduct. The Collateral Agent shall not incur any liability by acting in reliance upon any notice, consent, certificate, statement, or other writing (which may be a bank wire, telex or similar writing) believed by it to be genuine or to be signed by the proper party or parties.
(e) Pledgor shall indemnify the Collateral Agent against any cost, expense (including counsel fees and disbursements), claim, demand, action, loss or liability (except such as result from the Collateral Agent’s gross negligence or willful misconduct) that the Collateral Agent may suffer or incur in connection with this Agreement or any action taken or omitted by the Collateral Agent hereunder.
(fb) Beyond the exercise of reasonable care in the custody thereof, the Collateral Agent shall have no duty as to any Collateral in its possession or control or in the possession or control of any agent, bailee, clearing corporation agent or securities intermediary bailee or any income thereon or as to the preservation of rights against prior parties or any other rights pertaining theretothereto and the Collateral Agent shall not be responsible for filing any financing or continuation statements or recording any documents or instruments in any public office at any time or times or otherwise perfecting or maintaining the perfection of any security interest in the Collateral. The Collateral Agent shall be deemed to have exercised reasonable care in the custody and preservation of the Collateral in its possession if the Collateral is accorded treatment substantially equal to that which it accords its own property, property and shall not be liable or responsible for any loss or damage to diminution in the value of any of the Collateral, or for any diminution in the value thereof, by reason of the act or omission of any agentcarrier, bailee, clearing corporation forwarding agency or securities intermediary other agent or bailee selected by the Collateral Agent in good faith (or selected by an agent, bailee, clearing corporation or securities intermediary so selected by the Collateral Agent or by any agent, bailee, clearing corporation or securities intermediary selected in accordance with this parenthetical phrase)faith.
(gc) Any corporation The Collateral Agent shall not be responsible for the existence, genuineness or association into which value of any of the Collateral Agent may be converted or mergedfor the validity, perfection, priority or with which it may be consolidatedenforceability of the Liens in any of the Collateral, whether impaired by operation of law or by reason of any of any action or omission to which it may sell or transfer act on its agency business or assets as a whole or substantially as a wholepart hereunder, or any corporation or association resulting from any such conversion, sale, merger, consolidation or transfer to which it is a party, shall, subject except to the prior written consent of Secured Partyextent such action or omission constitutes negligence, be and become a successor Collateral Agent hereunder and vested with all of the title to the Collateral and all of the powers, discretions, immunities, privileges and other matters as was its predecessor without, except as provided above, the execution bad faith or filing of any instrument or any further act, deed or conveyance wilful misconduct on the part of any the Collateral Agent, for the validity or sufficiency of the parties heretoCollateral or any agreement or assignment contained therein, anything herein for the validity of the title of the Pledgors to the contrary notwithstandingCollateral, for insuring the Collateral or for the payment of taxes, charges, assessments or Liens upon the Collateral or otherwise as to the maintenance of the Collateral.
(d) The Collateral Agent shall have no duty to act outside of the United States in respect of any Collateral located in the jurisdiction other than the United States.
Appears in 3 contracts
Samples: Indenture (Coinmach Service Corp), Security Agreement (Coinmach Service Corp), Pledge Agreement (Coinmach Service Corp)
The Collateral Agent. (a) Secured Party hereby By accepting a Note, each Holder will be deemed to have irrevocably appoints and authorizes appointed the Collateral Agent to take such action act as its agent on its behalf under the Notes Collateral Documents and to exercise such powers under this Agreement as are delegated to irrevocably authorized the Collateral Agent by to (i) perform the terms hereofduties and exercise the rights, powers and discretions that are specifically given to it under the Notes Collateral Documents or other documents to which it is a party, together with all such any other incidental rights, powers as are reasonably incidental thereto.
and discretions and (bii) The obligations of execute each document expressed to be executed by the Collateral Agent hereunder are on its behalf. The Holders may not, individually or collectively, take any direct action to enforce the Notes Collateral Documents. The Holders may only act by instruction to the Trustee, which shall instruct the Collateral Agent subject to the Pari Passu Intercreditor Agreement. The Collateral Agent will have no duties or obligations except those expressly set forth in this Agreement.
(c) the Notes Collateral Documents to which it is party. The Collateral Agent may consult with legal counsel, independent public accountants and other experts selected by it and shall will not be liable for any action taken or omitted to be taken by it in good faith in accordance with the advice of such counsel, accountants or experts.
(d) Neither the Collateral Agent nor any of its directors, officers, agents or employees shall be liable for any action taken or not taken by it in connection with this Agreement (1) with the consent or at the request of Secured Party or (2) in the absence of its own gross negligence negligence, willful misconduct or willful misconductbad faith. The Collateral Agent shall will be entitled to rely upon, and will not incur any liability by acting in reliance upon for relying upon, any notice, consentrequest, certificate, consent, statement, instrument, document or other writing (which may be a bank wire, telex or similar writing) believed by it to be genuine and to have been signed or to be signed sent by the proper party or parties.
(e) Pledgor shall indemnify the Collateral Agent against any cost, expense (including counsel fees and disbursements), claim, demand, action, loss or liability (except such as result from the Collateral Agent’s gross negligence or willful misconduct) that the person. The Collateral Agent may suffer also rely upon any statement made to it orally or by telephone and believed by it to have been made by the proper person, and shall not incur in connection any liability for relying thereon. The Collateral Agent may consult with this Agreement or legal counsel (who may be counsel for the Issuer), independent accountants and other experts selected by it, and will not be liable for any action taken or omitted not taken by it in accordance with the Collateral Agent hereunder.
(f) Beyond advice of any such counsel, accountants or experts. Without limiting the exercise generality of reasonable care in the custody thereofforegoing, the Collateral Agent shall have no duty as to any Collateral in its possession or control or in the possession or control of any agent, bailee, clearing corporation or securities intermediary or any income thereon or as to the preservation of rights against prior parties or any other rights pertaining thereto. The Collateral Agent shall be deemed to have exercised reasonable care in the custody and preservation of the Collateral if the Collateral is accorded treatment substantially equal to that which it accords its own property, and shall not be liable or responsible for any loss or damage to any of the Collateral, or for any diminution in the value thereof, by reason of the act or omission of any agent, bailee, clearing corporation or securities intermediary selected by the Collateral Agent in good faith (or selected by an agent, bailee, clearing corporation or securities intermediary so selected by the Collateral Agent or by any agent, bailee, clearing corporation or securities intermediary selected in accordance with this parenthetical phrase).
(g) Any corporation or association into which the Collateral Agent may be converted or merged, or with which it may be consolidated, or to which it may sell or transfer its agency business or assets as a whole or substantially as a whole, or any corporation or association resulting from any such conversion, sale, merger, consolidation or transfer to which it is a party, shall, subject to the prior written consent of Secured Party, be and become a successor Collateral Agent hereunder and vested with all of the title to the Collateral and all of the powers, discretions, immunities, privileges and other matters as was its predecessor without, except as provided above, the execution or filing of any instrument or any further act, deed or conveyance on the part of any of the parties hereto, anything herein to the contrary notwithstanding.Agent:
Appears in 3 contracts
Samples: Indenture (Community Health Systems Inc), Indenture (Community Health Systems Inc), Indenture (Community Health Systems Inc)
The Collateral Agent. The provisions of Article 8 of the Credit Agreement shall inure to the benefit of the Collateral Agent, and shall be binding upon all Grantors and all Secured Parties, in connection with this Agreement and the other Security Documents. Without limiting the generality of the foregoing, (ai) Secured Party hereby irrevocably appoints and authorizes the Collateral Agent shall not be subject to take such action as agent on its behalf any fiduciary or other implied duties, regardless of whether an Event of Default has occurred and to exercise such powers under this Agreement as are delegated to is continuing, (ii) the Collateral Agent shall not have any duty to take any discretionary action or exercise any discretionary powers, except discretionary rights and powers expressly contemplated by the terms hereof, together with all such powers as are reasonably incidental thereto.
(b) The obligations of Security Documents that the Collateral Agent hereunder are only those is required in writing to exercise by the Required Lenders (or such other number or percentage of the Lenders as shall be necessary under the circumstances as provided in Section 9.07 of the Credit Agreement), and (iii) except as expressly set forth in this Agreement.
(c) The the Loan Documents, the Collateral Agent may consult with legal counselshall not have any duty to disclose, independent public accountants and other experts selected by it and shall not be liable for any action taken failure to disclose, any information relating to any Grantor that is communicated to or omitted to be taken obtained by it in good faith in accordance with the advice of such counsel, accountants or experts.
(d) Neither bank serving as the Collateral Agent nor or any of its directorsAffiliates in any capacity. The Collateral Agent shall not be responsible for the existence, officersgenuineness or value of any Collateral or for the validity, agents perfection, priority or employees enforceability of any Transaction Lien, whether impaired by operation of law or by reason of any action or omission to act on its part under the Security Documents. The Collateral Agent shall not be liable for any action taken or not taken by it in connection with this Agreement (1) with the consent or at the request of Secured Party the Required Lenders (or (2such other number or percentage of the Lenders as shall be necessary under the circumstances as provided in Section 9.07 of the Credit Agreement) or in the absence of its own gross negligence or willful misconduct. The Collateral Agent shall be deemed not incur to have knowledge of any liability by acting in reliance upon any notice, consent, certificate, statement, or other writing (which may be a bank wire, telex or similar writing) believed by it Event of Default unless and until written notice thereof is given to be genuine or to be signed by the proper party or parties.
(e) Pledgor shall indemnify the Collateral Agent against any cost, expense (including counsel fees and disbursements), claim, demand, action, loss or liability (except such as result from the Collateral Agent’s gross negligence or willful misconduct) that the Collateral Agent may suffer or incur in connection with this Agreement or any action taken or omitted by the Collateral Agent hereunder.
(f) Beyond the exercise of reasonable care in the custody thereof, the Collateral Agent shall have no duty as to any Collateral in its possession Borrower or control or in the possession or control of any agent, bailee, clearing corporation or securities intermediary or any income thereon or as to the preservation of rights against prior parties or any other rights pertaining thereto. The Collateral Agent shall be deemed to have exercised reasonable care in the custody and preservation of the Collateral if the Collateral is accorded treatment substantially equal to that which it accords its own property, and shall not be liable or responsible for any loss or damage to any of the Collateral, or for any diminution in the value thereof, by reason of the act or omission of any agent, bailee, clearing corporation or securities intermediary selected by the Collateral Agent in good faith (or selected by an agent, bailee, clearing corporation or securities intermediary so selected by the Collateral Agent or by any agent, bailee, clearing corporation or securities intermediary selected in accordance with this parenthetical phrase).
(g) Any corporation or association into which the Collateral Agent may be converted or merged, or with which it may be consolidated, or to which it may sell or transfer its agency business or assets as a whole or substantially as a whole, or any corporation or association resulting from any such conversion, sale, merger, consolidation or transfer to which it is a party, shall, subject to the prior written consent of Secured Party, be and become a successor Collateral Agent hereunder and vested with all of the title to the Collateral and all of the powers, discretions, immunities, privileges and other matters as was its predecessor without, except as provided above, the execution or filing of any instrument or any further act, deed or conveyance on the part of any of the parties hereto, anything herein to the contrary notwithstanding.
Appears in 2 contracts
Samples: Guarantee and Collateral Agreement (School Specialty Inc), Guarantee and Collateral Agreement (School Specialty Inc)
The Collateral Agent. The Collateral Agent shall not have any duties or obligations except those expressly set forth herein. Without limiting the generality of the foregoing, the Collateral Agent:
(a) Secured Party shall not be subject to any fiduciary or other implied duties, regardless of whether an Event of Default has occurred and is continuing;
(b) shall not have any duty to take any discretionary action or exercise any discretionary powers, except discretionary rights and powers expressly contemplated hereby irrevocably appoints and authorizes that the Collateral Agent is required to exercise as directed in writing by the Trustee; provided that the Collateral Agent shall not be required to take any action that, in its opinion or the opinion of its counsel, may expose the Collateral Agent to take such action as agent on liability, or for which it is not indemnified to its behalf and satisfaction, or that is contrary to exercise such powers under this Agreement as are delegated to the Collateral Agent by the terms hereof, together with all such powers as are reasonably incidental thereto.
(b) The obligations of the Collateral Agent hereunder are only those expressly set forth in this Agreement., applicable law;
(c) The Collateral Agent may consult with legal counsel, independent public accountants and other experts selected by it and shall not be liable for any action taken or omitted to be taken by it in good faith in accordance with the advice of such counsel, accountants or experts.
(d) Neither the Collateral Agent nor any of its directors, officers, agents or employees shall be liable for any action taken or not taken by it in connection with this Agreement (1) with the consent or at the request of any Indenture Secured Party or (2) in the absence of its own gross negligence or willful misconductmisconduct or (3) in reliance on a certificate of an authorized officer of the Issuer stating that such action is permitted by the terms of this Agreement;
(d) shall not be responsible for or have any duty to ascertain or inquire into (1) any statement, warranty or representation made in or in connection with this Agreement, (2) the contents of any certificate, report or other document delivered hereunder or thereunder or in connection herewith or therewith, (3) the performance or observance by any other Person of any of the covenants, agreements or other terms or conditions set forth herein or therein or the occurrence of any Default or Event of Default, (4) the validity, enforceability, effectiveness or genuineness of this Agreement, any other Security Document or any other agreement, instrument or document, or the creation, perfection or priority of any Lien purported to be created by the Security Interest, (5) the value or the sufficiency of any Collateral or (6) the satisfaction of any condition set forth in any agreement, other than to confirm receipt of items expressly required to be delivered to the Collateral Agent. In addition:
(a) The duties and obligations of the Collateral Agent shall be determined solely by the express provisions of this Agreement and the Collateral Agent shall not be liable except for the performance of such duties and obligations as are specifically set out in this Agreement. The Collateral Agent shall be under no liability to any party hereto by reason of any failure on the part of any other party hereto or any maker, guarantor, endorser or other signatory of any document or any other Person to perform such Person’s obligations under any such document.
(b) The Collateral Agent shall not be responsible in any manner for the validity, enforceability or sufficiency of this Agreement, the Security Interest or any Collateral delivered to it, or for the value or collectability of any Obligations or other instrument, if any, so delivered, or for any representations made or obligations assumed by any party other than the Collateral Agent. The Collateral Agent shall not be bound to examine or inquire into or be liable for any defect or failure in the right or title of the Issuer to all or any of the assets whether such defect or failure was known to the Collateral Agent or might have been discovered upon examination or inquiry and whether capable of remedy or not.
(c) The Collateral Agent shall not be responsible for any unsuitability, inadequacy, expiration or unfitness of any security interest created hereunder or pursuant to any other document pertaining to this matter nor shall it be obligated to make any investigation into, and shall be entitled to assume, the adequacy and fitness of any security interest created hereunder or pursuant to any other document pertaining to this matter.
(d) The Collateral Agent shall not be liable for any error of judgment, or for any act done or step taken or omitted by it in good faith.
(e) The Collateral Agent may seek the advice, at the expense of the Issuer, of legal counsel in the event of any dispute or question as to the construction of any of the provisions of this Agreement or its duties hereunder or under any document or applicable law, and it shall incur no liability and shall be fully protected in respect of any liability action taken, omitted or suffered by acting it in reliance upon good faith in accordance with the advice or written opinion of such counsel.
(f) The Collateral Agent shall not be bound to make any notice, consentinvestigation into the facts or matters stated in any resolution, certificate, statement, instrument, opinion, report, notice, request, consent, approval or other writing (which may be a bank wire, telex paper or similar writing) believed by it to be genuine or to be signed by the proper party or partiesdocument.
(eg) Pledgor In no event shall indemnify the Collateral Agent against be liable for any costindirect, expense special, punitive or consequential loss or damage of any kind whatsoever, including, but not limited to, lost profits, even if such loss or damage was foreseeable or it has been advised of the likelihood of such loss or damage and regardless of the form of action.
(including counsel fees and disbursementsh) In no event shall the Collateral Agent be liable for any failure or delay in the performance of its obligations hereunder because of circumstances beyond its control, including, but not limited to, acts of God, flood, war (whether declared or undeclared), claimterrorism, demandstrikes, actionwork stoppages, civil or military disturbances, nuclear or natural catastrophes, fire, riot, embargo, loss or liability malfunctions of utilities, communications or computer (except such as result software and hardware) services, government action, including any laws, ordinances, regulations, governmental action or the like which delay, restrict or prohibit the providing of the services contemplated by this Agreement.
(i) The Collateral Agent shall be entitled to seek written directions from the Trustee prior to taking any action under this Agreement, or any Collateral Agent’s gross negligence instrument or willful misconductany of the other Noteholder Documents.
(j) that the The Collateral Agent may suffer shall have no responsibility for or incur in connection liability with respect to monitoring compliance of any other party to this Agreement or any other document related hereto or thereto. The Collateral Agent has no duty to monitor the value or rating of any Collateral on an ongoing basis.
(k) No provision of this Agreement shall require the Collateral Agent to expend, advance or risk its own funds or otherwise incur any financial liability in the performance of any of its duties hereunder or in the exercise of any of its rights or powers hereunder unless it is indemnified to its satisfaction and the Collateral Agent shall have no liability to any person for any loss occasioned by any delay in taking or failure to take any such action taken while it is awaiting an indemnity satisfactory to it.
(l) Whenever in the administration of this Agreement the Collateral Agent shall deem it desirable that a matter be proved or omitted established prior to taking, suffering or omitting any action hereunder, the Collateral Agent (unless other evidence be herein specifically prescribed) may, in the absence of bad faith on its part, conclusively rely upon instructions from the Trustee.
(m) The Collateral Agent may act and rely and shall be protected in acting and relying in good faith on the opinion or advice of, or information obtained from, any counsel, accountant, investment banker, appraiser or other expert or adviser, whether retained or employed by the Trustee or by the Collateral Agent.
(n) The Collateral Agent may employ or retain such counsel, accountants, sub-agent, agent or attorney-in-fact, appraisers or other experts or advisers as it may reasonably require for the purpose of determining and discharging its rights and duties hereunder and shall not be responsible for the actions of any parties it appoints with due care.
(o) The Collateral Agent may request that the Issuer or other parties deliver a certificate setting forth the names of individuals and/or titles of officers authorized at such time to take specified actions pursuant to this Agreement.
(p) Money held by the Collateral Agent hereunderin trust hereunder need not be segregated from other funds except to the extent required by law. The Collateral Agent shall be under no liability for interest on any money received by it hereunder except as otherwise agreed in writing.
(fq) Beyond the exercise of reasonable care in the custody thereof, the Collateral Agent shall have no duty as to any Collateral in its possession or control or in the possession or control of any agent, bailee, clearing corporation agent or securities intermediary bailee or any income thereon or as to the preservation of rights against prior parties or any other rights pertaining theretothereto and the Collateral Agent shall not be responsible for filing any financing or continuation statements or recording any documents or instruments in any public office at any time or times or otherwise perfecting or maintaining the perfection of any security interest in the Collateral. All such duties shall be the duty of the Issuer. The Collateral Agent shall be deemed to have exercised reasonable care in the custody and preservation of the Collateral in its possession if the Collateral is accorded treatment substantially equal to that which it accords its own property, similar collateral and shall not be liable or responsible for any loss or damage to diminution in the value of any of the Collateral, or for any diminution in the value thereof, by reason of the act or omission of any agentcarrier, forwarding agency or other agent or bailee.
(r) The Collateral Agent shall have no duty to ascertain or inquire as to or monitor the performance or observance of any of the terms of the Indenture, clearing corporation this Agreement, the other Noteholder Documents or securities intermediary selected documents by any other Person.
(s) The Issuer shall defend, indemnify, and hold harmless the Collateral Agent (which for purposes of this paragraph (s) shall be deemed to include its officers, directors, employees and agents) from and against any claims, demands, penalties, fines, liabilities, settlements, damages or reasonable costs or expenses of whatever kind or nature, known or unknown, contingent or otherwise, arising out of the following in respect of the Collateral: (w) the presence, disposal, release, or threatened release of any Hazardous Materials which are on, from, or affecting the soil, water, vegetation, buildings, personal property, persons or animals; (x) any personal injury (including wrongful death) or property damage (real or personal) arising out of or related to such Hazardous Materials; (y) any lawsuit brought or threatened, settlement reached, or government order relating to such Hazardous Materials; and/or (z) any violation of laws, orders, regulations, requirements or demands of government authorities, which are based upon or in any way related to such Hazardous Materials including, reasonable attorney and consultant fees and expenses, reasonable investigation and laboratory fees, court costs, and reasonable litigation expenses, except, in each case, where such claims, demands, penalties, fines, liabilities, settlements, damages, costs or expenses arise solely from the gross negligence, bad faith or willful misconduct of the Collateral Agent as determined in a final, non-appealable order of a court of competent jurisdiction. For purposes of this paragraph, “Hazardous Materials” includes radioactive materials, hazardous materials, hazardous wastes, hazardous or toxic substances defined in the U.S. Comprehensive Environmental Response, Compensation, and Liability Act of 1980, as amended (42 U.S.C. § 9601, et seq.) (“CERCLA”), the Hazardous Materials Transportation Act, as amended (49 U.S.C. Sections 5108, et seq.), the Resource Conservation and Recovery Act, as amended (42 U.S.C. Sections 6901, et seq.), and in the regulations adopted and publications promulgated pursuant thereto, or any other Federal, state or local environmental law, ordinance, rule, or regulation. The provisions of this paragraph shall be in addition to any and all other obligations and liabilities Issuer may have to the Collateral Agent at common law, and shall survive the termination of this Agreement, and the resignation or removal of the Trustee.
(t) The Collateral Agent reserves the right to conduct an environmental audit prior to foreclosing on any real estate Collateral or mortgage Collateral. The Collateral Agent reserves the right to forebear from foreclosing in its own name if to do so may expose it to undue risk.
(u) Upon any payment or distribution of assets hereunder, the Collateral Agent, and the Indenture Secured Parties shall be entitled to conclusively rely upon any order or decree entered by any court of competent jurisdiction in which an Insolvency or Liquidation Proceeding is pending, or a certificate of the trustee in bankruptcy, liquidating trustee, custodian, receiver, assignee for the benefit of creditors, agent or other person making such payment or distribution in the Insolvency or Liquidation Proceeding, delivered to the Collateral Agent, for the purpose of ascertaining the persons entitled to participate in such payment or distribution, the amount thereof or payable thereon, the amount or amounts paid or distributed thereon and all other facts pertinent thereto.
(v) In the event that, following a foreclosure in respect of any mortgaged Real Property, the Collateral Agent acquires title to any portion of such mortgaged Real Property or takes any managerial action of any kind in regard thereto in order to carry out any fiduciary or trust obligation for the benefit of another, which in the Collateral Agent’s sole discretion may cause the Collateral Agent to be considered an “owner or operator” under the provisions of CERCLA or otherwise cause the Collateral Agent to incur liability under CERCLA or any other Federal, state or local law, the Collateral Agent reserves the right, instead of taking such action, to either resign as Collateral Agent or arrange for the transfer of the title or control of the asset to a court-appointed receiver.
(w) The rights and protections of the Collateral Agent set forth herein shall also be applicable to the Collateral Agent in good faith its roles as mortgagee, beneficiary, pledgee or any of its other roles (including as Collateral Agent) under any documents related to the Collateral.
(x) Nothing in this Agreement, expressed or selected by an agentimplied, bailee, clearing corporation is intended to or securities intermediary shall be so selected by construed as to impose upon the Collateral Agent any obligations in respect of any Noteholder Document or by any agent, bailee, clearing corporation Collateral except as expressly set forth herein or securities intermediary selected in accordance with this parenthetical phrase)therein.
(gy) Any corporation The Collateral Agent may resign at any time by giving written notice thereof to the Issuer and the Trustee; provided that no such resignation shall take effect until a successor Collateral Agent has been appointed and has agreed to act as such under this Agreement. Upon any such resignation, the Issuer shall promptly (and no later than within 30 days) appoint a successor to the Collateral Agent. Upon the acceptance of any appointment as Collateral Agent hereunder by a successor Collateral Agent, such successor Collateral Agent shall thereupon succeed to and become vested with all the rights, powers, privileges and duties of the retiring Collateral Agent, and the retiring Collateral Agent shall be discharged from its duties and obligations. After any retiring Collateral Agent’s resignation as Collateral Agent, the provisions of this Agreement shall inure to its benefit as to any actions taken or association into which omitted to be taken by it while it was Collateral Agent. If the Issuer fails to appoint a successor Collateral Agent within 30 days, the Collateral Agent may be converted or merged, or with which it may be consolidated, or petition a court of competent jurisdiction to which it may sell or transfer its agency business or assets as a whole or substantially as a whole, or any corporation or association resulting from any such conversion, sale, merger, consolidation or transfer to which it is a party, shall, subject to the prior written consent of Secured Party, be and become a successor Collateral Agent hereunder and vested with all of the title to the Collateral and all of the powers, discretions, immunities, privileges and other matters as was its predecessor without, except as provided above, the execution or filing of any instrument or any further act, deed or conveyance on the part of any of the parties hereto, anything herein to the contrary notwithstandingdo so.
Appears in 2 contracts
Samples: Collateral Agreement, Collateral Agreement (Claires Stores Inc)
The Collateral Agent. (a) The Collateral Agent will hold in accordance with this Agreement all items of the Collateral at any time received under this Agreement. It is expressly understood, acknowledged and agreed by each Secured Party hereby irrevocably appoints and authorizes that by accepting the Collateral Agent to take such action as agent on its behalf and to exercise such powers under benefits of this Agreement as are delegated to each such Secured Party acknowledges and agrees that the Collateral Agent by the terms hereof, together with all such powers as are reasonably incidental thereto.
(b) The obligations of the Collateral Agent hereunder as holder of the Collateral and interests therein and with respect to the disposition thereof, and otherwise under this Agreement, are only those expressly set forth in this Agreement.
(c) , the other Secured Documents and the Indenture. The Collateral Agent may consult with legal counselshall act hereunder on the terms and conditions set forth herein and in the other Secured Documents and the Indenture. The provisions of Article 13 of the Indenture shall inure to the benefit of the Collateral Agent, independent public accountants and other experts selected by it and shall not be liable for any action taken or omitted to be taken by it in good faith in accordance with the advice of such counselbinding upon all Pledgors and all Secured Parties, accountants or experts.
(d) Neither the Collateral Agent nor any of its directors, officers, agents or employees shall be liable for any action taken or not taken by it in connection with this Agreement and the other Collateral Documents. Without limiting the generality of the foregoing, (1i) with the consent or at the request of Secured Party or (2) in the absence of its own gross negligence or willful misconduct. The Collateral Agent shall not incur be subject to any liability by acting in reliance upon any notice, consent, certificate, statement, fiduciary or other writing implied duties, regardless of whether an Event of Default has occurred and is continuing and (which may be a bank wire, telex or similar writingii) believed by it to be genuine or to be signed by the proper party or parties.
(e) Pledgor shall indemnify the Collateral Agent against shall not have any costduty to take any discretionary action or exercise any discretionary powers, expense (including counsel fees except discretionary rights and disbursements), claim, demand, action, loss or liability (except such as result from powers expressly contemplated by the Collateral Agent’s gross negligence or willful misconduct) Documents that the Collateral Agent may suffer is required in writing to exercise by the Instructing Group. Notwithstanding anything to the contrary in this Agreement, in no event shall the Collateral Agent be responsible for, or incur in connection have any duty or obligation with respect to, the recording, filing, registering, perfection, protection or maintenance of the security interests or Liens intended to be created by this Agreement (including the preparation, filing or continuation of any Uniform Commercial Code financing or continuation statements or similar documents or instruments), nor shall the Collateral Agent be responsible for, and the Collateral Agent makes no representation regarding, the validity, enforceability, effectiveness or priority of this Agreement or any action taken the security interests or omitted by the Collateral Agent hereunderLiens intended to be created hereby.
(f) Beyond the exercise of reasonable care in the custody thereof, the Collateral Agent shall have no duty as to any Collateral in its possession or control or in the possession or control of any agent, bailee, clearing corporation or securities intermediary or any income thereon or as to the preservation of rights against prior parties or any other rights pertaining thereto. The Collateral Agent shall be deemed to have exercised reasonable care in the custody and preservation of the Collateral if the Collateral is accorded treatment substantially equal to that which it accords its own property, and shall not be liable or responsible for any loss or damage to any of the Collateral, or for any diminution in the value thereof, by reason of the act or omission of any agent, bailee, clearing corporation or securities intermediary selected by the Collateral Agent in good faith (or selected by an agent, bailee, clearing corporation or securities intermediary so selected by the Collateral Agent or by any agent, bailee, clearing corporation or securities intermediary selected in accordance with this parenthetical phrase).
(g) Any corporation or association into which the Collateral Agent may be converted or merged, or with which it may be consolidated, or to which it may sell or transfer its agency business or assets as a whole or substantially as a whole, or any corporation or association resulting from any such conversion, sale, merger, consolidation or transfer to which it is a party, shall, subject to the prior written consent of Secured Party, be and become a successor Collateral Agent hereunder and vested with all of the title to the Collateral and all of the powers, discretions, immunities, privileges and other matters as was its predecessor without, except as provided above, the execution or filing of any instrument or any further act, deed or conveyance on the part of any of the parties hereto, anything herein to the contrary notwithstanding.
Appears in 2 contracts
Samples: Pledge Agreement, Pledge Agreement (CURO Group Holdings Corp.)
The Collateral Agent. (a) Secured Party hereby irrevocably appoints and authorizes the The Collateral Agent to take such action as agent on shall have no liability for losses arising from (i) any cause beyond its behalf and to exercise such powers under this Agreement as are delegated to control, (ii) any delay, error, omission or default of any mail, telegraph, cable or wireless agency or operator, or (iii) the Collateral Agent by the terms hereof, together with all such powers as are reasonably incidental theretoacts or edicts of any government or governmental agency or other group or entity exercising governmental powers.
(b) The It is expressly acknowledged and agreed that the Collateral Agent is not guaranteeing the performance of or assuming any liability for the obligations of the Collateral Agent hereunder are only those expressly set forth in this Agreementother parties hereto or any portion of the Collateral.
(c) The Collateral Agent may consult shall not be responsible for the preparation or filing of any UCC financing statements or continuation statements or the correctness of any financing statements filed in connection with legal counsel, independent public accountants and other experts selected by it and this Agreement or the validity or perfection of any lien or security interest created pursuant to this Agreement.
(d) The Collateral Agent shall not be liable for interest on any action taken or omitted to be taken money received by it except as the Collateral Agent may agree in good faith in accordance writing with the advice Borrower. In no event shall the Collateral Agent be liable for the selection of such counselany investments or any losses in connection therewith (except in its capacity as obligor thereunder, accountants if applicable), or expertsfor any failure of the relevant party to provide investment instruction to the Collateral Agent in connection with the investment of funds in or from any account set forth herein.
(de) Neither The Collateral Agent shall have no liability for any failure, inability or unwillingness on the part of the Servicer, the Borrower or the Administrative Agent to provide accurate and complete information on a timely basis to the Collateral Agent, or otherwise on the part of any such party to comply with the terms of this Agreement, and shall have no liability for any inaccuracy or error in the performance or observance on the Collateral Agent’s part of any of its duties hereunder that is caused by or results from any such inaccurate, incomplete or untimely information received by it, or other failure on the part of any such other party to comply with the terms hereof.
(f) The Collateral Agent shall not be bound to make any investigation into the facts or matters stated in any certificate, report or other document; provided, however, that, if the form thereof is prescribed by this Agreement, the Collateral Agent nor any of shall examine the same to determine whether it conforms on its directors, officers, agents or employees shall be liable for any action taken or not taken by it in connection with this Agreement (1) with face to the consent or at the request of Secured Party or (2) in the absence of its own gross negligence or willful misconductrequirements hereof. The Collateral Agent shall not incur be deemed to have knowledge or notice of any liability by acting in reliance upon any notice, consent, certificate, statement, or other writing (which may be matter unless actually known to a bank wire, telex or similar writing) believed by it to be genuine or to be signed Responsible Officer. It is expressly acknowledged by the proper party or parties.
(e) Pledgor shall indemnify Borrower, the Collateral Servicer, the Lenders and the Administrative Agent against any cost, expense (including counsel fees and disbursements), claim, demand, action, loss or liability (except such as result from the Collateral Agent’s gross negligence or willful misconduct) that the Collateral Agent may suffer or incur in connection with this Agreement or any action taken or omitted performance by the Collateral Agent hereunderof its various duties hereunder (including recalculations to be performed in respect of the matters contemplated hereby) shall be based upon, and in reliance upon, data, information and notices provided to it by the Servicer (and/or the Borrower) and/or any related bank agent, obligor or similar party with respect to the Collateral, and the Collateral Agent shall have no responsibility for the accuracy of any such information or data provided to it by such persons and shall be entitled to update its records (as it may deem necessary or appropriate). Nothing herein shall impose or imply any duty or obligation on the part of the Collateral Agent to verify, investigate or audit any such information or data, or to determine or monitor on an independent basis whether any issuer of the Collateral is in default or in compliance with the underlying documents governing or securing such securities, from time to time.
(fg) Beyond The Collateral Agent shall have no duty to determine or inquire into the exercise happening or occurrence of reasonable care any event or contingency, and it is agreed that its duties hereunder are purely ministerial in nature.
(h) Should any controversy arise between the undersigned with respect to the Collateral held by the Collateral Agent, the Collateral Agent shall follow the instructions of the Administrative Agent on behalf of the Secured Parties.
(i) The powers conferred on the Collateral Agent hereunder are solely to protect its interest (on behalf of the Secured Parties) in the custody thereofCollateral and shall not impose any duty on it to exercise any such powers. Except for performing the obligations expressly imposed on the Collateral Agent hereunder, the Collateral Agent shall have no duty as to any Collateral in its possession or control responsibility for ascertaining or in taking action with respect to calls, conversions, exchanges, maturities, tenders or other matters relative to any Collateral, whether or not the possession Collateral Agent has or control is deemed to have knowledge of such matters or taking any agent, bailee, clearing corporation or securities intermediary or any income thereon or as steps to the preservation of preserve rights against prior parties or any other rights pertaining theretoto any Collateral.
(j) In order to comply with the laws, rules, regulations and executive orders in effect from time to time applicable to banking institutions, including those relating to the funding of terrorist activities and money laundering, the Collateral Agent may be required to obtain, verify and record certain information relating to individuals and entities which maintain a business relationship with the Collateral Agent. Accordingly, each of the parties hereto agrees to provide to the Collateral Agent upon its request from time to time such identifying information and documentation as may be available to such party in order to enable the Collateral Agent to comply with such requirements.
(k) If BNYM or the Collateral Agent is also acting in another capacity, including as Custodian or Securities Intermediary, the rights, protections, immunities and indemnities afforded to BNYM or the Collateral Agent pursuant to this Article XII shall also be afforded to BNYM or the Collateral Agent acting in such capacities; provided that such rights, protections, benefits, immunities and indemnities shall be in addition to, and not in limitation of, any rights, protections, benefits, immunities and indemnities provided in the Custodian Agreement, Account Control Agreement or any other Facility Documents to which BNYM or the Collateral Agent in such capacity is a party.
(l) The Collateral Agent shall not have any obligation to determine if a Collateral Loan meets the criteria specified in the definition of Eligible Collateral Loan or other eligibility requirement herein.
(m) Notwithstanding the foregoing, whenever reference is made in any Facility Document to any action by, consent, designation, specification, requirement or approval of, notice, request or other communication from, or other direction given or action to be undertaken or to be (or not to be) suffered or omitted by the Collateral Agent or to any election, decision, opinion, acceptance, use of judgment, expression of satisfaction or other exercise of discretion, rights or remedies to be made (or not to be made) by the Collateral Agent, it is understood that in all cases the Collateral Agent shall be acting, giving, withholding, suffering, omitting, making or otherwise undertaking and exercising the same (or shall not be undertaking and exercising the same) solely as directed in writing by the Administrative Agent acting at the instruction of the Required Lenders (or such other Lenders or percentage thereof as shall be expressly required hereunder). The Collateral Agent may at any time request instructions from the Administrative Agent with respect to any actions or approvals which, by the terms of this Agreement or any of the Facility Documents, the Collateral Agent is permitted or required to take or to grant, and the Collateral Agent shall be absolutely entitled to refrain from taking any such action or to withhold any such approval and shall not be under any liability whatsoever solely as a result thereof until it shall have received such instructions from the Administrative Agent acting at the direction of such Lenders. The Collateral Agent shall be deemed to not have exercised reasonable care any liability for any failure or delay in taking any actions contemplated above as a result of a failure or delay on the custody and preservation part of the Collateral if requisite Lenders (or the Administrative Agent on their behalf) to provide such instruction.
(n) The Borrower and the Servicer shall use reasonable efforts to cooperate with the Collateral is accorded treatment substantially equal to that which it accords its own propertyAgent in connection with the matters described herein, and shall not be liable or responsible for any loss or damage to any including in respect of the Collateral, confirmation of calculations required under Section 8.06 hereof or for any diminution in the value thereof, by reason of the act or omission of any agent, bailee, clearing corporation or securities intermediary selected as otherwise reasonably requested by the Collateral Agent hereunder. Without limiting the generality of the foregoing the Servicer shall supply in good faith (a timely fashion any information maintained by it, including, without limitation, the classification or selected by an agent, bailee, clearing corporation characterization of each Collateral Loan or securities intermediary so selected by the Collateral Agent or by any agent, bailee, clearing corporation or securities intermediary selected in accordance with this parenthetical phrase).
(g) Any corporation or association into which related Obligor that the Collateral Agent may be converted or merged, or from time to time reasonably request with which it may be consolidated, or to which it may sell or transfer its agency business or assets as a whole or substantially as a whole, or any corporation or association resulting from any such conversion, sale, merger, consolidation or transfer to which it is a party, shall, subject to the prior written consent of Secured Party, be and become a successor Collateral Agent hereunder and vested with all of the title respect to the Collateral and all Loans or obligors or reasonably need to perform the confirmations described above. Nothing herein shall obligate the Collateral Agent to determine (i) the type, classification or characterization of any Collateral Loan or related Obligor, or (ii) the powersAdvance Rate or Adjusted Collateral Value of any Collateral Loan or EBITDA of any related Obligor or market value of any Collateral Loan, discretions, immunities, privileges and other matters as was its predecessor without, except as provided aboveany such determination in each case being based exclusively upon notification it receives from the Servicer. For purposes of monitoring rating changes by the rating agencies, the execution Collateral Agent shall be entitled to use and rely (in good faith) exclusively upon any reputable electronic financial information reporting service (including the Bloomberg wire service), and shall have no liability for any inaccuracies in the information reported by, or filing of other errors or omissions of, any instrument or any further act, deed or conveyance on the part of any of the parties hereto, anything herein to the contrary notwithstandingsuch service.
Appears in 2 contracts
Samples: First Omnibus Amendment (Pennantpark Investment Corp), Revolving Credit and Security Agreement (Pennantpark Investment Corp)
The Collateral Agent. (a) Secured Party hereby irrevocably appoints and authorizes the The Collateral Agent to take such action as agent on shall have no liability for losses arising from (i) any cause beyond its behalf and to exercise such powers under this Agreement as are delegated to control, (ii) any delay, error, omission or default of any mail, telegraph, cable or wireless agency or operator, or (iii) the Collateral Agent by the terms hereof, together with all such powers as are reasonably incidental theretoacts or edicts of any government or governmental agency or other group or entity exercising governmental powers.
(b) The It is expressly acknowledged and agreed that the Collateral Agent is not guaranteeing the performance of or assuming any liability for the obligations of the Collateral Agent hereunder are only those expressly set forth in this Agreementother parties hereto or any portion of the Collateral.
(c) The Collateral Agent may consult shall not be responsible for the preparation or filing of any UCC financing statements or continuation statements or the correctness of any financing statements filed in connection with legal counsel, independent public accountants and other experts selected by it and this Agreement or the validity or perfection of any lien or security interest created pursuant to this Agreement.
(d) The Collateral Agent shall not be liable for interest on any action taken or omitted to be taken money received by it except as the Collateral Agent may agree in good faith in accordance writing with the advice Borrower. In no event shall the Collateral Agent be liable for the selection of such counselany investments or any losses in connection therewith (except in its capacity as obligor thereunder, accountants if applicable), or expertsfor any failure of the relevant party to provide investment instruction to the Collateral Agent in connection with the investment of funds in or from any account set forth herein.
(de) Neither The Collateral Agent shall have no liability for any failure, inability or unwillingness on the part of the Servicer, the Borrower or the Administrative Agent to provide accurate and complete information on a timely basis to the Collateral Agent, or otherwise on the part of any such party to comply with the terms of this Agreement, and shall have no liability for any inaccuracy or error in the performance or observance on the Collateral Agent’s part of any of its duties hereunder that is caused by or results from any such inaccurate, incomplete or untimely information received by it, or other failure on the part of any such other party to comply with the terms hereof.
(f) The Collateral Agent shall not be bound to make any investigation into the facts or matters stated in any certificate, report or other document; provided, however, that, if the form thereof is prescribed by this Agreement, the Collateral Agent nor any of shall examine the same to determine whether it conforms on its directors, officers, agents or employees shall be liable for any action taken or not taken by it in connection with this Agreement (1) with face to the consent or at the request of Secured Party or (2) in the absence of its own gross negligence or willful misconductrequirements hereof. The Collateral Agent shall not incur be deemed to have knowledge or notice of any liability by acting in reliance upon any notice, consent, certificate, statement, or other writing (which may be matter unless actually known to a bank wire, telex or similar writing) believed by it to be genuine or to be signed Responsible Officer. It is expressly acknowledged by the proper party or parties.
(e) Pledgor shall indemnify Borrower, the Collateral Servicer, the Lenders and the Administrative Agent against any cost, expense (including counsel fees and disbursements), claim, demand, action, loss or liability (except such as result from the Collateral Agent’s gross negligence or willful misconduct) that the Collateral Agent may suffer or incur in connection with this Agreement or any action taken or omitted performance by the Collateral Agent hereunderof its various duties hereunder (including recalculations to be performed in respect of the matters contemplated hereby) shall be based upon, and in reliance upon, data, information and notices provided to it by the Servicer (and/or the Borrower) and/or any related bank agent, obligor or similar party with respect to the Collateral, and the Collateral Agent shall have no responsibility for the accuracy of any such information or data provided to it by such persons and shall be entitled to update its records (as it may deem necessary or appropriate). Nothing herein shall impose or imply any duty or obligation on the part of the Collateral Agent to verify, investigate or audit any such information or data, or to determine or monitor on an independent basis whether any issuer of the Collateral is in default or in compliance with the underlying documents governing or securing such item of Collateral, from time to time.
(fg) Beyond The Collateral Agent shall have no duty to determine or inquire into the exercise happening or occurrence of reasonable care any event or contingency, and it is agreed that its duties hereunder are purely ministerial in nature.
(h) Should any controversy arise between the undersigned with respect to the Collateral held by the Collateral Agent, the Collateral Agent shall follow the instructions of the Administrative Agent on behalf of the Secured Parties.
(i) The powers conferred on the Collateral Agent hereunder are solely to protect its interest (on behalf of the Secured Parties) in the custody thereofCollateral and shall not impose any duty on it to exercise any such powers. Except for performing the obligations expressly imposed on the Collateral Agent hereunder, the Collateral Agent shall have no duty as to any Collateral in its possession or control responsibility for ascertaining or in taking action with respect to calls, conversions, exchanges, maturities, tenders or other matters relative to any Collateral, whether or not the possession Collateral Agent has or control is deemed to have knowledge of such matters or taking any agent, bailee, clearing corporation or securities intermediary or any income thereon or as steps to the preservation of preserve rights against prior parties or any other rights pertaining thereto. The Collateral Agent shall be deemed to have exercised reasonable care in the custody and preservation of the Collateral if the Collateral is accorded treatment substantially equal to that which it accords its own property, and shall not be liable or responsible for any loss or damage to any of the Collateral, or for any diminution in the value thereof, by reason of the act or omission of any agent, bailee, clearing corporation or securities intermediary selected by the Collateral Agent in good faith (or selected by an agent, bailee, clearing corporation or securities intermediary so selected by the Collateral Agent or by any agent, bailee, clearing corporation or securities intermediary selected in accordance with this parenthetical phrase).
(gj) Any corporation or association into which In order to comply with the laws, rules, regulations and executive orders in effect from time to time applicable to banking institutions, including those relating to the funding of terrorist activities and money laundering, the Collateral Agent may be converted or mergedrequired to obtain, or verify and record certain information relating to individuals and entities which maintain a business relationship with which it the Collateral Agent. Accordingly, each of the parties hereto agrees to provide to the Collateral Agent upon its request from time to time such identifying information and documentation as may be consolidatedavailable to such party in order to enable the Collateral Agent to comply with such requirements.
(k) If The Bank of New York Mellon Trust Company, National Association or the Collateral Agent is also acting in another capacity, including as Custodian or Securities Intermediary, the rights, protections, immunities and indemnities afforded to The Bank of New York Mellon Trust Company, National Association or the Collateral Agent pursuant to this Article XII shall also be afforded to The Bank of New York Mellon Trust Company, National Association or the Collateral Agent acting in such capacities; provided that such rights, protections, benefits, immunities and indemnities shall be in addition to, and not in limitation of, any rights, protections, benefits, immunities and indemnities provided in the Custodian Agreement, Account Control Agreement or any other Facility Documents to which it may sell The Bank of New York Mellon Trust Company, National Association or transfer its agency business or assets as a whole or substantially as a whole, or any corporation or association resulting from any the Collateral Agent in such conversion, sale, merger, consolidation or transfer to which it capacity is a party, shall, subject to the prior written consent of Secured Party, be and become a successor .
(l) The Collateral Agent hereunder and vested with all shall not have any obligation to determine if a Collateral Loan meets the criteria specified in the definition of Eligible Collateral Loan or if the title to requirements set forth in the Collateral and all definition of the powers, discretions, immunities, privileges and other matters as was its predecessor without, except as provided above, the execution or filing of any instrument or any further act, deed or conveyance on the part of any of the parties hereto, anything herein to the contrary notwithstanding“Deliver” have been satisfied.
Appears in 2 contracts
Samples: Credit Agreement (T. Rowe Price OHA Select Private Credit Fund), Revolving Credit and Security Agreement (T. Rowe Price OHA Select Private Credit Fund)
The Collateral Agent. (a) Secured Party hereby By accepting a Note, each Holder will be deemed to have irrevocably appoints and authorizes appointed the Collateral Agent to take such action act as collateral agent under the applicable Security Documents and any Intercreditor Agreement and irrevocably authorized the Collateral Agent to (i) perform the duties and exercise the rights and powers that are specifically given to it under the Security Documents, any Intercreditor Agreement and any other documents to which it is a party, together with any other incidental rights and powers, and (ii) execute each document to be executed by the Collateral Agent on its behalf behalf, any Security Document, any Intercreditor Agreement and all other instruments relating to exercise any such powers under this Agreement as are delegated Security Document or Intercreditor Agreement. The Holders may not, individually or collectively, take any direct action to enforce the Security Documents or Intercreditor Agreements. The Collateral Agent will have no duties or obligations with respect to the Collateral Agent by the terms hereof, together with all such powers as are reasonably incidental thereto.
(b) The obligations of the Collateral Agent hereunder are only except those expressly set forth hereunder or in this Agreement.
(c) the applicable Security Documents and Intercreditor Agreements and no implied covenants or obligations shall be read into such documents against the Collateral Agent. The Collateral Agent may consult with legal counsel, independent public accountants and other experts selected by it and shall will not be liable for any action taken or omitted to be taken by it in good faith in accordance with the advice of such counsel, accountants or experts.
(d) Neither the Collateral Agent nor any of its directors, officers, agents or employees shall be liable for any action taken or not taken by it in connection the absence of its own gross negligence, willful misconduct or bad faith (as determined by a court of competent jurisdiction in a final and non-appealable decision). The Collateral Agent will be entitled to rely upon, and will not incur any liability for relying upon, any notice, request, certificate, consent, statement, instrument, document or other writing believed by it in good faith to be genuine and to have been signed or sent by the proper person. The Collateral Agent may consult with this Agreement legal counsel (1) who may be counsel for the Company), independent accountants and other experts selected by it, and will not be liable for any action taken or not taken by it in accordance with the consent advice of any such counsel, accountants or at experts. Without limiting the request generality of Secured Party the foregoing, the Collateral Agent:
(i) shall not be subject to any fiduciary or other implied duties, regardless of whether an Event of Default has occurred and is continuing;
(2ii) shall not have any duty to take any discretionary action or exercise any discretionary powers and shall not be required to take any action that, in its opinion or the opinion of its counsel, may expose the Collateral Agent to liability or that is contrary to any Security Document, Intercreditor Agreement or applicable law;
(iii) shall not have any duty to disclose, and shall not be liable for the failure to disclose, any information relating to the Company or any Affiliate if the Company that is communicated to or obtained by the Person serving as a Collateral Agent or any of its Affiliates in any capacity;
(iv) shall not be liable for any action taken or not taken by it (i) in the absence of its own gross negligence negligence, willful misconduct or willful misconductbad faith (as determined by a court of competent jurisdiction in a final and non-appealable decision) or (ii) in reliance on an Officer’s Certificate of the Company stating that such action is permitted by the terms of this Indenture. The Collateral Agent shall be deemed not incur to have knowledge of any liability Event of Default hereunder unless and until written notice describing such Event of Default is received by acting such Collateral Agent from the Trustee or the Company; and
(v) shall not be responsible for or have any duty to ascertain or inquire into (i) any statement, warranty or representation made in reliance upon or in connection with any noticeSecurity Document or Intercreditor Agreement, consent, (ii) the contents of any certificate, statementreport or other document delivered hereunder or thereunder or in connection herewith or therewith, (iii) the performance or observance of any of the covenants, agreements or other terms or conditions set forth herein or therein or the occurrence of any Event of Default, (iv) the validity, enforceability, effectiveness or genuineness of any Security Document or Intercreditor Agreement or any other agreement, instrument or document, or the creation, perfection or priority of any Lien purported to be created by any Security Document or Intercreditor Agreement, (v) the existence, value or the sufficiency of any Collateral for any Notes Obligations, or (vi) the satisfaction of any condition set forth in any operative agreements governing Notes Obligations, any Security Document or any Intercreditor Agreement, other writing than to confirm receipt of items expressly required to be delivered to such Collateral Agent. The use of the term “agent” herein with reference to a Collateral Agent is not intended to connote any fiduciary or other implied (which or express) obligations arising under agency doctrine of any applicable law other than as a “representative” as such term is used in Section 9-102(a)(72)(E) of the UCC. BY ACCEPTING A NOTE EACH HOLDER WILL BE DEEMED TO HAVE IRREVOCABLY AGREED TO THE FOREGOING PROVISIONS OF THIS SECTION 14.01(a) AND SHALL BE BOUND BY THOSE AGREEMENTS TO THE FULLEST EXTENT PERMITTED BY LAW.
(b) The Collateral Agent shall be subject to such directions as may be a bank wireproperly given in accordance with this Indenture, telex the Security Documents and the Intercreditor Agreements. Except as expressly required by this Indenture, the Security Documents and the Intercreditor Agreements or similar writingotherwise in compliance with the prior sentence, the Collateral Agent shall not be obligated:
(i) believed to act upon directions purported to be delivered to it by any other Person;
(ii) to foreclose upon or otherwise enforce any Lien securing the Notes or any of the Guarantees; or
(iii) to take any other action whatsoever with regard to any or all of (w) the Liens securing the Notes, (x) the Guarantees, (y) the Security Documents or (z) the Intercreditor Agreements, or with regard to the Collateral.
(c) The Collateral Agent may perform any and all of its duties and exercise its rights and powers by or through, and is authorized and empowered to appoint, one or more co-agents or sub-agents or attorneys-in-fact as it deems necessary or appropriate in connection herewith and shall not be liable for the negligence or misconduct of any such agents or attorneys-in-fact selected by it in good faith.
(d) Subject to the appointment and acceptance of a successor Collateral Agent as provided below, the Collateral Agent may resign at any time by notifying the Company and the Trustee. Upon any such resignation, the Company shall have the right to appoint a successor; provided that, during the existence and continuation of an Event of Default pursuant to clause Section 5.01(a), (b), (e) or (f) hereof, the Holders of a majority in principal amount of the Notes shall have the right to appoint a successor. If no successor shall have been so appointed by the Company (or, if applicable, the Holders of a majority in principal amount of the Notes) and shall have accepted such appointment within 30 days after the retiring Collateral Agent gives notice of its resignation, then such retiring Collateral Agent may, on behalf of the Holders and the Trustee, petition at the expense of the Company a court of competent jurisdiction to appoint a successor Collateral Agent. Upon the acceptance of its appointment as a Collateral Agent hereunder by a successor, such successor shall succeed to and become vested with all the rights, powers, privileges and duties of the retiring Collateral Agent, and the retiring Collateral Agent shall be discharged from its duties and obligations hereunder. The fees payable by the Company to a successor Collateral Agent shall be the same as those payable to its predecessor unless otherwise agreed between the Company and such successor. After a Collateral Agent’s resignation hereunder, the provisions of this Article Fourteen and Article Six hereof shall continue in effect for the benefit of such retiring Collateral Agent, its sub-agents and their respective Affiliates in respect of any actions taken or omitted to be genuine or to be signed taken by the proper party or partiesany of them while acting as Collateral Agent.
(e) Pledgor The benefits, protections and indemnities of the Trustee in Sections 6.03 and 6.07 hereof shall indemnify apply mutatis mutandi to the Collateral Agent against any costin its capacity as such, expense (including counsel fees including, without limitation, the rights to receive and disbursements)rely on Officer’s Certificates and Opinions of Counsel, claim, demand, action, loss or liability (except such as result from reimbursement and indemnification; provided that the Collateral Agent’s gross negligence or willful misconduct) that applicable standard of care of the Collateral Agent may suffer or incur in connection with this Agreement or any action taken or omitted by the Collateral Agent hereunderrespect to Sections 6.03 and 6.07 hereof shall be gross negligence, willful misconduct and bad faith.
(f) Each Holder, by its acceptance of any Notes, is deemed to have consented and agreed to the terms of each Security Document and Intercreditor Agreement, as originally in effect and as amended, supplemented or replaced from time to time in accordance with its terms or the terms of this Indenture; and authorizes and empowers the Trustee to bind the Holders as set forth in the applicable Security Documents and Intercreditor Agreements, if any, to which they are a party and to perform its obligations and exercise its rights and powers thereunder. Notwithstanding the foregoing, no such consent or deemed consent shall be deemed or construed to represent an amendment or waiver, in whole or in part, of any provision of this Indenture or the Notes.
(g) Neither the Trustee nor the Collateral Agent shall be responsible for the existence, genuineness or value of any of the Collateral or for the validity, perfection, priority or enforceability of the Liens in any of the Collateral, for the validity or sufficiency of the Collateral or any agreement or assignment contained therein, for the validity of the title of the Company or any grantor to the Collateral, for insuring the Collateral or for the payment of taxes, charges, assessments or Liens upon the Collateral or otherwise as to the maintenance of the Collateral.
(h) Beyond the exercise of reasonable care in the custody thereof, neither the Trustee nor the Collateral Agent shall have no any duty as to any Collateral in its possession or control or in the possession or control of any agent, bailee, clearing corporation agent or securities intermediary bailee or any income thereon or as to the preservation of rights against prior parties or any other rights pertaining theretothereto and neither the Trustee nor the Collateral Agent shall be responsible for filing any financing or continuation statements or recording any documents or instruments in any public office at any time or times or otherwise perfecting or maintaining the perfection of any security interest in the Collateral. The Each of the Trustee and the Collateral Agent shall be deemed to have exercised reasonable care in the custody and preservation of the Collateral in its possession if the Collateral is accorded treatment substantially equal to that which it accords its own property, property and shall not be liable or responsible for any loss or damage to diminution in the value of any of the Collateral, or for any diminution in the value thereof, by reason of the act or omission of any agentcarrier, bailee, clearing corporation forwarding agency or securities intermediary other agent or bailee selected by the Trustee or the Collateral Agent in good faith faith.
(i) Neither the Trustee nor the Collateral Agent shall be responsible for the existence, genuineness or selected value of any of the Collateral or for the validity, perfection, priority or enforceability of the Liens in any of the Collateral, whether impaired by an agentoperation of law or by reason of any action or omission to act on its part hereunder, baileefor the validity or sufficiency of the Collateral or any agreement or assignment contained therein, clearing corporation for the validity of the title of the Company to the Collateral, for insuring the Collateral or securities intermediary so selected for the payment of taxes, charges, assessments or Liens upon the Collateral or otherwise as to the maintenance of the Collateral. The Trustee and the Collateral Agent shall have no duty to ascertain or inquire as to the performance or observance of any of the terms of this Indenture, the Security Documents or the Intercreditor Agreements by the Company or the Subsidiary Guarantors.
(j) Notwithstanding any other provision hereof, neither the Collateral Agent nor the Trustee shall have any duties or obligations hereunder or under any Security Document or Intercreditor Agreement except those expressly set forth herein or therein. Without limiting the generality of the foregoing, in the event that the Collateral Agent or the Trustee is required to acquire title to an asset for any reason, or take any managerial action of any kind in regard thereto, in order to carry out any fiduciary or trust obligation for the benefit of another, which in the Collateral Agent’s or the Trustee’s sole discretion may cause it to be considered an “owner or operator” under the provisions of the Comprehensive Environmental Response, Compensation and Liability Act (“CERCLA”), 42 U.S.C. §9601, et seq., or otherwise cause it to incur liability under CERCLA or any other federal, state or local law, the Collateral Agent and the Trustee each reserve the right, instead of taking such action, to either resign or arrange for the transfer of the title or control of the asset to a court-appointed receiver. Neither the Collateral Agent nor the Trustee shall be liable to any person for any environmental claims or contribution actions under any federal, state or local law, rule or regulation by reason of the Collateral Agent’s actions and conduct as authorized, empowered and directed hereunder or relating to the discharge, release or threatened release of hazardous materials into the environment. If at any time it is necessary or advisable for the Collateral to be possessed, owned, operated or managed by any agentperson other than the grantor, baileethe majority of the Holders shall direct the Collateral Agent or Trustee, clearing corporation as applicable, to appoint an appropriately qualified person who they shall designate to possess, own, operate or securities intermediary selected in accordance with this parenthetical phrase)manage, as the case may be, the Collateral.
(gk) Any corporation or association into which For the avoidance of doubt, the Trustee and the Collateral Agent may shall act only within the United States, and shall not be converted subject to any foreign law, be required to act in any jurisdiction located outside the United States or mergedbe required to execute any foreign law governed document.
(l) Notwithstanding anything to the contrary set forth herein, the Trustee and/or the Collateral Agent, as applicable, are hereby authorized and directed to, and hereby agree to, whether on or with which it may be consolidated, or to which it may sell or transfer its agency business or assets as a whole or substantially as a whole, or any corporation or association resulting from any such conversion, sale, merger, consolidation or transfer after the Issue Date:
(i) enter into and/or join the Security Documents to which it is contemplated to be a partyparty (and any joinders, shallsupplements or amendments thereto contemplated hereby),
(ii) enter into and/or join any Acceptable Junior Intercreditor Agreement (and any joinders, subject to supplements or amendments thereto contemplated hereby),
(iii) [reserved],
(iv) enter into and/or join any Acceptable Senior Intercreditor Agreement (and any joinders, supplements or amendments thereto contemplated hereby),
(v) enter into and/or join the prior written consent 2029 Exchange Notes First Lien/Second Lien Intercreditor Agreement (and any joinders, supplements or amendments thereto contemplated hereby),
(vi) [Reserved],
(vii) make any representations of Secured Partythe Holders set forth in the Security Documents, be the 2029 Exchange Notes First Lien/Second Lien Intercreditor Agreement, any Acceptable Junior Intercreditor Agreement and/or any Acceptable Senior Intercreditor Agreement,
(viii) bind the Holders on the terms as set forth in the Security Documents, the 2029 Exchange Notes First Lien/Second Lien Intercreditor Agreement, any Acceptable Junior Intercreditor Agreement and/or any Acceptable Senior Intercreditor Agreement and
(ix) perform and become a successor observe its obligations under the Security Documents, the 2029 Exchange Notes First Lien/Second Lien Intercreditor Agreement, any Acceptable Junior Intercreditor Agreement and/or any Acceptable Senior Intercreditor Agreement. The entry and/or joinder of the Trustee and/or the Collateral Agent hereunder to any Security Document, Acceptable Junior Intercreditor Agreement, Acceptable Senior Intercreditor Agreement, and/or the 2029 Exchange Notes First Lien/Second Lien Intercreditor Agreement (and vested with all any joinders, supplements or amendments thereto contemplated hereby) shall be at the direction and expense of the title to Company and, upon request by the Trustee and/or the Collateral and all of the powersAgent, discretionsas applicable, immunities, privileges and other matters as was its predecessor without, except as provided above, shall be accompanied by an Officer’s Certificate stating that the execution is authorized or filing of any instrument or any further act, deed or conveyance on the part of any of the parties hereto, anything herein to the contrary notwithstanding.permitted pursuant
Appears in 2 contracts
Samples: Senior Secured Notes Agreement (Office Properties Income Trust), Exchange Agreement (Office Properties Income Trust)
The Collateral Agent. (a) Secured Party hereby irrevocably appoints and authorizes the The Collateral Agent to take such action as agent on shall have no liability for losses arising from (i) any cause beyond its behalf and to exercise such powers under this Agreement as are delegated to control, (ii) any delay, error, omission or default of any mail, telegraph, cable or wireless agency or operator, or (iii) the Collateral Agent by the terms hereof, together with all such powers as are reasonably incidental theretoacts or edicts of any government or governmental agency or other group or entity exercising governmental powers.
(b) The It is expressly acknowledged and agreed that the Collateral Agent is not guaranteeing the performance of or assuming any liability for the obligations of the Collateral Agent hereunder are only those expressly set forth in this Agreementother parties hereto or any portion of the Collateral.
(c) The Collateral Agent may consult shall not be responsible for the preparation or filing of any UCC financing statements or continuation statements or the correctness of any financing statements filed in connection with legal counsel, independent public accountants and other experts selected by it and this Agreement or the validity or perfection of any lien or security interest created pursuant to this Agreement.
(d) The Collateral Agent shall not be liable for interest on any action taken or omitted to be taken money received by it except as the Collateral Agent may agree in good faith in accordance writing with the advice Borrower. In no event shall the Collateral Agent be liable for the selection of such counselany investments or any losses in connection therewith (except in its capacity as obligor thereunder, accountants if applicable), or expertsfor any failure of the relevant party to provide investment instruction to the Collateral Agent in connection with the investment of funds in or from any account set forth herein.
(de) Neither The Collateral Agent shall have no liability for any failure, inability or unwillingness on the part of the Servicer, the Borrower or the Administrative Agent to provide accurate and complete information on a timely basis to the Collateral Agent, or otherwise on the part of any such party to comply with the terms of this Agreement, and shall have no liability for any inaccuracy or error in the performance or observance on the Collateral Agent’s part of any of its duties hereunder that is caused by or results from any such inaccurate, incomplete or untimely information received by it, or other failure on the part of any such other party to comply with the terms hereof.
(f) The Collateral Agent shall not be bound to make any investigation into the facts or matters stated in any certificate, report or other document; provided, however, that, if the form thereof is prescribed by this Agreement, the Collateral Agent nor any of shall examine the same to determine whether it conforms on its directors, officers, agents or employees shall be liable for any action taken or not taken by it in connection with this Agreement (1) with face to the consent or at the request of Secured Party or (2) in the absence of its own gross negligence or willful misconductrequirements hereof. The Collateral Agent shall not incur be deemed to have knowledge or notice of any liability by acting in reliance upon any notice, consent, certificate, statement, or other writing (which may be matter unless actually known to a bank wire, telex or similar writing) believed by it to be genuine or to be signed Responsible Officer. It is expressly acknowledged by the proper party or parties.
(e) Pledgor shall indemnify Borrower, the Collateral Servicer, the Lenders and the Administrative Agent against any cost, expense (including counsel fees and disbursements), claim, demand, action, loss or liability (except such as result from the Collateral Agent’s gross negligence or willful misconduct) that the Collateral Agent may suffer or incur in connection with this Agreement or any action taken or omitted performance by the Collateral Agent hereunderof its various duties hereunder (including recalculations to be performed in respect of the matters contemplated hereby) shall be based upon, and in reliance upon, data, information and notices provided to it by the Servicer (and/or the Borrower) and/or any related bank agent, obligor or similar party with respect to the Collateral, and the Collateral Agent shall have no responsibility for the accuracy of any such information or data provided to it by such persons and shall be entitled to update its records (as it may deem necessary or appropriate). Nothing herein shall impose or imply any duty or obligation on the part of the Collateral Agent to verify, investigate or audit any such information or data, or to determine or monitor on an independent basis whether any issuer of the Collateral is in default or in compliance with the underlying documents governing or securing such item of Collateral, from time to time.
(fg) Beyond The Collateral Agent shall have no duty to determine or inquire into the exercise happening or occurrence of reasonable care any event or contingency, and it is agreed that its duties hereunder are purely ministerial in nature.
(h) Should any controversy arise between the undersigned with respect to the Collateral held by the Collateral Agent, the Collateral Agent shall follow the instructions of the Administrative Agent on behalf of the Secured Parties.
(i) The powers conferred on the Collateral Agent hereunder are solely to protect its interest (on behalf of the Secured Parties) in the custody thereofCollateral and shall not impose any duty on it to exercise any such powers. Except for performing the obligations expressly imposed on the Collateral Agent hereunder, the Collateral Agent shall have no duty as to any Collateral in its possession or control responsibility for ascertaining or in taking action with respect to calls, conversions, exchanges, maturities, tenders or other matters relative to any Collateral, whether or not the possession Collateral Agent has or control is deemed to have knowledge of such matters or taking any agent, bailee, clearing corporation or securities intermediary or any income thereon or as steps to the preservation of preserve rights against prior parties or any other rights pertaining thereto. The Collateral Agent shall be deemed to have exercised reasonable care in the custody and preservation of the Collateral if the Collateral is accorded treatment substantially equal to that which it accords its own property, and shall not be liable or responsible for any loss or damage to any of the Collateral, or for any diminution in the value thereof, by reason of the act or omission of any agent, bailee, clearing corporation or securities intermediary selected by the Collateral Agent in good faith (or selected by an agent, bailee, clearing corporation or securities intermediary so selected by the Collateral Agent or by any agent, bailee, clearing corporation or securities intermediary selected in accordance with this parenthetical phrase).
(gj) Any corporation or association into which In order to comply with the laws, rules, regulations and executive orders in effect from time to time applicable to banking institutions, including those relating to the funding of terrorist activities and money laundering, the Collateral Agent may be converted or mergedrequired to obtain, or verify and record certain information relating to individuals and entities which maintain a business relationship with which it the Collateral Agent. Accordingly, each of the parties hereto agrees to provide to the Collateral Agent upon its request from time to time such identifying information and documentation as may be consolidatedavailable to such party in order to enable the Collateral Agent to comply with such requirements.
(k) If State Street or the Collateral Agent is also acting in another capacity, including as Custodian or Securities Intermediary, the rights, protections, immunities and indemnities afforded to State Street or the Collateral Agent pursuant to this Article XII shall also be afforded to State Street or the Collateral Agent acting in such capacities; provided that such rights, protections, benefits, immunities and indemnities shall be in addition to, and not in limitation of, any rights, protections, benefits, immunities and indemnities provided in the Custodian Agreement, Account Control Agreement or any other Facility Documents to which it may sell State Street or transfer its agency business or assets as a whole or substantially as a whole, or any corporation or association resulting from any the Collateral Agent in such conversion, sale, merger, consolidation or transfer to which it capacity is a party, shall, subject to the prior written consent of Secured Party, be and become a successor .
(l) The Collateral Agent hereunder and vested with all shall not have any obligation to determine if a Collateral Loan meets the criteria specified in the definition of Eligible Collateral Loan or if the title to requirements set forth in the Collateral and all definition of the powers, discretions, immunities, privileges and other matters as was its predecessor without, except as provided above, the execution or filing of any instrument or any further act, deed or conveyance on the part of any of the parties hereto, anything herein to the contrary notwithstanding“Deliver” have been satisfied.
Appears in 2 contracts
Samples: Revolving Credit and Security Agreement (Barings Private Credit Corp), Revolving Credit and Security Agreement (Barings Private Credit Corp)
The Collateral Agent. (a) Secured Party hereby irrevocably appoints and authorizes the The Collateral Agent to take such action as agent on shall have no liability for losses arising from (i) any cause beyond its behalf and to exercise such powers under this Agreement as are delegated to control, (ii) any delay, error, omission or default of any mail, telegraph, cable or wireless agency or operator, or (iii) the Collateral Agent by the terms hereof, together with all such powers as are reasonably incidental theretoacts or edicts of any government or governmental agency or other group or entity exercising governmental powers.
(b) The It is expressly acknowledged and agreed that the Collateral Agent is not guaranteeing the performance of or assuming any liability for the obligations of the Collateral Agent hereunder are only those expressly set forth in this Agreementother parties hereto or any portion of the Collateral.
(c) The Collateral Agent may consult shall not be responsible for the preparation or filing of any UCC financing statements or continuation statements or the correctness of any financing statements filed in connection with legal counsel, independent public accountants and other experts selected by it and this Agreement or the validity or perfection of any lien or security interest created pursuant to this Agreement.
(d) The Collateral Agent shall not be liable for interest on any action taken or omitted to be taken money received by it except as the Collateral Agent may agree in good faith in accordance writing with the advice Borrower. In no event shall the Collateral Agent be liable for the selection of such counselany investments or any losses in connection therewith (except in its capacity as obligor thereunder, accountants if applicable), or expertsfor any failure of the relevant party to provide investment instruction to the Collateral Agent in connection with the investment of funds in or from any account set forth herein.
(de) Neither The Collateral Agent shall have no liability for any failure, inability or unwillingness on the part of the Servicer, the Borrower or the Administrative Agent to provide accurate and complete information on a timely basis to the Collateral Agent, or otherwise on the part of any such party to comply with the terms of this Agreement, and shall have no liability for any inaccuracy or error in the performance or observance on the Collateral Agent’s part of any of its duties hereunder that is caused by or results from any such inaccurate, incomplete or untimely information received by it, or other failure on the part of any such other party to comply with the terms hereof.
(f) The Collateral Agent shall not be bound to make any investigation into the facts or matters stated in any certificate, report or other document; provided, however, that, if the form thereof is prescribed by this Agreement, the Collateral Agent nor any of shall examine the same to determine whether it conforms on its directors, officers, agents or employees shall be liable for any action taken or not taken by it in connection with this Agreement (1) with face to the consent or at the request of Secured Party or (2) in the absence of its own gross negligence or willful misconductrequirements hereof. The Collateral Agent shall not incur be deemed to have knowledge or notice of any liability by acting in reliance upon any notice, consent, certificate, statement, or other writing (which may be matter unless actually known to a bank wire, telex or similar writing) believed by it to be genuine or to be signed Responsible Officer. It is expressly acknowledged by the proper party or parties.
(e) Pledgor shall indemnify Borrower, the Collateral Servicer, the Lenders and the Administrative Agent against any cost, expense (including counsel fees and disbursements), claim, demand, action, loss or liability (except such as result from the Collateral Agent’s gross negligence or willful misconduct) that the Collateral Agent may suffer or incur in connection with this Agreement or any action taken or omitted performance by the Collateral Agent hereunderof its various duties hereunder (including recalculations to be performed in respect of the matters contemplated hereby) shall be based upon, and in reliance upon, data, information and notices provided to it by the Servicer (and/or the Borrower) and/or any related bank agent, obligor or similar party with respect to the Collateral, and the Collateral Agent shall have no responsibility for the accuracy of any such information or data provided to it by such persons and shall be entitled to update its records (as it may deem necessary or appropriate). Nothing herein shall impose or imply any duty or obligation on the part of the Collateral Agent to verify, investigate or audit any such information or data, or to determine or monitor on an independent basis whether any issuer of the Collateral is in default or in compliance with the underlying documents governing or securing such item of Collateral, from time to time.
(fg) Beyond The Collateral Agent shall have no duty to determine or inquire into the exercise happening or occurrence of reasonable care any event or contingency, and it is agreed that its duties hereunder are purely ministerial in nature.
(h) Should any controversy arise between the undersigned with respect to the Collateral held by the Collateral Agent, the Collateral Agent shall follow the instructions of the Administrative Agent on behalf of the Secured Parties.
(i) The powers conferred on the Collateral Agent hereunder are solely to protect its interest (on behalf of the Secured Parties) in the custody thereofCollateral and shall not impose any duty on it to exercise any such powers. Except for performing the obligations expressly imposed on the Collateral Agent hereunder, the Collateral Agent shall have no duty as to any Collateral in its possession or control responsibility for ascertaining or in taking action with respect to calls, conversions, exchanges, maturities, tenders or other matters relative to any Collateral, whether or not the possession Collateral Agent has or control is deemed to have knowledge of such matters or taking any agent, bailee, clearing corporation or securities intermediary or any income thereon or as steps to the preservation of preserve rights against prior parties or any other rights pertaining thereto. The Collateral Agent shall be deemed to have exercised reasonable care in the custody and preservation of the Collateral if the Collateral is accorded treatment substantially equal to that which it accords its own property, and shall not be liable or responsible for any loss or damage to any of the Collateral, or for any diminution in the value thereof, by reason of the act or omission of any agent, bailee, clearing corporation or securities intermediary selected by the Collateral Agent in good faith (or selected by an agent, bailee, clearing corporation or securities intermediary so selected by the Collateral Agent or by any agent, bailee, clearing corporation or securities intermediary selected in accordance with this parenthetical phrase).
(gj) Any corporation or association into which In order to comply with the laws, rules, regulations and executive orders in effect from time to time applicable to banking institutions, including those relating to the funding of terrorist activities and money laundering, the Collateral Agent may be converted or mergedrequired to obtain, or verify and record certain information relating to individuals and entities which maintain a business relationship with which it the Collateral Agent. Accordingly, each of the parties hereto agrees to provide to the Collateral Agent upon its request from time to time such identifying information and documentation as may be consolidatedavailable to such party in order to enable the Collateral Agent to comply with such requirements.
(k) If Xxxxx Fargo or the Collateral Agent is also acting in another capacity, including as Custodian or Securities Intermediary, the rights, protections, immunities and indemnities afforded to Xxxxx Fargo or the Collateral Agent pursuant to this Article XII shall also be afforded to Xxxxx Fargo or the Collateral Agent acting in such capacities; provided that such rights, protections, benefits, immunities and indemnities shall be in addition to, and not in limitation of, any rights, protections, benefits, immunities and indemnities provided in the Custodian Agreement, Account Control Agreement or any other Facility Documents to which it may sell Xxxxx Fargo or transfer its agency business or assets as a whole or substantially as a whole, or any corporation or association resulting from any the Collateral Agent in such conversion, sale, merger, consolidation or transfer to which it capacity is a party, shall, subject to the prior written consent of Secured Party, be and become a successor .
(l) The Collateral Agent hereunder and vested with all shall not have any obligation to determine if a Collateral Loan meets the criteria specified in the definition of the title to the Eligible Collateral and all of the powers, discretions, immunities, privileges and other matters as was its predecessor without, except as provided above, the execution or filing of any instrument or any further act, deed or conveyance on the part of any of the parties hereto, anything herein to the contrary notwithstandingLoan.
Appears in 2 contracts
Samples: Revolving Credit and Security Agreement (Blackstone / GSO Secured Lending Fund), Revolving Credit and Security Agreement (Blackstone / GSO Secured Lending Fund)
The Collateral Agent. (a) Secured By execution and delivery hereof, each Benefitted Party hereby irrevocably appoints State Street Bank and Trust Company of California, N.A. as Collateral Agent and its representative hereunder and under the Security Documents and authorizes the Collateral Agent to act as such hereunder and thereunder on behalf of such Benefitted Party. The Collateral Agent agrees to act as such upon the express conditions contained in this Agreement. In performing its functions and duties under this Agreement and the Security Documents, the Collateral Agent shall act solely as agent of the Benefitted Parties to the extent, but only to the extent, provided in this Agreement and does not assume, and shall not be deemed to have assumed, any obligation towards or relationship of agency, fiduciary or trust with or for any other Person, other than as set forth herein and in the Security Documents.
(b) The Collateral Agent shall take any action with respect to the Collateral and/or the Security Documents only as directed in accordance with Section 5(a) hereof; provided that the Collateral Agent shall not be obligated to follow any directions given in accordance with Section 5(a) hereof to the extent that the Collateral Agent has received advice from its counsel to the effect that such directions are in conflict with any provisions of law, this Agreement, the Security Documents or any order of any court or administrative agency; provided further that the Collateral Agent shall not, under any circumstances, be liable to any Benefitted Party or any other person for following the written directions received in accordance with Section 5(a) hereof. Any directions given by the Required Creditors pursuant to Section 5(a) hereof may be withdrawn or modified by the Required Creditors by delivering written notice of withdrawal or modification to the Collateral Agent prior to the time when the Collateral Agent takes any action pursuant to such directions.
(c) Each Benefitted Party authorizes the Collateral Agent to take such action as agent on its such Benefitted Party’s behalf and to exercise such powers under this Agreement hereunder as are specifically delegated to the Collateral Agent by the terms hereofhereof and of the Security Documents, together with all such powers as are reasonably incidental thereto. The Collateral Agent shall have only those duties and responsibilities that are expressly specified in this Agreement and the Security Documents, and it may perform such duties by or through its agents or employees. Nothing in this Agreement or the Security Documents, express or implied, is intended to or shall be construed as imposing upon the Collateral Agent any obligations in respect of this Agreement or such Security Documents except as expressly set forth herein.
(b) The obligations of the Collateral Agent hereunder are only those expressly set forth in this Agreement.
(cd) The Collateral Agent may consult shall not be responsible to any Benefitted Party for the execution, effectiveness, genuineness, validity, perfection, enforceability, collectibility, value or sufficiency of the Collateral or the Security Documents or for any representations, warranties, recitals or statements made in any document executed in connection with legal counselthe Obligations or made in any written or oral statement or in any financial or other statements, independent public accountants instruments, reports, certificates or any other documents in connection herewith or therewith furnished or made by or on behalf of the Company and its Subsidiaries (including any Issuer Subsidiary) to any Benefitted Party or be required to ascertain or inquire as to the performance or observance by the Company or any of its Subsidiaries (including any Issuer Subsidiary) or any other experts selected by it and pledgor or guarantor of any of the terms, conditions, provisions, covenants or agreements contained in any document executed in connection with the Obligations or of the existence or possible existence of any Triggering Event.
(e) The Collateral Agent shall not be liable to any Benefitted Party for any action taken or omitted hereunder or under the Security Documents or in connection herewith or therewith except to be taken the extent caused by it in good faith in accordance with the advice of such counsel, accountants or experts.
(d) Neither the Collateral Agent nor any of its directors, officers, agents or employees shall be liable for any action taken or not taken by it in connection with this Agreement (1) with the consent or at the request of Secured Party or (2) in the absence of its own Agent’s gross negligence or willful misconduct. The Collateral Agent shall not incur any liability by acting be entitled to rely, and shall be fully protected in reliance relying, upon any notice, consent, certificate, written statement, instrument or other writing (which may be a bank wire, telex or similar writing) document believed by it to be genuine and correct and to have been signed or to be signed sent by the proper party person or partiespersons and, except as otherwise specifically provided in this Agreement, shall be entitled to rely upon the written direction of the Required Creditors (as defined in Section 5(a)) certifying that the persons signing such direction constitute the “Required Creditors,” and shall be entitled to rely and shall be fully protected in relying on opinions and judgments of counsel, accountants, experts and other professional advisors selected by it in good faith and with due care. The Collateral Agent shall be entitled to refrain from exercising any power, discretion or authority vested in it under this Agreement or the Security Documents unless and until it has obtained the directions in accordance with Section 5(a) hereof with respect to the matters covered thereby. The Collateral Agent shall be entitled to request from each Benefitted Party a certificate setting out the amount of the respective Obligations held by it (including, without limitation, amounts representing principal, Contingent L/C Obligations or interest on such Obligations) for purposes of calculating distributions pursuant to Section 2(c).
(ef) Pledgor shall indemnify Each Benefitted Party agrees not to take any action whatsoever to enforce any term or provision of the Security Documents or to enforce any of its rights in respect of the Collateral, in each case except through the Collateral Agent against acting in accordance with this Agreement.
(g) The Company and each of its subsidiaries which is party to this Agreement, and any costIssuer Subsidiary which may become party to this Agreement pursuant to Section 10(f) hereof, expense (including counsel fees by its execution of the signature page of this Agreement, agrees to pay and disbursements)save the Collateral Agent harmless from liability for payment of all costs and expenses of the Collateral Agent in connection with this Agreement and the Security Documents, claimother than liabilities, demand, action, loss or liability (except such as result costs and expenses resulting from the Collateral Agent’s gross negligence or willful misconduct) that . Each Benefitted Party severally agrees to indemnify the Collateral Agent, pro rata (to the extent set forth in the penultimate sentence of this Section 4(g)), to the extent the Collateral Agent shall not have been reimbursed by or on behalf of the Company or from proceeds of the Collateral or otherwise, from and against any and all liabilities, obligations, losses, damages, penalties, actions, judgments, suits, costs, reasonable expenses (including, without limitation, reasonable counsel fees and disbursements) or disbursements of any kind or nature whatsoever which may suffer be imposed on, incurred by or incur asserted against the Collateral Agent in performing its duties hereunder or under the Security Documents in its capacity as the Collateral Agent in any way relating to or arising out of this Agreement, the Security Documents and/or the Collateral; provided that no Benefitted Party shall be liable for any portion of such liabilities, obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses or disbursements resulting from the Collateral Agent’s gross negligence, willful misconduct or breach of the express terms of this Agreement. For purposes of this Section 4(g), any pro rata calculation shall be on the basis of the outstanding principal amount of the Obligations (determined by assuming that all Obligations are denominated in U.S. Dollars based upon the Applicable Exchange Rate) held by or for each Benefitted Party at the time of the act, omission or transaction giving rise to the reimbursement or indemnity required by this Section 4(g). The provisions of this Section 4(g) shall survive the payment in full of all the Obligations and the termination of this Agreement and all other documents executed in connection with the Obligations.
(h) The Collateral Agent may resign at any time by giving sixty (60) days’ prior written notice thereof to the Benefitted Parties and the Company, subject to the acceptance of its appointment by a successor Collateral Agent simultaneously with or prior to any resignation of the Collateral Agent. Upon any such notice of resignation, the Required Creditors (as defined in Section 5(a) below) shall have the right to appoint a successor Collateral Agent. The Collateral Agent may be removed at any time with or without cause, by an instrument in writing delivered to the Collateral Agent, the Company and the other Benefitted Parties by the Required Creditors (as defined in Section 5(a) below). Upon the acceptance of any appointment as Collateral Agent hereunder by a successor Collateral Agent, such successor Collateral Agent shall thereupon succeed to and become vested with all the rights, powers, privileges and duties of the retiring or removed Collateral Agent, and the retiring or removed Collateral Agent shall be discharged from its duties and obligations under this Agreement and the Security Documents; provided, however, that the retiring or removed Collateral Agent will continue to remain liable for all acts of, or the omission to act by, such retiring or removed Collateral Agent which occurred prior to such retirement or removal. If no successor Collateral Agent shall have been so appointed and shall have accepted such appointment within forty-five (45) days after the retiring Collateral Agent’s giving of notice of resignation, then, upon five days’ prior written notice to the Company and the Benefitted Parties, the retiring Collateral Agent may, on behalf of the Benefitted Parties, appoint a successor Collateral Agent, which shall be a bank or trust company organized under the laws of the United States or any state thereof (or under the laws of a foreign country and having a branch or agency located in the United States) having a combined capital and surplus of at least $500,000,000, and the short term unsecured debt obligations of which are rated at least P-1 by Xxxxx’x Investors Service or A-1 by Standard & Poor’s, or any affiliate of such bank. After any retiring or removed Collateral Agent’s resignation or removal hereunder as Collateral Agent, the provisions of this Agreement shall inure to its benefit as to any actions taken or omitted to be taken by it while it was the Collateral Agent under this Agreement and the Security Documents.
(i) Except as expressly set forth herein, the Collateral Agent and each of its affiliates may accept deposits from, lend money to and generally engage in any kind of banking, trust, financial advisory or other business with the Company or any affiliate thereof (including any Issuer Subsidiary), and may accept fees and other consideration from the Company or any affiliate thereof (including any Issuer Subsidiary) for services in connection with this Agreement and otherwise without having to account for the same to any Benefitted Party.
(j) The Collateral Agent shall not be liable for or by reason of (i) any failure or defect in the registration, filing or recording of any of the Security Documents, or any action taken notice, caveat or omitted financing statement with respect to the foregoing, or (ii) any failure to do any act necessary to constitute, perfect and maintain the priority of the security interest created by the Security Documents.
(k) Notwithstanding anything to the contrary contained in this Agreement or any document executed in connection with any of the Obligations, the Collateral Agent, unless it shall have actual knowledge thereof, shall not be deemed to have any knowledge of any Triggering Event unless and until it shall have received written notice from the Company, any Issuer Subsidiary, or any Benefitted Party describing such Triggering Event in reasonable detail (including, to the extent known, the date of occurrence of the same).
(l) Upon receipt by the Collateral Agent hereunder.
(f) Beyond the exercise of reasonable care in the custody thereof, the Collateral Agent shall have no duty as to any Collateral in its possession or control or in the possession or control of any agent, bailee, clearing corporation or securities intermediary or any income thereon or as to the preservation of rights against prior parties or any other rights pertaining thereto. The Collateral Agent shall be deemed to have exercised reasonable care in the custody and preservation of the Collateral if the Collateral is accorded treatment substantially equal to that which it accords its own property, and shall not be liable or responsible for any loss or damage to any of the Collateral, or for any diminution in the value thereof, by reason of the act or omission of any agent, bailee, clearing corporation or securities intermediary selected direction by the Collateral Agent in good faith (or selected by an agentRequired Creditors, bailee, clearing corporation or securities intermediary so selected by the Collateral Agent or by any agent, bailee, clearing corporation or securities intermediary selected in accordance with this parenthetical phrase).
(g) Any corporation or association into which the Collateral Agent may be converted or merged, or with which it may be consolidated, or to which it may sell or transfer its agency business or assets as a whole or substantially as a whole, or any corporation or association resulting from any such conversion, sale, merger, consolidation or transfer to which it is a party, shall, subject to the prior written consent of Secured Party, be and become a successor Collateral Agent hereunder and vested with all of the title to the Collateral and all of the powers, discretions, immunities, privileges and other matters as was its predecessor without, except as provided above, the execution or filing of any instrument or any further act, deed or conveyance on the part of any of the parties hereto, anything herein to the contrary notwithstandingBenefitted Parties will be bound by such direction.
Appears in 2 contracts
Samples: Collateral Agency and Intercreditor Agreement (Nu Skin Enterprises Inc), Collateral Agency and Intercreditor Agreement (Nu Skin Enterprises Inc)
The Collateral Agent. (a) Secured Party hereby By accepting a Note, each Holder will be deemed to have irrevocably appoints and authorizes appointed the Collateral Agent to take such action act as collateral agent under the applicable Security Documents and any Intercreditor Agreement and irrevocably authorized the Collateral Agent to (i) perform the duties and exercise the rights and powers that are specifically given to it under the Security Documents, any Intercreditor Agreement and any other documents to which it is a party, together with any other incidental rights and powers, and (ii) execute each document to be executed by the Collateral Agent on its behalf behalf, any Security Document, any Intercreditor Agreement and all other instruments relating to exercise any such powers under this Agreement as are delegated Security Document or Intercreditor Agreement. The Holders may not, individually or collectively, take any direct action to enforce the Security Documents or Intercreditor Agreements. The Collateral Agent will have no duties or obligations with respect to the Collateral Agent by the terms hereof, together with all such powers as are reasonably incidental thereto.
(b) The obligations of the Collateral Agent hereunder are only except those expressly set forth hereunder or in this Agreement.
(c) the applicable Security Documents and Intercreditor Agreements and no implied covenants or obligations shall be read into such documents against the Collateral Agent. The Collateral Agent may consult with legal counsel, independent public accountants and other experts selected by it and shall will not be liable for any action taken or omitted to be taken by it in good faith in accordance with the advice of such counsel, accountants or experts.
(d) Neither the Collateral Agent nor any of its directors, officers, agents or employees shall be liable for any action taken or not taken by it in connection the absence of its own gross negligence, willful misconduct or bad faith (as determined by a court of competent jurisdiction in a final and non-appealable decision). The Collateral Agent will be entitled to rely upon, and will not incur any liability for relying upon, any notice, request, certificate, consent, statement, instrument, document or other writing believed by it in good faith to be genuine and to have been signed or sent by the proper person. The Collateral Agent may consult with this Agreement legal counsel (1) who may be counsel for the Company), independent accountants and other experts selected by it, and will not be liable for any action taken or not taken by it in accordance with the consent advice of any such counsel, accountants or at experts. Without limiting the request generality of Secured Party the foregoing, the Collateral Agent:
(i) shall not be subject to any fiduciary or other implied duties, regardless of whether an Event of Default has occurred and is continuing;
(2ii) shall not have any duty to take any discretionary action or exercise any discretionary powers and shall not be required to take any action that, in its opinion or the opinion of its counsel, may expose the Collateral Agent to liability or that is contrary to any Security Document, Intercreditor Agreement or applicable law;
(iii) shall not have any duty to disclose, and shall not be liable for the failure to disclose, any information relating to the Company or any Affiliate if the Company that is communicated to or obtained by the Person serving as a Collateral Agent or any of its Affiliates in any capacity;
(iv) shall not be liable for any action taken or not taken by it (i) in the absence of its own gross negligence negligence, willful misconduct or willful misconduct. The Collateral Agent shall not incur any liability bad faith (as determined by acting a court of competent jurisdiction in a final and non-appealable decision) or (ii) in reliance upon any notice, consent, certificate, statement, or other writing (which may be a bank wire, telex or similar writing) believed by it to be genuine or to be signed on an Officer’s Certificate of the Company stating that such action is permitted by the proper party or parties.
(e) Pledgor shall indemnify the Collateral Agent against any cost, expense (including counsel fees and disbursements), claim, demand, action, loss or liability (except such as result from the Collateral Agent’s gross negligence or willful misconduct) that the Collateral Agent may suffer or incur in connection with terms of this Agreement or any action taken or omitted by the Collateral Agent hereunder.
(f) Beyond the exercise of reasonable care in the custody thereof, the Collateral Agent shall have no duty as to any Collateral in its possession or control or in the possession or control of any agent, bailee, clearing corporation or securities intermediary or any income thereon or as to the preservation of rights against prior parties or any other rights pertaining theretoIndenture. The Collateral Agent shall be deemed not to have exercised reasonable care knowledge of any Event of Default hereunder unless and until written notice describing such Event of Default is received by such Collateral Agent from the Trustee or the Company; and
(v) shall not be responsible for or have any duty to ascertain or inquire into (i) any statement, warranty or representation made in or in connection with any Security Document or Intercreditor Agreement, (ii) the custody and preservation contents of any certificate, report or other document delivered hereunder or thereunder or in connection herewith or therewith, (iii) the performance or observance of any of the covenants, agreements or other terms or conditions set forth herein or therein or the occurrence of any Event of Default, (iv) the validity, enforceability, effectiveness or genuineness of any Security Document or Intercreditor Agreement or any other agreement, instrument or document, or the creation, perfection or priority of any Lien purported to be created by any Security Document or Intercreditor Agreement, (v) the existence, value or the sufficiency of any Collateral if for any Notes Obligations, or (vi) the satisfaction of any condition set forth in any operative agreements governing Notes Obligations, any Security Document or any Intercreditor Agreement, other than to confirm receipt of items expressly required to be delivered to such Collateral Agent. The use of the term “agent” herein with reference to a Collateral Agent is not intended to connote any fiduciary or other implied (or express) obligations arising under agency doctrine of any applicable law other than as a “representative” as such term is used in Section 9-102(a)(72)(E) of the UCC. BY ACCEPTING A NOTE EACH HOLDER WILL BE DEEMED TO HAVE IRREVOCABLY AGREED TO THE FOREGOING PROVISIONS OF THIS SECTION 14.01(a) AND SHALL BE BOUND BY THOSE AGREEMENTS TO THE FULLEST EXTENT PERMITTED BY LAW.
(b) The Collateral Agent shall be subject to such directions as may be properly given in accordance with this Indenture, the Security Documents and the Intercreditor Agreements. Except as expressly required by this Indenture, the Security Documents and the Intercreditor Agreements or otherwise in compliance with the prior sentence, the Collateral Agent shall not be obligated:
(i) to act upon directions purported to be delivered to it by any other Person;
(ii) to foreclose upon or otherwise enforce any Lien securing the Notes or any of the Guarantees; or
(iii) to take any other action whatsoever with regard to any or all of (w) the Liens securing the Notes, (x) the Guarantees, (y) the Security Documents or (z) the Intercreditor Agreements, or with regard to the Collateral.
(c) The Collateral Agent may perform any and all of its duties and exercise its rights and powers by or through, and is accorded treatment substantially equal authorized and empowered to that which appoint, one or more co-agents or sub-agents or attorneys-in-fact as it accords its own property, deems necessary or appropriate in connection herewith and shall not be liable for the negligence or responsible misconduct of any such agents or attorneys-in-fact selected by it in good faith.
(d) Subject to the appointment and acceptance of a successor Collateral Agent as provided below, the Collateral Agent may resign at any time by notifying the Company and the Trustee. Upon any such resignation, the Company shall have the right to appoint a successor; provided that, during the existence and continuation of an Event of Default pursuant to clause Section 5.01(a), (b), (e) or (f) hereof, the Holders of a majority in principal amount of the Notes shall have the right to appoint a successor. If no successor shall have been so appointed by the Company (or, if applicable, the Holders of a majority in principal amount of the Notes) and shall have accepted such appointment within 30 days after the retiring Collateral Agent gives notice of its resignation, then such retiring Collateral Agent may, on behalf of the Holders and the Trustee, petition at the expense of the Company a court of competent jurisdiction to appoint a successor Collateral Agent. Upon the acceptance of its appointment as a Collateral Agent hereunder by a successor, such successor shall succeed to and become vested with all the rights, powers, privileges and duties of the retiring Collateral Agent, and the retiring Collateral Agent shall be discharged from its duties and obligations hereunder. The fees payable by the Company to a successor Collateral Agent shall be the same as those payable to its predecessor unless otherwise agreed between the Company and such successor. After a Collateral Agent’s resignation hereunder, the provisions of this Article Fourteen and Article Six hereof shall continue in effect for the benefit of such retiring Collateral Agent, its sub-agents and their respective Affiliates in respect of any loss actions taken or damage omitted to be taken by any of the Collateralthem while acting as Collateral Agent.
(e) The benefits, or for any diminution in the value thereof, by reason protections and indemnities of the act or omission of any agent, bailee, clearing corporation or securities intermediary selected by Trustee in Sections 6.03 and 6.07 hereof shall apply mutatis mutandi to the Collateral Agent in good faith (or selected by an agentits capacity as such, baileeincluding, clearing corporation or securities intermediary so selected by without limitation, the rights to receive and rely on Officer’s Certificates and Opinions of Counsel, reimbursement and indemnification; provided that the applicable standard of care of the Collateral Agent with respect to Sections 6.03 and 6.07 hereof shall be gross negligence, willful misconduct and bad faith.
(f) Each Holder, by its acceptance of any Notes, is deemed to have consented and agreed to the terms of each Security Document and Intercreditor Agreement, as originally in effect and as amended, supplemented or by any agent, bailee, clearing corporation or securities intermediary selected replaced from time to time in accordance with its terms or the terms of this parenthetical phrase).
(g) Any corporation or association into which Indenture; and authorizes and empowers the Collateral Agent may be converted or mergedTrustee to bind the Holders as set forth in the applicable Security Documents and Intercreditor Agreements, or with which it may be consolidatedif any, or to which it may sell they are a party and to perform its obligations and exercise its rights and powers thereunder. Notwithstanding the foregoing, no such consent or transfer its agency business deemed consent shall be deemed or assets as a construed to represent an amendment or waiver, in whole or substantially as a wholein part, or any corporation or association resulting from any such conversion, sale, merger, consolidation or transfer to which it is a party, shall, subject to the prior written consent of Secured Party, be and become a successor Collateral Agent hereunder and vested with all of the title to the Collateral and all of the powers, discretions, immunities, privileges and other matters as was its predecessor without, except as provided above, the execution or filing of any instrument provision of this Indenture or any further act, deed or conveyance on the part of any of the parties hereto, anything herein to the contrary notwithstandingNotes.
Appears in 2 contracts
Samples: Senior Secured Notes Agreement (Office Properties Income Trust), Senior Secured Notes Agreement (Office Properties Income Trust)
The Collateral Agent. (a) Secured Party hereby irrevocably appoints It is expressly acknowledged and authorizes agreed that the Collateral Agent to take such action as agent on its behalf and to exercise such powers under this Agreement as are delegated to is not guaranteeing the Collateral Agent by performance of or assuming any liability for the terms hereof, together with all such powers as are reasonably incidental theretoobligations of the other parties hereto or any portion of the Collateral.
(b) The obligations of the Collateral Agent hereunder are only those expressly set forth shall not be responsible for the preparation or filing of any UCC financing statements or continuation statements or the correctness of any financing statements filed in connection with this Agreement or the validity or perfection of any lien or security interest created pursuant to this Agreement.
(c) The Collateral Agent may consult with legal counsel, independent public accountants and other experts selected by it and shall not be liable for interest on any action taken or omitted to be taken money received by it except as the Collateral Agent may agree in good faith in accordance writing with the advice Borrower. In no event shall the Collateral Agent be liable for the selection of such counselany investments or any losses in connection therewith (except in its capacity as obligor thereunder, accountants if applicable), or expertsfor any failure of the relevant party to provide investment instruction to the Collateral Agent in connection with the investment of funds in or from any account set forth herein.
(d) Neither the Collateral Agent nor any of its directors, officers, agents or employees shall be liable for any action taken or not taken by it in connection with this Agreement (1) with the consent or at the request of Secured Party or (2) in the absence of its own gross negligence or willful misconduct. The Collateral Agent shall not incur have no liability for any failure, inability or unwillingness on the part of the Collateral Manager, the Borrower, the Collateral Administrator or the Administrative Agent to provide accurate and complete information on a timely basis to the Collateral Agent, or otherwise on the part of any such party to comply with the terms of this Agreement, and shall have no liability for any inaccuracy or error in the performance or observance on the Collateral Agent’s part of any of its duties hereunder that is caused by acting in reliance upon or results from any noticesuch inaccurate, consent, certificate, statementincomplete or untimely information received by it, or other writing (which may be a bank wire, telex or similar writing) believed by it failure on the part of any such other party to be genuine or to be signed by comply with the proper party or partiesterms hereof.
(e) Pledgor shall indemnify the The Collateral Agent against shall have no duty to determine or inquire into the happening or occurrence of any costevent or contingency, expense (including counsel fees and disbursements), claim, demand, action, loss or liability (except such as result from the Collateral Agent’s gross negligence or willful misconduct) it is agreed that the Collateral Agent may suffer or incur its duties hereunder are purely ministerial in connection with this Agreement or any action taken or omitted by the Collateral Agent hereundernature.
(f) Beyond Should any controversy arise between the exercise undersigned with respect to the Collateral held by the Collateral Agent, the Collateral Agent shall follow the instructions of reasonable care the Administrative Agent on behalf of the Secured Parties.
(g) The powers conferred on the Collateral Agent hereunder are solely to protect its interest (on behalf of the Secured Parties) in the custody thereofCollateral and shall not impose any duty on it to exercise any such powers. Except for performing the obligations expressly imposed on the Collateral Agent hereunder, the Collateral Agent shall have no duty as to any Collateral in its possession or control responsibility for ascertaining or in taking action with respect to calls, conversions, exchanges, maturities, tenders or other matters relative to any Collateral, whether or not the possession Collateral Agent has or control is deemed to have knowledge of such matters or taking any agent, bailee, clearing corporation or securities intermediary or any income thereon or as steps to the preservation of preserve rights against prior parties or any other rights pertaining theretoto any Collateral.
(h) In order to comply with the laws, rules, regulations and executive orders in effect from time to time applicable to banking institutions, including those relating to the funding of terrorist activities and money laundering, the Collateral Agent may be required to obtain, verify and record certain information relating to individuals and entities which maintain a business relationship with the Collateral Agent. Accordingly, each of the parties hereto agrees to provide to the Collateral Agent upon its request from time to time such identifying information and documentation as may be available to such party in order to enable the Collateral Agent to comply with such requirements.
(i) If Citibank or the Collateral Agent is also acting in another capacity, including as Custodian or Securities Intermediary, the rights, protections, immunities and indemnities afforded to Citibank or the Collateral Agent pursuant to this Article XII shall also be afforded to Citibank or the Collateral Agent acting in such capacities; provided that such rights, protections, benefits, immunities and indemnities shall be in addition to, and not in limitation of, any rights, protections, benefits, immunities and indemnities provided in the Custodian Agreement, Account Control Agreement or any other Facility Documents to which Citibank or the Collateral Agent in such capacity is a party.
(j) The Collateral Agent shall not have any obligation to determine if a Collateral Loan meets the criteria specified in the definition of Eligible Collateral Loan or if the requirements set forth in the definition of “Deliver” have been satisfied.
(k) The Collateral Administrator shall be entitled to the same rights, protections and indemnities as set forth with respect to the Collateral Agent in this Article XII.
(l) Notwithstanding the foregoing, whenever reference is made in any Facility Document to any action by, consent, designation, specification, requirement or approval of, notice, request or other communication from, or other direction given or action to be undertaken or to be (or not to be) suffered or omitted by the Collateral Agent or to any election, decision, opinion, acceptance, use of judgment, expression of satisfaction or other exercise of discretion, rights or remedies to be made (or not to be made) by the Collateral Agent, it is understood that in all cases the Collateral Agent shall be acting, giving, withholding, suffering, omitting, making or otherwise undertaking and exercising the same (or shall not be undertaking and exercising the same) solely as directed in writing by the Administrative Agent acting at the instruction of the Required Lenders (or such other Lenders or percentage thereof as shall be expressly required hereunder). The Collateral Agent may at any time request instructions from the Administrative Agent with respect to any actions or approvals which, by the terms of this Agreement or any of the Facility Documents, the Collateral Agent is permitted or required to take or to grant, and the Collateral Agent shall be absolutely entitled to refrain from taking any such action or to withhold any such approval and shall not be under any liability whatsoever solely as a result thereof until it shall have received such instructions from the Administrative Agent acting at the direction of such Lenders. The Collateral Agent shall be deemed to not have exercised reasonable care any liability for any failure or delay in taking any actions contemplated above as a result of a failure or delay on the custody and preservation part of the Collateral if requisite Lenders (or the Collateral is accorded treatment substantially equal Administrative Agent on their behalf) to that which it accords its own property, and shall not be liable or responsible for any loss or damage provide such instruction.
(m) With respect to any notices, reports, requests for waiver, consent requests or any other requests relating to corporate actions affecting any Equity Securities (together, the “Bond Corporate Actions”), the delivery of the Collateral, such shall be made solely via Citibank's corporate action notification system or for any diminution in the value thereof, by reason of the act or omission of any agent, bailee, clearing corporation or securities intermediary selected such other reasonable notification method as implemented by the Collateral Agent in good faith (or selected by with notification to the Collateral Manager. In order to receive such Bond Corporate Actions, the Collateral Manager may be required to register for an agent, bailee, clearing corporation or securities intermediary so selected by account with Citibank's corporate action notification system. Neither the Collateral Agent or by any agent, bailee, clearing corporation or securities intermediary selected in accordance with this parenthetical phrase).
(g) Any corporation or association into which nor the Collateral Agent may be converted Administrator shall have no obligation or merged, or liability with which it may be consolidated, or respect to which it may sell or transfer its agency business or assets as a whole or substantially as a whole, or any corporation or association resulting from any such conversion, sale, merger, consolidation or transfer to which it is a party, shall, subject to the prior written consent of Secured Party, be and become a successor Collateral Agent hereunder and vested with all of the title to the Collateral and all of the powers, discretions, immunities, privileges and other matters as was its predecessor without, except as provided above, the execution or filing of any instrument or any further act, deed or conveyance on the part of any of the parties hereto, anything herein to the contrary notwithstandingBond Corporate Actions.
Appears in 1 contract
Samples: Revolving Credit and Security Agreement (Main Street Capital CORP)
The Collateral Agent. (a) Secured Party hereby By accepting a Note, each Holder will be deemed to have irrevocably appoints and authorizes appointed the Collateral Agent to take such action act as collateral agent under the applicable Security Documents and irrevocably authorized the Collateral Agent to (i) perform the duties and exercise the rights and powers that are specifically given to it under the Security Documents or other documents to which it is a party, together with any other incidental rights and powers, and (ii) execute each document to be executed by the Collateral Agent on its behalf behalf, any Security Documents and all other instruments relating to exercise such powers under this Agreement as are delegated the Security Documents. The Holders may not, individually or collectively, take any direct action to enforce the Security Documents. The Collateral Agent will have no duties or obligations with respect to the Collateral Agent by the terms hereof, together with all such powers as are reasonably incidental thereto.
(b) The obligations of the Collateral Agent hereunder are only except those expressly set forth hereunder or in this Agreement.
(c) the applicable Security Documents and no implied covenants or obligations shall be read into such documents against the Collateral Agent. The Collateral Agent may consult with legal counsel, independent public accountants and other experts selected by it and shall will not be liable for any action taken or omitted to be taken by it in good faith in accordance with the advice of such counsel, accountants or experts.
(d) Neither the Collateral Agent nor any of its directors, officers, agents or employees shall be liable for any action taken or not taken by it in connection the absence of its own gross negligence, willful misconduct or bad faith (as determined by a court of competent jurisdiction in a final and non-appealable decision). The Collateral Agent will be entitled to rely upon, and will not incur any liability for relying upon, any notice, request, certificate, consent, statement, instrument, document or other writing believed by it in good faith to be genuine and to have been signed or sent by the proper person. The Collateral Agent may consult with this Agreement legal counsel (1) who may be counsel for the Company), independent accountants and other experts selected by it, and will not be liable for any action taken or not taken by it in accordance with the consent advice of any such counsel, accountants or at experts. Without limiting the request generality of Secured Party the foregoing, the Collateral Agent:
(i) shall not be subject to any fiduciary or other implied duties, regardless of whether an Event of Default has occurred and is continuing;
(2ii) shall not have any duty to take any discretionary action or exercise any discretionary powers and shall not be required to take any action that, in its opinion or the opinion of its counsel, may expose the Collateral Agent to liability or that is contrary to any Security Document or applicable law;
(iii) shall not have any duty to disclose, and shall not be liable for the failure to disclose, any information relating to the Company or any Affiliate if the Company that is communicated to or obtained by the Person serving as a Collateral Agent or any of its Affiliates in any capacity;
(iv) shall not be liable for any action taken or not taken by it (i) in the absence of its own gross negligence or willful misconduct. The Collateral Agent shall not incur any liability misconduct (as determined by acting a court of competent jurisdiction in a final and non-appealable decision) or (ii) in reliance upon any notice, consent, certificate, statement, or other writing (which may be a bank wire, telex or similar writing) believed by it to be genuine or to be signed on an Officer’s Certificate of the Company stating that such action is permitted by the proper party or parties.
(e) Pledgor shall indemnify the Collateral Agent against any cost, expense (including counsel fees and disbursements), claim, demand, action, loss or liability (except such as result from the Collateral Agent’s gross negligence or willful misconduct) that the Collateral Agent may suffer or incur in connection with terms of this Agreement or any action taken or omitted by the Collateral Agent hereunder.
(f) Beyond the exercise of reasonable care in the custody thereof, the Collateral Agent shall have no duty as to any Collateral in its possession or control or in the possession or control of any agent, bailee, clearing corporation or securities intermediary or any income thereon or as to the preservation of rights against prior parties or any other rights pertaining theretoIndenture. The Collateral Agent shall be deemed not to have exercised reasonable care knowledge of any Event of Default hereunder unless and until written notice describing such Event of Default is received by such Collateral Agent from the Trustee or the Company; and
(v) shall not be responsible for or have any duty to ascertain or inquire into (i) any statement, warranty or representation made in or in connection with any Security Document, (ii) the custody and preservation contents of any certificate, report or other document delivered hereunder or thereunder or in connection herewith or therewith, (iii) the performance or observance of any of the covenants, agreements or other terms or conditions set forth herein or therein or the occurrence of any Event of Default, (iv) the validity, enforceability, effectiveness or genuineness of any Security Document or any other agreement, instrument or document, or the creation, perfection or priority of any Lien purported to be created by any Security Document, (v) the existence, value or the sufficiency of any Collateral if for any Notes Obligations, or (vi) the satisfaction of any condition set forth in any operative agreements governing Notes Obligations or any Security Document, other than to confirm receipt of items expressly required to be delivered to such Collateral Agent. The use of the term “agent” herein with reference to a Collateral Agent is not intended to connote any fiduciary or other implied (or express) obligations arising under agency doctrine of any applicable law other than as a “representative” as such term is used in Section 9-102(a)(72)(E) of the UCC. BY ACCEPTING A NOTE EACH HOLDER WILL BE DEEMED TO HAVE IRREVOCABLY AGREED TO THE FOREGOING PROVISIONS OF THIS SECTION 14.01(a) AND SHALL BE BOUND BY THOSE AGREEMENTS TO THE FULLEST EXTENT PERMITTED BY LAW.
(b) The Collateral Agent shall be subject to such directions as may be properly given in accordance with this Indenture and the Security Documents. Except as expressly required by this Indenture and the Security Documents or otherwise in compliance with the prior sentence, the Collateral Agent shall not be obligated:
(i) to act upon directions purported to be delivered to it by any other Person;
(ii) to foreclose upon or otherwise enforce any Lien securing the Notes or any of the Guarantees; or
(iii) to take any other action whatsoever with regard to any or all of (x) the Liens securing the Notes, (y) the Guarantees or (z) the Security Documents, or with regard to the Collateral.
(c) The Collateral Agent may perform any and all of its duties and exercise its rights and powers by or through, and is accorded treatment substantially equal authorized and empowered to that which appoint, one or more co-agents or sub-agents or attorneys-in-fact as it accords its own property, deems necessary or appropriate in connection herewith and shall not be liable for the negligence or responsible misconduct of any such agents or attorneys-in-fact selected by it in good faith.
(d) Subject to the appointment and acceptance of a successor Collateral Agent as provided below, the Collateral Agent may resign at any time by notifying the Company and the Trustee. Upon any such resignation, the Company shall have the right to appoint a successor; provided that, during the existence and continuation of an Event of Default pursuant to clause Section 5.01(a), (b), (e) or (f) hereof, the Holders of a majority in principal amount of the Notes shall have the right to appoint a successor. If no successor shall have been so appointed by the Company (or, if applicable, the Holders of a majority in principal amount of the Notes) and shall have accepted such appointment within 30 days after the retiring Collateral Agent gives notice of its resignation, then such retiring Collateral Agent may, on behalf of the Holders and the Trustee, petition at the expense of the Company a court of competent jurisdiction to appoint a successor Collateral Agent. Upon the acceptance of its appointment as a Collateral Agent hereunder by a successor, such successor shall succeed to and become vested with all the rights, powers, privileges and duties of the retiring Collateral Agent, and the retiring Collateral Agent shall be discharged from its duties and obligations hereunder. The fees payable by the Company to a successor Collateral Agent shall be the same as those payable to its predecessor unless otherwise agreed between the Company and such successor. After a Collateral Agent’s resignation hereunder, the provisions of this Article Fourteen and Article Six hereof shall continue in effect for the benefit of such retiring Collateral Agent, its sub-agents and their respective Affiliates in respect of any loss actions taken or damage omitted to be taken by any of the Collateralthem while acting as Collateral Agent.
(e) The benefits, or for any diminution in the value thereof, by reason protections and indemnities of the act or omission of any agent, bailee, clearing corporation or securities intermediary selected by Trustee in Sections 6.03 and 6.07 hereof shall apply mutatis mutandi to the Collateral Agent in good faith (or selected by an agentits capacity as such, baileeincluding, clearing corporation or securities intermediary so selected by without limitation, the rights to receive and rely on Officer’s Certificates and Opinions of Counsel, reimbursement and indemnification; provided that the applicable standard of care of the Collateral Agent with respect to Sections 6.03 and 6.07 hereof shall be gross negligence and willful misconduct.
(f) Each Holder, by its acceptance of any Notes, is deemed to have consented and agreed to the terms of each Security Document, as originally in effect and as amended, supplemented or by any agent, bailee, clearing corporation or securities intermediary selected replaced from time to time in accordance with its terms or the terms of this parenthetical phrase).
(g) Any corporation or association into which Indenture; and authorizes and empowers the Collateral Agent may be converted or mergedTrustee to bind the Holders as set forth in the applicable Security Documents, or with which it may be consolidatedif any, or to which it may sell they are a party and to perform its obligations and exercise its rights and powers thereunder. Notwithstanding the foregoing, no such consent or transfer its agency business deemed consent shall be deemed or assets as a construed to represent an amendment or waiver, in whole or substantially as a wholein part, or any corporation or association resulting from any such conversion, sale, merger, consolidation or transfer to which it is a party, shall, subject to the prior written consent of Secured Party, be and become a successor Collateral Agent hereunder and vested with all of the title to the Collateral and all of the powers, discretions, immunities, privileges and other matters as was its predecessor without, except as provided above, the execution or filing of any instrument provision of this Indenture or any further act, deed or conveyance on the part of any of the parties hereto, anything herein to the contrary notwithstandingNotes.
Appears in 1 contract
Samples: Senior Secured Notes Agreement (Diversified Healthcare Trust)
The Collateral Agent. (a) Secured Party Each of the Lenders hereby irrevocably appoints the Collateral Agent as its agent and authorizes the Collateral Agent to take such action as agent actions on its behalf and to exercise such powers under this Agreement as are delegated to the Collateral Agent by the terms hereofof the Loan Documents, together with all such actions and powers as are reasonably incidental thereto.
(b) . The obligations of institution serving as the Collateral Agent hereunder are only shall have the same rights and powers in its capacity as a Lender as any other Lender and may exercise the same as though it were not the Collateral Agent, and such institution and its Affiliates may accept deposits from, lend money to and generally engage in any kind of business with the Borrower or any Subsidiary or other Affiliate thereof as if it were not the Collateral Agent hereunder. The Collateral Agent shall not have any duties or obligations except those expressly set forth in this Agreement.
the Loan Documents. Without limiting the generality of the foregoing (a) the Collateral 67 Agent shall not be subject to any fiduciary or other implied duties, regardless of whether a Default has occurred and is continuing, (b) the Collateral Agent shall not have any duty to take any discretionary action or exercise any discretionary powers, except discretionary rights and powers expressly contemplated by the Loan Documents that the Collateral Agent is required to exercise in writing by the Required Lenders (or such other number or percentage of the Lenders as shall be necessary under the circumstances as provided in Section 9.02), and (c) The except as expressly set forth in the Loan Documents, the Collateral Agent may consult with legal counselshall not have any duty to disclose, independent public accountants and other experts selected by it and shall not be liable for the failure to disclose, any action taken information relating to the Borrower or omitted to be taken by it in good faith in accordance with the advice of such counsel, accountants or experts.
(d) Neither the Collateral Agent nor any of its directors, officers, agents Subsidiaries that is communicated to or employees obtained by the institution serving as Collateral Agent or any of its Affiliates in any capacity. The Collateral Agent shall not be liable for any action taken or not taken by it in connection with this Agreement (1) with the consent or at the request of Secured Party the Required Lenders (or (2such other number or percentage of the Lenders as shall be necessary under the circumstances as provided in Section 9.02) or in the absence of its own gross negligence or willful misconduct. The Collateral Agent shall not be deemed not to have knowledge of any Default unless and until written notice thereof is given to the Collateral Agent by the Borrower or a Lender, and the Collateral Agent shall not be responsible for or have any duty to ascertain or inquire into (i) any statement, warranty or representation made in or in connection with any Loan Document, (ii) the contents of any certificate, report or other document delivered thereunder or in connection therewith, (iii) the performance or observance of any of the covenants, agreements or other terms or conditions set forth in any Loan Document, (iv) the validity, enforceability, effectiveness or genuineness of any Loan Document or any other agreement, instrument or document, or (v) the satisfaction of any condition set forth in Article IV or elsewhere in any Loan Document, other than to confirm receipt of items expressly required to be delivered to the Collateral Agent. The Collateral Agent shall be entitled to rely upon, and shall not incur any liability by acting in reliance upon for relying upon, any notice, consentrequest, certificate, consent, statement, instrument, document or other writing (which may be a bank wire, telex or similar writing) believed by it to be genuine and to have been signed or to be signed sent by the proper party or parties.
(e) Pledgor shall indemnify the Collateral Agent against any cost, expense (including counsel fees and disbursements), claim, demand, action, loss or liability (except such as result from the Collateral Agent’s gross negligence or willful misconduct) that the Collateral Agent may suffer or incur in connection with this Agreement or any action taken or omitted by the Collateral Agent hereunder.
(f) Beyond the exercise of reasonable care in the custody thereof, the Collateral Agent shall have no duty as to any Collateral in its possession or control or in the possession or control of any agent, bailee, clearing corporation or securities intermediary or any income thereon or as to the preservation of rights against prior parties or any other rights pertaining theretoPerson. The Collateral Agent also may rely upon any statement made to it orally or by telephone and believed by it to be made by the proper Person, and shall not incur any liability for relying thereon. The Collateral Agent may consult with legal counsel (who may be deemed to have exercised reasonable care in counsel for the custody Borrower), independent accountants and preservation of the Collateral if the Collateral is accorded treatment substantially equal to that which it accords its own propertyother experts selected by it, and shall not be liable or responsible for any loss action taken or damage to any of not taken by it in accordance with the Collateral, or for any diminution in the value thereof, by reason of the act or omission advice of any agentsuch counsel, bailee, clearing corporation accountants or securities intermediary selected experts. The Collateral Agent may perform any and all its duties and exercise its rights and powers by or through any one or more sub-agents appointed by the Collateral Agent. The Collateral Agent and any such sub-agent may perform any and all its duties and exercise its rights and powers through their respective Related Parties. The exculpatory provisions of the preceding paragraphs shall apply to any such sub-agent and to the Related Parties of each Collateral Agent and any such sub-agent. Subject to the appointment and acceptance of a successor the Collateral Agent as provided in this paragraph, the Collateral Agent may resign at any time by notifying the Lenders and the Borrower. Upon any such resignation, the Required Lenders shall have the right, in consultation with the Borrower, to appoint a successor. If no successor shall have been so appointed by the Required Lenders and shall have accepted such appointment within 30 days after the retiring Collateral Agent gives notice of its resignation, then the retiring Collateral Agent may, on behalf of the Lenders, appoint a successor Collateral Agent which shall be a bank with an office in New York, New York, or an Affiliate of any such bank. Upon the acceptance of its appointment as Collateral Agent hereunder by a successor, such successor shall succeed to and become vested with all the rights, powers, privileges and duties of the retiring Collateral Agent, and the retiring Collateral Agent shall be discharged from its duties and obligations hereunder. After the Collateral Agent's resignation hereunder, the provisions of this Article and Section 9.03 shall continue in effect for the benefit of such retiring Collateral Agent, its sub-agents and their respective Related Parties in respect of any actions taken or omitted to be taken by any of them while it was acting as Collateral Agent. The Borrower shall pay the fees of any such successor Collateral Agent in good faith (or selected an amount not exceeding fees generally charged by an agentsuch successor Collateral Agent to other Persons for rendering similar services. Each Lender acknowledges that it has, bailee, clearing corporation or securities intermediary so selected by independently and without reliance upon the Collateral Agent or by any agentother Lender and based on such documents and information as it has deemed appropriate, baileemade its own credit analysis and decision to enter into this Agreement. Each Lender also acknowledges that it will, clearing corporation or securities intermediary selected in accordance with this parenthetical phrase).
(g) Any corporation or association into which independently and without reliance upon the Collateral Agent may be converted or merged, or with which it may be consolidated, or to which it may sell or transfer its agency business or assets as a whole or substantially as a whole, or any corporation other Lender and based on such documents and information as it shall from time to time deem appropriate, continue to make its own decisions in taking or association resulting from not taking action under or based upon this Agreement, any such conversion, sale, merger, consolidation other Loan Document or transfer to which it is a party, shall, subject to the prior written consent of Secured Party, be and become a successor Collateral Agent hereunder and vested with all of the title to the Collateral and all of the powers, discretions, immunities, privileges and other matters as was its predecessor without, except as provided above, the execution or filing of any instrument related agreement or any further act, deed document furnished hereunder or conveyance on the part of any of the parties hereto, anything herein to the contrary notwithstandingthereunder.
Appears in 1 contract
Samples: Credit Agreement (T Netix Inc)
The Collateral Agent. (a) The Collateral Agent will hold in accordance with this Agreement all items of the Collateral at any time received under this Agreement. It is expressly understood, acknowledged and agreed by each Secured Party hereby irrevocably appoints and authorizes that by accepting the Collateral Agent to take such action as agent on its behalf and to exercise such powers under benefits of this Agreement as are delegated to each such Secured Party acknowledges and agrees that the Collateral Agent by the terms hereof, together with all such powers as are reasonably incidental thereto.
(b) The obligations of the Collateral Agent hereunder as holder of the Collateral and interests therein and with respect to the disposition thereof, and otherwise under this Agreement, are only those expressly set forth in this Agreement.
(c) , the other Facility Documents and the Loan Agreement. The Collateral Agent may consult with legal counselshall act hereunder on the terms and conditions set forth herein and in the other Facility Documents and the Loan Agreement. The provisions of Article VIII of the Loan Agreement shall inure to the benefit of the Collateral Agent, independent public accountants and other experts selected by it and shall not be liable for any action taken or omitted to be taken by it in good faith in accordance with the advice of such counselbinding upon all Pledgors and all Secured Parties, accountants or experts.
(d) Neither the Collateral Agent nor any of its directors, officers, agents or employees shall be liable for any action taken or not taken by it in connection with this Agreement and the other Facility Documents. Without limiting the generality of the foregoing, (1i) with the consent or at the request of Secured Party or (2) in the absence of its own gross negligence or willful misconduct. The Collateral Agent shall not incur be subject to any liability by acting in reliance upon any noticetrust, consent, certificate, statement, fiduciary or other writing (which may be a bank wireimplied duties, telex regardless of whether an Event of Default has occurred and is continuing and no implied covenants, responsibilities, duties, obligations or similar writing) believed by it to be genuine or to be signed by the proper party or parties.
(e) Pledgor shall indemnify liabilities against the Collateral Agent against any cost, expense shall be read into this Agreement and (including counsel fees and disbursements), claim, demand, action, loss or liability (except such as result from ii) the Collateral Agent’s gross negligence Agent shall not have any duty to take any discretionary action or willful misconduct) exercise any discretionary powers, except discretionary rights and powers expressly contemplated by the Facility Documents that the Collateral Agent may suffer is required in writing to exercise by the Required Lenders. Notwithstanding anything to the contrary in this Agreement, in no event shall the Collateral Agent (i) be liable or incur in connection responsible for, or have any duty or obligation with respect to, the recording, filing, registering, perfection, protection or maintenance of the security interests or Liens intended to be created by this Agreement (including the preparation, filing or continuation of any Uniform Commercial Code financing or continuation statements or similar documents or instruments), (ii) be liable for or responsible for, and the Collateral Agent makes no representation regarding, the validity, enforceability, effectiveness or priority of this Agreement or any action taken the security interests or omitted by the Collateral Agent hereunder.
Liens intended to be created hereby or (fiii) Beyond the exercise of reasonable care in the custody thereof, the Collateral Agent shall have no duty as to any Collateral in its possession or control or in the possession or control of any agent, bailee, clearing corporation or securities intermediary or any income thereon or as to the preservation of rights against prior parties or any other rights pertaining thereto. The Collateral Agent shall be deemed to have exercised reasonable care in the custody and preservation of the Collateral if the Collateral is accorded treatment substantially equal to that which it accords its own property, and shall not be liable or responsible for any loss or damage to any failure of the Collateral, or for any diminution in the value thereof, by reason of the act or omission of any agent, bailee, clearing corporation or securities intermediary selected by the Collateral Agent in good faith (or selected by an agent, bailee, clearing corporation or securities intermediary so selected by the Collateral Agent or by any agent, bailee, clearing corporation or securities intermediary selected in accordance with this parenthetical phrase).
(g) Any corporation or association into which the Collateral Agent may be converted or merged, or with which it may be consolidated, or to which it may sell or transfer its agency business or assets as a whole or substantially as a whole, Pledgors or any corporation or association resulting from any such conversion, sale, merger, consolidation or transfer to which it is a party, shall, subject party to the prior written consent of Secured Party, be and become a successor Collateral Agent Intercreditor Agreement or the Facility Documents to perform its obligations hereunder and vested with all of the title to the Collateral and all of the powers, discretions, immunities, privileges and other matters as was its predecessor without, except as provided above, the execution or filing of any instrument or any further act, deed or conveyance on the part of any of the parties hereto, anything herein to the contrary notwithstandingthereunder.
Appears in 1 contract
The Collateral Agent. (a) Each Secured Party hereby Party, by accepting the benefits of this Agreement and each other Collateral Document to which it is a party or of which it is the beneficiary, irrevocably appoints and authorizes the Collateral Agent to take such action as agent on its such Secured Party’s behalf and to exercise such powers powers, rights and remedies hereunder and under this Agreement the Collateral Documents as are specifically delegated or granted to the Collateral Agent by the terms hereofhereof and thereof, together with all such powers powers, rights and remedies as are reasonably incidental thereto. The Collateral Agent shall have only those duties and responsibilities that are expressly specified herein and in the Collateral Documents. The Collateral Agent may exercise such powers, rights and remedies and perform such duties by or through its agents or employees. The Collateral Agent shall not have, by reason hereof or any of the Collateral Documents, a fiduciary relationship in respect of any Secured Party or any Credit Party and nothing herein or any of the Collateral Documents, expressed or implied, is intended to or shall be so construed as to impose upon the Collateral Agent any obligations in respect hereof or any of the Collateral Documents except as expressly set forth herein or therein.
(b) The obligations Collateral Agent shall not be responsible to any Secured Party for the execution, effectiveness, genuineness, validity, enforceability, collectability or sufficiency hereof or of any Collateral Document or the validity or perfection of any security interest or for any representations, warranties, recitals or statements made herein or therein or made in any written or oral statements or in any financial or other statements, instruments, reports or certificates or any other documents furnished or made by the Collateral Agent to the Secured Parties or by or on behalf of any Secured Party to the Collateral Agent or any Secured Party in connection with the Collateral Documents and the transactions contemplated thereby or for the financial condition or business affairs of any Credit Party or any other Person liable for the payment of any Obligations, nor shall the Collateral Agent be required to ascertain or inquire as to the performance or observance of any of the terms, conditions, provisions, covenants or agreements contained in any of the Collateral Agent hereunder are only those expressly set forth in this AgreementDocuments or as to the existence or possible existence of any Actionable Default, Event of Default or Default or to make any disclosures with respect to the foregoing.
(c) The Collateral Agent may consult with legal counsel, independent public accountants and other experts selected by it and shall not be liable for any action taken or omitted to be taken by it in good faith in accordance with the advice of such counsel, accountants or experts.
(d) Neither the Collateral Agent nor any of its officers, partners, directors, officers, employees or agents or employees shall be liable to the Secured Parties for any action taken or not taken omitted by it the Collateral Agent under or in connection with this Agreement (1) with any of the consent or at Collateral Documents except to the request of Secured Party or (2) in extent caused by the absence of its own Collateral Agent’s gross negligence or willful misconduct, as determined by a final, non-appealable judgment of a court of competent jurisdiction. The Collateral Agent shall not incur be entitled to refrain from any liability act or the taking of any action (including the failure to take an action) in connection herewith or any of the Collateral Documents or from the exercise of any power, discretion or authority vested in it hereunder or thereunder unless and until the Collateral Agent shall have been instructed in respect thereof by acting an Act of the Secured Parties and, upon such instruction, the Collateral Agent shall be entitled to act or (where so instructed) refrain from acting, or to exercise such power, discretion or authority, in reliance accordance with such written instructions. Without prejudice to the generality of the foregoing, (i) the Collateral Agent shall be entitled to rely, and shall be fully protected in relying, upon any noticecommunication, consent, certificate, statement, instrument or other writing (which may be a bank wire, telex or similar writing) document believed by it to be genuine and correct and to have been signed or to be signed sent by the proper Person or Persons, and shall be entitled to rely and shall be protected in relying on opinions and judgments of attorneys (who may be attorneys for the Company and its Subsidiaries), accountants, experts and other professional advisors selected by it; and (ii) no Secured Party shall have any right of action whatsoever against the Collateral Agent as a result of the Collateral Agent acting or (where so instructed) refraining from acting hereunder or under any of the Collateral Documents in accordance with an Act of the Secured Parties.
(d) The Collateral Agent may perform any and all of its duties and exercise its rights and powers under this Agreement or under any Collateral Document by or through any one or more sub-agents appointed by the Collateral Agent. The Collateral Agent and any such sub-agent may perform any and all of its duties and exercise its rights and powers by or through their respective Affiliates. The exculpatory, indemnification and other provisions of this Section 2.8 shall apply to any of the Affiliates of the Collateral Agent and shall apply to their respective activities in connection with the transactions contemplated hereby and by the Collateral Documents as well as activities as the Collateral Agent. All of the rights, benefits, and privileges (including the exculpatory and indemnification provisions) of this Section 2.8 shall apply to any such sub-agent and to the Affiliates of any such sub-agent, and shall apply to their respective activities as sub-agent as if such sub-agent and Affiliates were named herein. Notwithstanding anything herein to the contrary, with respect to each sub-agent appointed by the Collateral Agent, (i) such sub-agent shall be a third party beneficiary under this Agreement with respect to all such rights, benefits and privileges (including exculpatory rights and rights to indemnification) and shall have all of the rights and benefits of a third party beneficiary, including an independent right of action to enforce such rights, benefits and privileges (including exculpatory rights and rights to indemnification) directly, without the consent or partiesjoinder of any other Person, against any or all of the Credit Parties and the Secured Parties and (ii) such rights, benefits and privileges (including exculpatory rights and rights to indemnification) shall not be modified or amended without the consent of such sub-agent.
(e) Pledgor Section 9.03 of the Credit Agreement is hereby incorporated into this Agreement mutatis mutandis and shall apply to the Collateral Agent in respect of any of its duties, obligations and rights hereunder or under any Collateral Documents.
(f) The Administrative Agent agrees to indemnify the Collateral Agent, to the extent that the Collateral Agent shall not have been reimbursed by any Credit Party, for and against any costand all liabilities, expense obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses (including counsel fees and disbursements)) or disbursements of any kind or nature whatsoever which may be imposed on, claimincurred by or asserted against the Collateral Agent in exercising its powers, demandrights and remedies or performing its duties hereunder or under the Collateral Documents or otherwise in its capacity as the Collateral Agent in any way relating to or arising out of this Agreement or the Collateral Documents; provided, actionthat no Secured Party shall be liable for any portion of such liabilities, loss obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses or liability (except such as result disbursements resulting from the Collateral Agent’s gross negligence or willful misconduct) that , as determined by a final, non-appealable judgment of a court of competent jurisdiction. If any indemnity furnished to the Collateral Agent for any purpose shall, in the opinion of the Collateral Agent, be insufficient or become impaired, the Collateral Agent may suffer call for additional indemnity and cease, or incur not commence, to do the acts indemnified against until such additional indemnity is furnished.
(g) No direction given to the Collateral Agent which imposes, or purports to impose, upon the Collateral Agent any obligation not set forth in connection with or arising under this Agreement or any action taken Collateral Document accepted or omitted entered into by the Collateral Agent hereundershall be binding upon the Collateral Agent.
(h) No Secured Party or any other holder of Obligations shall have any responsibility or duty (except for any duties pursuant to Section 2.8(f) hereof) whatsoever in respect of the Collateral or the Collateral Documents or any other interest, right, power or remedy granted to or enforceable by the Collateral Agent, it being understood and agreed by the Collateral Agent and by each Credit Party that only the Collateral Agent shall be bound by, or liable for breach of, the obligations of the Collateral Agent set forth in or arising under the Collateral Documents, including all obligations imposed by law upon a secured party relating to the protection, maintenance, release or enforcement of any security interest in any Collateral or any other interest, right, power or remedy of the Collateral Agent.
(i) The Collateral Agent may resign at any time by notifying the Administrative Agent and the Company. Upon any such resignation, the Requisite Secured Parties with (except after the occurrence and during the continuation of a Default or Event of Default) the consent of the Company (not to be unreasonably withheld or delayed) shall have the right to appoint a successor Collateral Agent. If no successor Collateral Agent shall have been so appointed by the Requisite Secured Parties and shall have accepted such appointment within 30 days after the retiring Collateral Agent gives notice of its resignation, then the retiring Collateral Agent may (with the consent of the Company, not to be unreasonably withheld or delayed), on behalf of the Secured Parties, appoint a successor Collateral Agent which shall be a bank with an office in New York, New York, having a combined capital and surplus of at least $500,000,000 or an Affiliate of any such bank; provided that if such retiring Collateral Agent shall notify the Company and the Administrative Agent that no qualifying person has accepted such appointment, then such resignation shall nonetheless become effective in accordance with such notice and (x) the retiring Collateral Agent shall be discharged from its duties and obligations hereunder and under the other Loan Documents (except that in the case of any collateral security held by the Collateral Agent on behalf of the Secured Parties under any of the Loan Documents, the retiring Collateral Agent shall continue to hold such collateral security until such time as a successor Collateral Agent is appointed) and (y) all payments, communications and determinations provided to be made by, to or through such Collateral Agent shall instead be made by or to the Administrative Agent directly, until such time as the Requisite Secured Parties with (except after the occurrence and during the continuation of a Default or Event of Default) the consent of the Company (not to be unreasonably withheld or delayed) appoint a successor Collateral Agent as provided for above in this paragraph. Upon the acceptance of any appointment as a Collateral Agent hereunder by such a successor Collateral Agent, such successor Collateral Agent shall succeed to and become vested with all the rights, powers, privileges and duties of the retiring Collateral Agent and the retiring Collateral Agent shall be discharged from its duties and obligations hereunder. After the Collateral Agent’s resignation hereunder, the provisions of Section 2.8(e) and (f) hereof and Section 8.06 and Section 9.03 of the Credit Agreement shall continue in effect for its benefit in respect of any actions taken or omitted to be taken by it while it was acting as a Collateral Agent. Upon the acceptance of any appointment as the Collateral Agent hereunder by a successor Collateral Agent, the retiring Collateral Agent shall promptly transfer all Collateral within its possession or control to the possession or control of the successor Collateral Agent and shall execute and deliver such notices, instructions and assignments as may be necessary or desirable to transfer the rights of the Collateral Agent in respect of the Collateral to the successor Collateral Agent. After any retiring the Collateral Agent’s resignation or replacement hereunder as the Collateral Agent, the provisions of this Article 2 shall continue in effect for its benefit in respect of any actions taken or omitted to be taken by it while it was acting as the Collateral Agent. Upon any such resignation, the former Collateral Agent shall take all steps reasonably necessary to assign the Liens and security interests in Collateral to the successor Collateral Agent and deliver any Collateral in its physical possession to the successor Collateral Agent.
(j) Beyond the exercise of reasonable care in the custody thereofof Collateral in its possession, the Collateral Agent shall will have no duty (i) as to any Collateral in its possession or control or in the possession or control of any agent, agent or bailee, clearing corporation (ii) to derive or securities intermediary or obtain any income thereon or (iii) as to the preservation of rights against prior parties or any other rights pertaining thereto. The Collateral Agent shall will be deemed to have exercised reasonable care in the custody and preservation of the Collateral in its possession if the Collateral is accorded treatment substantially equal to that which it accords its own property, and shall the Collateral Agent will not be liable or responsible for any loss or damage to any of the Collateral, or for any diminution in the value thereof, of any of the Collateral by reason of the act or omission of any agentcarrier, bailee, clearing corporation forwarding agency or securities intermediary other agent or bailee selected by the Collateral Agent in good faith faith.
(or selected by an agent, bailee, clearing corporation or securities intermediary so selected by k) The rights and powers granted herein to the Collateral Agent or are powers coupled with an interest, and will neither be affected by any agent, bailee, clearing corporation or securities intermediary selected in accordance with this parenthetical phrase).
(g) Any corporation or association into which the Collateral Agent may be converted or merged, or with which it may be consolidated, or to which it may sell or transfer its agency business or assets as a whole or substantially as a whole, or any corporation or association resulting from any such conversion, sale, merger, consolidation or transfer to which it is a party, shall, subject to the prior written consent of Secured Party, be and become a successor Collateral Agent hereunder and vested with all of the title to the Collateral and all of the powers, discretions, immunities, privileges and other matters as was its predecessor without, except as provided above, the execution or filing bankruptcy of any instrument or any further act, deed or conveyance on Credit Party nor by the part lapse of any of the parties hereto, anything herein to the contrary notwithstandingtime.
Appears in 1 contract
The Collateral Agent. (a) Secured Party hereby irrevocably appoints and authorizes The bank serving as the Collateral Agent hereunder shall have the same rights and powers in its capacity (if any) as a Senior Lender as any other Senior Lender and may exercise the same as though it were not the Collateral Agent, and such bank and its Affiliates may accept deposits from, lend money to take such action and generally engage in any kind of business with the Company or any Grantor or other Affiliate thereof as agent on its behalf and to exercise such powers under this Agreement as are delegated to if it were not the Collateral Agent by hereunder subject to the terms hereof, together with all such powers as are reasonably incidental theretoof this Agreement.
(b) The obligations of the Collateral Agent hereunder are only shall not have any duties or obligations except those expressly set forth in this Agreement and the Security Documents. The Collateral Agent shall make available for inspection by any Secured Party, upon request of the Representative of such Secured Party, each certificate or other paper furnished to the Collateral Agent by any Grantor under or in respect of this Agreement.
, any Security Document or any portion of the Collateral Estate. The Company hereby consents to the disclosure of such requested documents by the Collateral Agent to the Secured Parties. Without limiting the generality of the foregoing, (a) the Collateral Agent shall not be subject to any fiduciary or other implied duties, regardless of whether a default under the Credit Agreement or the Indenture has occurred and is continuing, (b) the Collateral Agent shall not have any duty to take any discretionary action or exercise any discretionary powers, except discretionary rights and powers expressly contemplated by the Security Documents that the Collateral Agent is required to exercise in writing by the Instructing Group pursuant to this Agreement, and (c) except as expressly set forth in this Agreement and the Security Documents, the Collateral Agent shall not have any duty to disclose, and shall not be liable for the failure to disclose, any information relating to the Company or any Grantor that is communicated to or obtained by the bank serving as Collateral Agent or any of its Affiliates in any capacity. The Collateral Agent may consult with legal counsel, independent public accountants and other experts selected by it and shall not be liable for any action taken or omitted to be not taken by it in good faith in accordance with the advice consent or at the request of such counselthe Instructing Group pursuant to this Agreement absent the Collateral Agent's bad faith, accountants gross negligence, willful misconduct or expertsbreach of this Agreement. The Collateral Agent shall be deemed not to have knowledge of any default or event of default under the Senior Loan Documents or the Noteholder Documents, unless and until written notice thereof is given to the Collateral Agent by the Company or any Representative, as applicable, and the Collateral Agent shall not be responsible for or have any duty to ascertain or inquire into (i) any statement, warranty or representation made in or in connection with any Senior Loan Document or Noteholder Document, (ii) the contents of any certificate, report or other document delivered thereunder or in connection therewith, (iii) the performance or observance of any of the covenants, agreements or other terms or conditions set forth in any Senior Loan Documents or Noteholder Documents, (iv) the validity, enforceability, effectiveness or genuineness of any Senior Loan Documents or Noteholder Documents or any other agreement, instrument or document, or (v) the satisfaction of any condition set forth in the Existing Credit Agreement or in any other Senior Loan Document or Noteholder Document, other than to confirm receipt of items expressly required to be delivered to the Collateral Agent under the Senior Loan Documents or the Noteholder Documents.
(dc) Neither Whenever in the performance of its duties under this Agreement, the Collateral Agent nor shall deem it necessary or desirable that a matter be proved or established with respect to any Grantor or any other Person in connection with the taking, suffering or omitting of its directorsany action hereunder by the Collateral Agent, officerssuch matter may be conclusively deemed to be proved or established by a certificate purporting to be executed by an officer of such Person. The Collateral Agent shall be entitled to rely upon, agents and shall not incur any liability with respect to any action taken, suffered or employees omitted in reliance upon any such certificate, or any notice, request, certificate, consent, statement, instrument, document or other writing believed by it to be genuine and to have been signed or sent by the proper Person. The Collateral Agent also may rely upon any statement made to it orally or by telephone and believed by it to be made by the proper Person, and shall not incur any liability for relying thereon. The Collateral Agent may consult with legal counsel (who may be counsel for the Company), independent accountants and other experts selected by it, and shall not be liable for any action taken or not taken by it in connection accordance with the advice of any such counsel, accountants or experts and in accordance with the terms of this Agreement.
(d) The Collateral Agent may perform any and all its duties and exercise its rights and powers under this Agreement (1) with and the consent Security Documents by or at through any one or more sub-agents appointed by the request of Secured Party or (2) in the absence of its own gross negligence or willful misconductCollateral Agent. The Collateral Agent and any such sub-agent may perform any and all its duties and exercise its rights and powers through their respective Related Parties. The exculpatory provisions of the preceding paragraphs shall not incur apply to any liability by acting in reliance upon such sub-agent and to the Related Parties of the Collateral Agent and any notice, consent, certificate, statement, or other writing (which may be a bank wire, telex or similar writing) believed by it to be genuine or to be signed by the proper party or partiessuch sub-agent.
(e) Pledgor shall indemnify Subject to the appointment and acceptance of a successor Collateral Agent against any costas provided in this paragraph, expense (including counsel fees and disbursements), claim, demand, action, loss or liability (except such as result from the Collateral Agent’s gross negligence or willful misconduct) that the Collateral Agent may suffer resign at any time by notifying the Representative in respect of the Senior Credit Agreement, the Trustee, the Representative of any Other Secured Party and the Company, or incur in connection may be removed at any time with this Agreement or any action taken or omitted without cause by written notice received by the Collateral Agent hereunderfrom the Instructing Group. Upon any such resignation or removal and so long as the Discharge of Credit Agreement Obligations has not occurred, the Required Lenders shall have the right, in consultation with the Company, to appoint a successor, and if no successor shall have been so appointed by the Required Lenders and shall have accepted such appointment within thirty (30) days after the retiring Collateral Agent gives notice of its resignation or removal, then the retiring Collateral Agent may, on behalf of the Secured Parties, appoint a successor Collateral Agent which shall be a bank with an office in New York, New York, or an Affiliate of any such bank (unless otherwise agreed by the Company and the Required Lenders). Upon any such resignation or removal of the Collateral Agent after the Discharge of Credit Agreement Obligations has occurred, the Majority Secured Parties shall have the right, in consultation with the Company, to appoint a successor, and if no successor shall have been so appointed and shall have accepted such appointment within fifteen (15) days after the retiring Collateral Agent gives notice of its resignation or removal, then the Trustee shall be appointed the successor Collateral Agent. If the Trustee shall not have accepted such appointment, the Collateral Agent, the Company or the Majority Secured Parties may apply to any court of competent jurisdiction to appoint a successor Collateral Agent to act until such time, if any, as a successor shall have been appointed and shall have accepted such appointment as above provided.
(f) Beyond Upon its appointment as Collateral Agent hereunder, a successor Collateral Agent shall succeed to and become vested with all the exercise rights, powers, privileges and duties of reasonable care in the custody thereofretiring Collateral Agent, and the retiring Collateral Agent shall be discharged from its duties and obligations hereunder. Any successor Collateral Agent shall execute and deliver an appropriate supplement or amendment to this Agreement and other necessary amendments or supplements to the Security Documents to effect such appointment. Upon any replacement of the retiring Collateral Agent, the retiring Collateral Agent shall have no duty as assigned to any a successor Collateral Agent all of the liens upon and security interests in its possession or control or in all Collateral under the possession or control Security Documents, and all right, title and interest of any agentthe retiring Collateral Agent under all Security Documents, bailee, clearing corporation or securities intermediary without recourse to the retiring Collateral Agent or any income thereon Secured Party and at the expense of the Company. In addition, the retiring Collateral Agent shall execute such assignments and amendments of UCC financing statements and perform such other acts as are necessary or as appropriate to maintain the preservation perfection of rights against prior parties or any other rights pertaining theretothe security interests in and liens on the Collateral. The fees payable by the Company to a successor Collateral Agent shall be deemed the same as those payable to have exercised reasonable care in its predecessor unless otherwise agreed between the custody Company and preservation of such successor. After the Collateral if Agent's resignation hereunder, the provisions of this Section 2.3 and Section 2.4 shall continue in effect for the benefit of such retiring Collateral is accorded treatment substantially equal Agent, its sub-agents and their respective Related Parties in respect of any actions taken or omitted to that which it accords its own property, and shall not be liable or responsible for any loss or damage to taken by any of the Collateral, or for any diminution in the value thereof, by reason of the act or omission of any agent, bailee, clearing corporation or securities intermediary selected by the them while it was acting as Collateral Agent in good faith (or selected by an agent, bailee, clearing corporation or securities intermediary so selected by the Collateral Agent or by any agent, bailee, clearing corporation or securities intermediary selected in accordance with this parenthetical phrase)Agent.
(g) Any corporation or association into which the Collateral Agent may be converted or merged, or with which it may be consolidated, or to which it may sell or transfer its agency business or assets as a whole or substantially as a whole, or any corporation or association resulting from any such conversion, sale, merger, consolidation or transfer to which it is a party, shall, subject to the prior written consent of Secured Party, be and become a successor Collateral Agent hereunder and vested with all of the title to the Collateral and all of the powers, discretions, immunities, privileges and other matters as was its predecessor without, except as provided above, the execution or filing of any instrument or any further act, deed or conveyance on the part of any of the parties hereto, anything herein to the contrary notwithstanding.
Appears in 1 contract
Samples: Collateral Sharing Agreement (Vitas Healthcare of Texas, L.P.)
The Collateral Agent. (a) Secured Party hereby By accepting a Note, each Holder will be deemed to have irrevocably appoints and authorizes appointed the Collateral Agent to take such action act as its agent on its behalf under the Notes Collateral Documents and to exercise such powers under this Agreement as are delegated to irrevocably authorized the Collateral Agent by to (i) perform the terms hereofduties and exercise the rights, powers and discretions that are specifically given to it under the Notes Collateral Documents or other documents to which it is a party, together with all such any other incidental rights, powers as are reasonably incidental thereto.
and discretions and (bii) The obligations of execute each document expressed to be executed by the Collateral Agent hereunder are on its behalf. The Holders may not, individually or collectively, take any direct action to enforce the Notes Collateral Documents. The Holders may only act by instruction to the Trustee, which shall instruct the Collateral Agent subject to the Pari Passu Intercreditor Agreement. The Collateral Agent will have no duties or obligations except those expressly set forth in this Agreement.
(c) the Notes Collateral Documents to which it is party. The Collateral Agent may consult with legal counsel, independent public accountants and other experts selected by it and shall will not be liable for any action taken or omitted to be taken by it in good faith in accordance with the advice of such counsel, accountants or experts.
(d) Neither the Collateral Agent nor any of its directors, officers, agents or employees shall be liable for any action taken or not taken by it in connection the absence of its own gross negligence, willful misconduct or bad faith. The Collateral Agent will be entitled to rely upon, and will not incur any liability for relying upon, any notice, request, certificate, consent, statement, instrument, document or other writing believed by it to be genuine and to have been signed or sent by the proper person. The Collateral Agent may also rely upon any statement made to it orally or by telephone and believed by it to have been made by the proper person, and shall not incur any liability for relying thereon. The Collateral Agent may consult with this Agreement legal counsel (1who may be counsel for the Issuer), independent accountants and other experts selected by it, and will not be liable for any action taken or not taken by it in accordance with the advice of any such counsel, accountants or experts. Without limiting the generality of the foregoing, the Collateral Agent:
(i) shall not be subject to any fiduciary or other implied duties, regardless of whether an event of default has occurred and is continuing;
(ii) shall not have any duty to take any discretionary action or exercise any discretionary powers, except discretionary rights and powers expressly contemplated hereby or by the Notes Collateral Documents that the Collateral Agent is required to exercise; provided that the Collateral Agent shall not be required to take any action that, in its opinion or the opinion of its counsel, may expose the Collateral Agent to liability or that is contrary to any Notes Collateral Document or applicable law;
(iii) shall not, except as expressly set forth herein and in the Notes Collateral Documents, have any duty to disclose, and shall not be liable for the failure to disclose, any information relating to the Issuer or any of its Affiliates that is communicated to or obtained by the Person serving as the Collateral Agent or any of its Affiliates in any capacity;
(iv) shall not be liable for any action taken or not taken by it (a) with the consent or at the request of Secured Party any Priority Agent or (2b) in the absence of its own gross negligence negligence, willful misconduct or willful misconduct. The Collateral Agent shall not incur any liability by acting bad faith or (c) in reliance upon any notice, consent, certificate, statement, on a certificate of an authorized officer of Holdings or other writing (which may be a bank wire, telex or similar writing) believed by it to be genuine or to be signed the Issuer stating that such action is permitted by the proper party or parties.
(e) Pledgor shall indemnify terms of the Collateral Agent against any cost, expense (including counsel fees and disbursements), claim, demand, action, loss or liability (except such as result from the Collateral Agent’s gross negligence or willful misconduct) that the Collateral Agent may suffer or incur in connection with this Agreement or any action taken or omitted by the Collateral Agent hereunder.
(f) Beyond the exercise of reasonable care in the custody thereof, the Collateral Agent shall have no duty as to any Collateral in its possession or control or in the possession or control of any agent, bailee, clearing corporation or securities intermediary or any income thereon or as to the preservation of rights against prior parties or any other rights pertaining theretoIntercreditor Agreements. The Collateral Agent shall be deemed not to have exercised reasonable care knowledge of any event of default under any series of Senior-Priority Non-ABL Loan/Notes Obligations unless and until written notice describing such event of default is given to the Collateral Agent by the Representative of such Senior-Priority Non-ABL Loan/Notes Obligations or Holdings or the Issuer; and
(v) shall not be responsible for or have any duty to ascertain or inquire into (a) any statement, warranty or representation made in or in connection with the custody and preservation Intercreditor Agreements or any other Notes Collateral Document, (b) the contents of any certificate, report or other document delivered hereunder or thereunder or in connection herewith or therewith, (c) the performance or observance of any of the covenants, agreements or other terms or conditions set forth herein or therein or the occurrence of any event of default, (d) the validity, enforceability, effectiveness or genuineness of the Intercreditor Agreements, any other Notes Collateral if Document or any other agreement, instrument or document, or the creation, perfection or priority of any Lien purported to be created by the Notes Collateral Documents, (e) the value or the sufficiency of any Collateral for any series of Senior-Priority Non-ABL Loan/Notes Obligations, or (f) the satisfaction of any condition set forth in any Senior-Priority Non-ABL Loan/Notes Debt Document or Notes Collateral Document, other than to confirm receipt of items expressly required to be delivered to the Collateral Agent. The use of the term “agent” herein with reference to the Collateral Agent is accorded treatment substantially equal not intended to that which connote any fiduciary or other implied (or express) obligations arising under agency doctrine of any applicable law other than as a “representative” as such term is used in Section 9-102(a)(72)(E) of the Uniform Commercial Code. BY ACCEPTING A NOTE EACH HOLDER WILL BE DEEMED TO HAVE IRREVOCABLY AGREED TO THE FOREGOING PROVISIONS OF THIS SECTION 12.1(A) AND SHALL BE BOUND BY THOSE AGREEMENTS TO THE FULLEST EXTENT PERMITTED BY LAW.
(b) Without limiting the Intercreditor Agreements, the Collateral Agent shall be subject to such directions as may be properly given it accords its own propertyby the Trustee and/or other Representatives from time to time in accordance with this Indenture, the Intercreditor Agreements and the other Notes Collateral Documents. Except as directed by the Trustee and/or other Representatives and as expressly required by this Indenture, the Intercreditor Agreements and the other Notes Collateral Documents, and in each case subject to the Intercreditor Agreements, the Collateral Agent shall not be obligated:
(1) to act upon directions purported to be delivered to it by any other Person;
(2) to foreclose upon or otherwise enforce any Lien securing the Notes or any of the Note Guarantees; or
(3) to take any other action whatsoever with regard to any or all of the Liens securing the Notes, the Note Guarantees or the Notes Collateral Documents or with regard to the Collateral.
(c) The Collateral Agent is authorized and empowered to appoint one or more co-agents or sub-agents or attorneys-in-fact as it deems necessary or appropriate in connection herewith and shall not be liable for the negligence or responsible for misconduct of any loss such agents or damage attorneys-in-fact selected by it in good faith.
(d) The Collateral Agent may perform any and all its duties and exercise its rights and powers by or through any one or more sub-agents appointed by it. The Collateral Agent and any such sub-agent may perform any and all its duties and exercise its rights and powers by or through their respective Affiliates. The exculpatory provisions of this Article XII shall apply to any such sub-agent and to the Affiliates of the Collateral, or for any diminution in the value thereof, by reason of the act or omission of any agent, bailee, clearing corporation or securities intermediary selected by the Collateral Agent in good faith (or selected by an and any such sub-agent, bailee, clearing corporation or securities intermediary so selected by the Collateral Agent or by any agent, bailee, clearing corporation or securities intermediary selected in accordance with this parenthetical phrase).
(ge) Any corporation or association into which Subject to the appointment and acceptance of a successor Collateral Agent as provided below, the Collateral Agent may be converted or merged, or with which it may be consolidated, or to which it may sell or transfer its agency business or assets as a whole or substantially as a whole, or resign at any corporation or association resulting from time by notifying the Issuer and the Trustee. Upon any such conversionresignation, salethe Trustee shall have the right, mergerwith the consent (not to be unreasonably withheld or delayed) of the Issuer, consolidation to appoint a successor; provided that during the existence and continuation of an Event of Default pursuant to clause (1), (2), (6) or transfer to which it is a party, shall, subject to the prior written (7) of Section 6.1(a) consent of Secured Partythe Issuer shall not be required. If no successor shall have been so appointed by the Trustee and shall have accepted such appointment within 30 days after the retiring Collateral Agent gives notice of its resignation, be then the retiring Collateral Agent may, on behalf of the Holders and become the Trustee, appoint a successor Collateral Agent which shall be a bank with an office in New York, New York, having a combined capital and surplus of at least $1,000,000,000, or an Affiliate of any such bank that is, so long as no Event of Default pursuant to clause (1), (2), (6) or (7) of Section 6.1(a) shall have occurred and be continuing, reasonably acceptable to the Issuer. Upon the acceptance of its appointment as Collateral Agent hereunder by a successor, such successor shall succeed to and become vested with all of the title to the Collateral and all of the rights, powers, discretions, immunities, privileges and other matters duties of the retiring Collateral Agent, and the retiring Collateral Agent shall be discharged from its duties and obligations hereunder. The fees payable by the Issuer to a successor Collateral Agent shall be the same as was those payable to its predecessor without, except as provided aboveunless otherwise agreed between the Issuer and such successor. After a Collateral Agent’s resignation hereunder, the execution or filing provisions of this Article and Article VII shall continue in effect for the benefit of such retiring Collateral Agent, its sub-agents and their respective Affiliates in respect of any instrument actions taken or any further act, deed or conveyance on the part of omitted to be taken by any of the parties hereto, anything herein to the contrary notwithstandingthem while acting as Collateral Agent.
Appears in 1 contract
The Collateral Agent. (a) Secured Party hereby irrevocably appoints The Trustee may, from time to time, appoint a Collateral Agent hereunder. The Collateral Agent may be delegated any one or more of the duties or rights of the Trustee hereunder or under the Collateral Documents or the Intercreditor Agreement. The Collateral Agent shall be a Person who would be eligible to act as Trustee under this Indenture. The Collateral Agent shall have the rights and authorizes duties as may be specified in an agreement between the Trustee and such Collateral Agent. The Trustee shall be the initial Collateral Agent. Neither the Collateral Agent nor any of its respective officers, directors, employees or agents shall be liable for failure to demand, collect or realize upon any of the Collateral or for any delay in doing so or shall be under any obligation to sell or otherwise dispose of any Collateral upon the request of any other Person or to take any other action whatsoever with regard to the Collateral or any part thereof. The powers conferred on the Collateral Agent hereunder are solely to protect the Collateral Agent’s interest in the Collateral and shall not impose any duty upon the Collateral Agent to take exercise any such action powers. The Collateral Agent shall be accountable only for amounts that it actually receives as agent on its behalf a result of the exercise of such powers, and to exercise such powers under this Agreement as are delegated to neither the Collateral Agent by nor any of its officers, directors, employees or agents shall be responsible for any act or failure to act under this Indenture or the terms hereofCollateral Documents, together with all such powers as are reasonably incidental theretoexcept for its own gross negligence or willful misconduct.
(b) The obligations of Trustee and the Collateral Agent hereunder are only those expressly authorized and directed to (i) enter into the Collateral Documents and the Intercreditor Agreement, (ii) bind the Holders on the terms as set forth in this therein and (iii) perform and observe their obligations under the Collateral Documents and the Intercreditor Agreement.
(c) The Collateral Agent may consult with legal counsel, independent public accountants is authorized to enter into successor agreements to the Collateral Documents and other experts selected by it the Intercreditor Agreement as provided in such documents and shall not be liable for any action taken or omitted to be taken by it in good faith in accordance with the advice of such counsel, accountants or expertsthis Indenture.
(d) Neither the Collateral Agent nor any of its directors, officers, agents or employees shall be liable for any action taken or not taken by it in connection with this Agreement (1) with the consent or at the request of Secured Party or (2) in the absence of its own gross negligence or willful misconduct. The Collateral Agent shall not incur any liability by acting in reliance upon any notice, consent, certificate, statement, or other writing (which may be a bank wire, telex or similar writing) believed by it to be genuine or to be signed by the proper party or parties.
(e) Pledgor shall indemnify the Collateral Agent against any cost, expense (including counsel fees and disbursements), claim, demand, action, loss or liability (except such as result from the Collateral Agent’s gross negligence or willful misconduct) that the Collateral Agent may suffer or incur in connection with this Agreement or any action taken or omitted by the Collateral Agent hereunder.
(f) Beyond the exercise of reasonable care in the custody thereof, the Collateral Agent shall have no duty as to any Collateral in its possession or control or in the possession or control of any agent, bailee, clearing corporation or securities intermediary or any income thereon or as to the preservation of rights against prior parties or any other rights pertaining thereto. The Collateral Agent shall be deemed entitled to have exercised reasonable care in the custody indemnity and preservation of the Collateral if the Collateral is accorded treatment substantially equal to that which it accords its own property, and shall not be liable or responsible for any loss or damage to any of the Collateral, or for any diminution in the value thereof, by reason of the act or omission of any agent, bailee, clearing corporation or securities intermediary selected by the Collateral Agent in good faith (or selected by an agent, bailee, clearing corporation or securities intermediary so selected by the Collateral Agent or by any agent, bailee, clearing corporation or securities intermediary selected in accordance with this parenthetical phrase).
(g) Any corporation or association into which the Collateral Agent may be converted or merged, or with which it may be consolidated, or to which it may sell or transfer its agency business or assets as a whole or substantially as a whole, or any corporation or association resulting from any such conversion, sale, merger, consolidation or transfer to which it is a party, shall, subject to the prior written consent of Secured Party, be and become a successor Collateral Agent hereunder and vested with all of the title to the Collateral and all of the powers, discretions, immunities, privileges and other matters as was its predecessor without, except compensation as provided above, the execution or filing of any instrument or any further act, deed or conveyance on the part of any of the parties hereto, anything herein to the contrary notwithstandingin Section 7.07 hereof.
Appears in 1 contract
Samples: Indenture (Unifi Inc)
The Collateral Agent. (a) Secured Party Each of the Agents hereby irrevocably appoints the Collateral Agent as its agent and authorizes the Collateral Agent to take such action as agent actions on its behalf and to exercise such powers under this Agreement as are delegated to the Collateral Agent by the terms hereof, together with all such actions and powers as are reasonably incidental thereto.
(b) . The obligations of the Collateral Agent hereunder are only shall not have any duties or obligations except those expressly set forth herein. Without limiting the generality of the foregoing, (a) the Collateral Agent shall not be subject to any fiduciary or other implied duties, regardless of whether a "Default" under any Loan Document has occurred and is continuing, (b) the Collateral Agent shall not have any duty to take any discretionary action or exercise any discretionary powers, except discretionary rights and powers expressly contemplated hereby that the Collateral Agent is required to exercise in this Agreement.
writing as directed by the Controlling Party, and (c) except as expressly set forth herein, the Collateral Agent shall not have any duty to disclose, and shall not be liable for the failure to disclose, any information relating to the Borrower that is communicated to or obtained by the bank serving as Collateral Agent or any of its Affiliates in any capacity. The Collateral Agent may consult with legal counsel, independent public accountants and other experts selected by it and shall not be liable for any action taken or omitted not taken by it with the consent or at the request of the Controlling Party or in the absence of its own gross negligence or wilful misconduct. The Collateral Agent shall be deemed not to have knowledge of any Event of Default unless and until written notice thereof is given to the Collateral Agent by the Borrower or a Secured Party, and the Collateral Agent shall not be responsible for or have any duty to ascertain or inquire into (i) any statement, warranty or representation made in or in connection with this Agreement, (ii) the contents of any certificate, report or other document delivered hereunder or in connection herewith, (iii) the performance or observance of any of the covenants, agreements or other terms or conditions set forth herein or (iv) the validity, enforceability, effectiveness or genuineness of this Agreement or any other agreement, instrument or document. If, with respect to a proposed action to be taken by it it, the Collateral Agent shall reasonably conclude in good faith that the provisions of this Agreement relating to the functions or responsibilities or discretionary powers of the Collateral Agent are or may be ambiguous or inconsistent, the Collateral Agent shall notify the Secured Parties, identifying the proposed action and the provisions that it considers are or may be ambiguous or inconsistent, and may decline either to perform such function or responsibility or to exercise such discretionary power unless it has received the written confirmation of the Controlling Party that the Controlling Party concurs in the circumstances that the action proposed to be taken by the Collateral Agent is consistent with the terms of this Agreement or is otherwise appropriate. The Collateral Agent shall be fully protected in acting, or refraining from acting, under this Agreement in accordance with such confirmation of the advice of Controlling Party in this respect, and such counsel, accountants or experts.
(d) Neither confirmation shall be binding upon the Collateral Agent nor and upon the Secured Parties. The Collateral Agent shall be entitled to rely upon, and shall not incur any of its directorsliability for relying upon, officersany notice, agents request, certificate, consent, statement, instrument, document or employees other writing believed by it to be genuine and to have been signed or sent by the proper Person. The Collateral Agent also may rely upon any statement made to it orally or by telephone and believed by it to be made by the proper Person, and shall not incur any liability for relying thereon. The Collateral Agent may consult with legal counsel (who may be counsel for the Borrower), independent accountants and other experts selected by it, and shall not be liable for any action taken or not taken by it in connection with this Agreement (1) accordance with the consent advice of any such counsel, accountants or at the request of Secured Party or (2) in the absence of its own gross negligence or willful misconductexperts. The Collateral Agent shall not incur may perform any liability and all its duties and exercise its rights and powers by acting in reliance upon or through any notice, consent, certificate, statement, one or other writing (which may be a bank wire, telex or similar writing) believed by it to be genuine or to be signed more sub-agents appointed by the proper party or parties.
(e) Pledgor Collateral Agent. The Collateral Agent and any such sub-agent may perform any and all its duties and exercise its rights and powers through their respective Related Parties. The exculpatory provisions of the preceding paragraphs shall indemnify apply to any such sub-agent and to the Related Parties of the Collateral Agent against and any costsuch sub-agent. The Collateral Agent's sole duties with respect to the custody, expense (including counsel fees safekeeping and disbursements), claim, demand, action, loss or liability (except such as result from the preservation of the Collateral Agent’s gross negligence or willful misconduct) that in its possession shall be to deal with such Collateral in accordance with the Collateral Agent may suffer or incur in connection with provisions of this Agreement or any action taken or omitted by the Collateral Agent hereunder.
(f) Beyond the exercise of reasonable care and in the custody thereofsame manner as it deals with similar property for its own account. Except to the extent otherwise instructed in accordance with the terms of this Agreement and as otherwise provided hereunder, the Collateral Agent shall have no duty as to any Collateral in its possession or control or in the possession or control of any agent, bailee, clearing corporation or securities intermediary or any income thereon or as to the preservation of rights against prior parties or any other rights pertaining thereto. The Collateral Agent shall be deemed to have exercised reasonable care in the custody and preservation of the Collateral if the Collateral is accorded treatment substantially equal to that which it accords its own property, and shall not be liable for failure to demand, collect or responsible for any loss or damage to realize upon any of the Collateral, or for any diminution in the value thereof, by reason of the act or omission of any agent, bailee, clearing corporation or securities intermediary selected by and the Collateral Agent in good faith (shall not be under any obligation to sell or selected by an agent, bailee, clearing corporation otherwise dispose of any of the Collateral or securities intermediary so selected to take any other action whatsoever with respect to the Collateral upon the request of the Borrower. The rights of the Collateral Agent and the Secured Parties hereunder as against the Borrower shall not be conditioned or contingent upon the pursuit by the Collateral Agent or by the Secured Parties of any agentright, baileepower or remedy against the Borrower or against any other Person which may be or become liable in respect of all or any part of the Collateral. Subject to the appointment and acceptance of a successor Collateral Agent as provided in this paragraph, clearing corporation or securities intermediary selected in accordance with this parenthetical phrase).
(g) Any corporation or association into which the Collateral Agent may be converted or merged, or with which it may be consolidated, or to which it may sell or transfer its agency business or assets as a whole or substantially as a whole, or resign at any corporation or association resulting from time by notifying the Agents and the Borrower. Upon any such conversionresignation, salethe Controlling Party shall have the right, mergerin consultation with the Borrower, consolidation or transfer to which it is appoint a partysuccessor. If no successor shall have been so appointed by the Controlling Party and shall have accepted such appointment within 30 days after the retiring Collateral Agent gives notice of its resignation, shallthen the retiring Collateral Agent may, subject to on behalf of the prior written consent of Secured PartyParties, be and become appoint a successor Collateral Agent which shall be a bank with an office in New York, New York, or an Affiliate of any such bank. Upon the acceptance of its appointment as Collateral Agent hereunder by a successor, such successor shall succeed to and become vested with all of the title to the Collateral and all of the rights, powers, discretions, immunities, privileges and other matters duties of the retiring Collateral Agent, and the retiring Collateral Agent shall be discharged from its duties and obligations hereunder. The fees payable by the Borrower to a successor Collateral Agent shall be the same as was those payable to its predecessor without, except as provided aboveunless otherwise agreed between the Borrower and such successor. After the Collateral Agent's resignation hereunder, the execution or filing provisions of this Section shall continue in effect for the benefit of such retiring Collateral Agent, its sub-agents and their respective Related Parties in respect of any instrument actions taken or any further act, deed or conveyance on the part of omitted to be taken by any of the parties hereto, anything herein to the contrary notwithstandingthem while it was acting as Collateral Agent.
Appears in 1 contract
The Collateral Agent. (a) 9.1. Barclays Bank PLC is executing this Security Agreement, not in its individual capacity but solely in its capacity as Collateral Agent under the Credit Agreement. Barclays Bank PLC has been appointed Collateral Agent for the Secured Party hereby irrevocably appoints Parties hereunder pursuant to Article IX of the Credit Agreement. It is expressly understood and authorizes agreed by the parties to this Security Agreement that any authority conferred upon the Collateral Agent hereunder is subject to take such action as agent on its behalf and to exercise such powers under this Agreement as are delegated the terms of the delegation of authority made by the Secured Parties to the Collateral Agent by pursuant to the terms hereofCredit Agreement, together with and that the Collateral Agent has agreed to act (and any successor Collateral Agent shall act) as such hereunder only on the express conditions contained in Article IX of the Credit Agreement. In acting hereunder, the Collateral Agent shall be entitled to all such the rights, powers, protections, immunities, and indemnities under the Credit Agreement as if the same were set forth herein, mutatis mutandis and shall survive any termination of this Security Agreement. The permissive rights, benefits and powers as are reasonably incidental thereto.
(b) The obligations of granted to the Collateral Agent hereunder are only those expressly set forth in this shall not be construed as duties. All discretionary acts hereunder (including the exercise of any remedies) shall be taken by the Collateral Agent pursuant to the terms of the Credit Agreement.
(c) . The Collateral Agent may consult with legal counselshall be entitled to exercise its rights, independent public accountants powers and other duties hereunder through agents, experts selected by it or designees and shall not be liable responsible for the acts of any action taken or omitted to be taken by it in good faith in accordance such parties appointed with the advice of such counsel, accountants or expertsdue care.
(d) Neither the Collateral Agent nor any of its directors, officers, agents or employees shall be liable for any action taken or not taken by it in connection with this Agreement (1) with the consent or at the request of Secured Party or (2) in the absence of its own gross negligence or willful misconduct9.2. The Collateral Agent shall not incur be responsible in any liability by acting manner whatsoever for and makes no representation as to the validity or sufficiency of this Security Agreement or for or in reliance upon any noticerespect of the recitals contained herein, consent, certificate, statement, or other writing (all of which may be a bank wire, telex or similar writing) believed by it to be genuine or to be signed recitals are made solely by the proper party or partiesapplicable Grantor.
(e) Pledgor shall indemnify 9.3. The powers conferred on the Collateral Agent against hereunder are solely to protect its security interest in the Collateral. Notwithstanding any costprovision contained in this Security Agreement, expense (including counsel fees and disbursements), claim, demand, action, loss or liability (except such as result from the Collateral Agent’s gross negligence or willful misconduct) that the Collateral Agent may suffer shall have no duty to exercise any of the rights, privileges or incur in connection with this Agreement powers afforded to it hereunder and shall not be responsible to the Grantor or any action taken other Person for any failure to do so or omitted by the Collateral Agent hereunder.
(f) Beyond delay in doing so. Except for the exercise of reasonable care in the custody thereofof any Collateral in its possession and the accounting for moneys actually received by it hereunder, the Collateral Agent shall have no duty or liability as to any Collateral in its possession or control or in the possession or control of any agent, bailee, clearing corporation or securities intermediary or any income thereon or as to the preservation taking of any necessary steps to exercise or preserve any rights against prior parties or any other rights rights, privileges or powers pertaining theretoto any Collateral. The Collateral Agent shall be deemed to have exercised reasonable care in the custody and preservation of the Collateral in its possession if the such Collateral is accorded treatment substantially equal to that which it the Collateral Agent accords its own property. Neither the Collateral Agent nor any of its directors, officers, employees or agents shall be liable for failure to demand, collect or realize upon all or any part of the Collateral or for any delay in doing so or shall be under any obligation to sell or otherwise dispose of any Collateral upon the request of the Grantor or otherwise. If the Grantor fails to perform any agreement contained herein, the Collateral Agent may itself perform, or cause performance of, such agreement, and the expenses of the Collateral Agent incurred in connection therewith shall be payable by the Grantor under Section 9.3 of the Credit Agreement.
9.4. The Collateral Agent shall not be liable or responsible for or make any loss representation as to the existence, genuineness, value or damage protection of any Collateral, for the legality, effectiveness or sufficiency of any Security Document, or for the creation, perfection, priority, sufficiency or protection of any Liens. The Collateral Agent shall not be responsible for filing any financing or continuation statements or recording any documents or instruments in any public office at any time or times or otherwise perfecting, monitoring or maintaining the perfection of any Lien or security interest in the Collateral, for insuring the Collateral or for the payment of taxes, charges, assessments or Liens upon the Collateral or otherwise maintaining the Collateral. It is expressly agreed, to the maximum extent permitted by applicable law, that the Collateral Agent shall have no responsibility for taking any action to protect against any diminution in value of the Collateral, or for any diminution but, in each case (A) subject to the value thereof, by reason of the act or omission of any agent, bailee, clearing corporation or securities intermediary selected by the Collateral Agent in good faith (or selected by an agent, bailee, clearing corporation or securities intermediary so selected by the Collateral Agent or by any agent, bailee, clearing corporation or securities intermediary selected in accordance with this parenthetical phrase).
(g) Any corporation or association into which requirement that the Collateral Agent may not act or omit to take any action if such act or omission would constitute gross negligence or willful misconduct and (B) the Collateral Agent may do so and all expenses reasonably incurred in connection therewith shall be converted part of the Secured Obligations.
9.5. Nothing in this Security Agreement constitutes the Collateral Agent as an agent, trustee or mergedfiduciary of the Grantor or as trustee or fiduciary for the Secured Party under the Credit Agreement. The relationship between the Collateral Agent and the Secured Parties is that of principal and agent only. The Collateral Agent is not responsible or liable for the adequacy, accuracy or with which it may be consolidatedcompleteness of any information (whether oral or written) supplied by the Company, or to which it may sell or transfer its agency business or assets as a whole or substantially as a whole, the Grantor or any corporation other Person in or association resulting from in connection with the Credit Agreement, this Security Agreement or any such conversionother Loan Document or the transactions contemplated herein or therein or any other agreement, salearrangement or document entered into, mergermade or executed in anticipation of, consolidation under or transfer to which it is a partyin connection with the Credit Agreement, shall, subject to the prior written consent of Secured Party, be and become a successor Collateral Agent hereunder and vested with all of the title this Security Agreement or any other Loan Document.
9.6. The protections afforded to the Collateral Agent pursuant to this Article IX shall be in addition to, and all of not in limitation of, any related provisions set forth in the powers, discretions, immunities, privileges and other matters as was its predecessor without, except as provided above, the execution or filing of any instrument or any further act, deed or conveyance on the part of any of the parties hereto, anything herein to the contrary notwithstandingCredit Agreement.
Appears in 1 contract
Samples: Pledge and Security Agreement (Turning Point Brands, Inc.)
The Collateral Agent. (a) Secured Party hereby By accepting a Note, each Holder will be deemed to have irrevocably appoints and authorizes appointed the Collateral Agent to take such action act as its agent on its behalf under the Notes Collateral Documents and to exercise such powers under this Agreement as are delegated to irrevocably authorized the Collateral Agent by to (i) perform the terms hereofduties and exercise the rights, powers and discretions that are specifically given to it under the Notes Collateral Documents or other documents to which it is a party, together with all such any other incidental rights, powers as are reasonably incidental thereto.
and discretions and (bii) The obligations of execute each document expressed to be executed by the Collateral Agent hereunder are on its behalf. The Holders may not, individually or collectively, take any direct action to enforce the Notes Collateral Documents. The Holders may only act by instruction to the Trustee, which shall instruct the Collateral Agent. The Collateral Agent will have no duties or obligations except those expressly set forth in this Agreement.
(c) the Notes Collateral Documents to which it is party. The Collateral Agent may consult with legal counsel, independent public accountants and other experts selected by it and shall will not be liable for any action taken or omitted to be taken by it in good faith in accordance with the advice of such counsel, accountants or experts.
(d) Neither the Collateral Agent nor any of its directors, officers, agents or employees shall be liable for any action taken or not taken by it in connection with this Agreement (1) with the consent or at the request of Secured Party or (2) in the absence of its own gross negligence or willful misconduct. The Collateral Agent shall will be entitled to rely upon, and will not incur any liability by acting in reliance upon for relying upon, any notice, consentrequest, certificate, consent, statement, instrument, document or other writing (which may be a bank wire, telex or similar writing) believed by it to be genuine and to have been signed or to be signed sent by the proper party person. The Collateral Agent may also rely upon any statement made to it orally or parties.by telephone and believed by it to have been made by the proper person, and shall not incur any liability for relying thereon. The Collateral Agent may consult with legal counsel (who may be counsel for the Issuer), independent accountants and other experts selected by it, and will not be liable for any action taken or not taken by it in accordance with the advice of any such counsel, accountants or experts. Without limiting the generality of the foregoing, the Collateral Agent:
(ei) Pledgor shall indemnify not be subject to any fiduciary or other implied duties, regardless of whether an event of default has occurred and is continuing;
(ii) shall not have any duty to take any discretionary action or exercise any discretionary powers, except discretionary rights and powers expressly contemplated hereby or by the Collateral Documents that the Collateral Agent against any cost, expense (including counsel fees and disbursements), claim, demand, action, loss or liability (except such as result from is required to exercise; provided that the Collateral Agent’s Agent shall not be required to take any action that, in its opinion or the opinion of its counsel, may expose the Collateral Agent to liability or that is contrary to any Collateral Document or applicable law;
(iii) shall not, except as expressly set forth herein and in the Collateral Documents, have any duty to disclose, and shall not be liable for the failure to disclose, any information relating to the Issuer or any of its affiliates that is communicated to or obtained by the Person serving as the Collateral Agent or any of its Affiliates in any capacity;
(iv) shall not be liable for any action taken or not taken by it (a) with the consent or at the request of the Applicable Authorized Representative or (b) in the absence of its own gross negligence or willful misconductmisconduct or (c) in reliance on a certificate of an authorized officer of Holdings or the Issuer stating that the Collateral Agent may suffer or incur in connection with this Agreement or any such action taken or omitted is permitted by the Collateral Agent hereunder.
(f) Beyond terms of the exercise of reasonable care in the custody thereof, the Collateral Agent shall have no duty as to any Collateral in its possession or control or in the possession or control of any agent, bailee, clearing corporation or securities intermediary or any income thereon or as to the preservation of rights against prior parties or any other rights pertaining theretoIntercreditor Agreement. The Collateral Agent shall be deemed not to have exercised reasonable care knowledge of any event of default under any series of First Lien Obligations unless and until written notice describing such event of default is given to the Collateral Agent by the Authorized Representative of such First Lien Obligations or Holdings or the Issuer; and
(v) shall not be responsible for or have any duty to ascertain or inquire into (a) any statement, warranty or representation made in or in connection with the custody and preservation Intercreditor Agreement or any other Collateral Document, (b) the contents of any certificate, report or other document delivered hereunder or thereunder or in connection herewith or therewith, (c) the performance or observance of any of the covenants, agreements or other terms or conditions set forth herein or therein or the occurrence of any event of default, (d) the validity, enforceability, effectiveness or genuineness of the Intercreditor Agreement, any other Collateral if Document or any other agreement, instrument or document, or the creation, perfection or priority of any Lien purported to be created by the Collateral Documents, (e) the value or the sufficiency of any Collateral for any series of First Lien Obligations, or (f) the satisfaction of any condition set forth in any First Lien Debt Document or Collateral Document, other than to confirm receipt of items expressly required to be delivered to the Collateral Agent. The use of the term “agent” herein with reference to the Collateral Agent is accorded treatment substantially equal not intended to that which connote any fiduciary or other implied (or express) obligations arising under agency doctrine of any applicable law other than as a “representative” as such term is used in Section 9-102(a)(72)(E) of the Uniform Commercial Code. BY ACCEPTING A NOTE EACH HOLDER WILL BE DEEMED TO HAVE IRREVOCABLY AGREED TO THE FOREGOING PROVISIONS OF THIS SECTION 11.1(A) AND SHALL BE BOUND BY THOSE AGREEMENTS TO THE FULLEST EXTENT PERMITTED BY LAW.
(b) Without limiting the Intercreditor Agreement, the Collateral Agent shall be subject to such directions as may be properly given it accords its own propertyby the Trustee and/or other Authorized Representatives from time to time in accordance with this Supplemental Indenture, the Intercreditor Agreement and the other Collateral Documents. Except as directed by the Trustee and/or other Authorized Representatives and as expressly required by this Supplemental Indenture, the Intercreditor Agreement and the other Collateral Documents, and in each case subject to the Intercreditor Agreement, the Collateral Agent shall not be obligated:
(1) to act upon directions purported to be delivered to it by any other Person;
(2) to foreclose upon or otherwise enforce any Lien securing the Notes or any of the Note Guarantees; or
(3) to take any other action whatsoever with regard to any or all of the Liens securing the Notes, the Note Guarantees or the Notes Collateral Documents or with regard to the Collateral.
(c) The Collateral Agent is authorized and empowered to appoint one or more co-agents or sub-agents or attorneys-in-fact as it deems necessary or appropriate in connection herewith and shall not be liable for the negligence or misconduct of any such agents or attorneys-in-fact selected by it in good faith.
(d) The Collateral Agent may perform any and all its duties and exercise its rights and powers by or through any one or more sub-agents appointed by it. The Collateral Agent and any such sub-agent may perform any and all its duties and exercise its rights and powers by or through their respective Affiliates. The exculpatory provisions of this Article XII shall apply to any such sub-agent and to the Affiliates of the Collateral Agent and any such sub-agent.
(e) Subject to the appointment and acceptance of a successor Collateral Agent as provided below, the Collateral Agent may resign at any time by notifying the Issuer and the Trustee. Upon any such resignation, the Trustee shall have the right, with the consent (not to be unreasonably withheld or delayed) of the Issuer, to appoint a successor; provided that during the existence and continuation of an Event of Default pursuant to clause (1), (2), (6) or (7) of Section 6.1(a) consent of the Issuer shall not be required. If no successor shall have been so appointed by the Trustee and shall have accepted such appointment within 30 days after the retiring Collateral Agent gives notice of its resignation, then the retiring Collateral Agent may, on behalf of the Holders and the Trustee, appoint a successor Collateral Agent which shall be a bank with an office in New York, New York, having a combined capital and surplus of at least $1,000,000,000, or an Affiliate of any such bank that is, so long as no Event of Default pursuant to clause (1), (2), (6) or (7) of Section 6.1(a) shall have occurred and be continuing, reasonably acceptable to the Issuer. Upon the acceptance of its appointment as Collateral Agent hereunder by a successor, such successor shall succeed to and become vested with all the rights, powers, privileges and duties of the retiring Collateral Agent, and the retiring Collateral Agent shall be discharged from its duties and obligations hereunder. The fees payable by the Issuer to a successor Collateral Agent shall be the same as those payable to its predecessor unless otherwise agreed between the Issuer and such successor. After a Collateral Agent’s resignation hereunder, the provisions of this Article and Article VII shall continue in effect for the benefit of such retiring Collateral Agent, its sub-agents and their respective Affiliates in respect of any actions taken or omitted to be taken by any of them while acting as Collateral Agent.
(f) The benefits, protections and indemnities of the Trustee in Sections 7.2, 7.3 and 7.7 of this Supplemental Indenture shall apply mutatis mutandi to the Collateral Agent in its capacity as such, including, without limitation, the rights to receive and rely on Officers’ Certificates and Opinions of Counsel, reimbursement and indemnification.
(g) Each Holder, by its acceptance of any Notes, is deemed to have consented and agreed to the terms of each Notes Collateral Document, as originally in effect and as amended, supplemented or replaced from time to time in accordance with its terms or the terms of this Supplemental Indenture; and authorizes and empowers the Trustee and (through the Intercreditor Agreement) the Applicable Authorized Representative to bind the Holders and other holders of Pari Passu Debt Obligations as set forth in the applicable Collateral Documents to which they are a party and to perform its obligations and exercise its rights and powers thereunder. Notwithstanding the foregoing, no such consent or deemed consent shall be deemed or construed to represent an amendment or waiver, in whole or in part, of any provision of this Supplemental Indenture or the Notes.
(h) Neither the Trustee nor the Collateral Agent shall be responsible for the existence, genuineness or value of any loss of the Collateral or damage to for the validity, perfection, priority or enforceability of the Liens in any of the Collateral, for the validity or for any diminution in the value thereof, by reason sufficiency of the act or omission of any agent, bailee, clearing corporation or securities intermediary selected by the Collateral Agent in good faith (or selected by an agent, bailee, clearing corporation or securities intermediary so selected by the Collateral Agent or by any agent, bailee, clearing corporation or securities intermediary selected in accordance with this parenthetical phrase).
(g) Any corporation or association into which the Collateral Agent may be converted or merged, or with which it may be consolidated, or to which it may sell or transfer its agency business or assets as a whole or substantially as a whole, or any corporation agreement or association resulting from any such conversionassignment contained therein, sale, merger, consolidation or transfer to which it is a party, shall, subject to for the prior written consent of Secured Party, be and become a successor Collateral Agent hereunder and vested with all validity of the title of the Issuer or any Grantor to the Collateral, for insuring the Collateral and all or for the payment of taxes, charges, assessments or Liens upon the Collateral or otherwise as to the maintenance of the powers, discretions, immunities, privileges and other matters as was its predecessor without, except as provided above, the execution or filing of any instrument or any further act, deed or conveyance on the part of any of the parties hereto, anything herein to the contrary notwithstandingCollateral.
Appears in 1 contract
Samples: Supplemental Indenture (Community Health Systems Inc)
The Collateral Agent. (a) Secured Party hereby irrevocably appoints shall notify the Administrative Agent, each Lender and authorizes the Administrative Borrower in writing of each such Collateral Agent Advance, which notice shall include a description of the purpose of such Collateral Agent Advance. Without limitation to its obligations pursuant to Section 10.05, each Lender agrees that it shall make available to the Collateral Agent, upon the Collateral Agent's demand, in Dollars in immediately available funds, the amount equal to such Lender's Pro Rata Share of each such Collateral Agent to take Advance. If such action as agent on its behalf and to exercise such powers under this Agreement as funds are delegated not made available to the Collateral Agent by such Lender, the terms hereofCollateral Agent shall be entitled to recover such funds on demand from such Lender, together with all interest thereon for each day from the date such powers as are reasonably incidental theretopayment was due until the date such amount is paid to the Collateral Agent, at the Federal Funds Rate for three Business Days and thereafter at the Reference Rate.
(b) The obligations of Lenders hereby irrevocably authorize the Collateral Agent, at its option and in its discretion, to release any Lien granted to or held by the Collateral Agent hereunder upon any Collateral upon termination of the Total Commitment and payment and satisfaction of all Loans, Letter of Credit Obligations, and all other Obligations which have matured and which the Collateral Agent has been notified in writing are only those expressly set forth then due and payable; or constituting property being sold or disposed of in compliance with the terms of this AgreementAgreement and the other Loan Documents; or constituting property in which the Loan Parties owned no interest at the time the Lien was granted or at any time thereafter; or (subject to Section 12.02) if approved, authorized or ratified in writing by the Required Lenders; or to subordinate any Lien on any property granted to the Collateral Agent to the holder of any Lien on such property permitted by clauses (e) or (h) of the definition of Permitted Liens. Upon request by the Collateral Agent at any time, the Lenders will confirm in writing the Collateral Agent's authority to release particular types or items of Collateral pursuant to this Section 10.08(b).
(c) The Without in any manner limiting the Collateral Agent's authority to act without any specific or further authorization or consent by the Lenders (as set forth in Section 10.08(b)), each Lender agrees to confirm in writing, upon request by the Collateral Agent, the authority to release Collateral conferred upon the Collateral Agent under Section 10.08(b). Upon receipt by the Collateral Agent of confirmation from the Lenders of its authority to release any particular item or types of Collateral, and upon prior written request by any Loan Party, the Collateral Agent shall (and is hereby irrevocably authorized by the Lenders to) execute such documents as may consult with legal counselbe necessary to evidence the release of the Liens granted to the Collateral Agent for the benefit of the Agents, independent public accountants the L/C Issuer and other experts selected by it and the Lenders upon such Collateral; provided, however, that (i) the Collateral Agent shall not be liable for required to execute any action taken such document on terms which, in the Collateral Agent's reasonable business judgment, would expose the Collateral Agent to liability or omitted to be taken by it in good faith in accordance with create any obligations or entail any consequence other than the advice release of such counselLiens without recourse or warranty, accountants and (ii) such release shall not in any manner discharge, affect or expertsimpair the Obligations or any Lien upon (or obligations of any Loan Party in respect of) all interests in the Collateral retained by any Loan Party.
(d) Neither the Collateral Agent nor any of its directors, officers, agents or employees shall be liable for any action taken or not taken by it in connection with this Agreement (1) with the consent or at the request of Secured Party or (2) in the absence of its own gross negligence or willful misconduct. The Collateral Agent shall not incur have no obligation whatsoever to any liability by acting in reliance upon any notice, consent, certificate, statement, Lender to assure that the Collateral exists or other writing (which may be a bank wire, telex or similar writing) believed by it to be genuine or to be signed is owned by the proper party Loan Parties or parties.
(e) Pledgor shall indemnify is cared for, protected or insured or has been encumbered or that the Lien granted to the Collateral Agent against pursuant to this Agreement or any costother Loan Document has been properly or sufficiently or lawfully created, expense (including counsel fees perfected, protected or enforced or is entitled to any particular priority, or to exercise at all or in any particular manner or under any duty of care, disclosure or fidelity, or to continue exercising, any of the rights, authorities and disbursements), claim, demand, action, loss powers granted or liability (except such as result from available to the Collateral Agent’s gross negligence Agent in this Section 10.08 or willful misconduct) in any other Loan Document, it being understood and agreed that in respect of the Collateral, or any act, omission or event related thereto, the Collateral Agent may suffer or incur act in connection with this Agreement or any action taken or omitted by manner it may deem appropriate, in its sole discretion, given the Collateral Agent hereunder.
(f) Beyond the exercise of reasonable care Agent's own interest in the custody thereof, Collateral as one of the Lenders and that the Collateral Agent shall have no duty as or liability whatsoever to any Collateral in its possession or control or in the possession or control of any agent, bailee, clearing corporation or securities intermediary or any income thereon or as to the preservation of rights against prior parties or any other rights pertaining thereto. The Collateral Agent shall be deemed to have exercised reasonable care in the custody and preservation of the Collateral if the Collateral is accorded treatment substantially equal to that which it accords its own property, and shall not be liable or responsible for any loss or damage to any of the Collateral, or for any diminution in the value thereof, by reason of the act or omission of any agent, bailee, clearing corporation or securities intermediary selected by the Collateral Agent in good faith (or selected by an agent, bailee, clearing corporation or securities intermediary so selected by the Collateral Agent or by any agent, bailee, clearing corporation or securities intermediary selected in accordance with this parenthetical phrase).
(g) Any corporation or association into which the Collateral Agent may be converted or merged, or with which it may be consolidated, or to which it may sell or transfer its agency business or assets as a whole or substantially as a whole, or any corporation or association resulting from any such conversion, sale, merger, consolidation or transfer to which it is a party, shall, subject to the prior written consent of Secured Party, be and become a successor Collateral Agent hereunder and vested with all of the title to the Collateral and all of the powers, discretions, immunities, privileges and other matters as was its predecessor withoutLender, except as otherwise provided above, the execution or filing of any instrument or any further act, deed or conveyance on the part of any of the parties hereto, anything herein to the contrary notwithstandingherein.
Appears in 1 contract
Samples: Financing Agreement (Aaipharma Inc)
The Collateral Agent. (a) Secured Party hereby By accepting a Note, each Holder will be deemed to have irrevocably appoints and authorizes appointed the Collateral Agent to take such action act as its agent on its behalf under the Notes Collateral Documents and to exercise such powers under this Agreement as are delegated to irrevocably authorized the Collateral Agent by to (i) perform the terms hereofduties and exercise the rights, powers and discretions that are specifically given to it under the Notes Collateral Documents or other documents to which it is a party, together with all such any other incidental rights, powers as are reasonably incidental thereto.
and discretions and (bii) The obligations of execute each document expressed to be executed by the Collateral Agent hereunder are on its behalf. The Holders may not, individually or collectively, take any direct action to enforce the Notes Collateral Documents. The Holders may only act by instruction to the Trustee, which shall instruct the Collateral Agent subject to the Pari Passu Intercreditor Agreement. The Collateral Agent will have no duties or obligations except those expressly set forth in this Agreement.
(c) the Notes Collateral Documents to which it is party. The Collateral Agent may consult with legal counsel, independent public accountants and other experts selected by it and shall will not be liable for any action taken or omitted to be taken by it in good faith in accordance with the advice of such counsel, accountants or experts.
(d) Neither the Collateral Agent nor any of its directors, officers, agents or employees shall be liable for any action taken or not taken by it in connection the absence of its own gross negligence, willful misconduct or bad faith. The Collateral Agent will be entitled to rely upon, and will not incur any liability for relying upon, any notice, request, certificate, consent, statement, instrument, document or other writing believed by it to be genuine and to have been signed or sent by the proper person. The Collateral Agent may also rely upon any statement made to it orally or by telephone and believed by it to have been made by the proper person, and shall not incur any liability for relying thereon. The Collateral Agent may consult with this Agreement legal counsel (1who may be counsel for the Issuer), independent accountants and other experts selected by it, and will not be liable for any action taken or not taken by it in accordance with the advice of any such counsel, accountants or experts. Without limiting the generality of the foregoing, the Collateral Agent:
(i) shall not be subject to any fiduciary or other implied duties, regardless of whether an event of default has occurred and is continuing;
(ii) shall not have any duty to take any discretionary action or exercise any discretionary powers, except discretionary rights and powers expressly contemplated hereby or by the Notes Collateral Documents that the Collateral Agent is required to exercise; provided that the Collateral Agent shall not be required to take any action that, in its opinion or the opinion of its counsel, may expose the Collateral Agent to liability or that is contrary to any Notes Collateral Document or applicable law;
(iii) shall not, except as expressly set forth herein and in the Notes Collateral Documents, have any duty to disclose, and shall not be liable for the failure to disclose, any information relating to the Issuer or any of its Affiliates that is communicated to or obtained by the Person serving as the Collateral Agent or any of its Affiliates in any capacity;
(iv) shall not be liable for any action taken or not taken by it (a) with the consent or at the request of Secured Party any Priority Agent or (2b) in the absence of its own gross negligence negligence, willful misconduct or willful misconduct. The Collateral Agent shall not incur any liability by acting bad faith or (c) in reliance upon any notice, consent, certificate, statement, on a certificate of an authorized officer of Holdings or other writing (which may be a bank wire, telex or similar writing) believed by it to be genuine or to be signed the Issuer stating that such action is permitted by the proper party or parties.
(e) Pledgor shall indemnify terms of the Collateral Agent against any cost, expense (including counsel fees and disbursements), claim, demand, action, loss or liability (except such as result from the Collateral Agent’s gross negligence or willful misconduct) that the Collateral Agent may suffer or incur in connection with this Agreement or any action taken or omitted by the Collateral Agent hereunder.
(f) Beyond the exercise of reasonable care in the custody thereof, the Collateral Agent shall have no duty as to any Collateral in its possession or control or in the possession or control of any agent, bailee, clearing corporation or securities intermediary or any income thereon or as to the preservation of rights against prior parties or any other rights pertaining theretoIntercreditor Agreements. The Collateral Agent shall be deemed not to have exercised reasonable care knowledge of any event of default under any series of Senior-Priority Non-ABL Obligations unless and until written notice describing such event of default is given to the Collateral Agent by the Representative of such Senior-Priority Non-ABL Obligations or Holdings or the Issuer; and
(v) shall not be responsible for or have any duty to ascertain or inquire into (a) any statement, warranty or representation made in or in connection with the custody and preservation Intercreditor Agreements or any other Notes Collateral Document, (b) the contents of any certificate, report or other document delivered hereunder or thereunder or in connection herewith or therewith, (c) the performance or observance of any of the covenants, agreements or other terms or conditions set forth herein or therein or the occurrence of any event of default, (d) the validity, enforceability, effectiveness or genuineness of the Intercreditor Agreements, any other Notes Collateral if Document or any other agreement, instrument or document, or the creation, perfection or priority of any Lien purported to be created by the Notes Collateral Documents, (e) the value or the sufficiency of any Collateral for any series of Senior-Priority Non-ABL Obligations, or (f) the satisfaction of any condition set forth in any Senior-Priority Non-ABL Debt Document or Notes Collateral Document, other than to confirm receipt of items expressly required to be delivered to the Collateral Agent. The use of the term “agent” herein with reference to the Collateral Agent is accorded treatment substantially equal not intended to that which connote any fiduciary or other implied (or express) obligations arising under agency doctrine of any applicable law other than as a “representative” as such term is used in Section 9-102(a)(73)(E) of the Uniform Commercial Code. BY ACCEPTING A NOTE EACH HOLDER WILL BE DEEMED TO HAVE IRREVOCABLY AGREED TO THE FOREGOING PROVISIONS OF THIS SECTION 12.1(A) AND SHALL BE BOUND BY THOSE AGREEMENTS TO THE FULLEST EXTENT PERMITTED BY LAW.
(b) Without limiting the Intercreditor Agreements, the Collateral Agent shall be subject to such directions as may be properly given it accords its own propertyby the Trustee and/or other Representatives from time to time in accordance with this Indenture, the Intercreditor Agreements and the other Notes Collateral Documents. Except as directed by the Trustee and/or other Representatives and as expressly required by this Indenture, the Intercreditor Agreements and the other Notes Collateral Documents, and in each case subject to the Intercreditor Agreements, the Collateral Agent shall not be obligated:
(1) to act upon directions purported to be delivered to it by any other Person;
(2) to foreclose upon or otherwise enforce any Lien securing the Notes or any of the Note Guarantees; or
(3) to take any other action whatsoever with regard to any or all of the Liens securing the Notes, the Note Guarantees or the Notes Collateral Documents or with regard to the Collateral.
(c) The Collateral Agent is authorized and empowered to appoint one or more co-agents or sub-agents or attorneys-in-fact as it deems necessary or appropriate in connection herewith and shall not be liable for the negligence or misconduct of any such agents or attorneys-in-fact selected by it in good faith.
(d) The Collateral Agent may perform any and all its duties and exercise its rights and powers by or through any one or more sub-agents appointed by it. The Collateral Agent and any such sub-agent may perform any and all its duties and exercise its rights and powers by or through their respective Affiliates. The exculpatory provisions of this Article XII shall apply to any such sub-agent and to the Affiliates of the Collateral Agent and any such sub-agent.
(e) Subject to the appointment and acceptance of a successor Collateral Agent as provided below, the Collateral Agent may resign at any time by notifying the Issuer and the Trustee. Upon any such resignation, the Trustee shall have the right, with the consent (not to be unreasonably withheld or delayed) of the Issuer, to appoint a successor; provided that during the existence and continuation of an Event of Default pursuant to clause (1), (2), (6) or (7) of Section 6.1(a) consent of the Issuer shall not be required. If no successor shall have been so appointed by the Trustee and shall have accepted such appointment within 30 days after the retiring Collateral Agent gives notice of its resignation, then the retiring Collateral Agent may, on behalf of the Holders and the Trustee, appoint a successor Collateral Agent which shall be a bank with an office in New York, New York, having a combined capital and surplus of at least $1,000,000,000, or an Affiliate of any such bank that is, so long as no Event of Default pursuant to clause (1), (2), (6) or (7) of Section 6.1(a) shall have occurred and be continuing, reasonably acceptable to the Issuer. Upon the acceptance of its appointment as Collateral Agent hereunder by a successor, such successor shall succeed to and become vested with all the rights, powers, privileges and duties of the retiring Collateral Agent, and the retiring Collateral Agent shall be discharged from its duties and obligations hereunder. The fees payable by the Issuer to a successor Collateral Agent shall be the same as those payable to its predecessor unless otherwise agreed between the Issuer and such successor. After a Collateral Agent’s resignation hereunder, the provisions of this Article and Article VII shall continue in effect for the benefit of such retiring Collateral Agent, its sub-agents and their respective Affiliates in respect of any actions taken or omitted to be taken by any of them while acting as Collateral Agent.
(f) The benefits, protections and indemnities of the Trustee in Sections 7.2, 7.3 and 7.7 of this Indenture shall apply mutatis mutandis to the Collateral Agent in its capacity as such, including, without limitation, the rights to receive and rely on Officer’s Certificates and Opinions of Counsel, reimbursement and indemnification.
(g) Each Holder, by its acceptance of any Notes, is deemed to have consented and agreed to the terms of each Notes Collateral Document, as originally in effect and as amended, supplemented or replaced from time to time in accordance with its terms or the terms of this Indenture; and authorizes and empowers the Trustee and (through the Intercreditor Agreements) each applicable Priority Agent to bind the Holders and other holders of Pari Passu Debt Obligations as set forth in the applicable Notes Collateral Documents to which they are a party and to perform its obligations and exercise its rights and powers thereunder. Notwithstanding the foregoing, no such consent or deemed consent shall be deemed or construed to represent an amendment or waiver, in whole or in part, of any provision of this Indenture or the Notes.
(h) Except as contemplated by the Notes Collateral Documents, neither the Trustee nor the Collateral Agent shall be responsible for the existence, genuineness or value of any loss of the Collateral or damage to for the validity, perfection, priority or enforceability of the Liens in any of the Collateral, for the validity or for any diminution in the value thereof, by reason sufficiency of the act or omission of any agent, bailee, clearing corporation or securities intermediary selected by the Collateral Agent in good faith (or selected by an agent, bailee, clearing corporation or securities intermediary so selected by the Collateral Agent or by any agent, bailee, clearing corporation or securities intermediary selected in accordance with this parenthetical phrase).
(g) Any corporation or association into which the Collateral Agent may be converted or merged, or with which it may be consolidated, or to which it may sell or transfer its agency business or assets as a whole or substantially as a whole, or any corporation agreement or association resulting from any such conversionassignment contained therein, sale, merger, consolidation or transfer to which it is a party, shall, subject to for the prior written consent of Secured Party, be and become a successor Collateral Agent hereunder and vested with all validity of the title of the Issuer or any Grantor to the Collateral, for insuring the Collateral and all or for the payment of taxes, charges, assessments or Liens upon the Collateral or otherwise as to the maintenance of the powers, discretions, immunities, privileges and other matters as was its predecessor without, except as provided above, the execution or filing of any instrument or any further act, deed or conveyance on the part of any of the parties hereto, anything herein to the contrary notwithstandingCollateral.
Appears in 1 contract
The Collateral Agent. (a) Secured Party hereby irrevocably appoints and authorizes the Collateral Agent to take such action as agent on its behalf and to exercise such powers under this Agreement as are delegated to the Collateral Agent by the terms hereof, together with all such powers as are reasonably incidental thereto.
(b) The obligations of the Collateral Agent hereunder are only those expressly set forth in this Agreement.
(c) The Collateral Agent may consult with legal counsel, independent public accountants and other experts selected by it and shall not be liable for any action taken or omitted to be taken by it in good faith in accordance with the advice of such counsel, accountants or experts.
(d) Neither the Collateral Agent nor any of its directors, officers, agents or employees shall be liable for any action taken or not taken by it in connection with this Agreement (1) with the consent or at the request of Secured Party or (2) in the absence of its own gross negligence or willful misconduct. The Collateral Agent shall not incur any liability by acting in reliance upon any notice, consent, certificate, statement, statement or other writing (which may be a bank wire, telex or similar writing) believed by it to be genuine or to be signed by the proper party or parties.
(e) Pledgor shall indemnify the Collateral Agent against any cost, expense (including counsel fees and disbursements), claim, demand, action, loss or liability (except such as result from the Collateral Agent’s 's gross negligence or willful misconduct) that the Collateral Agent may suffer or incur in connection with this Agreement or any action taken or omitted by the Collateral Agent hereunder.
(f) Beyond the exercise of reasonable care in the custody thereof, the Collateral Agent shall have no duty as to any Collateral in its possession or control or in the possession or control of any agent, bailee, clearing corporation or securities intermediary or any income thereon or as to the preservation of rights against prior parties or any other rights pertaining thereto. The Collateral Agent shall be deemed to have exercised reasonable care in the custody and preservation of the Collateral if the Collateral is accorded treatment substantially equal to that which it accords its own property, and shall not be liable or responsible for any loss or damage to any of the Collateral, or for any diminution in the value thereof, by reason of the act or omission of any agent, bailee, clearing corporation or securities intermediary selected by the Collateral Agent in good faith (or selected by an agent, bailee, clearing corporation or securities intermediary so selected by the Collateral Agent or by any agent, bailee, clearing corporation or securities intermediary selected in accordance with this parenthetical phrase).
(g) Any corporation or association into which the Collateral Agent may be converted or merged, or with which it may be consolidated, or to which it may sell or transfer its agency business or and assets as a whole or substantially as a whole, or any corporation or association resulting from any such conversion, sale, merger, consolidation or transfer to which it is a party, shall, subject to the prior written consent of Secured Party, be and become a successor Collateral Agent hereunder and vested with all of the title to the Collateral and all of the powers, discretions, immunities, privileges and other matters as was its predecessor without, except as provided above, the execution or filing of any instrument or any further act, deed or conveyance on the part of any of the parties hereto, anything herein to the contrary notwithstanding.
Appears in 1 contract
The Collateral Agent. (a) Secured Party hereby irrevocably appoints and authorizes the Collateral Agent to take such action as agent on its behalf and to exercise such powers under this Agreement as are delegated to the Collateral Agent by the terms hereof, together with all such powers as are reasonably incidental thereto.
(b) The obligations of the Collateral Agent hereunder are only those expressly set forth in this Agreement.
(c) The Collateral Agent may consult with legal counsel, independent public accountants and other experts selected by it and shall not be liable for any action taken or omitted to be taken by it in good faith in accordance with the advice of such counsel, accountants or experts.
(d) Neither the Collateral Agent nor any of its directors, officers, agents or employees shall be liable for any action taken or not taken by it in connection with this Agreement (1) with the consent or at the request of Secured Party or (2) in the absence of its own gross negligence or willful misconduct. The Collateral Agent shall not incur any liability by acting in reliance upon any notice, consent, certificate, statement, statement or other writing (which may be a bank wire, telex or similar writing) believed by it to be genuine or to be signed by the proper party or parties.
(e) Pledgor shall indemnify the Collateral Agent against any cost, expense (including reasonable and documented counsel fees and disbursements), claim, demand, action, loss or liability (except such as result from the Collateral Agent’s 's gross negligence or willful misconduct) that the Collateral Agent may suffer or incur in connection with this Agreement or any action taken or omitted by the Collateral Agent hereunder.
(f) Beyond the exercise of reasonable care in the custody thereof, the Collateral Agent shall have no duty as to any Collateral in its possession or control or in the possession or control of any agent, bailee, clearing corporation or securities intermediary or any income thereon or as to the preservation of rights against prior parties or any other rights pertaining thereto. The Collateral Agent shall be deemed to have exercised reasonable care in the custody and preservation of the Collateral if the Collateral is accorded treatment substantially equal to that which it accords its own property, and shall not be liable or responsible for any loss or damage to any of the Collateral, or for any diminution in the value thereof, by reason of the act or omission of any agent, bailee, clearing corporation or securities intermediary selected by the Collateral Agent in good faith (or selected by an agent, bailee, clearing corporation or securities intermediary so selected by the Collateral Agent or by any agent, bailee, clearing corporation or securities intermediary selected in accordance with this parenthetical phrase).
(g) Any corporation or association into which the Collateral Agent may be converted or merged, or with which it may be consolidated, or to which it may sell or transfer its agency business or and assets as a whole or substantially as a whole, or any corporation or association resulting from any such conversion, sale, merger, consolidation or transfer to which it is a party, shall, subject to the prior written consent of Secured Party, be and become a successor Collateral Agent hereunder and vested with all of the title to the Collateral and all of the powers, discretions, immunities, privileges and other matters as was its predecessor without, except as provided above, the execution or filing of any instrument or any further act, deed or conveyance on the part of any of the parties hereto, anything herein to the contrary notwithstanding.
Appears in 1 contract
Samples: Pledge Agreement (Soros George)
The Collateral Agent. (a) Secured Party hereby irrevocably appoints and authorizes the The Collateral Agent to take such action as agent on its behalf and to exercise such powers under this Agreement as are delegated to the Collateral Agent by the terms hereof, together with all such powers as are reasonably incidental thereto.
(b) The shall not have duties or obligations of the Collateral Agent hereunder are only except those expressly set forth in this Agreement.
(c) Indenture and the Collateral Documents to which it is party, and no implied covenants or obligations shall be read into this Indenture and the Collateral Documents against the Collateral Agent. The Collateral Agent may consult with legal counsel, independent public accountants and other experts selected by it and shall not be liable for any action taken or omitted to be taken by it in good faith in accordance with the advice of such counsel, accountants or experts.
(d) Neither the Collateral Agent nor any of its directors, officers, agents or employees shall be liable for any action taken or not taken by it in connection with this Agreement (1) with the consent or at the request of Secured Party or (2) in the absence of its own gross negligence negligence, bad faith or willful misconduct. The Collateral Agent shall be entitled to rely upon, and shall not incur any liability by acting in reliance upon for relying upon, any notice, consentrequest, certificate, consent, statement, instrument, document or other writing (which may be a bank wire, telex or similar writing) believed by it to be genuine and to have been signed or to be signed sent by the proper party or parties.
(e) Pledgor shall indemnify the Collateral Agent against any cost, expense (including counsel fees and disbursements), claim, demand, action, loss or liability (except such as result from the Collateral Agent’s gross negligence or willful misconduct) that the person. The Collateral Agent may suffer also rely upon any statement made to it orally or by telephone and believed by it to have been made by the proper person, and shall not incur in connection any liability for relying thereon. The Collateral Agent may consult with this Agreement or legal counsel (who may be counsel for the Company), independent accountants and other experts selected by it, and shall not be liable for any action taken or omitted not taken by it in the absence of its own gross negligence, bad faith or willful misconduct, in each case, in accordance with the advice of any such counsel, accountants or experts. Subject to the Collateral Agent hereunder.
(f) Beyond the exercise of reasonable care in the custody thereofAgreement, the Collateral Agent shall have no an unqualified right to resign at any time. Nothing in this Indenture (or any other document) shall require the Collateral Agent to expend or risk its own funds or otherwise incur any personal or financial liability in the performance of any right or duties under or in connection with this Indenture, the Notes or any Collateral Documents.
(b) Without limiting the generality of the foregoing and any items set forth in this Indenture or the Collateral Documents, the Collateral Agent:
(1) shall not be subject to any fiduciary or other implied duties, regardless of whether a Default or an Event of Default has occurred and is continuing;
(2) shall not have any duty as to take any discretionary action or exercise any discretionary powers, except discretionary rights and powers expressly contemplated by the Collateral Documents that the Collateral Agent is required to exercise; provided that the Collateral Agent shall not be required to take any action that, in its opinion or the opinion of its counsel, may expose the Collateral Agent to liability or that is contrary to any Collateral in its possession Document or control or applicable law; or
(3) shall not, except as expressly set forth in the possession or control of Collateral Documents, have any agent, bailee, clearing corporation or securities intermediary or any income thereon or as duty to the preservation of rights against prior parties or any other rights pertaining thereto. The Collateral Agent shall be deemed to have exercised reasonable care in the custody and preservation of the Collateral if the Collateral is accorded treatment substantially equal to that which it accords its own propertydisclose, and shall not be liable for the failure to disclose, any information relating to the Company or responsible for any loss or damage to any of the Collateral, its Subsidiaries that is communicated to or for any diminution in the value thereof, by reason of the act or omission of any agent, bailee, clearing corporation or securities intermediary selected obtained by the Collateral Agent in good faith (or selected by an agent, bailee, clearing corporation or securities intermediary so selected by Person serving as the Collateral Agent or by any agent, bailee, clearing corporation or securities intermediary selected of its Subsidiaries in accordance with this parenthetical phrase).any capacity; or
(g4) Any corporation or association into which subject to the terms of the Collateral Agent may Agreement, the Collateral Agent shall be converted entitled to but shall have no obligation to give, execute, deliver, file, record, authorize or mergedobtain any financing statements, notices, instruments, documents, agreements, consents or other papers as shall be necessary to (i) create, preserve, perfect, maintain or validate the security interest granted to those parties pursuant to this Indenture, the Notes and the Collateral Documents or (ii) enable them to exercise and enforce their rights under this Indenture, the Notes and the Collateral Documents with respect to such pledges and security interests. In addition, the Trustee and/or Collateral Agent shall have no responsibility or liability (i) in connection with the acts or omissions of the Company in respect of the foregoing or (ii) for or with which it may be consolidated, or to which it may sell or transfer its agency business or assets as a whole or substantially as a whole, or any corporation or association resulting from any such conversion, sale, merger, consolidation or transfer to which it is a party, shall, subject respect to the prior written consent legality, validity and enforceability of Secured Party, be and become a successor Collateral Agent hereunder and vested with all of the title to any security interest created in the Collateral or the perfection and all priority of the powers, discretions, immunities, privileges and other matters as was its predecessor without, except as provided above, the execution or filing of any instrument or any further act, deed or conveyance on the part of any of the parties hereto, anything herein to the contrary notwithstandingsuch security interest. BY ACCEPTING A NOTE EACH HOLDER WILL BE DEEMED TO HAVE IRREVOCABLY AGREED TO THE FOREGOING PROVISIONS OF CLAUSES (A) AND (B) OF THIS SECTION 12.01 AND SHALL BE BOUND BY THOSE AGREEMENTS TO THE FULLEST EXTENT PERMITTED BY LAW.
Appears in 1 contract
Samples: Indenture (Greenfire Resources Ltd.)
The Collateral Agent. The following provisions shall apply to each Security Document, whether or not expressly set forth therein and regardless of whether or not reference is made to this Agreement therein.
(a) Secured Party hereby irrevocably appoints and authorizes the The Collateral Agent is hereby appointed and authorized to take such action act as collateral agent on its behalf hereunder and to exercise under the other Security Documents, with such powers under this Agreement as are specifically delegated to the Collateral Agent by the terms hereof, together with all such powers as are reasonably incidental thereto.of this Agreement and the other Security Documents. The Collateral Agent:
(bi) The obligations of the Collateral Agent hereunder are only shall have no duties or responsibilities except those expressly set forth in this Agreement.
(c) The Collateral Agent may consult with legal counselthe Security Documents, independent public accountants and other experts selected by it and shall not by reason of any Security Document or other Indenture Document be liable a trustee for, or have a fiduciary relationship with or owe a fiduciary duty to, the Trustee or any Holder or any other Person;
(ii) shall not be responsible to any Person for any recitals, statements, representations or warranties contained in any Indenture Document, or in any certificate or other document referred to or provided for in, or received by it under, any Indenture Document, or for the value, validity, effectiveness, genuineness, enforceability or sufficiency of any Indenture Document or any collateral thereunder or any other document referred to or provided for herein or for any failure by any Pledgor or any other Person (other than the Collateral Agent) to perform any of its obligations hereunder or thereunder;
(iii) shall not be required to initiate or conduct any litigation or collection or other proceedings hereunder or under any other Security Document;
(iv) shall not be responsible for any action taken or omitted to be taken by it in good faith in accordance with the advice of such counsel, accountants hereunder or experts.
(d) Neither the Collateral Agent nor under any of its directors, officers, agents other Security Document or employees shall be liable under any other document or instrument referred to or provided for any action taken herein or not taken by it in connection with this Agreement (1) with the consent or at the request of Secured Party or (2) in the absence of herewith, except for its own gross negligence or willful misconduct; and
(v) may employ agents and attorneys-in-fact and shall not be responsible for the negligence or misconduct of or for the supervision of any such agents or attorneys-in-fact selected by it in good faith.
(b) Before the Collateral Agent acts or refrains from acting under any Security Document, it may require an officer's certificate of any Pledgor and/or an opinion of counsel satisfactory to the Collateral Agent with respect to the proposed action or inaction. The Collateral Agent shall not incur be liable for any liability by acting action it takes or omits to take in good faith in reliance on such certificate or opinion. Whenever in the administration of any Security Document the Collateral Agent shall deem it necessary or desirable that a matter be provided or established prior to taking or suffering or omitting to take any act hereunder or thereunder, such matter (unless other evidence in respect thereof be herein or therein specifically prescribed) may, in the absence of gross negligence or bad faith on the part of the Collateral Agent, be deemed to be conclusively proved and established by an officers' certificate delivered to the Collateral Agent, and such certificate shall be full warrant to the Collateral Agent for any action taken, suffered or omitted to be taken by it under the provisions of any Security Document upon the faith thereof.
(c) The Collateral Agent shall be entitled to conclusively rely upon any noticecertification, consentinstruction, certificate, statement, notice or other writing communication (which may be a bank wireincluding, without limitation, any thereof by telephone, telecopy, telegram, telex or similar writingemail) reasonably believed by it to be genuine and correct and to have been signed or to be signed sent by or on behalf of the proper party Person or parties.
(e) Pledgor shall indemnify the Collateral Agent against any costPersons, expense (including and upon advice and statements of legal counsel fees and disbursements), claim, demand, action, loss or liability (except such as result from other experts selected by the Collateral Agent’s gross negligence or willful misconduct) that the Collateral Agent may suffer or incur in connection with . As to any matters not expressly provided for by this Agreement or any action taken or omitted by the Collateral Agent hereunder.
(f) Beyond the exercise of reasonable care in the custody thereofother Security Document, the Collateral Agent shall have no duty as to any Collateral in its possession or control all cases be fully protected in acting, or in refraining from acting, hereunder in accordance with instructions given by the possession Trustee, acting upon the instructions of the required percentage of Holders under the Indenture, and such instructions of the Trustee and any action taken or control failure to act pursuant thereto shall be binding on all of any agent, bailee, clearing corporation or securities intermediary or any income thereon or as to the preservation of rights against prior parties or any other rights pertaining thereto. Holders.
(d) The Collateral Agent shall not be deemed to have exercised reasonable care in the custody and preservation knowledge or notice of the Collateral if the Collateral is accorded treatment substantially equal to that which it accords its own property, and shall not be liable or responsible for any loss or damage to any occurrence of the Collateral, or for any diminution in the value thereof, by reason of the act or omission of any agent, bailee, clearing corporation or securities intermediary selected by a Default unless the Collateral Agent in good faith (has received notice from the Trustee, a Holder or selected by an agent, bailee, clearing corporation or securities intermediary so selected by the Collateral Agent or by any agent, bailee, clearing corporation or securities intermediary selected in accordance with this parenthetical phrase).
(g) Any corporation or association into which the Collateral Agent may be converted or merged, or with which it may be consolidated, or to which it may sell or transfer its agency business or assets as a whole or substantially as a whole, or any corporation or association resulting from any Pledgor specifying such conversion, sale, merger, consolidation or transfer to which it Default and stating that such notice is a party, shall, subject to the prior written consent of Secured Party, be and become a successor Collateral Agent hereunder and vested with all of the title to the Collateral and all of the powers, discretions, immunities, privileges and other matters as was its predecessor without, except as provided above, the execution or filing of any instrument or any further act, deed or conveyance on the part of any of the parties hereto, anything herein to the contrary notwithstanding."
Appears in 1 contract
The Collateral Agent. (a) Secured Party hereby By accepting a Note, each Holder will be deemed to have irrevocably appoints and authorizes appointed the Collateral Agent to take such action act as collateral agent under the applicable Security Documents and irrevocably authorized the Collateral Agent to (i) perform the duties and exercise the rights and powers that are specifically given to it under the Security Documents or other documents to which it is a party, together with any other incidental rights and powers, and (ii) execute each document to be executed by the Collateral Agent on its behalf behalf, any Security Documents and all other instruments relating to exercise such powers under this Agreement as are delegated the Security Documents. The Holders may not, individually or collectively, take any direct action to enforce the Security Documents. The Collateral Agent will have no duties or obligations with respect to the Collateral Agent by the terms hereof, together with all such powers as are reasonably incidental thereto.
(b) The obligations of the Collateral Agent hereunder are only except those expressly set forth hereunder or in this Agreement.
(c) the applicable Security Documents and no implied covenants or obligations shall be read into such documents against the Collateral Agent. The Collateral Agent may consult with legal counsel, independent public accountants and other experts selected by it and shall will not be liable for any action taken or omitted to be taken by it in good faith in accordance with the advice of such counsel, accountants or experts.
(d) Neither the Collateral Agent nor any of its directors, officers, agents or employees shall be liable for any action taken or not taken by it in connection the absence of its own gross negligence, willful misconduct or bad faith (as determined by a court of competent jurisdiction in a final and non-appealable decision). The Collateral Agent will be entitled to rely upon, and will not incur any liability for relying upon, any notice, request, certificate, consent, statement, instrument, document or other writing believed by it in good faith to be genuine and to have been signed or sent by the proper person. The Collateral Agent may consult with this Agreement legal counsel (1) who may be counsel for the Company), independent accountants and other experts selected by it, and will not be liable for any action taken or not taken by it in accordance with the consent advice of any such counsel, accountants or at experts. Without limiting the request generality of Secured Party the foregoing, the Collateral Agent:
(i) shall not be subject to any fiduciary or other implied duties, regardless of whether an Event of Default has occurred and is continuing;
(2ii) shall not have any duty to take any discretionary action or exercise any discretionary powers and shall not be required to take any action that, in its opinion or the opinion of its counsel, may expose the Collateral Agent to liability or that is contrary to any Security Document or applicable law;
(iii) shall not have any duty to disclose, and shall not be liable for the failure to disclose, any information relating to the Company or any Affiliate if the Company that is communicated to or obtained by the Person serving as a Collateral Agent or any of its Affiliates in any capacity;
(iv) shall not be liable for any action taken or not taken by it (i) in the absence of its own gross negligence or willful misconductmisconduct (as determined by a court of competent jurisdiction in a final and non-appealable decision) or (ii) in reliance on an Officer’s Certificate of the Company stating that such action is permitted by the terms of this Indenture. The Collateral Agent shall be deemed not incur to have knowledge of any liability Event of Default hereunder unless and until written notice describing such Event of Default is received by acting such Collateral Agent from the Trustee or the Company; and
(v) shall not be responsible for or have any duty to ascertain or inquire into (i) any statement, warranty or representation made in reliance upon or in connection with any noticeSecurity Document, consent, (ii) the contents of any certificate, statementreport or other document delivered hereunder or thereunder or in connection herewith or therewith, (iii) the performance or observance of any of the covenants, agreements or other terms or conditions set forth herein or therein or the occurrence of any Event of Default, (iv) the validity, enforceability, effectiveness or genuineness of any Security Document or any other agreement, instrument or document, or the creation, perfection or priority of any Lien purported to be created by any Security Document, (v) the existence, value or the sufficiency of any Collateral for any Notes Obligations, or (vi) the satisfaction of any condition set forth in any operative agreements governing Notes Obligations or any Security Document, other writing than to confirm receipt of items expressly required to be delivered to such Collateral Agent. The use of the term “agent” herein with reference to a Collateral Agent is not intended to connote any fiduciary or other implied (which or express) obligations arising under agency doctrine of any applicable law other than as a “representative” as such term is used in Section 9-102(a)(72)(E) of the UCC. BY ACCEPTING A NOTE EACH HOLDER WILL BE DEEMED TO HAVE IRREVOCABLY AGREED TO THE FOREGOING PROVISIONS OF THIS SECTION 14.01(a) AND SHALL BE BOUND BY THOSE AGREEMENTS TO THE FULLEST EXTENT PERMITTED BY LAW.
(b) The Collateral Agent shall be subject to such directions as may be a bank wireproperly given in accordance with this Indenture and the Security Documents. Except as expressly required by this Indenture and the Security Documents or otherwise in compliance with the prior sentence, telex the Collateral Agent shall not be obligated:
(i) to act upon directions purported to be delivered to it by any other Person;
(ii) to foreclose upon or similar writingotherwise enforce any Lien securing the Notes or any of the Guarantees; or
(iii) believed to take any other action whatsoever with regard to any or all of (x) the Liens securing the Notes, (y) the Guarantees or (z) the Security Documents, or with regard to the Collateral.
(c) The Collateral Agent may perform any and all of its duties and exercise its rights and powers by or through, and is authorized and empowered to appoint, one or more co-agents or sub-agents or attorneys-in-fact as it deems necessary or appropriate in connection herewith and shall not be liable for the negligence or misconduct of any such agents or attorneys-in-fact selected by it in good faith.
(d) Subject to the appointment and acceptance of a successor Collateral Agent as provided below, the Collateral Agent may resign at any time by notifying the Company and the Trustee. Upon any such resignation, the Company shall have the right to appoint a successor; provided that, during the existence and continuation of an Event of Default pursuant to clause Section 5.01(a), (b), (e) or (f) hereof, the Holders of a majority in principal amount of the Notes shall have the right to appoint a successor. If no successor shall have been so appointed by the Company (or, if applicable, the Holders of a majority in principal amount of the Notes) and shall have accepted such appointment within 30 days after the retiring Collateral Agent gives notice of its resignation, then such retiring Collateral Agent may, on behalf of the Holders and the Trustee, petition at the expense of the Company a court of competent jurisdiction to appoint a successor Collateral Agent. Upon the acceptance of its appointment as a Collateral Agent hereunder by a successor, such successor shall succeed to and become vested with all the rights, powers, privileges and duties of the retiring Collateral Agent, and the retiring Collateral Agent shall be discharged from its duties and obligations hereunder. The fees payable by the Company to a successor Collateral Agent shall be the same as those payable to its predecessor unless otherwise agreed between the Company and such successor. After a Collateral Agent’s resignation hereunder, the provisions of this Article Fourteen and Article Six hereof shall continue in effect for the benefit of such retiring Collateral Agent, its sub-agents and their respective Affiliates in respect of any actions taken or omitted to be genuine or to be signed taken by the proper party or partiesany of them while acting as Collateral Agent.
(e) Pledgor The benefits, protections and indemnities of the Trustee in Sections 6.03 and 6.07 hereof shall indemnify apply mutatis mutandi to the Collateral Agent against any costin its capacity as such, expense (including counsel fees including, without limitation, the rights to receive and disbursements)rely on Officer’s Certificates and Opinions of Counsel, claim, demand, action, loss or liability (except such as result from reimbursement and indemnification; provided that the Collateral Agent’s gross negligence or willful misconduct) that applicable standard of care of the Collateral Agent may suffer or incur in connection with this Agreement or any action taken or omitted by the Collateral Agent hereunderrespect to Sections 6.03 and 6.07 hereof shall be gross negligence and willful misconduct.
(f) Each Holder, by its acceptance of any Notes, is deemed to have consented and agreed to the terms of each Security Document, as originally in effect and as amended, supplemented or replaced from time to time in accordance with its terms or the terms of this Indenture; and authorizes and empowers the Trustee to bind the Holders as set forth in the applicable Security Documents, if any, to which they are a party and to perform its obligations and exercise its rights and powers thereunder. Notwithstanding the foregoing, no such consent or deemed consent shall be deemed or construed to represent an amendment or waiver, in whole or in part, of any provision of this Indenture or the Notes.
(g) Neither the Trustee nor the Collateral Agent shall be responsible for the existence, genuineness or value of any of the Collateral or for the validity, perfection, priority or enforceability of the Liens in any of the Collateral, for the validity or sufficiency of the Collateral or any agreement or assignment contained therein, for the validity of the title of the Company or any grantor to the Collateral, for insuring the Collateral or for the payment of taxes, charges, assessments or Liens upon the Collateral or otherwise as to the maintenance of the Collateral.
(h) Beyond the exercise of reasonable care in the custody thereof, neither the Trustee nor the Collateral Agent shall have no any duty as to any Collateral in its possession or control or in the possession or control of any agent, bailee, clearing corporation agent or securities intermediary bailee or any income thereon or as to the preservation of rights against prior parties or any other rights pertaining theretothereto and neither the Trustee nor the Collateral Agent shall be responsible for filing any financing or continuation statements or recording any documents or instruments in any public office at any time or times or otherwise perfecting or maintaining the perfection of any security interest in the Collateral. The Each of the Trustee and the Collateral Agent shall be deemed to have exercised reasonable care in the custody and preservation of the Collateral in its possession if the Collateral is accorded treatment substantially equal to that which it accords its own property, property and shall not be liable or responsible for any loss or damage to diminution in the value of any of the Collateral, or for any diminution in the value thereof, by reason of the act or omission of any agentcarrier, bailee, clearing corporation forwarding agency or securities intermediary other agent or bailee selected by the Trustee or the Collateral Agent in good faith faith.
(i) Neither the Trustee nor the Collateral Agent shall be responsible for the existence, genuineness or selected value of any of the Collateral or for the validity, perfection, priority or enforceability of the Liens in any of the Collateral, whether impaired by an agentoperation of law or by reason of any action or omission to act on its part hereunder, baileefor the validity or sufficiency of the Collateral or any agreement or assignment contained therein, clearing corporation for the validity of the title of the Company to the Collateral, for insuring the Collateral or securities intermediary so selected for the payment of taxes, charges, assessments or Liens upon the Collateral or otherwise as to the maintenance of the Collateral. The Trustee and the Collateral Agent shall have no duty to ascertain or inquire as to the performance or observance of any of the terms of this Indenture or the Security Documents by the Company or the Subsidiary Guarantors.
(j) Notwithstanding any other provision hereof, neither the Collateral Agent nor the Trustee shall have any duties or obligations hereunder or under any Security Document except those expressly set forth herein or therein. Without limiting the generality of the foregoing, in the event that the Collateral Agent or the Trustee is required to acquire title to an asset for any reason, or take any managerial action of any kind in regard thereto, in order to carry out any fiduciary or trust obligation for the benefit of another, which in the Collateral Agent’s or the Trustee’s sole discretion may cause it to be considered an “owner or operator” under the provisions of the Comprehensive Environmental Response, Compensation and Liability Act (“CERCLA”), 42 U.S.C. §9601, et seq., or otherwise cause it to incur liability under CERCLA or any other federal, state or local law, the Collateral Agent and the Trustee each reserve the right, instead of taking such action, to either resign or arrange for the transfer of the title or control of the asset to a court-appointed receiver. Neither the Collateral Agent nor the Trustee shall be liable to any person for any environmental claims or contribution actions under any federal, state or local law, rule or regulation by reason of the Collateral Agent’s actions and conduct as authorized, empowered and directed hereunder or relating to the discharge, release or threatened release of hazardous materials into the environment. If at any time it is necessary or advisable for the Collateral to be possessed, owned, operated or managed by any agentperson other than the grantor, baileethe majority of the Holders shall direct the Collateral Agent or Trustee, clearing corporation as applicable, to appoint an appropriately qualified person who they shall designate to possess, own, operate or securities intermediary selected in accordance with this parenthetical phrase)manage, as the case may be, the Collateral.
(gk) Any corporation or association into which For the avoidance of doubt, the Trustee and the Collateral Agent may shall act only within the United States, and shall not be converted or merged, or with which it may be consolidated, or to which it may sell or transfer its agency business or assets as a whole or substantially as a whole, or any corporation or association resulting from any such conversion, sale, merger, consolidation or transfer to which it is a party, shall, subject to the prior written consent of Secured Partyany foreign law, be and become a successor Collateral Agent hereunder and vested with all of required to act in any jurisdiction located outside the title United States or be required to the Collateral and all of the powers, discretions, immunities, privileges and other matters as was its predecessor without, except as provided above, the execution or filing of execute any instrument or any further act, deed or conveyance on the part of any of the parties hereto, anything herein to the contrary notwithstandingforeign law governed document.
Appears in 1 contract
Samples: Senior Secured Notes Agreement (Office Properties Income Trust)
The Collateral Agent. (a) Secured Party hereby irrevocably appoints and authorizes the Collateral Agent to take such action as agent on its behalf and to exercise such powers under this Agreement as are delegated to the Collateral Agent by the terms hereof, together with all such powers as are reasonably incidental thereto.
(b) The obligations of the Collateral Agent hereunder are only those expressly set forth in this Agreement.
(c) The Collateral Agent may consult with legal counsel, independent public accountants and other experts selected by it and shall not be liable for any action taken or omitted to be taken by it in good faith in accordance with the advice of such counsel, accountants or experts.
(d) Neither the Collateral Agent nor any of its directors, officers, agents or employees shall be liable for any action taken or not taken by it in connection with this Agreement (1) with the consent or at the request of Secured Party or (2) in the absence of its own gross negligence or willful misconduct. The Collateral Agent shall not incur any liability by acting in reliance upon any notice, consent, certificate, statement, or other writing (which may be a bank wire, telex or similar writing) believed by it to be genuine or to be signed by the proper party or parties.
(e) Pledgor shall indemnify the Collateral Agent against any cost, expense (including counsel fees and disbursements), claim, demand, action, loss or liability (except such as result from the Collateral Agent’s 's gross negligence or willful misconduct) that the Collateral Agent may suffer or incur in connection with this Agreement or any action taken or omitted by the Collateral Agent hereunder.
(f) Beyond the exercise of reasonable care in the custody thereof, the Collateral Agent shall have no duty as to any Collateral in its possession or control or in the possession or control of any agent, bailee, clearing corporation or securities intermediary or any income thereon or as to the preservation of rights against prior parties or any other rights pertaining thereto. The Collateral Agent shall be deemed to have exercised reasonable care in the custody and preservation of the Collateral if the Collateral is accorded treatment substantially equal to that which it accords its own property, and shall not be liable or responsible for any loss or damage to any of the Collateral, or for any diminution in the value thereof, by reason of the act or omission of any agent, bailee, clearing corporation or securities intermediary selected by the Collateral Agent in good faith (or selected by an agent, bailee, clearing corporation or securities intermediary so selected by the Collateral Agent or by any agent, bailee, clearing corporation or securities intermediary selected in accordance with this parenthetical phrase).
(g) Any corporation or association into which the Collateral Agent may be converted or merged, or with which it may be consolidated, or to which it may sell or transfer its agency business or and assets as a whole or substantially as a whole, or any corporation or association resulting from any such conversion, sale, merger, consolidation or transfer to which it is a party, shall, subject to the prior written 9 30 consent of Secured Party, be and become a successor Collateral Agent hereunder and vested with all of the title to the Collateral and all of the powers, discretions, immunities, privileges and other matters as was its predecessor without, except as provided above, the execution or filing of any instrument or any further act, deed or conveyance on the part of any of the parties hereto, anything herein to the contrary notwithstanding.
Appears in 1 contract
Samples: Master Stock Purchase Agreement (Advanced Fibre Communications Inc)
The Collateral Agent. (a) Secured Party Each of the Lenders hereby irrevocably appoints confirms the appointment of the Collateral Agent as its agent and authorizes the Collateral Agent to take such action as agent actions on its behalf behalf, and to exercise such powers under this Agreement as are delegated to the Collateral Agent by the terms hereof, together with all such actions and powers as are reasonably incidental thereto.
(ba) The obligations of bank serving as the Collateral Agent hereunder are only shall have the same rights and powers in its capacity as a Lender as any other Lender and may exercise the same as though it were not the Collateral Agent, and such bank may accept deposits from, lend money to and generally engage in any kind of business with the Exporter or the Guarantor or any of its respective Subsidiary or Affiliate thereof as if it were not the Collateral Agent hereunder.
(b) The Collateral Agent shall not have any duties or obligations except those expressly set forth herein or in this Agreement.
any other loan document to which it is a party. Without limiting the generality of the foregoing: (ci) The the Collateral Agent may consult with legal counselshall not be subject to any fiduciary or other implied duties, independent public accountants regardless of whether an Event of Default has occurred and other experts selected is continuing; (ii) the Collateral Agent shall not have any duty to take any discretionary action or exercise any discretionary powers, except discretionary rights and powers expressly contemplated hereby that the Collateral Agent is required to exercise in writing by it the Majority Lenders; and (iii) except as expressly set forth herein, the Collateral Agent shall not have any duty to disclose, and shall not be liable for the failure to disclose, any action taken information relating to the Exporter or omitted to be taken by it in good faith in accordance with the advice of such counsel, accountants Guarantor or experts.
(d) Neither the Collateral Agent nor any of its directors, officers, agents respective subsidiaries that is communicated to or employees obtained by the bank serving as Administrative Agent. The Collateral Agent shall not be liable for any action taken or not taken by it in connection with this Agreement (1) with the consent or at the request of Secured Party the Majority Lenders or (2) in the absence of its own gross negligence or willful misconduct. The Collateral Agent shall be deemed not to have knowledge of any Event of Default unless and until written notice thereof is given to the Collateral Agent by the Exporter, the Guarantor or a Lender, and the Collateral Agent shall not be responsible for or have any duty to ascertain or inquire into (A) any statement, warranty or representation made in or in connection with this Prepayment Agreement and any other Advance Document, (B) the contents of any certificate, report or other document delivered hereunder or in connection herewith, (C) the performance or observance of any of the covenants, agreements or other terms or conditions set forth herein, (D) the validity, enforceability, effectiveness or genuineness of this Prepayment Agreement and any other Advance Document or any other agreement, instrument or document, or (E) the satisfaction of any condition set forth or elsewhere herein, other than to confirm receipt of items expressly required to be delivered to the Collateral Agent.
(c) The Collateral Agent shall be entitled to rely upon, and shall not incur any liability by acting in reliance upon for relying upon, any notice, consentrequest, certificate, consent, statement, instrument, document or other writing (which may be a bank wire, telex or similar writing) reasonably believed by it to be genuine and to have been signed or to be signed sent by the proper party or parties.
(e) Pledgor shall indemnify the Collateral Agent against any cost, expense (including counsel fees and disbursements), claim, demand, action, loss or liability (except such as result from the Collateral Agent’s gross negligence or willful misconduct) that the Collateral Agent may suffer or incur in connection with this Agreement or any action taken or omitted by the Collateral Agent hereunder.
(f) Beyond the exercise of reasonable care in the custody thereof, the Collateral Agent shall have no duty as to any Collateral in its possession or control or in the possession or control of any agent, bailee, clearing corporation or securities intermediary or any income thereon or as to the preservation of rights against prior parties or any other rights pertaining theretoPerson. The Collateral Agent also may rely upon any statement made to it orally or by telephone and reasonably believed by it to be made by the proper Person, and shall not incur any liability for relying thereon. The Collateral Agent may consult with legal counsel (who may be deemed to have exercised reasonable care in counsel for the custody Exporter or the Guarantor), independent accountants and preservation of the Collateral if the Collateral is accorded treatment substantially equal to that which it accords its own propertyother experts selected by it, and shall not be liable or responsible for any loss action taken or damage to any of not taken by it in accordance with the Collateral, or for any diminution in the value thereof, by reason of the act or omission advice of any agentsuch counsel, bailee, clearing corporation accountants or securities intermediary selected experts other than through willful misconduct and/or gross negligence.
(d) The Collateral Agent may perform any and all of its duties and exercise its rights and powers by or through any one or more sub-agents appointed by the Collateral Agent. The exculpatory provisions of the preceding paragraphs shall apply to any such sub-agent of the Collateral Agent in good faith (or selected by an and any such sub-agent, baileeand shall apply to their respective activities in connection with the syndication of the credit facilities provided for herein as well as activities as Collateral Agent.
(e) Subject to the appointment and acceptance of a successor Collateral Agent as provided in this paragraph, clearing corporation the Collateral Agent may resign at any time by giving sixty (60) days written notice to the Lenders and the Exporter. Upon any such resignation, the Majority Lenders shall have the right, in consultation with the Exporter and the Guarantor, to appoint a successor. If no successor shall have been so appointed by the Majority Lenders and shall have accepted such appointment within sixty (60) days after the retiring Collateral Agent gives notice of its resignation, then the retiring Collateral Agent may, on behalf of the Lenders, appoint a successor Collateral Agent or securities intermediary so selected an Affiliate of any such bank. Upon the acceptance of its appointment as Collateral Agent hereunder by a successor, such successor shall succeed to and become vested with all the rights, powers, privileges and duties of the retiring Collateral Agent, and the retiring Collateral Agent shall be discharged from its duties and obligations hereunder. After the Collateral Agent’s resignation hereunder, the provisions of this Article hereof shall continue in effect for the benefit of such retiring Collateral Agent and its sub-agents in respect of any actions taken or omitted to be taken by any of them while it was acting as Collateral Agent.
(f) Each Lender acknowledges that it has, independently and without reliance upon the Collateral Agent or by any agentother Lender and based on such documents and information as it has deemed appropriate, baileemade its own credit analysis and decision to enter into the Advance established pursuant to this Prepayment Agreement. Each Lender also acknowledges that it will, clearing corporation or securities intermediary selected in accordance with this parenthetical phrase).
(g) Any corporation or association into which independently and without reliance upon the Collateral Agent may be converted or merged, or with which it may be consolidated, or to which it may sell or transfer its agency business or assets as a whole or substantially as a whole, or any corporation other Lender and based on such documents and information as it shall from time to time deem appropriate, continue to make its own decisions in taking or association resulting from not taking action under or based upon this Prepayment Agreement and any such conversionother loan document, sale, merger, consolidation or transfer to which it is a party, shall, subject to the prior written consent of Secured Party, be and become a successor Collateral Agent hereunder and vested with all of the title to the Collateral and all of the powers, discretions, immunities, privileges and other matters as was its predecessor without, except as provided above, the execution or filing of any instrument related agreement or any further act, deed document furnished hereunder or conveyance on the part of any of the parties hereto, anything herein to the contrary notwithstandingthereunder.
Appears in 1 contract
Samples: Export Prepayment Agreement (Votorantim Pulp & Paper Inc)
The Collateral Agent. (a) Secured Party The Bank of New York Mellon Trust Company, N.A. will be the Collateral Agent as of the Issue Date. By accepting a Security, each of the Holders hereby irrevocably appoints The Bank of New York Mellon Trust Company, N.A. (and its successors) to act on its behalf as the Collateral Agent under each of the Notes Collateral Documents and authorizes the Collateral Agent to take such action as agent actions on its behalf and to exercise such powers under this Agreement as are delegated to the Collateral Agent by the terms hereof, together with all such powers as are reasonably incidental thereto.
(b) thereof. The obligations of the Collateral Agent hereunder are only will have no duties or obligations except those expressly set forth in this Agreement.
(c) Indenture or the Notes Collateral Documents to which it is party. The Collateral Agent may consult with legal counsel, independent public accountants and other experts selected by it and shall will not be liable for any action taken or omitted to be taken by it in good faith in accordance with the advice of such counsel, accountants or experts.
(d) Neither the Collateral Agent nor any of its directors, officers, agents or employees shall be liable for any action taken or not taken by it in connection with this Agreement (1) with the consent or at the request of Secured Party or (2) in the absence of its own gross negligence or willful misconduct. The Collateral Agent shall will be entitled to rely upon, and will not incur any liability by acting in reliance upon for relying upon, any notice, consentrequest, certificate, consent, statement, instrument, document or other writing (which may be a bank wire, telex or similar writing) believed by it to be genuine and to have been signed or to be signed sent by the proper party or parties.
(e) Pledgor shall indemnify the person. The Collateral Agent against may also rely upon any coststatement made to it orally or by telephone and believed by it to have been made by the proper person, expense and shall not incur any liability for relying thereon. The Collateral Agent may consult with legal counsel (including who may be counsel fees and disbursementsfor the Company), claimindependent accountants and other experts selected by it, demandand will not be liable for any action taken or not taken by it in accordance with the advice of any such counsel, actionaccountants or experts. Without limiting the generality of the foregoing, loss or liability (except such as result from the Collateral Agent’s gross negligence :
(i) shall not be subject to any fiduciary or willful misconductother implied duties, regardless of whether an event of default has occurred and is continuing;
(ii) shall not have any duty to take any discretionary action or exercise any discretionary powers, except discretionary rights and powers expressly contemplated by the Notes Collateral Documents that the Collateral Agent may suffer or incur in connection with this Agreement or any action taken or omitted by the Collateral Agent hereunder.
(f) Beyond the exercise of reasonable care in the custody thereof, is required to exercise; provided that the Collateral Agent shall have no duty as not be required to take any action that, in its opinion or the opinion of its counsel, may expose the Collateral Agent to liability or that is contrary to any Notes Collateral in its possession Document or control or applicable law;
(iii) shall not, except as expressly set forth in the possession or control of Notes Collateral Documents, have any agent, bailee, clearing corporation or securities intermediary or any income thereon or as duty to the preservation of rights against prior parties or any other rights pertaining thereto. The Collateral Agent shall be deemed to have exercised reasonable care in the custody and preservation of the Collateral if the Collateral is accorded treatment substantially equal to that which it accords its own propertydisclose, and shall not be liable for the failure to disclose, any information relating to the Company or any of its Affiliates that is communicated to or obtained by the Person serving as the Collateral Agent or any of its Affiliates in any capacity;
(iv) shall not be liable for any action taken or not taken by it (a) in the absence of its own gross negligence or willful misconduct or (b) in reliance on an Officer’s Certificate stating that such action is permitted by the terms of the Notes Collateral Documents; and
(v) shall not be responsible for or have any loss duty to ascertain or damage inquire into (a) any statement, warranty or representation made in or in connection with any Notes Collateral Document, (b) the contents of any certificate, report or other document delivered thereunder or in connection therewith, (c) the performance or observance of any of the covenants, agreements or other terms or conditions set forth therein or the occurrence of any event of default, (d) the validity, enforceability, effectiveness or genuineness of any Notes Collateral Document or any other agreement, instrument or document, or the creation, perfection or priority of any Lien purported to be created by the Notes Collateral Documents, (e) the value or the sufficiency of any Collateral for the Notes Obligations, or (f) the satisfaction of any condition set forth in any Notes Document, other than to confirm receipt of items expressly required to be delivered to the Collateral Agent. The use of the term “agent” herein with reference to the Collateral Agent is not intended to connote any fiduciary or other implied (or express) obligations arising under agency doctrine of any applicable law other than as a “representative” as such term is used in Section 9-102(a)(72)(E) of the Uniform Commercial Code.
(b) Without limiting the Intercreditor Agreements, the Collateral Agent shall be subject to such directions as may be properly given it by the Trustee and/or other Representatives from time to time in accordance with this Indenture, the Intercreditor Agreements and the other Notes Collateral Documents. Except as directed by the Trustee and/or other Representatives and as expressly required by this Indenture, the Intercreditor Agreements and the other Notes Collateral Documents, and in each case subject to the Intercreditor Agreements, the Collateral Agent shall not be obligated:
(i) to act upon directions purported to be delivered to it by any other Person;
(ii) to foreclose upon or otherwise enforce any Lien securing the Securities or any of the Subsidiary Guarantees; or
(iii) to take any other action whatsoever with regard to any or all of the Liens securing the Securities, the Subsidiary Guarantees or the Notes Collateral Documents or with regard to the Collateral.
(c) The Collateral Agent is authorized and empowered to appoint one or more co-agents or sub-agents or attorneys-in-fact as it deems necessary or appropriate in connection herewith and shall not be liable for the negligence or misconduct of any such agents or attorneys-in-fact selected by it in good faith.
(d) The Collateral Agent may perform any and all its duties and exercise its rights and powers by or through any one or more sub-agents appointed by it. The Collateral Agent and any such sub-agent may perform any and all its duties and exercise its rights and powers by or through their respective Affiliates. The exculpatory provisions of this Article 11 shall apply to any such sub-agent and to the Affiliates of the Collateral Agent and any such sub-agent
(e) Subject to the appointment and acceptance of a successor Collateral Agent as provided below, the Collateral Agent may resign at any time by notifying the Company and the Trustee in writing. Upon any such resignation, the Trustee shall have the right, with the consent (not to be unreasonably withheld) of the Company, to appoint a successor; provided that during the existence and continuation of an Event of Default pursuant to clause (a), (b), (g) or (h) of Section 6.1 consent of the Company shall not be required. If no successor shall have been so appointed by the Trustee and shall have accepted such appointment within 30 days after the retiring Collateral Agent gives notice of its resignation, then the retiring Collateral Agent may, on behalf of the Holders and the Trustee, appoint a successor Collateral Agent which shall be a bank with an office in New York, New York, having a combined capital and surplus of at least $1,000,000,000, or an Affiliate of any such bank that is, so long as no Event of Default pursuant to clause (a), (b), (g) or (h) of Section 6.1 shall have occurred and be continuing, reasonably acceptable to the Company. Upon the acceptance of its appointment as Collateral Agent hereunder by a successor, such successor shall succeed to and become vested with all the rights, powers, privileges and duties of the retiring Collateral Agent, and the retiring Collateral Agent shall be discharged from its duties and obligations hereunder. The fees payable by the Company to a successor Collateral Agent shall be the same as those payable to its predecessor unless otherwise agreed between the Company and such successor. After a Collateral Agent’s resignation hereunder, the provisions of this Article and Article VI shall continue in effect for the benefit of such retiring Collateral Agent, its sub-agents and their respective Affiliates in respect of any actions taken or omitted to be taken by any of them while acting as Collateral Agent.
(f) The benefits, protections and indemnities of the Trustee in Sections 7.2 and 7.9 of this Indenture shall apply mutatis mutandis to the Collateral Agent in its capacity as such, including, without limitation, the rights to receive and rely on Officer’s Certificates and Opinions of Counsel, reimbursement and indemnification.
(g) Each Holder, by its acceptance of any Securities, is deemed to have consented and agreed to the terms of each Notes Collateral Document, as originally in effect and as amended, supplemented or replaced from time to time in accordance with its terms or the terms of this Indenture; and authorizes and empowers the Trustee, the Term Loan Agent (through the Term Loan Intercreditor Agreement) and the Second Lien Controlling Agent (through Article VIII of the Notes Security Agreement) to bind the Holders as set forth in the applicable Notes Collateral Documents to which they are a party and to perform its obligations and exercise its rights and powers thereunder. Notwithstanding the foregoing, no such consent or deemed consent shall be deemed or construed to represent an amendment or waiver, in whole or in part, of any provision of this Indenture or the Securities.
(h) Except as contemplated by the Notes Collateral Documents, neither the Trustee nor the Collateral Agent shall be responsible for the existence, genuineness or value of any of the Collateral or for the validity, perfection, priority or enforceability of the Liens in any of the Collateral, for the validity or for any diminution in the value thereof, by reason sufficiency of the act or omission of any agent, bailee, clearing corporation or securities intermediary selected by the Collateral Agent in good faith (or selected by an agent, bailee, clearing corporation or securities intermediary so selected by the Collateral Agent or by any agent, bailee, clearing corporation or securities intermediary selected in accordance with this parenthetical phrase).
(g) Any corporation or association into which the Collateral Agent may be converted or merged, or with which it may be consolidated, or to which it may sell or transfer its agency business or assets as a whole or substantially as a whole, or any corporation agreement or association resulting from any such conversionassignment contained therein, sale, merger, consolidation or transfer to which it is a party, shall, subject to for the prior written consent of Secured Party, be and become a successor Collateral Agent hereunder and vested with all validity of the title of the Company or any Grantor to the Collateral, for insuring the Collateral and all or for the payment of taxes, charges, assessments or Liens upon the Collateral or otherwise as to the maintenance of the powers, discretions, immunities, privileges and other matters as was its predecessor without, except as provided above, the execution or filing of any instrument or any further act, deed or conveyance on the part of any of the parties hereto, anything herein to the contrary notwithstandingCollateral.
Appears in 1 contract
The Collateral Agent. (a) Secured Party hereby irrevocably appoints The Borrower agrees to pay, and authorizes the Collateral Agent shall be entitled to take such action receive, compensation for, and reimbursement for expenses in connection with, the Collateral Agent’s performance of the duties called for herein as agent on its behalf and to exercise such powers under this Agreement as are delegated provided in the Collateral Agent Fee Letter. For purposes of any portion of fees payable to the Collateral Agent by calculated with respect to any period at a per annum rate, such amount shall be computed on the terms hereofbasis of a 360-day year and the actual number of days elapsed during the related Collection Period and shall be based on the Fee Basis Amount and the cash and the principal balance of any Eligible Investments on deposit in the Collection Account, together with all such powers as are reasonably incidental theretoin each case, on the Determination Date relating to the applicable Payment Date.
(b) The Collateral Agent shall have no liability for losses arising from (i) any cause beyond its control, (ii) any delay, error, omission or default of any mail, telegraph, cable or wireless agency or operator, or (iii) the acts or edicts of any government or governmental agency or other group or entity exercising governmental powers.
(c) It is expressly acknowledged and agreed that the Collateral Agent is not guaranteeing the performance of or assuming any liability for the obligations of the other parties hereto or any portion of the Collateral.
(d) The Collateral Agent hereunder are only those expressly set forth shall not be responsible for the preparation or filing of any UCC financing statements or continuation statements or the correctness of any financing statements filed in connection with this Agreement or the validity or perfection of any lien or security interest created pursuant to this Agreement.
(ce) In no event shall the Collateral Agent be liable for the selection of any investments or any losses in connection therewith, or for any failure of the relevant party to provide investment instruction to the Collateral Agent in connection with the investment of funds in or from any account set forth herein.
(f) The Collateral Agent may consult shall have no liability for any failure, inability or unwillingness on the part of the Servicer, the Borrower or the Administrative Agent to provide accurate and complete information on a timely basis to the Collateral Agent, or otherwise on the part of any such party to comply with legal counselthe terms of this Agreement, independent public accountants and shall have no liability for any inaccuracy or error in the performance or observance on the Collateral Agent’s part of any of its duties hereunder that is caused by or results from any such inaccurate, incomplete or untimely information received by it, or other experts selected by it and failure on the part of any such other party to comply with the terms hereof.
(g) The Collateral Agent shall not be liable for bound to make any action taken investigation into the facts or omitted to be taken matters stated in any certificate, report or other document or electronic communication; provided, however, that, if the form thereof is prescribed by it in good faith in accordance with the advice of such counselthis Agreement, accountants or experts.
(d) Neither the Collateral Agent nor any of shall examine the same to determine whether it conforms on its directors, officers, agents or employees shall be liable for any action taken or not taken by it in connection with this Agreement (1) with face to the consent or at the request of Secured Party or (2) in the absence of its own gross negligence or willful misconductrequirements hereof. The Collateral Agent shall not incur be deemed to have knowledge or notice of any liability by acting in reliance upon any notice, consent, certificate, statement, or other writing (which may be matter unless actually known to a bank wire, telex or similar writing) believed by it to be genuine or to be signed by the proper party or parties.
(e) Pledgor shall indemnify the Collateral Agent against any cost, expense (including counsel fees and disbursements), claim, demand, action, loss or liability (except such as result from Responsible Officer of the Collateral Agent’s gross negligence or willful misconduct) . It is expressly acknowledged by the Borrower, the Servicer, the Lenders and the Administrative Agent that the Collateral Agent may suffer or incur in connection with this Agreement or any action taken or omitted performance by the Collateral Agent hereunderof its various duties hereunder (including recalculations to be performed in respect of the matters expressly contemplated hereby) shall be based upon, and in reliance upon, data, information and notices provided to it by the Servicer (and/or the Borrower), the Administrative Agent and/or any related bank agent, obligor or similar party with respect to the Collateral, and the Collateral Agent shall have no responsibility for the accuracy of any such information or data provided to it by such persons and shall be entitled to update its records (as it may deem necessary or appropriate). Nothing herein shall impose or imply any duty or obligation on the part of the Collateral Agent to verify, investigate or audit any such information or data, or to determine or monitor on an independent basis whether any issuer of the Collateral is in default or in compliance with the underlying documents governing or securing such item of Collateral, from time to time.
(fh) Beyond The Collateral Agent shall have no duty to determine or inquire into the exercise happening or occurrence of reasonable care any event or contingency, and it is agreed that its duties hereunder are purely ministerial in nature.
(i) Should any controversy arise between the undersigned with respect to the Collateral held by the Collateral Agent, the Collateral Agent shall, subject to Section 12.01(b) and Section 12.04, follow the written instructions of the Administrative Agent on behalf of the Secured Parties.
(j) The powers conferred on the Collateral Agent hereunder are solely to protect its interest (on behalf of the Secured Parties) in the custody thereofCollateral and shall not impose any duty on it to exercise any such powers. Except for performing the obligations expressly imposed on the Collateral Agent hereunder, the Collateral Agent shall have no duty as to any Collateral in its possession or control responsibility for ascertaining or in taking action with respect to calls, conversions, exchanges, maturities, tenders or other matters relative to any Collateral, whether or not the possession Collateral Agent has or control is deemed to have knowledge of such matters or taking any agent, bailee, clearing corporation or securities intermediary or any income thereon or as steps to the preservation of preserve rights against prior parties or any other rights pertaining thereto. to any Collateral.
(k) If U.S. Bank, U.S. Bank National Association or the Collateral Agent is also acting in another capacity, including as Custodian or Securities Intermediary, the rights, protections, immunities and indemnities afforded to U.S. Bank, U.S. Bank National Association or the Collateral Agent pursuant to this Article XII shall also be afforded to U.S. Bank, U.S. Bank National Association or the Collateral Agent acting in such capacities; provided that such rights, protections, benefits, immunities and indemnities shall be in addition to, and not in limitation of, any rights, protections, benefits, immunities and indemnities provided in the Custodian Agreement, the Account Control Agreement or any other Facility Documents to which U.S. Bank, U.S. Bank National Association or the Collateral Agent in such capacity is a party.
(l) The Collateral Agent shall be deemed not have any obligation to have exercised reasonable care determine if a Collateral Asset meets the criteria specified in the custody definition of Eligible Collateral Asset or if the requirements set forth in the definition of “Deliver” have been satisfied.
(m) The Collateral Agent shall not have any duties or obligations except those expressly set forth in the Facility Documents and preservation no implied duties shall be read into this Agreement against or on the part of the Collateral Agent.
(n) The Collateral Agent shall not be under any obligation (i) to monitor, determine or verify the unavailability or cessation of the SOFR Rate (or any other applicable index, floating rate, interest rate or Benchmark Replacement), or whether or when there has occurred, or to give notice to any other transaction party of the occurrence of, any Benchmark Replacement Date, Benchmark Transition Event or Benchmark Unavailability Period, (ii) to select, determine or designate any Benchmark Replacement or other alternate benchmark rate, or other successor or replacement rate, or whether any conditions to the designation of such a rate have been satisfied, or (iii) to select, determine or designate any Benchmark Replacement Adjustment or other modifier to any Benchmark Replacement or other replacement or successor rate or index, or (iv) to determine whether or what Conforming Changes are necessary or advisable, if any, in connection with any of the foregoing.
(o) The Collateral is accorded treatment substantially equal to that which it accords its own property, and Agent shall not be liable or responsible for any loss inability, failure or damage delay on its part to perform any of the Collateral, or for any diminution its duties set forth in the value thereof, by reason this Agreement as a result of the act unavailability of the SOFR Rate (or omission any Benchmark Replacement or other applicable index, floating rate or other Interest Rate) and absence of any agentBenchmark Replacement or other replacement index or floating rate, bailee, clearing corporation or securities intermediary selected by the Collateral Agent in good faith (or selected by an agent, bailee, clearing corporation or securities intermediary so selected by the Collateral Agent or by any agent, bailee, clearing corporation or securities intermediary selected in accordance with this parenthetical phrase).
(g) Any corporation or association into which the Collateral Agent may be converted or merged, or with which it may be consolidated, or to which it may sell or transfer its agency business or assets including as a whole or substantially as a whole, or any corporation or association resulting from any such conversion, sale, merger, consolidation or transfer to which it is a party, shall, subject to the prior written consent of Secured Party, be and become a successor Collateral Agent hereunder and vested with all of the title to the Collateral and all of the powers, discretions, immunities, privileges and other matters as was its predecessor without, except as provided above, the execution or filing result of any instrument inability, delay, error or any further act, deed or conveyance inaccuracy on the part of any other transaction party, including without limitation the Administrative Agent, the Borrower or the Servicer, in providing any direction, instruction, notice or information required or contemplated by the terms of this Agreement and reasonably required for the parties hereto, anything herein to the contrary notwithstandingperformance of such duties.
Appears in 1 contract
Samples: Revolving Credit and Security Agreement (Ares Strategic Income Fund)
The Collateral Agent. (a) Secured Party Each of the Lenders hereby irrevocably appoints confirms the appointment of the Collateral Agent as its agent and authorizes the Collateral Agent to take such action as agent actions on its behalf behalf, and to exercise such powers under this Agreement as are delegated to the Collateral Agent by the terms hereof, together with all such actions and powers as are reasonably incidental thereto.
(ba) The obligations of bank serving as the Collateral Agent hereunder are only shall have the same rights and powers in its capacity as a Lender as any other Lender and may exercise the same as though it were not the Collateral Agent, and such bank may accept deposits from, lend money to and generally engage in any kind of business with the Borrower or the Guarantor or any of its respective Subsidiary or Affiliate thereof as if it were not the Collateral Agent hereunder.
(b) The Collateral Agent shall not have any duties or obligations except those expressly set forth herein or in this Agreement.
any other loan document to which it is a party. Without limiting the generality of the foregoing: (ci) The the Collateral Agent may consult with legal counselshall not be subject to any fiduciary or other implied duties, independent public accountants regardless of whether an Event of Default has occurred and other experts selected is continuing; (ii) the Collateral Agent shall not have any duty to take any discretionary action or exercise any discretionary powers, except discretionary rights and powers expressly contemplated hereby that the Collateral Agent is required to exercise in writing by it the Majority Lenders; and (iii) except as expressly set forth herein, the Collateral Agent shall not have any duty to disclose, and shall not be liable for the failure to disclose, any action taken information relating to the Borrower or omitted to be taken by it in good faith in accordance with the advice of such counsel, accountants Guarantor or experts.
(d) Neither the Collateral Agent nor any of its directors, officers, agents respective subsidiaries that is communicated to or employees obtained by the bank serving as Administrative Agent. The Collateral Agent shall not be liable for any action taken or not taken by it in connection with this Agreement (1) with the consent or at the request of Secured Party the Majority Lenders or (2) in the absence of its own gross negligence or willful misconduct. The Collateral Agent shall be deemed not to have knowledge of any Event of Default unless and until written notice thereof is given to the Collateral Agent by the Borrower, the Guarantor or a Lender, and the Collateral Agent shall not be responsible for or have any duty to ascertain or inquire into (A) any statement, warranty or representation made in or in connection with this Offshore Facility Agreement and any other Advance Document, (B) the contents of any certificate, report or other document delivered hereunder or in connection herewith, (C) the performance or observance of any of the covenants, agreements or other terms or conditions set forth herein, (D) the validity, enforceability, effectiveness or genuineness of this Offshore Facility Agreement and any other Advance Document or any other agreement, instrument or document, or (E) the satisfaction of any condition set forth or elsewhere herein, other than to confirm receipt of items expressly required to be delivered to the Collateral Agent.
(c) The Collateral Agent shall be entitled to rely upon, and shall not incur any liability by acting in reliance upon for relying upon, any notice, consentrequest, certificate, consent, statement, instrument, document or other writing (which may be a bank wire, telex or similar writing) reasonably believed by it to be genuine and to have been signed or to be signed sent by the proper party or parties.
(e) Pledgor shall indemnify the Collateral Agent against any cost, expense (including counsel fees and disbursements), claim, demand, action, loss or liability (except such as result from the Collateral Agent’s gross negligence or willful misconduct) that the Collateral Agent may suffer or incur in connection with this Agreement or any action taken or omitted by the Collateral Agent hereunder.
(f) Beyond the exercise of reasonable care in the custody thereof, the Collateral Agent shall have no duty as to any Collateral in its possession or control or in the possession or control of any agent, bailee, clearing corporation or securities intermediary or any income thereon or as to the preservation of rights against prior parties or any other rights pertaining theretoPerson. The Collateral Agent also may rely upon any statement made to it orally or by telephone and reasonably believed by it to be made by the proper Person, and shall not incur any liability for relying thereon. The Collateral Agent may consult with legal counsel (who may be deemed to have exercised reasonable care in counsel for the custody Borrower or the Guarantor), independent accountants and preservation of the Collateral if the Collateral is accorded treatment substantially equal to that which it accords its own propertyother experts selected by it, and shall not be liable or responsible for any loss action taken or damage to any of not taken by it in accordance with the Collateral, or for any diminution in the value thereof, by reason of the act or omission advice of any agentsuch counsel, bailee, clearing corporation accountants or securities intermediary selected experts other than through willful misconduct and/or gross negligence.
(d) The Collateral Agent may perform any and all of its duties and exercise its rights and powers by or through any one or more sub-agents appointed by the Collateral Agent. The exculpatory provisions of the preceding paragraphs shall apply to any such sub-agent of the Collateral Agent in good faith (or selected by an and any such sub-agent, baileeand shall apply to their respective activities in connection with the syndication of the credit facilities provided for herein as well as activities as Collateral Agent.
(e) Subject to the appointment and acceptance of a successor Collateral Agent as provided in this paragraph, clearing corporation the Collateral Agent may resign at any time by giving sixty (60) days written notice to the Lenders and the Borrower. Upon any such resignation, the Majority Lenders shall have the right, in consultation with the Borrower and the Guarantor, to appoint a successor. If no successor shall have been so appointed by the Majority Lenders and shall have accepted such appointment within sixty (60) days after the retiring Collateral Agent gives notice of its resignation, then the retiring Collateral Agent may, on behalf of the Lenders, appoint a successor Collateral Agent or securities intermediary so selected an Affiliate of any such bank. Upon the acceptance of its appointment as Collateral Agent hereunder by a successor, such successor shall succeed to and become vested with all the rights, powers, privileges and duties of the retiring Collateral Agent, and the retiring Collateral Agent shall be discharged from its duties and obligations hereunder. After the Collateral Agent’s resignation hereunder, the provisions of this Article hereof shall continue in effect for the benefit of such retiring Collateral Agent and its sub-agents in respect of any actions taken or omitted to be taken by any of them while it was acting as Collateral Agent.
(f) Each Lender acknowledges that it has, independently and without reliance upon the Collateral Agent or by any agentother Lender and based on such documents and information as it has deemed appropriate, baileemade its own credit analysis and decision to enter into the Advance established pursuant to this Offshore Facility Agreement. Each Lender also acknowledges that it will, clearing corporation or securities intermediary selected in accordance with this parenthetical phrase).
(g) Any corporation or association into which independently and without reliance upon the Collateral Agent may be converted or merged, or with which it may be consolidated, or to which it may sell or transfer its agency business or assets as a whole or substantially as a whole, or any corporation other Lender and based on such documents and information as it shall from time to time deem appropriate, continue to make its own decisions in taking or association resulting from not taking action under or based upon this Offshore Facility Agreement and any such conversionother loan document, sale, merger, consolidation or transfer to which it is a party, shall, subject to the prior written consent of Secured Party, be and become a successor Collateral Agent hereunder and vested with all of the title to the Collateral and all of the powers, discretions, immunities, privileges and other matters as was its predecessor without, except as provided above, the execution or filing of any instrument related agreement or any further act, deed document furnished hereunder or conveyance on the part of any of the parties hereto, anything herein to the contrary notwithstandingthereunder.
Appears in 1 contract
Samples: Offshore Facility Agreement (Votorantim Pulp & Paper Inc)
The Collateral Agent. (a) U.S. Bank National Association has been appointed Collateral Agent for the Secured Party hereby irrevocably appoints Parties hereunder pursuant to the Indenture. It is expressly understood and authorizes agreed by the parties to this Security Agreement that any authority conferred upon the Collateral Agent hereunder is subject to take such action as agent on its behalf and to exercise such powers under this Agreement as are delegated the terms of the delegation of authority made by the Secured Parties to the Collateral Agent by pursuant to the terms hereofIndenture, together with and that the Collateral Agent has agreed to act (and any successor Collateral Agent shall act) as such hereunder only on the express conditions contained in the Indenture. Any successor Collateral Agent appointed pursuant to the Indenture shall be entitled to all such powers as are reasonably incidental thereto.
(b) The obligations the rights, interests and benefits of the Collateral Agent hereunder are only those expressly set forth in this Agreement.
(c) The Collateral Agent may consult with legal counsel, independent public accountants and other experts selected by it and shall not be liable for any action taken or omitted to be taken by it in good faith in accordance with the advice of such counsel, accountants or experts.
(d) Neither the Collateral Agent nor any of its directors, officers, agents or employees shall be liable for any action taken or not taken by it in connection with this Agreement (1) with the consent or at the request of Secured Party or (2) in the absence of its own gross negligence or willful misconducthereunder. The Collateral Agent shall not incur any liability by acting in reliance upon any notice, consent, certificate, statement, or other writing (which may be a bank wire, telex or similar writing) believed by it to be genuine or to be signed by the proper party or parties.
(e) Pledgor shall indemnify the Collateral Agent against any cost, expense (including counsel fees and disbursements), claim, demand, action, loss or liability (except such as result from the Collateral Agent’s gross negligence or willful misconduct) that the Collateral Agent may suffer or incur in connection with this Agreement or any action taken or omitted by the Collateral Agent hereunder.
(f) Beyond the exercise of reasonable care in the custody thereof, the Collateral Agent shall have no duty as to any the Collateral in its possession or control or in the possession or control of any agent, bailee, clearing corporation agent or securities intermediary bailee or any income thereon or as to the preservation of rights against prior parties or any other rights pertaining theretothereto and the Collateral Agent shall not be responsible for filing any financing or continuation statements or recording any documents or instruments in any public office at any time or times or otherwise perfecting or maintaining the perfection of any security interest in the Collateral. The Collateral Agent shall be deemed to have exercised reasonable care in the custody and preservation of the Collateral in its possession if the Collateral is accorded treatment substantially equal to that which it accords its own property, property and shall not be liable or responsible for any loss or damage to diminution in the value of any of the Collateral, or for any diminution in the value thereof, by reason of the act or omission of any agentcarrier, bailee, clearing corporation forwarding agency or securities intermediary other agent or bailee selected by the Collateral Agent in good faith (or selected by an agentfaith. Notwithstanding anything in this Security Agreement to the contrary and for the avoidance of doubt, bailee, clearing corporation or securities intermediary so selected by the Collateral Agent or by shall have no duty to act outside of the United States in respect of any agentCollateral located in any jurisdiction other than the United States. Each of the Grantors hereby acknowledges and agrees that all of the rights, baileeprivileges, clearing corporation or securities intermediary selected in accordance with this parenthetical phrase).
(g) Any corporation or association into which protections, indemnities and immunities afforded the Collateral Agent may be converted or merged, or with which it may be consolidated, or to which it may sell or transfer its agency business or assets under the Indenture are hereby incorporated herein as a whole or substantially as a whole, or any corporation or association resulting from any such conversion, sale, merger, consolidation or transfer to which it is a party, shall, subject to the prior written consent of Secured Party, be and become a successor Collateral Agent hereunder and vested with all of the title to the Collateral and all of the powers, discretions, immunities, privileges and other matters as was its predecessor without, except as provided above, the execution or filing of any instrument or any further act, deed or conveyance on the part of any of the parties hereto, anything if set forth herein to the contrary notwithstandingin full.
Appears in 1 contract
Samples: Pledge and Security Agreement (Lions Gate Entertainment Corp /Cn/)
The Collateral Agent. (a) Secured Party hereby irrevocably appoints The Collateral Agent shall not have any duties or responsibilities hereunder or under the Security Documents, except those obligations expressly set forth herein, and authorizes no implied covenants, functions, responsibilities, duties, obligations or liabilities on the part of the Collateral Agent to take such action as agent on shall be read into this Indenture or any other Security Document or shall otherwise exist against the Collateral Agent. In performing its behalf functions and to exercise such powers duties solely under this Agreement as are delegated to hereunder and under the Security Documents, the Collateral Agent by shall act solely as the terms hereofagent of the Trustee and holders of the Notes and does not assume, together nor shall be deemed to have assumed, any obligation or relationship of trust with all such powers as are reasonably incidental theretoor for the Trustee or holders of the Notes.
(b) The obligations of the Collateral Agent hereunder are only those expressly set forth in this Agreement.
(c) The Collateral Agent may consult with legal counsel, independent public accountants and other experts selected by it and shall not be liable for any action taken or omitted to be taken by it in good faith in accordance with the advice of such counsel, accountants or experts.
(d) Neither the Collateral Agent nor any of its affiliates, directors, officers, agents or employees shall be liable for any action taken or not taken by it in connection with this Agreement herewith or under any Security Document (1i) with the consent or at the request or direction of Secured Party the Trustee or the holders of a majority of the aggregate principal amount of the notes as provided herein or (2ii) in the absence of its own gross negligence or willful misconduct.
(c) The permissive right of the Collateral Agent to take or refrain from taking any actions enumerated in hereunder or under any Security Document shall not be construed as a duty. In connection with exercising any right or discretionary duty hereunder or under any Security Document, the Collateral Agent shall be entitled to rely upon the direction of a majority of the aggregate principal amount of the notes, and the Collateral Agent shall not have any liability for taking any action at the direction of such holders, or for any failure or delay of any such holders to provide timely direction to the Collateral Agent. Notwithstanding any other provision hereunder or under any Security Document, (i) any such direction may not conflict with any rule of law or with this Indenture and any applicable Security Document and (ii) the Collateral Agent shall not be required to take any action that it determines might involve it in liability (unless the Collateral Agent has received satisfactory indemnity against such liability).
(d) The Issuer shall pay to the Collateral Agent from time to time such compensation, as the Issuer and the Collateral Agent shall from time to time agree in writing, for the Collateral Agent’s acceptance of this Indenture and its services hereunder and under the Security Documents. The Issuer shall reimburse the Collateral Agent upon request for all reasonable out-of-pocket expenses Incurred or made by it, including costs of collection, in addition to the compensation for its services. Such expenses shall include the reasonable compensation and expenses, disbursements and advances of the Collateral Agent’s agents, counsel, accountants and experts. The Issuer and the Guarantors, jointly and severally, shall indemnify the Collateral Agent or any predecessor Collateral Agent and their directors, officers, employees and agents against any and all loss, liability, claim, damage or expense (including reasonable attorneys’ fees and expenses and including taxes (other than taxes based upon, measured by or determined by the income of the Collateral Agent) Incurred by it in connection with this Indenture, the Intercreditor Agreement and the Security Documents and the performance of its duties hereunder and thereunder, including the costs and expenses of enforcing this Indenture, a Security Document or Guarantee against any Issuer or any Guarantor (including this Section 11.09) and defending itself against or investigating any claim (whether asserted by any Issuer, any Guarantor, any holder or any other Person). The obligation to pay such amounts shall survive the payment in full or defeasance of the Notes, the termination of any Security Document or the removal or resignation of the Collateral Agent. The Collateral Agent shall notify the Issuer of any claim for which it may seek indemnity promptly upon obtaining actual knowledge thereof; provided, however, that any failure so to notify the Issuer shall not incur relieve any liability by acting Issuer or any Guarantor of its indemnity obligations hereunder. The Issuer shall defend the claim and the indemnified party shall provide reasonable cooperation at the Issuer’s expense in reliance upon the defense. Such indemnified parties may have separate counsel and the Issuer and such Guarantor, as applicable shall pay the fees and expenses of such counsel; provided, however, that the Issuer shall not be required to pay such fees and expenses if it assumes such indemnified parties’ defense and, in such indemnified parties’ reasonable judgment, there is no actual or potential conflict of interest between the Issuer and the Guarantor, as applicable, and such parties in connection with such defense. The Issuer need not reimburse any notice, consent, certificate, statement, expense or other writing (which may be a bank wire, telex or similar writing) believed by it to be genuine or to be signed by the proper party or parties.
(e) Pledgor shall indemnify the Collateral Agent against any costloss, liability or expense (including counsel fees and disbursements)Incurred by an indemnified party through such party’s own willful misconduct, claim, demand, action, loss or liability (except such as result from the Collateral Agent’s gross negligence or willful misconduct) that the Collateral Agent may suffer or incur in connection with this Agreement or any action taken or omitted by the Collateral Agent hereunderbad faith.
(f) Beyond the exercise of reasonable care in the custody thereof, the Collateral Agent shall have no duty as to any Collateral in its possession or control or in the possession or control of any agent, bailee, clearing corporation or securities intermediary or any income thereon or as to the preservation of rights against prior parties or any other rights pertaining thereto. The Collateral Agent shall be deemed to have exercised reasonable care in the custody and preservation of the Collateral if the Collateral is accorded treatment substantially equal to that which it accords its own property, and shall not be liable or responsible for any loss or damage to any of the Collateral, or for any diminution in the value thereof, by reason of the act or omission of any agent, bailee, clearing corporation or securities intermediary selected by the Collateral Agent in good faith (or selected by an agent, bailee, clearing corporation or securities intermediary so selected by the Collateral Agent or by any agent, bailee, clearing corporation or securities intermediary selected in accordance with this parenthetical phrase).
(g) Any corporation or association into which the Collateral Agent may be converted or merged, or with which it may be consolidated, or to which it may sell or transfer its agency business or assets as a whole or substantially as a whole, or any corporation or association resulting from any such conversion, sale, merger, consolidation or transfer to which it is a party, shall, subject to the prior written consent of Secured Party, be and become a successor Collateral Agent hereunder and vested with all of the title to the Collateral and all of the powers, discretions, immunities, privileges and other matters as was its predecessor without, except as provided above, the execution or filing of any instrument or any further act, deed or conveyance on the part of any of the parties hereto, anything herein to the contrary notwithstanding.
Appears in 1 contract
Samples: Indenture (TAMINCO ACQUISITION Corp)
The Collateral Agent. (a) Each of the Secured Party Parties hereby irrevocably appoints the Collateral Agent as its agent hereunder and authorizes the Collateral Agent to take such action as agent actions on its behalf and to exercise such powers under this Agreement as are delegated to the Collateral Agent by the terms hereof, hereof together with all such actions and powers as are reasonably incidental thereto.
(b) The obligations of person serving as the Collateral Agent hereunder are only those expressly set forth shall have the same rights and powers in this Agreementits capacity as a Secured Party as any other Secured Party and may exercise the same as though it were not the Collateral Agent, and such Person and its Affiliates may accept deposits from, lend money to and generally engage in any kind of business with the Securing Party or any Subsidiary or other Affiliate thereof as if it were not the Collateral Agent hereunder.
(c) The Collateral Agent may consult with legal counselshall not have any duties or obligations except those expressly set forth herein. Without limiting the generality of the foregoing, independent public accountants (i) the Collateral Agent shall not be subject to any fiduciary or other implied duties, regardless of whether a Default has occurred and other experts selected is continuing, (ii) the Collateral Agent shall not have any duty to take any discretionary action or exercise any discretionary powers, except discretionary rights and powers expressly contemplated hereby that the Collateral Agent is required to exercise in writing by it the Required Secured Parties, and (iii) except as expressly set forth herein, the Collateral Agent shall not have any duty to disclose, and shall not be liable for the failure to disclose, any information relating to the Securing Party or any of its Subsidiaries that is communicated to or obtained by the bank serving as Collateral Agent or any of its affiliates in any capacity. The Collateral Agent shall not be liable for any action taken or omitted to be taken by it in good faith in accordance with the advice of such counsel, accountants or experts.
(d) Neither the Collateral Agent nor any of its directors, officers, agents or employees shall be liable for any action taken or not taken by it in connection with this Agreement (1) with the consent or at the request of Secured Party or (2) in the absence of its own gross negligence or willful misconduct. The Collateral Agent shall not incur any liability by acting in reliance upon any notice, consent, certificate, statement, or other writing (which may be a bank wire, telex or similar writing) believed by it to be genuine or to be signed by the proper party or parties.
(e) Pledgor shall indemnify the Collateral Agent against any cost, expense (including counsel fees and disbursements), claim, demand, action, loss or liability (except such as result from the Collateral Agent’s gross negligence or willful misconduct) that the Collateral Agent may suffer or incur in connection with this Agreement or any action taken or omitted by the Collateral Agent hereunder.
(f) Beyond the exercise of reasonable care in the custody thereof, the Collateral Agent shall have no duty as to any Collateral in its possession or control or in the possession or control of any agent, bailee, clearing corporation or securities intermediary or any income thereon or as to the preservation of rights against prior parties or any other rights pertaining thereto. The Collateral Agent shall be deemed to have exercised reasonable care in the custody and preservation of the Collateral if the Collateral is accorded treatment substantially equal to that which it accords its own property, and shall not be liable or responsible for any loss or damage to any of the Collateral, or for any diminution in the value thereof, by reason of the act or omission of any agent, bailee, clearing corporation or securities intermediary selected by the Collateral Agent in good faith (or selected by an agent, bailee, clearing corporation or securities intermediary so selected by the Collateral Agent or by any agent, bailee, clearing corporation or securities intermediary selected in accordance with this parenthetical phrase).
(g) Any corporation or association into which the Collateral Agent may be converted or merged, or with which it may be consolidated, or to which it may sell or transfer its agency business or assets as a whole or substantially as a whole, or any corporation or association resulting from any such conversion, sale, merger, consolidation or transfer to which it is a party, shall, subject to the prior written consent of Secured Party, be and become a successor Collateral Agent hereunder and vested with all of the title to the Collateral and all of the powers, discretions, immunities, privileges and other matters as was its predecessor without, except as provided above, the execution or filing of any instrument or any further act, deed or conveyance on the part of any of the parties hereto, anything herein to the contrary notwithstanding.taken
Appears in 1 contract
The Collateral Agent. (a) Secured Party hereby By accepting a Note, each Holder will be deemed to have irrevocably appoints and authorizes appointed the Collateral Agent to take such action act as its agent on its behalf under the Notes Collateral Documents and to exercise such powers under this Agreement as are delegated to irrevocably authorized the Collateral Agent by to (i) perform the terms hereofduties and exercise the rights, powers and discretions that are specifically given to it under the Notes Collateral Documents or other documents to which it is a party, together with all such any other incidental rights, powers as are reasonably incidental thereto.
and discretions and (bii) The obligations of execute each document expressed to be executed by the Collateral Agent hereunder are on its behalf. The Holders may not, individually or collectively, take any direct action to enforce the Notes Collateral Documents. The Holders may only act by instruction to the Trustee, which shall instruct the Collateral Agent. The Collateral Agent will have no duties or obligations except those expressly set forth in this Agreement.
(c) the Notes Collateral Documents to which it is party. The Collateral Agent may consult with legal counsel, independent public accountants and other experts selected by it and shall will not be liable for any action taken or omitted to be taken by it in good faith in accordance with the advice of such counsel, accountants or experts.
(d) Neither the Collateral Agent nor any of its directors, officers, agents or employees shall be liable for any action taken or not taken by it in connection with this Agreement (1) with the consent or at the request of Secured Party or (2) in the absence of its own gross negligence or willful misconduct. The Collateral Agent shall will be entitled to rely upon, and will not incur any liability by acting in reliance upon for relying upon, any notice, consentrequest, certificate, consent, statement, instrument, document or other writing (which may be a bank wire, telex or similar writing) believed by it to be genuine and to have been signed or to be signed sent by the proper party person. The Collateral Agent may also rely upon any statement made to it orally or parties.by telephone and believed by it to have been made by the proper person, and shall not incur any liability for relying thereon. The Collateral Agent may consult with legal counsel (who may be counsel for the Issuer), independent accountants and other experts selected by it, and will not be liable for any action taken or not taken by it in accordance with the advice of any such counsel, accountants or experts. Without limiting the generality of the foregoing, the Collateral Agent:
(ei) Pledgor shall indemnify not be subject to any fiduciary or other implied duties, regardless of whether an event of default has occurred and is continuing;
(ii) shall not have any duty to take any discretionary action or exercise any discretionary powers, except discretionary rights and powers expressly contemplated hereby or by the Collateral Documents that the Collateral Agent against any cost, expense (including counsel fees and disbursements), claim, demand, action, loss or liability (except such as result from is required to exercise; provided that the Collateral Agent’s Agent shall not be required to take any action that, in its opinion or the opinion of its counsel, may expose the Collateral Agent to liability or that is contrary to any Collateral Document or applicable law;
(iii) shall not, except as expressly set forth herein and in the Collateral Documents, have any duty to disclose, and shall not be liable for the failure to disclose, any information relating to the Issuer or any of its affiliates that is communicated to or obtained by the Person serving as the Collateral Agent or any of its Affiliates in any capacity;
(iv) shall not be liable for any action taken or not taken by it (a) with the consent or at the request of the Applicable Authorized Representative or (b) in the absence of its own gross negligence or willful misconductmisconduct or (c) in reliance on a certificate of an authorized officer of Holdings or the Issuer stating that the Collateral Agent may suffer or incur in connection with this Agreement or any such action taken or omitted is permitted by the Collateral Agent hereunder.
(f) Beyond terms of the exercise of reasonable care in the custody thereof, the Collateral Agent shall have no duty as to any Collateral in its possession or control or in the possession or control of any agent, bailee, clearing corporation or securities intermediary or any income thereon or as to the preservation of rights against prior parties or any other rights pertaining theretoIntercreditor Agreement. The Collateral Agent shall be deemed not to have exercised reasonable care knowledge of any event of default under any series of First Lien Obligations unless and until written notice describing such event of default is given to the Collateral Agent by the Authorized Representative of such First Lien Obligations or Holdings or the Issuer; and
(v) shall not be responsible for or have any duty to ascertain or inquire into (a) any statement, warranty or representation made in or in connection with the custody and preservation Intercreditor Agreement or any other Collateral Document, (b) the contents of any certificate, report or other document delivered hereunder or thereunder or in connection herewith or therewith, (c) the performance or observance of any of the covenants, agreements or other terms or conditions set forth herein or therein or the occurrence of any event of default, (d) the validity, enforceability, effectiveness or genuineness of the Intercreditor Agreement, any other Collateral if Document or any other agreement, instrument or document, or the creation, perfection or priority of any Lien purported to be created by the Collateral Documents, (e) the value or the sufficiency of any Collateral for any series of First Lien Obligations, or (f) the satisfaction of any condition set forth in any First Lien Debt Document or Collateral Document, other than to confirm receipt of items expressly required to be delivered to the Collateral Agent. The use of the term “agent” herein with reference to the Collateral Agent is accorded treatment substantially equal not intended to that which connote any fiduciary or other implied (or express) obligations arising under agency doctrine of any applicable law other than as a “representative” as such term is used in Section 9-102(a)(72)(E) of the Uniform Commercial Code. BY ACCEPTING A NOTE EACH HOLDER WILL BE DEEMED TO HAVE IRREVOCABLY AGREED TO THE FOREGOING PROVISIONS OF THIS SECTION 11.1(A) AND SHALL BE BOUND BY THOSE AGREEMENTS TO THE FULLEST EXTENT PERMITTED BY LAW.
(b) Without limiting the Intercreditor Agreement, the Collateral Agent shall be subject to such directions as may be properly given it accords its own propertyby the Trustee and/or other Authorized Representatives from time to time in accordance with this Indenture, the Intercreditor Agreement and the other Collateral Documents. Except as directed by the Trustee and/or other Authorized Representatives and as expressly required by this Indenture, the Intercreditor Agreement and the other Collateral Documents, and in each case subject to the Intercreditor Agreement, the Collateral Agent shall not be obligated:
(1) to act upon directions purported to be delivered to it by any other Person;
(2) to foreclose upon or otherwise enforce any Lien securing the Notes or any of the Note Guarantees; or
(3) to take any other action whatsoever with regard to any or all of the Liens securing the Notes, the Note Guarantees or the Notes Collateral Documents or with regard to the Collateral.
(c) The Collateral Agent is authorized and empowered to appoint one or more co-agents or sub-agents or attorneys-in-fact as it deems necessary or appropriate in connection herewith and shall not be liable for the negligence or misconduct of any such agents or attorneys-in-fact selected by it in good faith.
(d) The Collateral Agent may perform any and all its duties and exercise its rights and powers by or through any one or more sub-agents appointed by it. The Collateral Agent and any such sub-agent may perform any and all its duties and exercise its rights and powers by or through their respective Affiliates. The exculpatory provisions of this Article XII shall apply to any such sub-agent and to the Affiliates of the Collateral Agent and any such sub-agent.
(e) Subject to the appointment and acceptance of a successor Collateral Agent as provided below, the Collateral Agent may resign at any time by notifying the Issuer and the Trustee. Upon any such resignation, the Trustee shall have the right, with the consent (not to be unreasonably withheld or delayed) of the Issuer, to appoint a successor; provided that during the existence and continuation of an Event of Default pursuant to clause (1), (2), (6) or (7) of Section 6.1(a) consent of the Issuer shall not be required. If no successor shall have been so appointed by the Trustee and shall have accepted such appointment within 30 days after the retiring Collateral Agent gives notice of its resignation, then the retiring Collateral Agent may, on behalf of the Holders and the Trustee, appoint a successor Collateral Agent which shall be a bank with an office in New York, New York, having a combined capital and surplus of at least $1,000,000,000, or an Affiliate of any such bank that is, so long as no Event of Default pursuant to clause (1), (2), (6) or (7) of Section 6.1(a) shall have occurred and be continuing, reasonably acceptable to the Issuer. Upon the acceptance of its appointment as Collateral Agent hereunder by a successor, such successor shall succeed to and become vested with all the rights, powers, privileges and duties of the retiring Collateral Agent, and the retiring Collateral Agent shall be discharged from its duties and obligations hereunder. The fees payable by the Issuer to a successor Collateral Agent shall be the same as those payable to its predecessor unless otherwise agreed between the Issuer and such successor. After a Collateral Agent’s resignation hereunder, the provisions of this Article and Article VII shall continue in effect for the benefit of such retiring Collateral Agent, its sub-agents and their respective Affiliates in respect of any actions taken or omitted to be taken by any of them while acting as Collateral Agent.
(f) The benefits, protections and indemnities of the Trustee in Sections 7.2, 7.3 and 7.7 if this Indenture shall apply mutatis mutandi to the Collateral Agent in its capacity as such, including, without limitation, the rights to receive and rely on Officers’ Certificates and Opinions of Counsel, reimbursement and indemnification.
(g) Each Holder, by its acceptance of any Notes, is deemed to have consented and agreed to the terms of each Notes Collateral Document, as originally in effect and as amended, supplemented or replaced from time to time in accordance with its terms or the terms of this Indenture; and authorizes and empowers the Trustee and (through the Intercreditor Agreement) the Applicable Authorized Representative to bind the Holders and other holders of Pari Passu Debt Obligations as set forth in the applicable Collateral Documents to which they are a party and to perform its obligations and exercise its rights and powers thereunder. Notwithstanding the foregoing, no such consent or deemed consent shall be deemed or construed to represent an amendment or waiver, in whole or in part, of any provision of this Indenture or the Notes.
(h) Neither the Trustee nor the Collateral Agent shall be responsible for the existence, genuineness or value of any loss of the Collateral or damage to for the validity, perfection, priority or enforceability of the Liens in any of the Collateral, for the validity or for any diminution in the value thereof, by reason sufficiency of the act or omission of any agent, bailee, clearing corporation or securities intermediary selected by the Collateral Agent in good faith (or selected by an agent, bailee, clearing corporation or securities intermediary so selected by the Collateral Agent or by any agent, bailee, clearing corporation or securities intermediary selected in accordance with this parenthetical phrase).
(g) Any corporation or association into which the Collateral Agent may be converted or merged, or with which it may be consolidated, or to which it may sell or transfer its agency business or assets as a whole or substantially as a whole, or any corporation agreement or association resulting from any such conversionassignment contained therein, sale, merger, consolidation or transfer to which it is a party, shall, subject to for the prior written consent of Secured Party, be and become a successor Collateral Agent hereunder and vested with all validity of the title of the Issuer or any Grantor to the Collateral, for insuring the Collateral and all or for the payment of taxes, charges, assessments or Liens upon the Collateral or otherwise as to the maintenance of the powers, discretions, immunities, privileges and other matters as was its predecessor without, except as provided above, the execution or filing of any instrument or any further act, deed or conveyance on the part of any of the parties hereto, anything herein to the contrary notwithstandingCollateral.
Appears in 1 contract
The Collateral Agent. (a) Secured Party hereby By accepting a Note, each Holder will be deemed to have irrevocably appoints and authorizes appointed the Collateral Agent to take such action act as collateral agent under the applicable Security Documents and irrevocably authorized the Collateral Agent to (i) perform the duties and exercise the rights and powers that are specifically given to it under the Security Documents or other documents to which it is a party, together with any other incidental rights and powers, and (ii) execute each document to be executed by the Collateral Agent on its behalf behalf, including the Intercreditor Agreement or any other intercreditor agreements with future holders or agents of Indebtedness of the Issuers and the Guarantors (collectively, for purposes of this Article 12, the “Intercreditor Agreements”), any Security Documents and all other instruments relating to exercise such powers under this Agreement as are delegated the Security Documents. The Holders may not, individually or collectively, take any direct action to enforce the Security Documents. The Collateral Agent will have no duties or obligations with respect to the Collateral Agent by the terms hereof, together with all such powers as are reasonably incidental thereto.
(b) The obligations of the Collateral Agent hereunder are only except those expressly set forth hereunder or in this Agreement.
(c) the applicable Security Documents or the Intercreditor Agreements and no implied covenants or obligations shall be read into such documents against the Collateral Agent. The Collateral Agent may consult with legal counsel, independent public accountants and other experts selected by it and shall will not be liable for any action taken or omitted to be taken by it in good faith in accordance with the advice of such counsel, accountants or experts.
(d) Neither the Collateral Agent nor any of its directors, officers, agents or employees shall be liable for any action taken or not taken by it in connection the absence of its own gross negligence, willful misconduct or bad faith (as determined by a court of competent jurisdiction in a final and non-appealable decision). The Collateral Agent will be entitled to rely upon, and will not incur any liability for relying upon, any notice, request, certificate, consent, statement, instrument, document or other writing believed by it in good faith to be genuine and to have been signed or sent by the proper person. The Collateral Agent may consult with this Agreement legal counsel (who may be counsel for the Issuers), independent accountants and other experts selected by it, and will not be liable for any action taken or not taken by it in accordance with the advice of any such counsel, accountants or experts. Without limiting the generality of the foregoing, the Collateral Agent:
(1) shall not be subject to any fiduciary or other implied duties, regardless of whether an Event of Default has occurred and is continuing;
(2) shall not have any duty to take any discretionary action or exercise any discretionary powers and shall not be required to take any action that, in its opinion or the opinion of its counsel, may expose the Collateral Agent to liability or that is contrary to any Security Document, the Intercreditor Agreements or applicable law;
(3) shall not have any duty to disclose, and shall not be liable for the failure to disclose, any information relating to the Issuers or any of their Affiliates that is communicated to or obtained by the Person serving as a Collateral Agent or any of its Affiliates in any capacity;
(4) shall not be liable for any action taken or not taken by it (i) with the consent or at the request of Secured Party any Applicable Authorized Representative (as defined in the Intercreditor Agreement) or (2ii) in the absence of its own gross negligence or willful misconductmisconduct (as determined by a court of competent jurisdiction in a final and non-appealable decision) or (iii) in reliance on an Officers’ Certificate of the Issuers stating that such action is permitted by the terms of the Intercreditor Agreements. The Collateral Agent shall be deemed not incur to have knowledge of any liability Event of Default hereunder or under any series of First Lien Obligations unless and until written notice describing such Event of Default is received by acting such Collateral Agent from the representative of such First Lien Obligations or the Issuers; and
(5) shall not be responsible for or have any duty to ascertain or inquire into (i) any statement, warranty or representation made in reliance upon or in connection with the Intercreditor Agreements or any noticeSecurity Document, consent, (ii) the contents of any certificate, statementreport or other document delivered hereunder or thereunder or in connection herewith or therewith, (iii) the performance or observance of any of the covenants, agreements or other terms or conditions set forth herein or therein or the occurrence of any Event of Default, (iv) the validity, enforceability, effectiveness or genuineness of the Intercreditor Agreements, any other Security Document or any other agreement, instrument or document, or the creation, perfection or priority of any Lien purported to be created by any Security Document, (v) the existence, value or the sufficiency of any Collateral for any series of First Lien Obligations, or (vi) the satisfaction of any condition set forth in any operative agreements governing First Lien Obligations or any Security Document, other writing than to confirm receipt of items expressly required to be delivered to such Collateral Agent. The use of the term “agent” herein with reference to a Collateral Agent is not intended to connote any fiduciary or other implied (which or express) obligations arising under agency doctrine of any applicable law other than as a “representative” as such term is used in Section 9-102(a)(72)(E) of the UCC. BY ACCEPTING A NOTE EACH HOLDER WILL BE DEEMED TO HAVE IRREVOCABLY AGREED TO THE FOREGOING PROVISIONS OF THIS SECTION 12.01(a) AND SHALL BE BOUND BY THOSE AGREEMENTS TO THE FULLEST EXTENT PERMITTED BY LAW.
(b) Without limiting the Intercreditor Agreements, the Collateral Agent shall be subject to such directions as may be a bank wireproperly given in accordance with this Indenture, telex the Intercreditor Agreements and the Security Documents. Except as expressly required by this Indenture, the Intercreditor Agreements and the Security Documents, and in each case subject to the Intercreditor Agreements, the Collateral Agent shall not be obligated:
(1) to act upon directions purported to be delivered to it by any other Person;
(2) to foreclose upon or similar writingotherwise enforce any Lien securing the Notes or any of the Guarantees; or
(3) believed to take any other action whatsoever with regard to any or all of (x) the Liens securing the Notes, (y) the Guarantees or (z) the Security Documents, or with regard to the Collateral.
(c) The Collateral Agent may perform any and all of its duties and exercise its rights and powers by or through, and is authorized and empowered to appoint, one or more co-agents or sub-agents or attorneys-in-fact as it deems necessary or appropriate in connection herewith and shall not be liable for the negligence or misconduct of any such agents or attorneys-in-fact selected by it in good faith.
(d) Subject to the appointment and acceptance of a successor Collateral Agent as provided below, the Collateral Agent may resign at any time by notifying the Issuers and the Trustee. Upon any such resignation, the Issuers shall have the right to appoint a successor; provided that, during the existence and continuation of an Event of Default pursuant to clause Section 6.01(1), (2), (6) or (7) hereof, the Holders of a majority in principal amount of the Notes shall have the right to appoint a successor. If no successor shall have been so appointed by the Issuers (or, if applicable, the Holders of a majority in principal amount of the Notes) and shall have accepted such appointment within 30 days after the retiring Collateral Agent gives notice of its resignation, then such retiring Collateral Agent may, on behalf of the Holders and the Trustee, petition at the expense of the Issuers a court of competent jurisdiction to appoint a successor Collateral Agent. Upon the acceptance of its appointment as a Collateral Agent hereunder by a successor, such successor shall succeed to and become vested with all the rights, powers, privileges and duties of the retiring Collateral Agent, and the retiring Collateral Agent shall be discharged from its duties and obligations hereunder. The fees payable by the Issuers to a successor Collateral Agent shall be the same as those payable to its predecessor unless otherwise agreed between the Issuers and such successor. After a Collateral Agent’s resignation hereunder, the provisions of this Article 12 and Article 7 hereof shall continue in effect for the benefit of such retiring Collateral Agent, its sub-agents and their respective Affiliates in respect of any actions taken or omitted to be genuine or to be signed taken by the proper party or partiesany of them while acting as Collateral Agent.
(e) Pledgor The benefits, protections and indemnities of the Trustee in Sections 7.02, 7.03 and 7.07 hereof shall indemnify apply mutatis mutandi to the Collateral Agent against any costin its capacity as such, expense (including counsel fees including, without limitation, the rights to receive and disbursements)rely on Officers’ Certificates and Opinions of Counsel, claim, demand, action, loss or liability (except such as result from reimbursement and indemnification; provided that the Collateral Agent’s gross negligence or willful misconduct) that applicable standard of care of the Collateral Agent may suffer or incur in connection with this Agreement or any action taken or omitted by the Collateral Agent hereunderrespect to Sections 7.02, 7.03 and 7.07 hereof shall be gross negligence and willful misconduct.
(f) Each Holder, by its acceptance of any Notes, is deemed to have consented and agreed to the terms of each Security Document, as originally in effect and as amended, supplemented or replaced from time to time in accordance with its terms or the terms of this Indenture; and authorizes and empowers the Trustee and (through the Intercreditor Agreement) each Applicable Authorized Representative and Applicable Collateral Agent (each as defined in the Intercreditor Agreement) to bind the Holders and other holders of First Lien Obligations as set forth in the applicable Security Documents and Intercreditor Agreements to which they are a party and to perform its obligations and exercise its rights and powers thereunder. Notwithstanding the foregoing, no such consent or deemed consent shall be deemed or construed to represent an amendment or waiver, in whole or in part, of any provision of this Indenture or the Notes.
(g) Neither the Trustee nor the Collateral Agent shall be responsible for the existence, genuineness or value of any of the Collateral or for the validity, perfection, priority or enforceability of the Liens in any of the Collateral, for the validity or sufficiency of the Collateral or any agreement or assignment contained therein, for the validity of the title of the Issuers or any Grantor to the Collateral, for insuring the Collateral or for the payment of taxes, charges, assessments or Liens upon the Collateral or otherwise as to the maintenance of the Collateral.
(h) Beyond the exercise of reasonable care in the custody thereof, neither the Trustee nor the Collateral Agent shall have no any duty as to any Collateral in its possession or control or in the possession or control of any agent, bailee, clearing corporation agent or securities intermediary bailee or any income thereon or as to the preservation of rights against prior parties or any other rights pertaining theretothereto and neither the Trustee nor the Collateral Agent shall be responsible for filing any financing or continuation statements or recording any documents or instruments in any public office at any time or times or otherwise perfecting or maintaining the perfection of any security interest in the Collateral. The Each of the Trustee and the Collateral Agent shall be deemed to have exercised reasonable care in the custody and preservation of the Collateral in its possession if the Collateral is accorded treatment substantially equal to that which it accords its own property, property and shall not be liable or responsible for any loss or damage to diminution in the value of any of the Collateral, or for any diminution in the value thereof, by reason of the act or omission of any agentcarrier, bailee, clearing corporation forwarding agency or securities intermediary other agent or bailee selected by the Trustee or the Collateral Agent in good faith faith.
(i) Neither the Trustee nor the Collateral Agent shall be responsible for the existence, genuineness or selected value of any of the Collateral or for the validity, perfection, priority or enforceability of the Liens in any of the Collateral, whether impaired by an agentoperation of law or by reason of any action or omission to act on its part hereunder, baileefor the validity or sufficiency of the Collateral or any agreement or assignment contained therein, clearing corporation for the validity of the title of the Issuers to the Collateral, for insuring the Collateral or securities intermediary so selected for the payment of taxes, charges, assessments or Liens upon the Collateral or otherwise as to the maintenance of the Collateral. The Trustee and the Collateral Agent shall have no duty to ascertain or inquire as to the performance or observance of any of the terms of this Indenture, the Intercreditor Agreement or the Security Documents by the Issuers, the Guarantors or the Credit Agreement Collateral Agent.
(j) Notwithstanding any other provision hereof, neither the Collateral Agent nor the Trustee shall have any duties or obligations hereunder or under the Intercreditor Agreement or any Security Document except those expressly set forth herein or therein. Without limiting the generality of the foregoing, in the event that the Collateral Agent or the Trustee is required to acquire title to an asset for any reason, or take any managerial action of any kind in regard thereto, in order to carry out any fiduciary or trust obligation for the benefit of another, which in the Collateral Agent’s or the Trustee’s sole discretion may cause it to be considered an “owner or operator” under the provisions of the Comprehensive Environmental Response, Compensation and Liability Act (“CERCLA”), 42 U.S.C. §9601, et seq., or otherwise cause it to incur liability under CERCLA or any other federal, state or local law, the Collateral Agent and the Trustee each reserve the right, instead of taking such action, to either resign or arrange for the transfer of the title or control of the asset to a court-appointed receiver. Neither the Collateral Agent nor the Trustee shall be liable to any person for any environmental claims or contribution actions under any federal, state or local law, rule or regulation by reason of the Collateral Agent’s actions and conduct as authorized, empowered and directed hereunder or relating to the discharge, release or threatened release of hazardous materials into the environment. If at any time it is necessary or advisable for the Collateral to be possessed, owned, operated or managed by any agentperson other than the Grantor, baileethe majority of the Holders shall direct the Collateral Agent or Trustee, clearing corporation as applicable, to appoint an appropriately qualified person who they shall designate to possess, own, operate or securities intermediary selected in accordance with this parenthetical phrase)manage, as the case may be, the Collateral.
(gk) Any corporation or association into which For the avoidance of doubt, the Trustee and the Collateral Agent may shall act only within the United States, and shall not be converted or merged, or with which it may be consolidated, or to which it may sell or transfer its agency business or assets as a whole or substantially as a whole, or any corporation or association resulting from any such conversion, sale, merger, consolidation or transfer to which it is a party, shall, subject to the prior written consent of Secured Partyany foreign law, be and become a successor Collateral Agent hereunder and vested with all of required to act in any jurisdiction located outside the title United States or be required to the Collateral and all of the powers, discretions, immunities, privileges and other matters as was its predecessor without, except as provided above, the execution or filing of execute any instrument or any further act, deed or conveyance on the part of any of the parties hereto, anything herein to the contrary notwithstandingforeign law governed document.
Appears in 1 contract
The Collateral Agent. (a) Secured Party hereby irrevocably appoints and authorizes the Collateral Agent to take such action as agent on its behalf and to exercise such powers under this Agreement as are delegated to the Collateral Agent by the terms hereof, together with all such powers as are reasonably incidental thereto.
(b) The obligations of the Collateral Agent hereunder are only those expressly set forth in this Agreement.
(c) The Collateral Agent may consult with legal counsel, independent public accountants and other experts selected by it and shall not be liable for any action taken or omitted to be taken by it in good faith in accordance with the advice of such counsel, accountants or experts.
(d) Neither the Collateral Agent nor any of its directors, officers, agents or employees shall be liable for any action taken or not taken by it in connection with this Agreement (1) with the consent or at the request of Secured Party or (2) in the absence of its own gross negligence or willful misconduct. The Collateral Agent shall not incur any liability by acting in reliance upon any notice, consent, certificate, statement, or other writing (which may be a bank wire, telex or similar writing) believed by it to be genuine or to be signed by the proper party or parties.
(e) Pledgor shall indemnify the Collateral Agent against any cost, expense (including counsel fees and disbursements), claim, demand, action, loss or liability (except such as result from the Collateral Agent’s 's gross negligence or willful misconduct) that the Collateral Agent may suffer or incur in connection with this Agreement or any action taken or omitted by the Collateral Agent hereunder.
(f) Beyond the exercise of reasonable care in the custody thereof, the Collateral Agent shall have no duty as to any Collateral in its possession or control or in the possession or control of any agent, bailee, clearing corporation or securities intermediary or any income thereon or as to the preservation of rights against prior parties or any other rights pertaining thereto. The Collateral Agent shall be deemed to have exercised reasonable care in the custody and preservation of the Collateral if the Collateral is accorded treatment substantially equal to that which it accords its own property, and shall not be liable or responsible for any loss or damage to any of the Collateral, or for any diminution in the value thereof, by reason of the act or omission of any agent, bailee, clearing corporation or securities intermediary selected by the Collateral Agent in good faith (or selected by an agent, bailee, clearing corporation or securities intermediary so selected by the Collateral Agent or by any agent, bailee, clearing corporation or securities intermediary selected in accordance with this parenthetical phrase).
(g) Any corporation or association into which the Collateral Agent may be converted or merged, or with which it may be consolidated, or to which it may sell or transfer its agency business or and assets as a whole or substantially as a whole, or any corporation or association resulting from any such conversion, sale, merger, consolidation or transfer to which it is a party, shall, subject to the prior written consent of Secured Party, be and become a successor Collateral Agent hereunder and vested with all of the title to the Collateral and all of the powers, discretions, immunities, privileges and other matters as was its predecessor without, except as provided above, the execution or filing of any instrument or any further act, deed or conveyance on the part of any of the parties hereto, anything herein to the contrary notwithstanding.with
Appears in 1 contract
The Collateral Agent. (a) The Collateral Agent will hold in accordance with this Agreement all items of the Collateral at any time received under this Agreement. It is expressly understood, acknowledged and agreed by each Notes Secured Party hereby irrevocably appoints and authorizes that by accepting the Collateral Agent to take such action as agent on its behalf and to exercise such powers under benefits of this Agreement as are delegated to each such Notes Secured Party acknowledges and agrees that the Collateral Agent by the terms hereof, together with all such powers as are reasonably incidental thereto.
(b) The obligations of the Collateral Agent hereunder as holder of the Collateral and interests therein and with respect to the disposition thereof, and otherwise under this Agreement, are only those expressly set forth in this Agreement.
(c) , the other Collateral Documents and the Indenture Documents. The Collateral Agent may consult with legal counselshall act hereunder on the terms and conditions set forth herein and in the other Collateral Documents and the Indenture Documents. The provisions of Article 13 of the Indenture shall inure to the benefit of the Collateral Agent, independent public accountants and other experts selected by it and shall not be liable for any action taken or omitted to be taken by it in good faith in accordance with the advice of such counselbinding upon all Pledgors and all Notes Secured Parties, accountants or experts.
(d) Neither the Collateral Agent nor any of its directors, officers, agents or employees shall be liable for any action taken or not taken by it in connection with this Agreement and the other Indenture Documents. Without limiting the generality of the foregoing, (1i) with the consent or at duties of the request of Secured Party or (2) Collateral Manager shall be ministerial and administrative in nature and the absence of its own gross negligence or willful misconduct. The Collateral Agent shall not incur be subject to any liability by acting in reliance upon any noticetrust, consent, certificate, statement, fiduciary or other writing (which may implied duties, regardless of whether an Event of Default has occurred and is continuing and no implied covenants, responsibilities, duties, obligations or liabilities shall be a bank wireread into this Agreement, telex the Intercreditor Agreement, the Indenture Documents and the Collateral Documents or similar writing) believed by it to be genuine or to be signed by the proper party or parties.
(e) Pledgor shall indemnify otherwise exist against the Collateral Agent against any cost, expense and (including counsel fees and disbursements), claim, demand, action, loss or liability (except such as result from ii) the Collateral Agent’s gross negligence Agent shall not have any duty to take any discretionary action or willful misconduct) exercise any discretionary powers, except discretionary rights and powers expressly contemplated by the Indenture Documents that the Collateral Agent may suffer is required in writing to exercise in accordance with the Indenture Documents. Notwithstanding anything to the contrary in this Agreement, in no event shall the Collateral Agent (i) be liable or incur in connection responsible for, or have any duty or obligation with respect to, the recording, filing, registering, perfection, protection or maintenance of the security interests or Liens intended to be created by this Agreement (including the preparation, filing or continuation of any Uniform Commercial Code financing or continuation statements or similar documents or instruments), (ii) be liable or responsible for, and the Collateral Agent makes no representation regarding, the validity, enforceability, effectiveness or priority of this Agreement or any action taken the security interests or omitted by the Collateral Agent hereunder.
Liens intended to be created hereby or (fiii) Beyond the exercise of reasonable care in the custody thereof, the Collateral Agent shall have no duty as to any Collateral in its possession or control or in the possession or control of any agent, bailee, clearing corporation or securities intermediary or any income thereon or as to the preservation of rights against prior parties or any other rights pertaining thereto. The Collateral Agent shall be deemed to have exercised reasonable care in the custody and preservation of the Collateral if the Collateral is accorded treatment substantially equal to that which it accords its own property, and shall not be liable or responsible for any loss or damage to any failure of the Collateral, or for any diminution in the value thereof, by reason of the act or omission of any agent, bailee, clearing corporation or securities intermediary selected by the Collateral Agent in good faith (or selected by an agent, bailee, clearing corporation or securities intermediary so selected by the Collateral Agent or by any agent, bailee, clearing corporation or securities intermediary selected in accordance with this parenthetical phrase).
(g) Any corporation or association into which the Collateral Agent may be converted or merged, or with which it may be consolidated, or to which it may sell or transfer its agency business or assets as a whole or substantially as a whole, Pledgors or any corporation or association resulting from any such conversion, sale, merger, consolidation or transfer to which it is a party, shall, subject party to the prior written consent of Secured Party, be and become a successor Collateral Agent Intercreditor Agreement or the Indenture Documents to perform its obligations hereunder and vested with all of the title to the Collateral and all of the powers, discretions, immunities, privileges and other matters as was its predecessor without, except as provided above, the execution or filing of any instrument or any further act, deed or conveyance on the part of any of the parties hereto, anything herein to the contrary notwithstandingthereunder.
Appears in 1 contract
The Collateral Agent. (a) Secured Party hereby U.S. Bank Trust Company, National Association will act as the Collateral Agent as of the Issue Date. The Collateral Agent shall hold (directly or through co-trustees or agents), and will be entitled to enforce, subject to the Intercreditor Agreements, all Liens on the Collateral created in accordance with the terms of the Notes Collateral Documents. By accepting a Note, each Holder will be deemed to have irrevocably appoints and authorizes appointed the Collateral Agent to take such action act as its agent on its behalf under the Notes Collateral Documents and to exercise such powers under this Agreement as are delegated to irrevocably authorized the Collateral Agent by to (i) perform the terms hereofduties and exercise the rights, powers and discretions that are specifically given to it under the Notes Collateral Documents or other documents to which it is a party, together with all such any other incidental rights, powers as are reasonably incidental thereto.
and discretions and (bii) The obligations of execute each document expressed to be executed by the Collateral Agent hereunder are on its behalf. The Holders may not, individually or collectively, take any direct action to enforce the Notes Collateral Documents. The Holders may only act by instruction to the Trustee, which shall instruct the Collateral Agent subject to the terms of the Intercreditor Agreements. The Collateral Agent will have no duties or obligations except those expressly set forth in this Agreement.
(c) the Notes Collateral Documents to which it is party. The Collateral Agent may consult with legal counsel, independent public accountants and other experts selected by it and shall will not be liable for any action taken or omitted to be taken by it in good faith in accordance with the advice of such counsel, accountants or experts.
(d) Neither the Collateral Agent nor any of its directors, officers, agents or employees shall be liable for any action taken or not taken by it in connection with this Agreement (1) with the consent or at the request of Secured Party or (2) in the absence of its own gross negligence or willful misconduct. The Collateral Agent shall will be entitled to rely upon, and will not incur any liability by acting in reliance upon for relying upon, any notice, consentrequest, certificate, consent, statement, instrument, document or other writing (which may be a bank wire, telex or similar writing) believed by it to be genuine and to have been signed or to be signed sent by the proper party or parties.
(e) Pledgor shall indemnify the person. The Collateral Agent against may also rely upon any coststatement made to it orally or by telephone and believed by it to have been made by the proper person, expense and shall not incur any liability for relying thereon. The Collateral Agent may consult with legal counsel (including who may be counsel fees and disbursementsfor the Company), claimindependent accountants and other experts selected by it, demand, action, loss and will not be liable for any action taken or liability (except such as result from not taken by it in the Collateral Agent’s absence of its own gross negligence or willful misconduct, in each case, in accordance with the advice of any such counsel, accountants or experts. Without limiting the generality of the foregoing, the Collateral Agent:
(i) shall not be subject to any fiduciary or other implied duties, regardless of whether an Event of Default has occurred and is continuing;
(ii) shall not have any duty to take any discretionary action or exercise any discretionary powers, except discretionary rights and powers expressly contemplated hereby or by the Notes Collateral Documents that the Collateral Agent is required to exercise; provided that the Collateral Agent shall not be required to take any action that, in its opinion or the opinion of its counsel, may suffer expose the Collateral Agent to liability or incur that is contrary to any Notes Collateral Document or applicable law;
(iii) shall not, except as expressly set forth herein and in connection with this Agreement the Notes Collateral Documents, have any duty to disclose, and shall not be liable for the failure to disclose, any information relating to the Company or any of its Affiliates that is communicated to or obtained by the Person serving as the Collateral Agent or any of its Affiliates in any capacity;
(iv) shall not be liable for any action taken or omitted not taken by it (a) with the consent or at the request of any Priority Agent or (b) in the absence of its own gross negligence or willful misconduct or (c) in reliance on a certificate of an authorized officer of the Company stating that such action is permitted by the Collateral Agent hereunder.
(f) Beyond terms of the exercise of reasonable care in the custody thereof, the Collateral Agent shall have no duty as to any Collateral in its possession or control or in the possession or control of any agent, bailee, clearing corporation or securities intermediary or any income thereon or as to the preservation of rights against prior parties or any other rights pertaining theretoIntercreditor Agreements. The Collateral Agent shall be deemed not to have exercised reasonable care knowledge of any event of default under any series of Non-ABL Loan/Notes Obligations unless and until written notice describing such event of default is given to the Collateral Agent by the Representative of such Non-ABL Loan/Notes Obligations or the Company; and
(v) shall not be responsible for or have any duty to ascertain or inquire into (a) any statement, warranty or representation made in or in connection with the custody and preservation Intercreditor Agreements or any other Notes Collateral Document, (b) the contents of any certificate, report or other document delivered hereunder or thereunder or in connection herewith or therewith, (c) the performance or observance of any of the covenants, agreements or other terms or conditions set forth herein or therein or the occurrence of any event of default, (d) the validity, enforceability, effectiveness or genuineness of the Intercreditor Agreements, any other Notes Collateral if Document or any other agreement, instrument or document, or the creation, perfection or priority of any Lien purported to be created by the Notes Collateral Documents, (e) the value or the sufficiency of any Collateral for any series of Non-ABL Loan/Notes Obligations, or (f) the satisfaction of any condition set forth in any Non-ABL Loan/Notes Debt Document or Notes Collateral Document, other than to confirm receipt of items expressly required to be delivered to the Collateral Agent. The use of the term “agent” herein with reference to the Collateral Agent is accorded treatment substantially equal not intended to that which connote any fiduciary or other implied (or express) obligations arising under agency doctrine of any applicable law other than as a “representative” as such term is used in Section 9-102(a)(72)(E) of the Uniform Commercial Code. BY ACCEPTING A NOTE EACH HOLDER WILL BE DEEMED TO HAVE IRREVOCABLY AGREED TO THE FOREGOING PROVISIONS OF THIS SECTION 11.01(A) AND SHALL BE BOUND BY THOSE AGREEMENTS TO THE FULLEST EXTENT PERMITTED BY LAW.
(b) Without limiting the Intercreditor Agreements, the Collateral Agent shall be subject to such directions as may be properly given it accords its own propertyby the Trustee and/or other Representatives from time to time in accordance with this Indenture, the Intercreditor Agreements and the other Notes Collateral Documents. Except as directed by the Trustee and/or other Representatives and as expressly required by this Indenture, the Intercreditor Agreements and the other Notes Collateral Documents, and in each case subject to the Intercreditor Agreements, the Collateral Agent shall not be obligated:
(1) to act upon directions purported to be delivered to it by any other Person;
(2) to foreclose upon or otherwise enforce any Lien securing the Notes or any of the Subsidiary Guarantees; or
(3) to take any other action whatsoever with regard to any or all of the Liens securing the Notes, the Subsidiary Guarantees or the Notes Collateral Documents or with regard to the Collateral.
(c) The Collateral Agent is authorized and empowered to appoint one or more co-agents or sub-agents or attorneys-in-fact as it deems necessary or appropriate in connection herewith and shall not be liable for the negligence or responsible for misconduct of any loss such agents or damage attorneys-in-fact selected by it in good faith.
(d) The Collateral Agent may perform any and all its duties and exercise its rights and powers by or through any one or more sub-agents appointed by it. The Collateral Agent and any such sub-agent may perform any and all its duties and exercise its rights and powers by or through their respective Affiliates. The exculpatory provisions of this Article 11 shall apply to any such sub-agent and to the Affiliates of the Collateral, or for any diminution in the value thereof, by reason of the act or omission of any agent, bailee, clearing corporation or securities intermediary selected by the Collateral Agent in good faith (or selected by an and any such sub-agent, bailee, clearing corporation or securities intermediary so selected by the Collateral Agent or by any agent, bailee, clearing corporation or securities intermediary selected in accordance with this parenthetical phrase).
(ge) Any corporation or association into which Subject to the appointment and acceptance of a successor Collateral Agent as provided below, the Collateral Agent may be converted or merged, or with which it may be consolidated, or to which it may sell or transfer its agency business or assets as a whole or substantially as a whole, or resign at any corporation or association resulting from time by notifying the Company and the Trustee in writing. Upon any such conversionresignation, salethe Trustee shall have the right, mergerwith the consent (not to be unreasonably withheld) of the Company, consolidation to appoint a successor; provided that during the existence and continuation of an Event of Default pursuant to clause (a), (b), (g) or transfer to which it is a party, shall, subject to the prior written (h) of Section 6.01 consent of Secured Partythe Company shall not be required. If no successor shall have been so appointed by the Trustee and shall have accepted such appointment within 30 days after the retiring Collateral Agent gives notice of its resignation, be then the retiring Collateral Agent may, on behalf of the Holders and become the Trustee, appoint a successor Collateral Agent hereunder which shall be a bank with an office in New York, New York, having a combined capital and vested with all surplus of the title to the Collateral and all of the powersat least $1,000,000,000, discretions, immunities, privileges and other matters as was its predecessor without, except as provided above, the execution or filing an Affiliate of any instrument or any further actsuch bank that is, deed or conveyance on the part so long as no Event of any of the parties hereto, anything herein Default pursuant to the contrary notwithstanding.clause (a),
Appears in 1 contract
The Collateral Agent. (a) Secured Party hereby irrevocably appoints It is expressly acknowledged and authorizes agreed that the Collateral Agent to take such action as agent on its behalf and to exercise such powers under this Agreement as are delegated to is not guaranteeing the Collateral Agent by performance of or assuming any liability for the terms hereof, together with all such powers as are reasonably incidental theretoobligations of the other parties hereto or any portion of the Collateral.
(b) The obligations of the Collateral Agent hereunder are only those expressly set forth shall not be responsible for the preparation or filing of any UCC financing statements or continuation statements or the correctness of any financing statements filed in connection with this Agreement or the validity or perfection of any lien or security interest created pursuant to this Agreement.
(c) The Collateral Agent may consult with legal counsel, independent public accountants and other experts selected by it and shall not be liable for interest on any action taken or omitted to be taken money received by it except as the Collateral Agent may agree in good faith in accordance writing with the advice Borrower. In no event shall the Collateral Agent be liable for the selection of such counselany investments or any losses in connection therewith (except in its capacity as obligor thereunder, accountants if applicable), or expertsfor any failure of the relevant party to provide investment instruction to the Collateral Agent in connection with the investment of funds in or from any account set forth herein.
(d) Neither the Collateral Agent nor any of its directors, officers, agents or employees shall be liable for any action taken or not taken by it in connection with this Agreement (1) with the consent or at the request of Secured Party or (2) in the absence of its own gross negligence or willful misconduct. The Collateral Agent shall not incur have no liability for any failure, inability or unwillingness on the part of the Collateral Manager, the Borrower, the Collateral Administrator or the Administrative Agent to provide accurate and complete information on a timely basis to the Collateral Agent, or otherwise on the part of any such party to comply with the terms of this Agreement, and shall have no liability for any inaccuracy or error in the performance or observance on the Collateral Agent’s part of any of its duties hereunder that is caused by acting in reliance upon or results from any noticesuch inaccurate, consent, certificate, statementincomplete or untimely information received by it, or other writing (which may be a bank wire, telex or similar writing) believed by it failure on the part of any such other party to be genuine or to be signed by comply with the proper party or partiesterms hereof.
(e) Pledgor shall indemnify the The Collateral Agent against shall have no duty to determine or inquire into the happening or occurrence of any costevent or contingency, expense (including counsel fees and disbursements), claim, demand, action, loss or liability (except such as result from the Collateral Agent’s gross negligence or willful misconduct) it is agreed that the Collateral Agent may suffer or incur its duties hereunder are purely ministerial in connection with this Agreement or any action taken or omitted by the Collateral Agent hereundernature.
(f) Beyond Should any controversy arise between the exercise undersigned with respect to the Collateral held by the Collateral Agent, the Collateral Agent shall follow the instructions of reasonable care the Administrative Agent on behalf of the Secured Parties.
(g) The powers conferred on the Collateral Agent hereunder are solely to protect its interest (on behalf of the Secured Parties) in the custody thereofCollateral and shall not impose any duty on it to exercise any such powers. Except for performing the obligations expressly imposed on the Collateral Agent hereunder, the Collateral Agent shall have no duty as to any Collateral in its possession or control responsibility for ascertaining or in taking action with respect to calls, conversions, exchanges, maturities, tenders or other matters relative to any Collateral, whether or not the possession Collateral Agent 750499896 22723957 has or control is deemed to have knowledge of such matters or taking any agent, bailee, clearing corporation or securities intermediary or any income thereon or as steps to the preservation of preserve rights against prior parties or any other rights pertaining thereto. The Collateral Agent shall be deemed to have exercised reasonable care in the custody and preservation of the Collateral if the Collateral is accorded treatment substantially equal to that which it accords its own property, and shall not be liable or responsible for any loss or damage to any of the Collateral, or for any diminution in the value thereof, by reason of the act or omission of any agent, bailee, clearing corporation or securities intermediary selected by the Collateral Agent in good faith (or selected by an agent, bailee, clearing corporation or securities intermediary so selected by the Collateral Agent or by any agent, bailee, clearing corporation or securities intermediary selected in accordance with this parenthetical phrase).
(gh) Any corporation or association into which In order to comply with the laws, rules, regulations and executive orders in effect from time to time applicable to banking institutions, including those relating to the funding of terrorist activities and money laundering, the Collateral Agent may be converted or mergedrequired to obtain, or verify and record certain information relating to individuals and entities which maintain a business relationship with which it the Collateral Agent. Accordingly, each of the parties hereto agrees to provide to the Collateral Agent upon its request from time to time such identifying information and documentation as may be consolidatedavailable to such party in order to enable the Collateral Agent to comply with such requirements.
(i) If Citibank or the Collateral Agent is also acting in another capacity, including as Custodian or Securities Intermediary, the rights, protections, immunities and indemnities afforded to Citibank or the Collateral Agent pursuant to this Article XII shall also be afforded to Citibank or the Collateral Agent acting in such capacities; provided that such rights, protections, benefits, immunities and indemnities shall be in addition to, and not in limitation of, any rights, protections, benefits, immunities and indemnities provided in the Custodian Agreement, Account Control Agreement or any other Facility Documents to which it may sell Citibank or transfer its agency business or assets as a whole or substantially as a whole, or any corporation or association resulting from any the Collateral Agent in such conversion, sale, merger, consolidation or transfer to which it capacity is a party, shall, subject .
(j) The Collateral Agent shall not have any obligation to determine if a Collateral Loan meets the criteria specified in the definition of Eligible Collateral Loan or if the requirements set forth in the definition of “Deliver” have been satisfied.
(k) The Collateral Administrator shall be entitled to the prior written consent of Secured Partysame rights, be protections and become a successor Collateral Agent hereunder and vested indemnities as set forth with all of the title respect to the Collateral and all of the powers, discretions, immunities, privileges and other matters as was its predecessor without, except as provided above, the execution or filing of any instrument or any further act, deed or conveyance on the part of any of the parties hereto, anything herein to the contrary notwithstandingAgent in this Article XII.
Appears in 1 contract
The Collateral Agent. (a) Each of the Secured Party Parties hereby irrevocably appoints the Collateral Agent as its agent hereunder and authorizes the Collateral Agent to take such action as agent actions on its behalf and to exercise such powers under this Agreement as are delegated to the Collateral Agent by the terms hereof, hereof together with all such actions and powers as are reasonably incidental thereto.
(b) The obligations of person serving as the Collateral Agent hereunder are only those expressly set forth shall have the same rights and powers in this Agreementits capacity as a Secured Party as any other Secured Party and may exercise the same as though it were not the Collateral Agent, and such Person and its Affiliates may accept deposits from, lend money to and generally engage in any kind of business with the Securing Party or any Subsidiary or other Affiliate thereof as if it were not the Collateral Agent hereunder.
(c) The Collateral Agent may consult with legal counselshall not have any duties or obligations except those expressly set forth herein. Without limiting the generality of the foregoing, independent public accountants (i) the Collateral Agent shall not be subject to any fiduciary or other implied duties, regardless of whether a Default has occurred and other experts selected is continuing, (ii) the Collateral Agent shall not have any duty to take any discretionary action or exercise any discretionary powers, except discretionary rights and powers expressly contemplated hereby that the Collateral Agent is required to exercise in writing by it the Required Secured Parties, and (iii) except as expressly set forth herein, the Collateral Agent shall not have any duty to disclose, and shall not be liable for the failure to disclose, any action taken information relating to the Securing Party or omitted to be taken by it in good faith in accordance with the advice of such counsel, accountants or experts.
(d) Neither the Collateral Agent nor any of its directors, officers, agents Subsidiaries that is communicated to or employees obtained by the bank serving as Collateral Agent or any of its affiliates in any capacity. The Collateral Agent shall not be liable for any action taken or not taken by it in connection with this Agreement (1) with the consent or at the request of the Required Secured Party Parties or (2) in the absence of its own gross negligence or willful misconduct. The Collateral Agent shall be deemed not to have knowledge of any Default unless and until written notice thereof is given to the Collateral Agent by the Borrower or a Secured Party, and the Collateral Agent shall not be responsible for or have any duty to ascertain or inquire into (i) any statement, warranty or representation made in or in connection with this Agreement, (ii) the contents of any certificate, report or other document delivered hereunder or thereunder or in connection herewith or therewith, (iii) the performance or observance of any of the covenants, agreements or other terms or conditions set forth herein or therein, or (iv) the validity, enforceability, effectiveness or genuineness of this Agreement or any other agreement instrument or document, or (v) the satisfaction of any condition set forth herein other than to confirm receipt of items expressly required to be delivered to the Collateral Agent.
(d) The Collateral Agent shall be entitled to rely upon, and shall not incur any liability by acting in reliance upon for relying upon, any notice, consentrequest, certificate, consent, statement, instrument, document or other writing (which may be a bank wire, telex or similar writing) believed by it to be genuine and to have been signed or to be signed sent by the proper party or parties.
(e) Pledgor shall indemnify the Collateral Agent against any cost, expense (including counsel fees and disbursements), claim, demand, action, loss or liability (except such as result from the Collateral Agent’s gross negligence or willful misconduct) that the Collateral Agent may suffer or incur in connection with this Agreement or any action taken or omitted by the Collateral Agent hereunder.
(f) Beyond the exercise of reasonable care in the custody thereof, the Collateral Agent shall have no duty as to any Collateral in its possession or control or in the possession or control of any agent, bailee, clearing corporation or securities intermediary or any income thereon or as to the preservation of rights against prior parties or any other rights pertaining theretoperson. The Collateral Agent also may rely upon any statement made to it orally or by telephone and believed by it to be made by the proper person, and shall be deemed to have exercised reasonable care in the custody not incur any liability for relying thereon. The Collateral Agent may consult with legal counsel, independent accountants and preservation of the Collateral if the Collateral is accorded treatment substantially equal to that which it accords its own propertyother experts selected by it, and shall not be liable or responsible for any loss action taken or damage to any of not taken by it in accordance with the Collateral, or for any diminution in the value thereof, by reason of the act or omission advice of any agentsuch counsel, bailee, clearing corporation accountants or securities intermediary selected experts.
(e) The Collateral Agent may perform any and all its duties and exercise its rights and powers by or through any one or more sub-agents appointed by the Collateral Agent. The Collateral Agent in good faith (or selected by an agent, bailee, clearing corporation or securities intermediary so selected by and any such sub-agent may perform any and all its duties and exercise its rights and powers through their respective related parties. The exculpatory provisions of the preceding paragraphs shall apply to any such sub-agent and to the related parties of the Collateral Agent or by and any such sub-agent, baileeand shall apply to their respective activities in connection with the syndication of the credit facilities provided for herein as well as activities as Collateral Agent.
(f) The Collateral Agent may resign at any time by notifying the Secured Parties and the Securing Party. Upon any such resignation, clearing corporation the Required Secured Parties shall have the right, in consultation with the Securing party, to appoint a successor. If no successor shall have been so appointed by the Required Secured Parties and shall have accepted such appointment Within 30 days after the retiring Collateral Agent gives notice of its resignation, then the retiring Collateral Agent's resignation shall nonetheless become effective and (i) the retiring Collateral Agent shall be discharged from its duties and obligations hereunder and (ii) the Required Secured Parties shall perform the duties of the Collateral Agent (and all payments and communications provided to be made by, to or securities intermediary selected through the Collateral Agent shall instead be made by or to each Secured Party directly) until such time as the Required Secured Parties appoint a successor agent as provided for above in accordance this paragraph. Upon the acceptance of its appointment as Collateral Agent hereunder by a successor, such successor shall succeed to and become vested with all the rights, powers, privileges and duties of the retiring (or retired) Collateral Agent and the retiring Collateral Agent shall be discharged from its duties and obligations hereunder (if not already discharged therefrom as provided above in this parenthetical phraseparagraph). After the Collateral Agent's resignation hereunder, the provisions of this Section 5 shall continue in effect for its benefit in respect of any actions taken or omitted to be taken by it while it was acting as Collateral Agent.
(g) Any corporation Each Secured Party acknowledges that it has, independently and without reliance upon the Collateral Agent or association any other Secured Party and based on such documents and information as it has deemed appropriate, made its own credit analysis and decision to enter into this Agreement. Each Secured Party also acknowledges that it will, independently and without reliance upon the Collateral Agent or any other Secured Party and based on such documents and information as it shall from time to time deem appropriate, continue to make its own decisions in taking or not taking action under or based upon this Agreement or any related agreement or any document furnished hereunder or thereunder.
(h) The Collateral Agent may, with the prior consent of the Required Secured Parties (but not otherwise), consent to any modification, supplement or waiver under this Agreement, provided that, without the prior consent of each Secured Party, the Collateral Agent shall not release all or substantially all of the collateral or otherwise terminate all or substantially all of the liens under this Agreement, agree to additional obligations being secured by all or substantially all of such collateral security (unless the lien for such additional obligations shall be junior to the lien in favor of the other obligations secured hereby, in which event the Collateral Agent may consent to such junior lien provided that It obtains the consent of the Required Secured Parties thereto), alter the relative priorities of the obligations entitled to the benefits of the liens created hereunder with respect to all or substantially all of such collateral, except that no such consent shall be converted required, and the Collateral Agent is hereby authorized, to release any lien covering property that is the subject of either a disposition of property permitted hereunder or merged, or with which it may be consolidated, or a disposition to which it may sell or transfer its agency business or assets as a whole or substantially as a whole, or any corporation or association resulting from any such conversion, sale, merger, consolidation or transfer to which it is a party, shall, subject to the prior written consent of Required Secured Party, be and become a successor Parties have consented.
(i) The Collateral Agent hereunder and vested with all of shall be entitled to receive the title to the Collateral and all of the powers, discretions, immunities, privileges and other matters as was its predecessor without, except as provided above, the execution or filing of any instrument or any further act, deed or conveyance on the part of any of the parties fees set forth in Annex 2 hereto, anything herein to which shall be paid by the contrary notwithstandingSecuring Party.
Appears in 1 contract
Samples: Pledge and Security Agreement (Gbi Capital Management Corp)
The Collateral Agent. The Collateral Agent shall be responsible only for the performance of such duties as are expressly set forth herein and no implied covenants, functions or responsibilities shall be read into this Agreement or otherwise exist against Collateral Agent. The Collateral Agent shall not be responsible for any action taken or not taken by it under this Agreement or with respect to any Security Documents at the request or direction of any Secured Party. Notwithstanding anything to the contrary herein, the following provisions shall govern the Collateral Agent’s rights, powers, obligations and duties under this Security Agreement:
(1) Conditions subject to JPM review and modification.
(a) Secured Party hereby irrevocably appoints and authorizes Notwithstanding anything herein to the contrary, in no event shall the Collateral Agent have any obligation to take such action inquire or investigate as agent on its behalf and to exercise such powers under this Agreement as are delegated the correctness, veracity, or content of any instruction pursuant to any other Security Document. In no event shall the Collateral Agent have any liability in respect of any such instruction received by the terms hereof, together it and relied on with all such powers as are reasonably incidental respect to any action or omission taken pursuant thereto.
(b) The obligations With respect to the Collateral Agent’s duties under this Agreement or any of the Security Documents, the Collateral Agent hereunder are only those expressly set forth in this Agreementmay act through its attorneys, accountants, experts and such other professionals as the Collateral Agent deems necessary, advisable or appropriate and shall not be responsible for the misconduct or negligence of any attorney, accountant, expert or other such professional appointed with due care.
(c) The Collateral Agent may consult with legal counsel, independent public accountants and other experts selected by it and shall not be liable for any action taken or omitted to be taken by it in good faith in accordance with the advice of such counsel, accountants or experts.
(d) Neither the Collateral Agent nor any of its directorsexperts, officers, agents directors, employees, agents, attorneys-in-fact or employees affiliates shall be (i) liable for any action lawfully taken or not omitted to be taken by it under or in connection with this Security Agreement or any of the Security Documents (1) with the consent or at the request of Secured Party or (2) in the absence of except for its own gross negligence or willful misconduct), or (ii) responsible in any manner for any recitals, statements, representations or warranties (other than its own recitals, statements, representations or warranties) made in this Agreement or any of the other Security Documents or in any certificate, report, statement or other document referred to or provided for in, or received by the Collateral Agent under or in connection with, this Agreement or any of the Security Documents or for the value, validity, effectiveness, genuineness, enforceability or sufficiency of this Agreement or any of the Security Documents or for any failure of the Grantors or any other Person to perform their obligations hereunder and thereunder. The Collateral Agent shall not incur be under any liability by acting in reliance upon obligation to any notice, consent, certificate, statementPerson to ascertain or to inquire as to (i) the observance or performance of any of the agreements contained in, or other writing (which may be a bank wireconditions of, telex this Agreement or similar writing) believed by it to be genuine any of the Security Documents or to be signed inspect the properties, books or records of the Grantors, (ii) whether or not any representation or warranty made by the proper party or parties.
(e) Pledgor shall indemnify the Collateral Agent against any cost, expense (including counsel fees and disbursements), claim, demand, action, loss or liability (except such as result from the Collateral Agent’s gross negligence or willful misconduct) that the Collateral Agent may suffer or incur Person in connection with this Agreement or any action taken Security Documents is true, (iii) the performance by any Person of its obligations under this Agreement or omitted any of the Security Documents or (iv) the breach of or default by any Person of its obligations under this Agreement or any of the Collateral Agent hereunderSecurity Documents.
(fd) Beyond the exercise of reasonable care in the custody thereof, the Collateral Agent shall have no duty as to any Collateral in its possession or control or in the possession or control of any agent, bailee, clearing corporation or securities intermediary or any income thereon or as to the preservation of rights against prior parties or any other rights pertaining thereto. The Collateral Agent shall not be deemed bound to have exercised reasonable care (i) account to any Person for any sum or the profit element of any sum received for its own account; (ii) disclose to any other Person any information relating to the Person if such disclosure would, or might, constitute a breach of any law or regulation or be otherwise actionable at the suit of any Person; (iii) be under any fiduciary duties or obligations other than those for which express provision is made in the custody and preservation this Agreement or in any of the Collateral if the Collateral is accorded treatment substantially equal other Security Documents to that which it accords its own propertyis a party; or (iv) be required to take any action that it believes, and based on advice of counsel, is in conflict with any applicable law, this Agreement or any of the other Security Documents, or any order of any court or administrative agency;
(e) The Collateral Agent shall not be liable or responsible for any loss or damage to diminution in the value of any of the Collateral, or for any diminution in the value thereof, by reason of the act or omission of any agentcarrier, bailee, clearing corporation forwarding agency or securities intermediary other agent or bailee selected by the Collateral Agent in good faith (or selected by an agentfaith, bailee, clearing corporation or securities intermediary so selected by except to the extent of the Collateral Agent Agent’s gross negligence or by any agent, bailee, clearing corporation or securities intermediary selected in accordance with this parenthetical phrase)willful misconduct.
(gf) Any corporation The Collateral Agent shall not be responsible for, nor incur any liability with respect to, (i) the existence, genuineness or association into which value of any of the Collateral Agent may be converted or mergedfor the validity, perfection, priority or with which it may be consolidatedenforceability of the security interest in any of the Collateral, whether impaired by operation of law or by reason of any action or omission to which it may sell or transfer act on its agency business or assets as a whole or substantially as a whole, part under this Agreement or any corporation or association resulting from any such conversionof the other Note Documents, sale, merger, consolidation or transfer to which it is a party, shall, subject except to the prior written consent of Secured Party, be and become a successor Collateral Agent hereunder and vested with all of the title to the Collateral and all of the powers, discretions, immunities, privileges and other matters as was its predecessor without, except as provided above, the execution extent such action or filing of any instrument omission constitutes gross negligence or any further act, deed or conveyance willful misconduct on the part of any the Collateral Agent, (ii) the validity or sufficiency of the parties heretoCollateral or any agreement or assignment contained therein, anything herein (iii) the validity of the title of the Grantors to the contrary notwithstanding.Collateral,
Appears in 1 contract
The Collateral Agent. (a) Secured Party hereby U.S. Bank National Association will act as the Collateral Agent as of the Issue Date. The Collateral Agent shall hold (directly or through co-trustees or agents), and will be entitled to enforce, all Liens on the Collateral created in accordance with the terms of the Notes Collateral Documents. By accepting a Note, each Holder will be deemed to have irrevocably appoints and authorizes appointed the Collateral Agent to take such action act as its agent on its behalf under the Notes Collateral Documents and to exercise such powers under this Agreement as are delegated to irrevocably authorized the Collateral Agent by to (i) perform the terms hereofduties and exercise the rights, powers and discretions that are specifically given to it under the Notes Collateral Documents or other documents to which it is a party, together with all such any other incidental rights, powers as are reasonably incidental thereto.
and discretions and (bii) The obligations of execute each document expressed to be executed by the Collateral Agent hereunder are on its behalf. The Holders may not, individually or collectively, take any direct action to enforce the Notes Collateral Documents. The Holders may only act by instruction to the Trustee, which shall instruct the Collateral Agent subject to the terms of the Intercreditor Agreements. The Collateral Agent will have no duties or obligations except those expressly set forth in this Agreement.
(c) the Notes Collateral Documents to which it is party. The Collateral Agent may consult with legal counsel, independent public accountants and other experts selected by it and shall will not be liable for any action taken or omitted to be taken by it in good faith in accordance with the advice of such counsel, accountants or experts.
(d) Neither the Collateral Agent nor any of its directors, officers, agents or employees shall be liable for any action taken or not taken by it in connection with this Agreement (1) with the consent or at the request of Secured Party or (2) in the absence of its own gross negligence or willful misconduct. The Collateral Agent shall will be entitled to rely upon, and will not incur any liability by acting in reliance upon for relying upon, any notice, consentrequest, certificate, consent, statement, instrument, document or other writing (which may be a bank wire, telex or similar writing) believed by it to be genuine and to have been signed or to be signed sent by the proper party or parties.
(e) Pledgor shall indemnify the person. The Collateral Agent against may also rely upon any coststatement made to it orally or by telephone and believed by it to have been made by the proper person, expense and shall not incur any liability for relying thereon. The Collateral Agent may consult with legal counsel (including who may be counsel fees and disbursementsfor the Company), claimindependent accountants and other experts selected by it, demand, action, loss and will not be liable for any action taken or liability (except such as result from not taken by it in the Collateral Agent’s absence of its own gross negligence or willful misconduct, in each case, in accordance with the advice of any such counsel, accountants or experts. Without limiting the generality of the foregoing, the Collateral Agent:
(i) shall not be subject to any fiduciary or other implied duties, regardless of whether an Event of Default has occurred and is continuing;
(ii) shall not have any duty to take any discretionary action or exercise any discretionary powers, except discretionary rights and powers expressly contemplated hereby or by the Notes Collateral Documents that the Collateral Agent is required to exercise; provided that the Collateral Agent shall not be required to take any action that, in its opinion or the opinion of its counsel, may suffer expose the Collateral Agent to liability or incur that is contrary to any Notes Collateral Document or applicable law;
(iii) shall not, except as expressly set forth herein and in connection with this Agreement the Notes Collateral Documents, have any duty to disclose, and shall not be liable for the failure to disclose, any information relating to the Company or any of its Affiliates that is communicated to or obtained by the Person serving as the Collateral Agent or any of its Affiliates in any capacity;
(iv) shall not be liable for any action taken or omitted not taken by it (a) with the consent or at the request of any Priority Agent or (b) in the absence of its own gross negligence, willful misconduct or bad faith or (c) in reliance on a certificate of an authorized officer of the Company stating that such action is permitted by the Collateral Agent hereunder.
(f) Beyond terms of the exercise of reasonable care in the custody thereof, the Collateral Agent shall have no duty as to any Collateral in its possession or control or in the possession or control of any agent, bailee, clearing corporation or securities intermediary or any income thereon or as to the preservation of rights against prior parties or any other rights pertaining theretoIntercreditor Agreements. The Collateral Agent shall be deemed not to have exercised reasonable care knowledge of any event of default under any series of Non-ABL Loan/Notes Obligations unless and until written notice describing such event of default is given to the Collateral Agent by the Representative of such Non-ABL Loan/Notes Obligations or the Company; and
(v) shall not be responsible for or have any duty to ascertain or inquire into (a) any statement, warranty or representation made in or in connection with the custody and preservation Intercreditor Agreements or any other Notes Collateral Document, (b) the contents of any certificate, report or other document delivered hereunder or thereunder or in connection herewith or therewith, (c) the performance or observance of any of the covenants, agreements or other terms or conditions set forth herein or therein or the occurrence of any event of default, (d) the validity, enforceability, effectiveness or genuineness of the Intercreditor Agreements, any other Notes Collateral if Document or any other agreement, instrument or document, or the creation, perfection or priority of any Lien purported to be created by the Notes Collateral Documents, (e) the value or the sufficiency of any Collateral for any series of Non-ABL Loan/Notes Obligations, or (f) the satisfaction of any condition set forth in any Non-ABL Loan/Notes Debt Document or Notes Collateral Document, other than to confirm receipt of items expressly required to be delivered to the Collateral Agent. The use of the term “agent” herein with reference to the Collateral Agent is accorded treatment substantially equal not intended to that which connote any fiduciary or other implied (or express) obligations arising under agency doctrine of any applicable law other than as a “representative” as such term is used in Section 9-102(a)(72)(E) of the Uniform Commercial Code. BY ACCEPTING A NOTE EACH HOLDER WILL BE DEEMED TO HAVE IRREVOCABLY AGREED TO THE FOREGOING PROVISIONS OF THIS SECTION 11.01(A) AND SHALL BE BOUND BY THOSE AGREEMENTS TO THE FULLEST EXTENT PERMITTED BY LAW.
(b) Without limiting the Intercreditor Agreements, the Collateral Agent shall be subject to such directions as may be properly given it accords its own propertyby the Trustee and/or other Representatives from time to time in accordance with this Indenture, the Intercreditor Agreements and the other Notes Collateral Documents. Except as directed by the Trustee and/or other Representatives and as expressly required by this Indenture, the Intercreditor Agreements and the other Notes Collateral Documents, and in each case subject to the Intercreditor Agreements, the Collateral Agent shall not be obligated:
(1) to act upon directions purported to be delivered to it by any other Person;
(2) to foreclose upon or otherwise enforce any Lien securing the Notes or any of the Subsidiary Guarantees; or
(3) to take any other action whatsoever with regard to any or all of the Liens securing the Notes, the Subsidiary Guarantees or the Notes Collateral Documents or with regard to the Collateral.
(c) The Collateral Agent is authorized and empowered to appoint one or more co-agents or sub-agents or attorneys-in-fact as it deems necessary or appropriate in connection herewith and shall not be liable for the negligence or misconduct of any such agents or attorneys-in-fact selected by it in good faith.
(d) The Collateral Agent may perform any and all its duties and exercise its rights and powers by or through any one or more sub-agents appointed by it. The Collateral Agent and any such sub-agent may perform any and all its duties and exercise its rights and powers by or through their respective Affiliates. The exculpatory provisions of this Article 11 shall apply to any such sub-agent and to the Affiliates of the Collateral Agent and any such sub-agent.
(e) Subject to the appointment and acceptance of a successor Collateral Agent as provided below, the Collateral Agent may resign at any time by notifying the Company and the Trustee in writing. Upon any such resignation, the Trustee shall have the right, with the consent (not to be unreasonably withheld) of the Company, to appoint a successor; provided that during the existence and continuation of an Event of Default pursuant to clause (a), (b), (g) or (h) of Section 6.01 consent of the Company shall not be required. If no successor shall have been so appointed by the Trustee and shall have accepted such appointment within 30 days after the retiring Collateral Agent gives notice of its resignation, then the retiring Collateral Agent may, on behalf of the Holders and the Trustee, appoint a successor Collateral Agent which shall be a bank with an office in New York, New York, having a combined capital and surplus of at least $1,000,000,000, or an Affiliate of any such bank that is, so long as no Event of Default pursuant to clause (a), (b), (g) or (h) of Section 6.01 shall have occurred and be continuing, reasonably acceptable to the Company. Upon the acceptance of its appointment as Collateral Agent hereunder by a successor, such successor shall succeed to and become vested with all the rights, powers, privileges and duties of the retiring Collateral Agent, and the retiring Collateral Agent shall be discharged from its duties and obligations hereunder. The fees payable by the Company to a successor Collateral Agent shall be the same as those payable to its predecessor unless otherwise agreed between the Company and such successor. After a Collateral Agent’s resignation hereunder, the provisions of this Article and Article 6 shall continue in effect for the benefit of such retiring Collateral Agent, its sub-agents and their respective Affiliates in respect of any actions taken or omitted to be taken by any of them while acting as Collateral Agent.
(f) The benefits, protections and indemnities of the Trustee in Sections 7.02, 7.03 and 7.06 of this Indenture shall apply mutatis mutandis to the Collateral Agent in its capacity as such, including, without limitation, the rights to receive and rely on Officer’s Certificates and Opinions of Counsel, reimbursement and indemnification.
(g) Each Holder, by its acceptance of any Notes, is deemed to have consented and agreed to the terms of each Notes Collateral Document, as originally in effect and as amended, supplemented or replaced from time to time in accordance with its terms or the terms of this Indenture; and authorizes and empowers the Trustee and (through the Intercreditor Agreements) each Applicable Priority Agent to bind the Holders as set forth in the applicable Notes Collateral Documents to which they are a party and to perform its obligations and exercise its rights and powers thereunder. Notwithstanding the foregoing, no such consent or deemed consent shall be deemed or construed to represent an amendment or waiver, in whole or in part, of any provision of this Indenture or the Notes.
(h) Except as contemplated by the Notes Collateral Documents, neither the Trustee nor the Collateral Agent shall be responsible for the existence, genuineness or value of any loss of the Collateral or damage to for the validity, perfection, priority or enforceability of the Liens in any of the Collateral, for the validity or for any diminution in the value thereof, by reason sufficiency of the act or omission of any agent, bailee, clearing corporation or securities intermediary selected by the Collateral Agent in good faith (or selected by an agent, bailee, clearing corporation or securities intermediary so selected by the Collateral Agent or by any agent, bailee, clearing corporation or securities intermediary selected in accordance with this parenthetical phrase).
(g) Any corporation or association into which the Collateral Agent may be converted or merged, or with which it may be consolidated, or to which it may sell or transfer its agency business or assets as a whole or substantially as a whole, or any corporation agreement or association resulting from any such conversionassignment contained therein, sale, merger, consolidation or transfer to which it is a party, shall, subject to for the prior written consent of Secured Party, be and become a successor Collateral Agent hereunder and vested with all validity of the title of the Company or any Grantor to the Collateral, for insuring the Collateral and all or for the payment of taxes, charges, assessments or Liens upon the Collateral or otherwise as to the maintenance of the powers, discretions, immunities, privileges and other matters as was its predecessor without, except as provided above, the execution or filing of any instrument or any further act, deed or conveyance on the part of any of the parties hereto, anything herein to the contrary notwithstandingCollateral.
Appears in 1 contract
The Collateral Agent. (a) The Collateral Agent’s sole duty with respect to the custody, safekeeping and physical preservation of the Collateral in its possession shall be to deal with it in the same manner as the Collateral Agent deals with similar property for its own account. The powers conferred on the Collateral Agent are solely to protect the Collateral Agent’s and the Secured Party hereby irrevocably appoints Parties’ interests in the Collateral and authorizes shall not impose any duty upon the Collateral Agent to take exercise any such action as agent on its behalf and to exercise such powers under this Agreement as are delegated to the powers. The Collateral Agent by shall be accountable only for amounts that it actually receives as a result of the terms hereofexercise of such powers, together with all such powers as are reasonably incidental theretoand it shall not be responsible to any Grantor or any Secured Party for any act or failure to act hereunder, except for its own gross negligence or willful misconduct.
(b) The obligations of Notwithstanding anything to the contrary contained herein, in no event shall the Collateral Agent hereunder are only those expressly set forth have any obligation to monitor the perfection, continuation of perfection or the sufficiency or validity of any security interest in this Agreementor related to the Collateral or to prepare or file any Code financing statement or continuation statements.
(c) The Collateral Agent may consult with legal counselshall not be responsible in any manner whatsoever for the correctness of any recitals, independent statements, representations or warranties made herein, all of which are made solely by the Grantor. The Collateral Agent makes no representations as to, nor shall it be responsible for, the existence, genuineness, value or condition of any of the Collateral or any part thereof, the title of the Grantor thereto or the security afforded or intended to be afforded by this Agreement, or the validity, execution (except its execution), enforceability, legality or sufficiency of this Agreement, or the validity, perfection, priority or enforceability of the liens or security interests in any of the Collateral created or intended to be created by this Agreement, or the payment of taxes, charges, assessments or liens upon the Collateral or otherwise as to the maintenance of the Collateral, and the Collateral Agent shall incur no liability or responsibility in respect of any such matters. The Collateral Agent shall have no responsibility for preparing, recording, filing, re-recording or refiling any financing statement, continuation statement or other instrument in any public accountants and office at any time.
(d) The Collateral Agent shall not be required to ascertain or inquire as to the performance by the Grantor of any of the covenants or agreements contained herein, in the other experts selected by collateral documents of under the Indenture.
(e) The Collateral Agent shall be under no obligation or duty to take any action under this Agreement or otherwise if taking such action (i) would subject the Collateral Agent to a tax in any jurisdiction where it and is not then subject to a tax or (ii) would require the Collateral Agent to qualify to do business in any jurisdiction where it is not then so qualified, unless the Collateral Agent shall receive security or indemnity satisfactory to it against such tax (or equivalent liability), or any liability resulting from such qualification, in each case as results from the taking of such action under this Agreement.
(f) The Collateral Agent shall not be liable for any action taken or omitted to be taken by it in good faith in accordance with this Agreement except for its own gross negligence or willful misconduct.
(g) The permissive right of the Collateral Agent to take any action under this Agreement shall not be construed as a duty to so act.
(h) The Collateral Agent may execute any of the trusts or powers hereof and perform any duty hereunder or under either directly or by or through agents or attorneys, and the Collateral Agent shall not be responsible for the negligence or misconduct of any agents or attorneys selected by it with due care. The Collateral Agent shall be entitled to advice of counsel concerning all matters pertaining to the administration of this Agreement, and the advice of such counsel, accountants or experts.
(d) Neither the Collateral Agent nor any of its directors, officers, agents or employees counsel shall be liable for full and complete authorization and protection in respect of any action taken or not taken suffered by it hereunder in accordance therewith.
(i) Whenever in the administration of this Agreement, the Collateral Agent shall deem it necessary or desirable that a factual matter be proved or established in connection with the Collateral Agent taking, suffering or omitting any action hereunder or thereunder, such matter (unless other evidence in respect thereof is herein specifically prescribed) may be deemed to be conclusively proved or established by a certificate of an officer of the Grantor delivered to the Collateral Agent, and such certificate shall be full warrant to the Collateral Agent for any action taken, suffered or omitted in reliance thereon.
(j) The Collateral Agent shall have the right at any time to seek instructions concerning the administration of this Agreement from any court of competent jurisdiction.
(1k) with The Collateral Agent may conclusively rely upon, and shall be fully protected in acting upon or failing to act as a consequence of, any resolution, statement, certificate, instrument, opinion, report, notice, request, consent, order, bond or other paper or document which it believes in good faith is genuine and has been signed or presented by the consent proper party or at parties or, in the request case of Secured Party cables, telecopies and telexes, to have been sent by the proper party or (2) in parties. In the absence of its own gross negligence or willful misconduct. The Collateral Agent shall not incur any liability by acting in reliance upon any notice, consent, certificate, statement, or other writing (which may be a bank wire, telex or similar writing) believed by it to be genuine or to be signed by the proper party or parties.
(e) Pledgor shall indemnify the Collateral Agent against any cost, expense (including counsel fees and disbursements), claim, demand, action, loss or liability (except such as result from the Collateral Agent’s gross negligence or willful misconduct) that the Collateral Agent may suffer conclusively rely, as to the truth of the statements and the correctness of the opinions expressed therein, upon any such certificates, opinions or incur in connection with this Agreement other information and need not investigate any fact or any action taken or omitted by matter stated therein.
(l) In no event shall the Collateral Agent hereunderbe responsible or liable for special, indirect, or consequential loss or damage of any kind whatsoever (including, but not limited to, loss of profit), irrespective of whether the Collateral Agent has been advised of the likelihood of such loss or damage and regardless of the form of action.
(fm) Beyond In no event shall the exercise of reasonable care Collateral Agent be responsible or liable for any failure or delay in the custody thereofperformance of its obligations under this Agreement arising out of or caused by, directly or indirectly, forces beyond its reasonable control, including without limitation strikes, work stoppages, accidents, acts of war or terrorism, civil or military disturbances, nuclear or natural catastrophes or acts of God, and interruptions, loss or malfunctions of utilities, communications or computer (software or hardware) services.
(n) The Collateral Agent may at any time, by giving written notice to the Grantor, resign and be discharged of the responsibilities hereby created, such resignation to become effective upon (i) the appointment of a successor Collateral Agent and (ii) the acceptance of such appointment by such successor Collateral Agent. If no successor Collateral Agent shall be appointed and shall have accepted such appointment within 30 days after the Collateral Agent gives the aforesaid notice of resignation, the Collateral Agent, the Grantor or any Secured Party may apply to any court of competent jurisdiction at the expense of the Grantor to appoint a successor Collateral Agent to act until such time, if any, as a successor Collateral Agent shall have no duty as to any Collateral in its possession or control or in the possession or control of any agent, bailee, clearing corporation or securities intermediary or any income thereon or as to the preservation of rights against prior parties or any other rights pertaining thereto. The Collateral Agent shall be deemed to have exercised reasonable care in the custody and preservation of the Collateral if the Collateral is accorded treatment substantially equal to that which it accords its own property, and shall not be liable or responsible for any loss or damage to any of the Collateral, or for any diminution in the value thereof, by reason of the act or omission of any agent, bailee, clearing corporation or securities intermediary selected by the Collateral Agent in good faith (or selected by an agent, bailee, clearing corporation or securities intermediary so selected by the Collateral Agent or by any agent, bailee, clearing corporation or securities intermediary selected in accordance with this parenthetical phrase)been appointed.
(g) Any corporation or association into which the Collateral Agent may be converted or merged, or with which it may be consolidated, or to which it may sell or transfer its agency business or assets as a whole or substantially as a whole, or any corporation or association resulting from any such conversion, sale, merger, consolidation or transfer to which it is a party, shall, subject to the prior written consent of Secured Party, be and become a successor Collateral Agent hereunder and vested with all of the title to the Collateral and all of the powers, discretions, immunities, privileges and other matters as was its predecessor without, except as provided above, the execution or filing of any instrument or any further act, deed or conveyance on the part of any of the parties hereto, anything herein to the contrary notwithstanding.
Appears in 1 contract
Samples: Security Agreement (Grupo TMM Sa)
The Collateral Agent. (a) Secured Party hereby irrevocably appoints and authorizes A. The Collateral Agent shall hold in accordance with this Agreement all items of the Collateral Agent to take such action as agent on its behalf and to exercise such powers at any time received under this Agreement as are delegated to Agreement. It is expressly understood and agreed that the Collateral Agent by the terms hereof, together with all such powers as are reasonably incidental thereto.
(b) The obligations of the Collateral Agent hereunder as holder of the Collateral and interests therein and with respect to the disposition thereof, and otherwise under this Agreement, are only those expressly set forth in this Agreement.
(c) The Collateral Agent may consult with legal counsel, independent public accountants and other experts selected by it and shall not be liable for any action taken or omitted to be taken by it in good faith in accordance with the advice of such counsel, accountants or experts.
(d) Neither the Collateral Agent nor any of its directors, officers, agents or employees shall be liable for any action taken or not taken by it in connection with this Agreement (1) with the consent or at the request of Secured Party or (2) in the absence of its own gross negligence or willful misconduct. The Collateral Agent shall not incur act hereunder on the terms and conditions set forth herein and shall have no liability to any liability by acting Secured Creditor in reliance upon any notice, consent, certificate, statement, or other writing (which may be a bank wire, telex or similar writing) believed by it to be genuine or to be signed by the proper party or partiesso acting.
(e) Pledgor B. No single Secured Creditor shall indemnify have the right to cause the Collateral Agent against to take any cost, expense (including counsel fees and disbursements), claim, demand, action, loss or liability (except such as result from action with respect to the Collateral Agent’s gross negligence or willful misconduct) that and the Collateral Agent may suffer shall take such action with respect to the Collateral as directed by the Required Secured Creditors consistent with the terms and conditions of this Agreement. If the Collateral Agent shall request instructions from the Required Secured Creditors with respect to any act or incur action (including failure to act) in connection with this Agreement or any action taken or omitted by the Collateral Agent hereunder.
(f) Beyond the exercise of reasonable care in the custody thereofAgreement, the Collateral Agent shall be entitled to refrain from such act or taking such action unless and until it shall have no duty as received instructions from the Required Secured Creditors, and to the extent requested, appropriate indemnification in respect of actions to be taken; and the Collateral Agent shall not incur liability to any Person by reason of so refraining. Without limiting the foregoing, no Secured Creditor shall have any right of action whatsoever against the Collateral Agent as a result of the Collateral Agent acting or refraining from action hereunder in its possession or control or in accordance with the possession or control instructions of any agent, bailee, clearing corporation or securities intermediary or any income thereon or the Required Secured Creditors as to the preservation of rights against prior parties or any other rights pertaining thereto. aforesaid.
C. The Collateral Agent has been appointed as agent for the Banks hereunder by the Banks and shall be deemed entitled to have exercised reasonable care in the custody and preservation benefits of Section 10 of the Collateral if Credit Agreement, MUTATIS MUTANDIS. By requesting, asserting, accepting or enforcing any benefits hereunder, the Indenture Trustee and the holders of the Debentures agree that the provisions of Section 10 of the Credit Agreement shall apply, MUTATIS MUTANDIS, to their relationship with the Collateral is accorded treatment substantially equal to that which it accords its own property, and shall not be liable or responsible for any loss or damage to any of the Collateral, or for any diminution in the value thereof, by reason of the act or omission of any agent, bailee, clearing corporation or securities intermediary selected by the Collateral Agent in good faith (or selected by an agent, bailee, clearing corporation or securities intermediary so selected by the Collateral Agent or by any agent, bailee, clearing corporation or securities intermediary selected in accordance with this parenthetical phrase)Agent.
(g) Any corporation or association into which the Collateral Agent may be converted or merged, or with which it may be consolidated, or to which it may sell or transfer its agency business or assets as a whole or substantially as a whole, or any corporation or association resulting from any such conversion, sale, merger, consolidation or transfer to which it is a party, shall, subject to the prior written consent of Secured Party, be and become a successor Collateral Agent hereunder and vested with all of the title to the Collateral and all of the powers, discretions, immunities, privileges and other matters as was its predecessor without, except as provided above, the execution or filing of any instrument or any further act, deed or conveyance on the part of any of the parties hereto, anything herein to the contrary notwithstanding.
Appears in 1 contract
Samples: Pledge Agreement (Enhance Financial Services Group Inc)
The Collateral Agent. (a) Each of the Secured Party Parties, by its acceptance of the benefits hereof, hereby irrevocably appoints the Collateral Agent as its agent and authorizes the Collateral Agent to take such action as agent actions on its behalf and to exercise such powers under this Agreement as are delegated to the Collateral Agent by the terms hereofof this Agreement and the Security Documents, together with all such actions and powers as are reasonably incidental thereto.
(b) . The obligations of bank serving as the Collateral Agent hereunder are only shall have the same rights and powers in its capacity as a Senior Lender as any other Senior Lender and may exercise the same as though it were not the Collateral Agent, and such bank and its Affiliates may accept deposits from, lend money to and generally engage in any kind of business with the Companies or any Grantor or other Affiliate thereof as if it were not the Collateral Agent hereunder. The Collateral Agent shall not have any duties or obligations except those expressly set forth in this Agreement and the Security Documents. The Collateral Agent shall make available for inspection by any Secured Party, upon request of the Representative of such Secured Party, each certificate or other paper furnished to the Collateral Agent by any Loan Party under or in respect of this Agreement.
, any Security Document or any portion of the Collateral Estate. The Companies hereby consent to the disclosure of such requested documents by the Collateral Agent to the Secured Parties. Without limiting the generality of the foregoing, (a) the Collateral Agent shall not be subject to any fiduciary or other implied duties, regardless of whether a default under the Credit Agreement or the Indenture has occurred and is continuing, (b) the Collateral Agent shall not have any duty to take any discretionary action or exercise any discretionary powers, except discretionary rights and powers expressly contemplated by the Security Documents that the Collateral Agent is required to exercise in writing by the Instructing Group pursuant to this Agreement, and (c) except as expressly set forth in this Agreement and the Security Documents, the Collateral Agent shall not have any duty to disclose, and shall not be liable for the failure to disclose, any information relating to either Company or any Grantor that is communicated to or obtained by the bank serving as Collateral Agent or any of its Affiliates in any capacity. The Collateral Agent may consult with legal counsel, independent public accountants and other experts selected by it and shall not be liable for any action taken or omitted to be not taken by it in good faith in accordance with the advice consent or at the request of such counselthe Instructing Group pursuant to this Agreement, accountants or experts.
(d) Neither in the absence of its own gross negligence or wilful misconduct. The Collateral Agent shall be deemed not to have knowledge of any default or event of default under the Senior Loan Documents or the Noteholder Documents, unless and until written notice thereof is given to the Collateral Agent nor by either Company or any Representative, as applicable, and the Collateral Agent shall not be responsible for or have any duty to ascertain or inquire into (i) any statement, warranty or representation made in or in connection with any Senior Loan Document or Noteholder Document, (ii) the contents of any certificate, report or other document delivered thereunder or in connection therewith, (iii) the performance or observance of any of the covenants, agreements or other terms or conditions set forth in any Senior Loan Documents or Noteholder Documents, (iv) the validity, enforceability, effectiveness or genuineness of any Senior Loan Documents or Noteholder Documents or any other agreement, instrument or document, or (v) the satisfaction of any condition set forth in Article IV of the Existing Credit Agreement or elsewhere in any Senior Loan Document or Noteholder Document, other than to confirm receipt of items expressly required to be delivered to the Collateral Agent under the Senior Loan Documents or the Noteholder Documents. Whenever in the performance of its directorsduties under this Agreement, officersthe Collateral Agent shall deem it necessary or desirable that a matter be proved or established with respect to either Company, agents any Grantor or employees any other Person in connection with the taking, suffering or omitting of any action hereunder by the Collateral Agent, such matter may be conclusively deemed to be proved or established by a certificate purporting to be executed by an officer of such Person. The Collateral Agent shall be entitled to rely upon, and shall not incur any liability with respect to any action taken, suffered or omitted in reliance upon any such certificate, or any notice, request, certificate, consent, statement, instrument, document or other writing believed by it to be genuine and to have been signed or sent by the proper Person. The Collateral Agent also may rely upon any statement made to it orally or by telephone and believed by it to be made by the proper Person, and shall not incur any liability for relying thereon. The Collateral Agent may consult with legal counsel (who may be counsel for the Companies), independent accountants and other experts selected by it, and shall not be liable for any action taken or not taken by it in connection with this Agreement (1) accordance with the consent advice of any such counsel, accountants or at the request of Secured Party or (2) in the absence of its own gross negligence or willful misconductexperts. The Collateral Agent shall not incur may perform any liability and all its duties and exercise its rights and powers by acting in reliance upon or through any notice, consent, certificate, statement, one or other writing (which may be a bank wire, telex or similar writing) believed by it to be genuine or to be signed more sub-agents appointed by the proper party or parties.
(e) Pledgor Collateral Agent. The Collateral Agent and any such sub-agent may perform any and all its duties and exercise its rights and powers through their respective Related Parties. The exculpatory provisions of the preceding paragraphs shall indemnify apply to any such sub-agent and to the Related Parties of the Collateral Agent against and any costsuch sub-agent. Subject to the appointment and acceptance of a successor Collateral Agent as provided in this paragraph, expense (including counsel fees and disbursements), claim, demand, action, loss or liability (except such as result from the Collateral Agent’s gross negligence or willful misconduct) that the Collateral Agent may suffer resign at any time by notifying the Senior Lenders, the Trustee, the Representative of any Other Secured Party and the Companies. Upon any such resignation and so long as the Discharge of Senior Credit Agreement Claims has not occurred, the Required Lenders shall have the right, in consultation with the Companies, to appoint a successor, and if no successor shall have been so appointed by the Required Lenders and shall have accepted such appointment within 30 days after the retiring Collateral Agent gives notice of its resignation, then the retiring Collateral Agent may, on behalf of the Secured Parties, appoint a successor Collateral Agent which shall be a bank with an office in New York, New York, or incur in connection with this Agreement or an Affiliate of any action taken or omitted such bank (unless otherwise agreed by the Companies and the Required Lenders). Upon any such resignation of the Collateral Agent hereunder.
(f) Beyond after the exercise Discharge of reasonable care Senior Credit Agreement Claims has occurred, the Majority Secured Parties shall have the right, in consultation with the custody thereofCompanies, to appoint a successor, and if no successor shall have been so appointed and shall have accepted such appointment within 15 days after the retiring Collateral Agent gives notice of its resignation, then the Trustee shall be appointed the successor Collateral Agent. If the Trustee shall not have accepted such appointment, the Collateral Agent, the Companies or the Majority Secured Parties may apply to any court of competent jurisdiction to appoint a successor Collateral Agent to act until such time, if any, as a successor shall have been appointed and shall have accepted such appointment as above provided. Upon its appointment as Collateral Agent hereunder, a successor Collateral Agent shall have no duty as succeed to any and become vested with all the rights, powers, privileges and duties of the retiring Collateral in its possession or control or in Agent, and the possession or control of any agent, bailee, clearing corporation or securities intermediary or any income thereon or as to the preservation of rights against prior parties or any other rights pertaining thereto. The retiring Collateral Agent shall be deemed discharged from its duties and obligations hereunder. Any successor Collateral Agent shall execute and deliver an appropriate supplement or amendment to have exercised reasonable care in this Agreement and other necessary amendments or supplements to the custody and preservation of the Collateral if the Collateral is accorded treatment substantially equal Security Documents to that which it accords its own property, and shall not be liable or responsible for any loss or damage to any of the Collateral, or for any diminution in the value thereof, by reason of the act or omission of any agent, bailee, clearing corporation or securities intermediary selected effect such appointment. The fees payable by the Collateral Agent in good faith (or selected by an agent, bailee, clearing corporation or securities intermediary so selected by the Collateral Agent or by any agent, bailee, clearing corporation or securities intermediary selected in accordance with this parenthetical phrase).
(g) Any corporation or association into which the Collateral Agent may be converted or merged, or with which it may be consolidated, or Companies to which it may sell or transfer its agency business or assets as a whole or substantially as a whole, or any corporation or association resulting from any such conversion, sale, merger, consolidation or transfer to which it is a party, shall, subject to the prior written consent of Secured Party, be and become a successor Collateral Agent hereunder shall be the same as those payable to its predecessor unless otherwise agreed between the Companies and vested with all of the title to such successor. After the Collateral and all of the powers, discretions, immunities, privileges and other matters as was its predecessor without, except as provided aboveAgent's resignation hereunder, the execution or filing provisions of this Section 2.3 and Section 2.4 shall continue in effect for the benefit of such retiring Collateral Agent, its sub-agents and their respective Related Parties in respect of any instrument actions taken or any further act, deed or conveyance on the part of omitted to be taken by any of the parties hereto, anything herein to the contrary notwithstandingthem while it was acting as Collateral Agent.
Appears in 1 contract
Samples: Collateral Sharing Agreement (On Semiconductor Corp)
The Collateral Agent. (a) Secured Party 12.1 The Holder hereby irrevocably appoints and authorizes the Collateral Agent Agent, on behalf of and for the benefit of all Holders of the Notes, to be the agent for and representative of the Holders with respect to the Security Documents, and to take such action as agent on its such Holder’s behalf and to exercise such powers powers, rights and remedies hereunder and under this Agreement the Security Documents as are specifically delegated or granted to the Collateral Agent by the terms hereofhereof and thereof, together with all such powers powers, rights and remedies as are reasonably incidental thereto.
(b) . The obligations of the Collateral Agent hereunder are shall have only those duties and responsibilities that are expressly set forth in this Agreement.
(c) specified herein and the Security Documents. The Collateral Agent may consult with legal counselexercise such powers, independent public accountants rights and other experts selected remedies and perform such duties by it and shall not be liable for any action taken or omitted to be taken by it in good faith in accordance with the advice of such counsel, accountants through its agents or experts.
(d) Neither the employees. The Collateral Agent nor any of its directors, officers, agents or employees shall be liable for any action taken or not taken by it in connection with this Agreement (1) with hereby agrees to act upon the consent or at the request of Secured Party or (2) express conditions contained herein and in the absence of its own gross negligence or willful misconductSecurity Documents, as applicable. The Collateral Agent shall not incur have, by reason hereof or any liability by acting of the Security Documents, a fiduciary relationship in reliance respect of any Holder; and nothing herein or any of the Security Documents, expressed or implied, is intended to or shall be so construed as to impose upon any notice, consent, certificate, statement, or other writing (which may be a bank wire, telex or similar writing) believed by it to be genuine or to be signed by the proper party or parties.
(e) Pledgor shall indemnify the Collateral Agent against any cost, expense (including counsel fees and disbursements), claim, demand, action, loss obligations in respect hereof or liability (any of the Security Documents except such as result from expressly set forth herein or therein.
12.2 The provisions of this Section 12 are solely for the Collateral Agent’s gross negligence or willful misconduct) that benefit of the Collateral Agent may suffer or incur in connection with this Agreement and the Holders and none of the Issuer or any action taken of its affiliates or omitted by related parties shall have any rights as a third party beneficiary of any of the Collateral Agent provisions thereof. In performing its functions and duties hereunder.
(f) Beyond the exercise of reasonable care in the custody thereof, the Collateral Agent shall act solely as an agent of the Holders and does not assume and shall not be deemed to have assumed any obligation towards or relationship of agency or trust with or for the Issuer or any of its affiliates or related parties.
12.3 Anything contained in any of the Security Documents to the contrary notwithstanding, the Holder hereby agrees that (i) no duty Holder shall have any right individually to realize upon any of the Collateral, it being understood and agreed that all powers, rights and remedies under the Security Documents may be exercised solely by the Collateral Agent, and (ii) in the event of a foreclosure by Collateral Agent on any of the Collateral pursuant to a public or private sale, the Collateral Agent or any Holder may be the purchaser of any or all of such Collateral at any such sale and the Collateral Agent, as to agent for and representative of the Holders collectively as secured parties (but not any Collateral Holder or Holders in its possession or control or their respective individual capacities unless Requisite Holders (as defined in the possession Security Agreement) shall otherwise agree in writing) shall be entitled, for the purpose of bidding and making settlement or control payment of any agent, bailee, clearing corporation or securities intermediary the purchase price for all or any income thereon portion of the Collateral sold at any such public sale, to use and apply any of the Obligations as a credit on account of the purchase price for any collateral payable by Collateral Agent at such sale. The Holder, by accepting this Note, shall be deemed to have acknowledged receipt of, and consented to and approved, each Security Document and each other document required to be approved by the Collateral Agent or any Requisite Holders or Holders, as applicable. Without limiting the foregoing, the Holder agrees (i) to the preservation limitations regarding the Collateral Agent’s liabilities set forth in the Security Agreement, and (ii) to indemnify and hold harmless the Collateral Agent pursuant to the terms of rights against prior parties or any other rights pertaining theretothe Security Agreement.
12.4 The Holder represents and warrants that it has made its own independent investigation of the financial condition and affairs of the Issuer and its affiliates in connection herewith and that it has made and shall continue to make its own appraisal of the creditworthiness of the Issuer and its affiliates. The Collateral Agent shall be deemed not have any duty or responsibility, either initially or on a continuing basis, to have exercised reasonable care in the custody and preservation make any such investigation or any such appraisal on behalf of the Collateral if Holders or to provide any Holder with any credit or other information with respect thereto, whether coming into its possession before the Collateral is accorded treatment substantially equal to that which it accords its own propertyissuance of the Notes or at any time or times thereafter, and shall not be liable or responsible for any loss or damage to any of the Collateral, or for any diminution in the value thereof, by reason of the act or omission of any agent, bailee, clearing corporation or securities intermediary selected by the Collateral Agent in good faith (or selected by an agent, bailee, clearing corporation or securities intermediary so selected by the Collateral Agent or by shall not have any agent, bailee, clearing corporation or securities intermediary selected in accordance responsibility with this parenthetical phrase).
(g) Any corporation or association into which the Collateral Agent may be converted or merged, or with which it may be consolidated, or to which it may sell or transfer its agency business or assets as a whole or substantially as a whole, or any corporation or association resulting from any such conversion, sale, merger, consolidation or transfer to which it is a party, shall, subject respect to the prior written consent accuracy of Secured Party, be and become a successor Collateral Agent hereunder and vested with all or the completeness of the title any information provided to the Collateral and all of the powers, discretions, immunities, privileges and other matters as was its predecessor without, except as provided above, the execution or filing of any instrument or any further act, deed or conveyance on the part of any of the parties hereto, anything herein to the contrary notwithstandingHolders.
Appears in 1 contract
Samples: Note Purchase Agreement (Alestra)
The Collateral Agent. (a) Wilmington Trust, National Association has been appointed Collateral Agent for the Noteholder Secured Party hereby irrevocably appoints Parties hereunder pursuant to Section 11.09 of the Indenture. It is expressly understood and authorizes agreed by the parties to this Collateral Agreement that any authority conferred upon the Collateral Agent hereunder is subject to take such action as agent on its behalf and to exercise such powers under this Agreement as are delegated the terms of the delegation of authority made by the Noteholder Secured Parties to the Collateral Agent by pursuant to the Indenture, and that the Collateral Agent has agreed to act (and any successor Collateral Agent shall act) as such hereunder only on the express conditions contained in such Section 11.09, the terms hereofand conditions of which, together with including the rights, benefits and immunities of the Collateral Trustee thereunder, are hereby incorporated into this Collateral Agreement by this reference. Any successor Collateral Agent appointed pursuant to Section 7.07 of the Indenture shall be entitled to all such powers as are reasonably incidental thereto.
(b) The obligations the rights, interests and benefits of the Collateral Agent hereunder are only those expressly set forth hereunder. Notwithstanding any provision in this Agreement.
(c) The Collateral Agent may consult with legal counselAgreement to the contrary, independent public accountants and other experts selected by it and shall not be liable for any action taken or omitted to be taken by it whenever in good faith in accordance with the advice of such counsel, accountants or experts.
(d) Neither this Collateral Agreement the Collateral Agent nor has the right to make any of its directorsdetermination, officersexercise any discretion, agents or employees shall be liable for any action taken or not taken by it in connection with this Agreement (1) with the consent or at the request of Secured Party or (2) in the absence of its own gross negligence or willful misconduct. The Collateral Agent shall not incur any liability by acting in reliance upon any notice, consent, certificate, statement, or other writing (which may be a bank wire, telex use commercially reasonable judgment or similar writing) believed by it right with respect to be genuine or to be signed by the proper party or parties.
(e) Pledgor shall indemnify the any matter under this Collateral Agent against any cost, expense (including counsel fees and disbursements), claim, demand, action, loss or liability (except such as result from the Collateral Agent’s gross negligence or willful misconduct) that the Collateral Agent may suffer or incur in connection with this Agreement or any action taken or omitted by the Collateral Agent hereunder.
(f) Beyond the exercise of reasonable care in the custody thereofAgreement, the Collateral Agent shall have no duty as not be required to make any Collateral in its possession such determination or control exercise any such discretion or in judgment without the possession or control of any agent, bailee, clearing corporation or securities intermediary or any income thereon or as to the preservation of rights against prior parties or any other rights pertaining thereto. The Collateral Agent shall be deemed to have exercised reasonable care in the custody and preservation direction of the Collateral if Trustee or the Collateral is accorded treatment substantially equal to that which it accords its own propertyholders of a majority in aggregate principal amount of the Notes, and shall not be liable make any such determination, exercise of discretion or responsible for any loss judgment or damage to any of the Collateral, or for any diminution in the value thereof, by reason of the act or omission of any agent, bailee, clearing corporation or securities intermediary selected similar right as directed by the Collateral Agent Trustee or such holders, in good faith (or selected by an agent, bailee, clearing corporation or securities intermediary so selected by the Collateral Agent or by any agent, bailee, clearing corporation or securities intermediary selected in accordance with this parenthetical phrase).
(g) Any corporation or association into which the Collateral Agent may be converted or merged, or with which it may be consolidated, or to which it may sell or transfer its agency business or assets as a whole or substantially as a whole, or any corporation or association resulting from any such conversion, sale, merger, consolidation or transfer to which it is a party, shall, each case subject to the prior written consent its rights of Secured Party, be and become a successor Collateral Agent hereunder and vested with all of the title indemnity or security satisfactory to the Collateral and all of the powers, discretions, immunities, privileges it and other matters as was its predecessor without, except as provided above, rights under the execution or filing of any instrument or any further act, deed or conveyance on the part of any of the parties hereto, anything herein to the contrary notwithstandingIndenture.
Appears in 1 contract
Samples: Notes Collateral Agreement (Builders FirstSource, Inc.)
The Collateral Agent. (a) Secured Party hereby By accepting a Note, each Holder is deemed to have irrevocably appoints and authorizes appointed the Collateral Agent to take such action act as its agent on its behalf under the Security Documents and to exercise such powers under this Agreement as are delegated to irrevocably authorized the Collateral Agent by to (i) perform the terms hereofduties and exercise the rights, together with all such powers as and discretions that are reasonably incidental thereto.
(b) The obligations of specifically given to it under the Collateral Agent hereunder are only those expressly set forth in this Agreement.
(c) The Collateral Agent may consult with legal counsel, independent public accountants and other experts selected by it and shall not be liable for any action taken or omitted to be taken by it in good faith in accordance with the advice of such counsel, accountants or experts.
(d) Neither the Collateral Agent nor any of its directors, officers, agents or employees shall be liable for any action taken or not taken by it in connection with this Agreement (1) with the consent or at the request of Secured Party or (2) in the absence of its own gross negligence or willful misconduct. The Collateral Agent shall not incur any liability by acting in reliance upon any notice, consent, certificate, statement, Security Documents or other writing (which may be a bank wire, telex or similar writing) believed by it to be genuine or to be signed by the proper party or parties.
(e) Pledgor shall indemnify the Collateral Agent against any cost, expense (including counsel fees and disbursements), claim, demand, action, loss or liability (except such as result from the Collateral Agent’s gross negligence or willful misconduct) that the Collateral Agent may suffer or incur in connection with this Agreement or any action taken or omitted by the Collateral Agent hereunder.
(f) Beyond the exercise of reasonable care in the custody thereof, the Collateral Agent shall have no duty as to any Collateral in its possession or control or in the possession or control of any agent, bailee, clearing corporation or securities intermediary or any income thereon or as to the preservation of rights against prior parties or any other rights pertaining thereto. The Collateral Agent shall be deemed to have exercised reasonable care in the custody and preservation of the Collateral if the Collateral is accorded treatment substantially equal to that which it accords its own property, and shall not be liable or responsible for any loss or damage to any of the Collateral, or for any diminution in the value thereof, by reason of the act or omission of any agent, bailee, clearing corporation or securities intermediary selected by the Collateral Agent in good faith (or selected by an agent, bailee, clearing corporation or securities intermediary so selected by the Collateral Agent or by any agent, bailee, clearing corporation or securities intermediary selected in accordance with this parenthetical phrase).
(g) Any corporation or association into which the Collateral Agent may be converted or merged, or with which it may be consolidated, or to which it may sell or transfer its agency business or assets as a whole or substantially as a whole, or any corporation or association resulting from any such conversion, sale, merger, consolidation or transfer documents to which it is a party, shalltogether with any other incidental rights, subject powers and discretions, and (ii) execute each document expressed to be executed by the Collateral Agent on its behalf. Each Holder agrees that the Collateral Agent shall be entitled to the prior written consent of Secured Partyrights, be privileges, protections, immunities, indemnities and become a successor Collateral Agent hereunder and vested with all of the title benefits provided to the Collateral Agent by this Indenture and all the Security Documents. The Collateral Agent will have no duties or obligations except those expressly set forth in the Security Documents to which it is party; provided, however that no provision of this Indenture shall be construed to relieve the Collateral Agent from liability for its own grossly negligent action, its own grossly negligent failure to act or its own willful misconduct. Notwithstanding the generality of the powers, discretions, immunities, privileges foregoing:
(a) The duties and other matters as was its predecessor without, except as provided above, obligations of the execution Collateral Agent shall be determined solely by the express provisions of this Indenture and the Security Documents and the Collateral Agent shall not be liable to any party hereto or filing to any Security Document to which it is a party by reason of any instrument or any further act, deed or conveyance failure on the part of any other party hereto or any maker, guarantor, endorser or other signatory of any document or any other Person to perform such Person’s obligations under any such document.
(b) The Collateral Agent shall not be responsible in any manner for the validity, enforceability or sufficiency of this Indenture, the Security Documents or any Collateral delivered under the Security Documents, or for the value or collectability of any Notes or for any representations made or obligations assumed by any party other than the Collateral Agent. The Collateral Agent shall not be bound to examine or inquire into or be liable for any defect or failure in the right or title of the parties hereto, anything herein Grantors to all or any of the assets whether such defect or failure was known to the contrary notwithstandingCollateral Agent or might have been discovered upon examination or inquiry and whether capable of remedy or not.
Appears in 1 contract
Samples: Indenture (Goodrich Petroleum Corp)
