Common use of The Notes Collateral Agents Clause in Contracts

The Notes Collateral Agents. (a) By accepting a Note, each Holder will be deemed to have irrevocably appointed each Notes Collateral Agent to act as collateral agent under the applicable Security Documents and irrevocably authorized each Notes 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 such Notes Collateral Agent on its behalf, including the Intercreditor Agreement or any other intercreditor agreements with future holders or agents of Indebtedness of the Company and the Guarantors (collectively, for purposes of this Article 12, the “Intercreditor Agreements”), any Security Documents and all other instruments relating to the Security Documents. The Holders may not, individually or collectively, take any direct action to enforce the Security Documents. The Notes Collateral Agents will have no duties or obligations with respect to the Collateral except those expressly set forth hereunder or in the applicable Security Documents or the Intercreditor Agreements and no implied covenants or obligations shall be read into such documents against the applicable Notes Collateral Agent. No Notes Collateral Agent will be liable for any action taken or not taken by it in the absence of its own gross negligence, willful misconduct or bad faith. Each Notes 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. Each Notes Collateral Agent may consult with legal counsel (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 advice of any such counsel, accountants or experts. Without limiting the generality of the foregoing, each Notes 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 and shall not be required to take any action that, in its opinion or the opinion of its counsel, may expose such Notes Collateral Agent to liability or that is contrary to any Security Document, the Intercreditor Agreements 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 of its Affiliates that is communicated to or obtained by the Person serving as a Notes 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 any Applicable Collateral Agent (as defined in the Intercreditor Agreement) or (b) in the absence of its own gross negligence or willful misconduct or (c) in reliance on an Officers’ Certificate of the Company stating that such action is permitted by the terms of the Intercreditor Agreements. Each Notes Collateral Agent shall be deemed not to have knowledge of any 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 such Notes Collateral Agent from the representative of such First Lien Obligations or Holdings 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 Intercreditor Agreements or any Security 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 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, (e) the existence, 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 operative agreements governing First Lien Obligations or any Security Document, other than to confirm receipt of items expressly required to be delivered to such Notes Collateral Agent. The use of the term “agent” herein with reference to a Notes 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. 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, each Notes Collateral Agent shall be subject to such directions as may be properly given in accordance with this Indenture, 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, no Notes Collateral Agent shall 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) Each Notes 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 Notes Collateral Agent as provided below, either Notes 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 (a), (b), (f) or (g) of Section 6.01, the Majority Holders shall have the right to appoint a successor. If no successor shall have been so appointed by the Company (or, if applicable, the Majority Holders) and shall have accepted such appointment within 30 days after the retiring Notes Collateral Agent gives notice of its resignation, then such retiring Notes 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 Notes Collateral Agent. Upon the acceptance of its appointment as a Notes 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 Notes Collateral Agent, and the retiring Notes Collateral Agent shall be discharged from its duties and obligations hereunder. The fees payable by the Company to a successor Notes Collateral Agent shall be the same as those payable to its predecessor unless otherwise agreed between the Company and such successor. After a Notes Collateral Agent’s resignation hereunder, the provisions of this Article 12 and Article 7 shall continue in effect for the benefit of such retiring Notes 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 Notes Collateral Agent. (e) The benefits, protections and indemnities of the Trustee in Sections 7.02, 7.03 and 7.07 of this Indenture shall apply mutatis mutandi to each Notes 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; provided, that the applicable standard of care of the Notes Collateral Agents with respect to Section 7.02, 7.03 and 7.07 of this Indenture 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 Notes Collateral Agents 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 Notes Collateral Agents shall have any duty as to any Collateral in its possession or control or in the possession or control of any agent or bailee or any income thereon or as to preservation of rights against prior parties or any other rights pertaining thereto and neither the Trustee nor the Notes Collateral Agents 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. Each of the Trustee and the Notes Collateral Agents shall be deemed to have exercised reasonable care in the custody of the Collateral in its possession 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 diminution in the value of any of the Collateral, by reason of the act or omission of any carrier, forwarding agency or other agent or bailee selected by the Trustee or a Notes Collateral Agent in good faith. (i) Neither the Trustee nor the Notes Collateral Agents 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, whether impaired by operation of law or by reason of any action or omission to act on its part hereunder, except to the extent such action or omission constitutes gross negligence or willful misconduct on the part of the Trustee or such Notes Collateral Agent, as applicable, for the validity or sufficiency of the Collateral or any agreement or assignment contained therein, for the validity of the title of the Company 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. The Trustee and the Notes Collateral Agents 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 Company, the Guarantors or the Credit Agreement Collateral Agent. (j) Notwithstanding any other provision hereof, neither the Notes Collateral Agents 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 a Notes 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 such Notes 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 Notes Collateral Agents 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 Notes Collateral Agents 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 a Notes 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 person other than the Grantor, the Majority Holders shall direct the applicable Notes Collateral Agent or Trustee, as applicable, to appoint an appropriately qualified person who they shall designate to possess, own, operate or manage, as the case may be, the Collateral. (k) For the avoidance of doubt, the Trustee and the US Collateral Agent shall act only within the United States, and shall not be subject to any foreign law, be required to act in any jurisdiction located outside the United States or be required to execute any foreign law governed document.

The Notes Collateral Agents. (a) By accepting a Note, each Holder will be deemed to have irrevocably appointed each Notes Collateral Agent to act as collateral agent under the applicable Security Documents and irrevocably authorized each Notes 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 such Notes Collateral Agent on its behalf, including the Intercreditor Agreement or any other intercreditor agreements with future holders or agents of Indebtedness of the Company and the Guarantors (collectively, for purposes of this Article 12, the “Intercreditor Agreements”), any Security Documents and all other instruments relating to the Security Documents. The Holders may not, individually or collectively, take any direct action to enforce the Security Documents. The Notes Collateral Agents will have no 96 duties or obligations with respect to the Collateral except those expressly set forth hereunder or in the applicable Security Documents or the Intercreditor Agreements and no implied covenants or obligations shall be read into such documents against the applicable Notes Collateral Agent. No Notes Collateral Agent will be liable for any action taken or not taken by it in the absence of its own gross negligence, willful misconduct or bad faith. Each Notes 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. Each Notes Collateral Agent may consult with legal counsel (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 advice of any such counsel, accountants or experts. Without limiting the generality of the foregoing, each Notes 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 and shall not be required to take any action that, in its opinion or the opinion of its counsel, may expose such Notes Collateral Agent to liability or that is contrary to any Security Document, the Intercreditor Agreements 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 of its Affiliates that is communicated to or obtained by the Person serving as a Notes 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 any Applicable Collateral Agent (as defined in the Intercreditor Agreement) or (b) in the absence of its own gross negligence or willful misconduct or (c) in reliance on an Officers’ Certificate of the Company stating that such action is permitted by the terms of the Intercreditor Agreements. Each Notes Collateral Agent shall be deemed not to have knowledge of any 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 such Notes Collateral Agent from the representative of such First Lien Obligations or Holdings or the Company; and 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 Intercreditor Agreements or any Security 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 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, (e) the existence, 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 operative agreements governing First Lien Obligations or any Security Document, other than to confirm receipt of items expressly required to be delivered to such Notes Collateral Agent. The use of the term “agent” herein with reference to a Notes 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. 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, each Notes Collateral Agent shall be subject to such directions as may be properly given in accordance with this Indenture, 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, no Notes Collateral Agent shall 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) Each Notes 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 Notes Collateral Agent as provided below, either Notes 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 (a), (b), (f) or (g) of Section 6.01, the Majority Holders shall have the right to appoint a successor. If no successor shall have been so appointed by the Company (or, if applicable, the Majority Holders) and shall have accepted such appointment within 30 days after the retiring Notes Collateral Agent gives notice of its resignation, then such retiring Notes 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 Notes Collateral Agent. Upon the acceptance of its appointment as a Notes 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 Notes Collateral Agent, and the retiring Notes Collateral Agent shall be discharged from its duties and obligations hereunder. The fees payable by the Company to a successor Notes Collateral Agent shall be the same as those payable to its predecessor unless otherwise agreed between the Company and such successor. After a Notes Collateral Agent’s resignation hereunder, the provisions of this Article 12 and Article 7 shall continue in effect for the benefit of such retiring Notes 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 Notes Collateral Agent. (e) The benefits, protections and indemnities of the Trustee in Sections 7.02, 7.03 and 7.07 of this Indenture shall apply mutatis mutandi to each Notes 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; provided, that the applicable standard of care of the Notes Collateral Agents with respect to Section 7.02, 7.03 and 7.07 of this Indenture 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 Notes Collateral Agents 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 Notes Collateral Agents shall have any duty as to any Collateral in its possession or control or in the possession or control of any agent or bailee or any income thereon or as to preservation of rights against prior parties or any other rights pertaining thereto and neither the Trustee nor the Notes Collateral Agents 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. Each of the Trustee and the Notes Collateral Agents shall be deemed to have exercised reasonable care in the custody of the Collateral in its possession 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 diminution in the value of any of the Collateral, by reason of the act or omission of any carrier, forwarding agency or other agent or bailee selected by the Trustee or a Notes Collateral Agent in good faith. (i) Neither the Trustee nor the Notes Collateral Agents 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, whether impaired by operation of law or by reason of any action or omission to act on its part hereunder, except to the extent such action or omission constitutes gross negligence or willful misconduct on the part of the Trustee or such Notes Collateral Agent, as applicable, for the validity or sufficiency of the Collateral or any agreement or assignment contained therein, for the validity of the title of the Company 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. The Trustee and the Notes Collateral Agents 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 Company, the Guarantors or the Credit Agreement Collateral Agent. (j) Notwithstanding any other provision hereof, neither the Notes Collateral Agents 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 a Notes 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 such Notes 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 Notes Collateral Agents 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 Notes Collateral Agents 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 a Notes 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 person other than the Grantor, the Majority Holders shall direct the applicable Notes Collateral Agent or Trustee, as applicable, to appoint an appropriately qualified person who they shall designate to possess, own, operate or manage, as the case may be, the Collateral. (k) For the avoidance of doubt, the Trustee and the US Collateral Agent shall act only within the United States, and shall not be subject to any foreign law, be required to act in any jurisdiction located outside the United States or be required to execute any foreign law governed document.97