Common use of The Second Lien Collateral Agent Clause in Contracts

The Second Lien Collateral Agent. (i) The Second Lien Collateral Agent shall have such rights, powers, authorities and discretions as are (a) conferred on trustees by the Trustee Acts; (b) by way of supplement to the Trustee Acts as provided for in this Indenture and/or the English Security Documents; and (c) any which may be vested in the Second Lien Collateral Agent by law or regulation or otherwise. (ii) Section 1 of the Trustee Act 2000 shall not apply to the duties of the Second Lien Collateral Agent in relation to the trusts constituted by this Indenture. Where there are any inconsistencies between the Trustee Acts and the provisions of this Indenture, the provisions of this Indenture shall, to the extent permitted by law, prevail and, in the case of any such inconsistency with the Trustee Xxx 0000, the provisions of this Indenture shall constitute a restriction or exclusion for the purposes of the Trustee Xxx 0000. (iii) All moneys from time to time received or recovered by the Second Lien Collateral Agent in respect of the Trust Property and the net proceeds from the realization or enforcement of all or any part of the English Transaction Security shall be held by the Second Lien Collateral Agent on trust to apply them at such times as the Second Lien Collateral Agent considers appropriate in the order of priority set out in Section 6.10 (subject to the Intercreditor Agreements). (iv) Nothing in any Note Documents constitutes the Second Lien Collateral Agent as an agent, trustee or fiduciary of any Issuer or Guarantor and the Second Lien Collateral Agent shall not be bound to account to any Second Priority Notes Secured Party for any sum or the profit element of any sum received by it for its own account. (v) If the Second Lien Collateral Agent were to resign or be replaced, its resignation or replacement shall only take effect upon the transfer of the Trust Property to its successor.

The Second Lien Collateral Agent. (i) The Second Lien Collateral Agent shall By accepting a Note, each Holder is deemed to have such rights, powers, authorities and discretions as are (a) conferred on trustees by the Trustee Acts; (b) by way of supplement to the Trustee Acts as provided for in this Indenture and/or the English Security Documents; and (c) any which may be vested in irrevocably appointed the Second Lien Collateral Agent by law or regulation or otherwise. (ii) Section 1 of to act as its agent under the Trustee Act 2000 shall not apply to the duties of Security Documents and irrevocably authorized the Second Lien Collateral Agent in relation to (i) perform the trusts constituted by this Indenture. Where there duties and exercise the rights, powers and discretions that are specifically given to it under the Security Documents or other documents to which it is a party, together with any inconsistencies between the Trustee Acts other incidental rights, powers and the provisions of this Indenturediscretions, the provisions of this Indenture shall, and (ii) execute each document expressed to the extent permitted by law, prevail and, in the case of any such inconsistency with the Trustee Xxx 0000, the provisions of this Indenture shall constitute a restriction or exclusion for the purposes of the Trustee Xxx 0000. (iii) All moneys from time to time received or recovered by the Second Lien Collateral Agent in respect of the Trust Property and the net proceeds from the realization or enforcement of all or any part of the English Transaction Security shall be held executed by the Second Lien Collateral Agent on trust its behalf. The Second Lien Collateral Agent will have no duties or obligations except those expressly set forth in the Security Documents to apply them at such times as which it is party; provided that no provision of this Indenture shall be construed to relieve the Second Lien Collateral Agent considers appropriate in from liability for its own negligent action, its own negligent failure to act or its own willful misconduct. Notwithstanding the order generality of priority set out in Section 6.10 (subject to the Intercreditor Agreements).foregoing: (iva) Nothing in any Note Documents constitutes The duties and obligations of the Second Lien Collateral Agent as an agent, trustee or fiduciary shall be determined solely by the express provisions of any Issuer or Guarantor this Indenture and the Second Lien Collateral Agent shall not be bound to account liable to any Second Priority Notes Secured Party for party hereto or to any sum or the profit element Security Document to which it is a party by reason of any sum received by it for its own accountfailure 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. (vb) If The Second Lien 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, Pari Passu Debt covered by the Security Documents or other instrument, if any, so delivered, or for any representations made or obligations assumed by any party other than the Second Lien Collateral Agent. The Second Lien 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 Grantors to all or any of the assets whether such defect or failure was known to the Second Lien Collateral Agent were to resign or be replaced, its resignation might have been discovered upon examination or replacement shall only take effect upon the transfer inquiry and whether capable of the Trust Property to its successorremedy or not.

The Second Lien Collateral Agent. (i) The Second Lien Collateral Agent shall have such rights, powers, authorities and discretions as are (ai) conferred on trustees by the Trustee Acts; (bii) by way of supplement to the Trustee Acts as provided for in this Indenture and/or the English Security Documents; and (ciii) any which may be vested in the Second Lien Collateral Agent by law or regulation or otherwise. (ii) Section 1 of the Trustee Act 2000 shall not apply to the duties of the Second Lien Collateral Agent in relation to the trusts constituted by this Indenture. Where there are any inconsistencies between the Trustee Acts and the provisions of this Indenture, the provisions of this Indenture shall, to the extent permitted by law, prevail and, in the case of any such inconsistency with the Trustee Xxx 0000, the provisions of this Indenture shall constitute a restriction or exclusion for the purposes of the Trustee Xxx 0000. (iii) All moneys from time to time received or recovered by the Second Lien Collateral Agent in respect of the Trust Property and the net proceeds from the realization or enforcement of all or any part of the English Transaction Security shall be held by the Second Lien Collateral Agent on trust to apply them at such times as the Second Lien Collateral Agent considers appropriate in the order of priority set out in Section 6.10 (subject to the Intercreditor Agreements). (iv) Nothing in any Note Documents constitutes the Second Lien Collateral Agent as an agent, trustee or fiduciary of any Issuer or Guarantor and the Second Lien Collateral Agent shall not be bound to account to any Second Priority Notes Secured Party for any sum or the profit element of any sum received by it for its own account. (v) If the Second Lien Collateral Agent were to resign or be replaced, its resignation or replacement shall only take effect upon the transfer of the Trust Property to its successor.

The Second Lien Collateral Agent. Each Second Lien Claimholder (iincluding the holders of the Initial Second Lien Notes issued under the Initial Second Lien Document, by their acceptance of the benefits of this Agreement and the Second Lien Collateral Documents and their direction to the Initial Second Lien Document Representative to enter into this Agreement) The hereby irrevocably appoints the Second Lien Collateral Agent shall have to act on its behalf as the Second Lien Collateral Agent hereunder and under each of the other Second Lien Collateral Documents, and authorizes the Second Lien Collateral Agent to take such rights, powers, authorities actions on its behalf and discretions to exercise such powers as are (a) conferred on trustees by the Trustee Acts; (b) by way of supplement delegated to the Trustee Acts as provided for in this Indenture and/or the English Security Documents; and (c) any which may be vested in the Second Lien Collateral Agent by law the terms hereof or regulation or otherwise. (ii) Section 1 thereof, including for purposes of acquiring, holding and enforcing any and all Liens on Collateral granted by any Obligor to secure any of the Trustee Act 2000 shall not apply Second Lien Obligations, together with such powers and discretion as are reasonably incidental thereto. In addition, to the duties extent required under the laws of any jurisdiction other than the United States of America, each Second Lien Claimholder hereby grants to the Second Lien Collateral Agent in relation any required powers of attorney to execute, administer and enforce any Second Lien Collateral Document governed by the trusts constituted by laws of such jurisdiction on such Second Lien Claimholder’s behalf. In this Indenture. Where there are any inconsistencies between the Trustee Acts and the provisions of this Indentureconnection, the provisions of this Indenture shallSecond Lien Collateral Agent and any co-agents, to the extent permitted by law, prevail and, in the case of any such inconsistency with the Trustee Xxx 0000, the provisions of this Indenture shall constitute a restriction or exclusion for the purposes of the Trustee Xxx 0000. (iii) All moneys from time to time received or recovered sub-agents and attorneys-in-fact appointed by the Second Lien Collateral Agent in respect pursuant to any Second Lien Document for purposes of holding or enforcing any Lien on the Trust Property and the net proceeds from the realization or enforcement of all Collateral (or any part portion thereof) granted under any of the English Transaction Security shall be held by the Second Lien Collateral Agent on trust Documents, or for exercising any rights and remedies thereunder at the direction of the relevant Second Lien Representative, shall be entitled to apply them at the benefits, without duplication, of all provisions of this Section 8 and the equivalent provision of any Second Lien Document (as though such times as co-agents, sub-agents and attorneys-in-fact were the “Second Lien Collateral Agent considers appropriate Agent” or similar titled named therein) as if set forth in the order of priority set out in Section 6.10 (subject to the Intercreditor Agreements)full herein with respect thereto. (iv) Nothing in any Note Documents constitutes the Second Lien Collateral Agent as an agent, trustee or fiduciary of any Issuer or Guarantor and the Second Lien Collateral Agent shall not be bound to account to any Second Priority Notes Secured Party for any sum or the profit element of any sum received by it for its own account. (v) If the Second Lien Collateral Agent were to resign or be replaced, its resignation or replacement shall only take effect upon the transfer of the Trust Property to its successor.

The Second Lien Collateral Agent. (a) The Issuer, the Guarantors and the Second Lien Collateral Agent will enter into one or more Security Documents that will establish the terms of the security interests in the Collateral. The Security Documents will provide for the security interests that will secure the payment and performance when due of all of the Obligations of the Issuer and the Guarantors under this Indenture, the Notes, the Guarantees and the Security Documents. (b) By accepting a Note, each Holder will be deemed to have irrevocably appointed the Second Lien Collateral Agent to act as its agent under the Security Documents and the Intercreditor Agreement and irrevocably authorized and directed each of the Trustee and the Second Lien Collateral Agent, as the case may be, to (i) execute and deliver the Intercreditor Agreement, if any, and any Security Documents to which the Trustee or the Second Lien Collateral Agent, as applicable, is named as a party, including any Security Documents or Intercreditor Agreement executed after the Issue Date, (ii) perform the duties and exercise the rights, powers and discretions that are specifically given to it under the Security Documents or the Intercreditor Agreement or other documents to which it is a party, together with any other incidental rights, powers and discretions; and (iii) execute each document expressed to be executed by the Trustee or the Second Lien Collateral Agent on its behalf. It is hereby expressly acknowledged and agreed that, in doing so, the Trustee and the Second Lien Collateral Agent are (a) expressly authorized to make the representations attributed to Holders in any such agreements and (b) not responsible for the terms or contents of such agreements, or for the validity or enforceability thereof, or the sufficiency thereof for any purpose. The Second Lien Collateral Agent hereby accepts such designation and appointment as the Second Lien Collateral Agent under the Indenture and agrees to act as the Second Lien Collateral Agent on the conditions contained in this Indenture and subject to the Intercreditor Agreement. Since the holders of the Notes are not parties to the Security Documents, such holders may not, individually or collectively, take any direct action to enforce any rights in their favor under the Security Documents. Except as provided in the Security Documents, the holders of the Notes may act only through instruction to the Trustee in accordance with the terms of the Indenture, which, in turn, will instruct the Second Lien Collateral Agent, or through instruction to the Second Lien Collateral Agent in accordance with the terms of this Indenture and subject to the Intercreditor Agreement. Each of the Holders hereby exempts the Second Lien Collateral Agent from any restrictions on representing several persons and self-dealing under any applicable law to the extent legally possible for such Holder. (c) The Second Lien Collateral Agent is authorized and empowered to appoint one or more subagents or co-collateral agents as it deems necessary or appropriate, including without limitation the First Lien Collateral Agent (including any successor First Lien Collateral Agent). (d) The Second Lien Collateral Agent shall have such all the rights, protections, privileges, powers, authorities immunities, indemnities and discretions benefits provided in the Security Documents as are (a) conferred on trustees by well as the rights, protections, privileges, powers, immunities, indemnities and benefits of the Trustee Actsunder Article 7 hereof; (b) provided, however, that the Issuer shall not reimburse any expense or indemnify against any loss, liability or expense incurred by way of supplement to the Trustee Acts as provided for in this Indenture and/or the English Security Documents; and (c) any which may be vested in the Second Lien Collateral Agent through the Second Lien Collateral Agent’s own willful misconduct or gross negligence, as determined by law a final and non-appealable order of a court of competent jurisdiction. (e) None of the Trustee, the Second Lien Collateral Agent or regulation any of their respective officers, directors, employees, attorneys or otherwiseagents will be responsible or liable for the existence, genuineness, value or protection of any Collateral, for the legality, enforceability, effectiveness or sufficiency of the Security Documents, for the creation, perfection, continuation of perfection, priority, sufficiency or protection of any Lien securing the Notes or any defect or deficiency as to any such matters, except to the extent any possessory collateral is delivered to the Second Lien Collateral Agent for perfection purposes. (f) Subject to the Security Documents, except as directed by the Trustee as required or permitted by this Indenture, the Holders acknowledge that the Second Lien Collateral Agent will not be obligated: (i) to act upon directions purported to be delivered to it by any other Person; (ii) Section 1 to foreclose upon or otherwise enforce any Lien securing the Notes; or (iii) to take any other action whatsoever with regard to any or all Liens securing the Notes, the Security Documents or the Collateral. (g) In acting as Second Lien Collateral Agent, co-collateral agent or sub-collateral agent, the Second Lien Collateral Agent, each co-collateral agent and each sub-collateral agent may rely upon and enforce each and all of the rights, protections, privileges, powers, immunities, indemnities and benefits of the Trustee Act 2000 under Article 7 hereof, including the right to compensation and indemnity set forth in Section 7.07. Whether or not expressly provided therein, in acting under any Security Document or the Intercreditor Agreement, the Second Lien Collateral Agent shall not apply be entitled to all of the duties of rights, protections, privileges, powers, immunities and indemnities granted to the Second Lien Collateral Agent in relation this Indenture. (h) Neither the Trustee nor the Second Lien Collateral Agent shall have any duty to file any financing statements, amendments thereto, continuation statements or any other agreement or instrument to perfect or maintain the perfection of the Second Lien Collateral Agent’s security interest in the Collateral. (i) Before the Second Lien Collateral Agent acts or refrains from acting in each case at the request or direction of the Issuer or the Guarantors, it may require an Officer’s Certificate and an Opinion of Counsel. The Second Lien Collateral Agent shall not be liable for any action it takes or omits to take in good faith in reliance on such Officer’s Certificate or Opinion of Counsel. (j) The Second Lien Collateral Agent will not be responsible or liable for any action taken or omitted to be taken by it hereunder or under any other Security Document, or the Intercreditor Agreement, except for its own gross negligence or willful misconduct as determined by a final and non-appealable order of a court of competent jurisdiction. No implied covenants, functions, responsibilities, duties, obligations or liabilities, whether arising under statute, common law or otherwise shall be read into this Indenture, the Security Documents or the Intercreditor Agreement, or otherwise exist against the Second Lien Collateral Agent. Without limiting the generality of the foregoing sentence, the use of the term “agent” in this Indenture with reference to the trusts constituted by this IndentureSecond Lien Collateral Agent is not intended to connote any fiduciary or other implied (or express) obligations arising under agency doctrine of any applicable law. Where there are Instead, such term is used merely as a matter of market custom, and is intended to create or reflect only an administrative relationship between independent contracting parties. The Second Lien Collateral Agent will not be required to take any inconsistencies between the Trustee Acts and the provisions action that is contrary to applicable law or any provision of this Indenture, the provisions of this Indenture shallSecurity Documents or the Intercreditor Agreement, and will not have any duty to the extent permitted by law, prevail and, in the case of take any such inconsistency with the Trustee Xxx 0000, the provisions of this Indenture shall constitute a restriction discretionary action or exclusion for the purposes of the Trustee Xxx 0000exercise any discretionary powers. (iiik) All moneys from time to time received or recovered by the Second Lien Collateral Agent in respect of the Trust Property and the net proceeds from the realization or enforcement of all or any part of the English Transaction Security shall be held by the Second Lien Collateral Agent on trust to apply them at such times as the Second Lien Collateral Agent considers appropriate in the order of priority set out in Section 6.10 (subject to the Intercreditor Agreements). (iv) Nothing in any Note Documents constitutes the Second Lien Collateral Agent as an agent, trustee or fiduciary of any Issuer or Guarantor and the The Second Lien Collateral Agent shall not be bound to account make any investigation into the facts or matters stated in any resolution, certificate, statement, instrument, opinion, report, notice, request, direction, judgment, consent, order, bond, debenture, or other paper or document. Prior to taking any action with respect to Collateral, the Second Priority Notes Secured Party for any sum Lien Collateral Agent will be entitled to seek direction from the Trustee or the profit element Holders of any sum received by it for its own account. (v) a majority in aggregate principal amount of the Notes outstanding. If the Second Lien Collateral Agent were shall request direction from the Holders of a majority in aggregate principal amount of the then outstanding Notes with respect to any action, the Second Lien Collateral Agent shall be entitled to refrain from such action unless and until the Second Lien Collateral Agent shall have received direction and indemnity, if requested, from the Holders of a majority in aggregate principal amount of the then outstanding Notes, and the Second Lien Collateral Agent shall not incur liability to any Person by reason of so refraining. (l) No provision of this Indenture, the Security Documents or the Intercreditor Agreement, will require the Second Lien Collateral Agent to advance or expend any of its own funds or otherwise incur any financial liability in the performance of its duties or the exercise of its powers or rights hereunder or thereunder (or any omission to perform or take any action at the request or direction of the Holders) unless it has been provided with security or indemnity satisfactory to the Second Lien Collateral Agent against any and all loss, liability or expense which may be incurred by it by reason of taking or continuing to take or omitting to take such action relating thereto. Notwithstanding anything to the contrary contained in this Indenture, the Security Documents or the Intercreditor Agreement, in the event the Second Lien Collateral Agent is entitled or required to commence an action to foreclose or otherwise exercise its remedies to acquire control or possession of the Collateral, the Second Lien Collateral Agent shall not be required to commence any such action or exercise any remedy or to inspect or conduct any studies of any property under the Mortgages or take any such other action if the Second Lien Collateral Agent has determined that the Second Lien Collateral Agent may incur personal liability as a result of the presence at, or release on or from, the Collateral or such property unless the Second Lien Collateral Agent has received security or indemnity from the Holders in an amount and in a form all satisfactory to the Second Lien Collateral Agent in its sole discretion, protecting the Second Lien Collateral Agent from all such liability. The Second Lien Collateral Agent shall at any time be entitled to cease taking any action described in this paragraph (k) if it no longer reasonably deems any indemnity, security or undertaking from the Issuer or the Holders to be sufficient. (m) Beyond the exercise of reasonable care in the custody of Collateral in its possession or control, the Second Lien Collateral Agent will have no duty as to any Collateral in its possession or control or in the possession or control of any agent or bailee or any income thereon or as to preservation of rights against prior parties or any other rights pertaining thereto. (n) The Second Lien Collateral Agent may resign or be replacedremoved and a successor collateral agent be appointed, its resignation all in accordance with the provisions of Section 7.08 and 7.09 hereof, as if references to Trustee therein were references to the Second Lien Collateral Agent. (o) If the Issuer or replacement shall only take any Guarantor (i) incurs any obligations in respect of First Lien Obligations at any time when the Intercreditor Agreement is not in effect upon or at any time when First Lien Obligations entitled to the transfer benefit of the Trust Property Intercreditor Agreement are concurrently retired, and (ii) delivers to the Second Lien Collateral Agent an Officer’s Certificate so stating and requesting the Second Lien Collateral Agent to enter into the Intercreditor Agreement in favor of a designated agent or representative for the holders of the First Lien Obligations so incurred, the Second Lien Collateral Agent shall (and is hereby authorized and directed to) enter into the Intercreditor Agreement (at the sole expense and cost of the Issuer, including legal fees and expenses of the Trustee and the Second Lien Collateral Agent), bind the Holders on the terms set forth therein and perform and observe its successorobligations thereunder.