Collateral Agent. The Administrative Agent shall also act as the “collateral agent” under the Loan Documents, and each of the Lenders (including in its capacities as a potential Qualified Counterparty and a potential Cash Management Provider) and the Issuing Lenders hereby irrevocably appoints and authorizes the Administrative Agent to act as the agent of such Lender and the Issuing Lenders (with the full power to appoint and to substitute and to delegate) on its behalf, or in its own name as joint and several creditor or creditor of a parallel debt (as the case may be) for purposes of acquiring, holding and enforcing any and all Liens on Collateral granted by any of the Loan Parties to secure any of the Obligations, together with such powers and discretion as are reasonably incidental thereto. In this connection, the Administrative Agent, as “collateral agent” and any co-agents, sub-agents and attorneys-in-fact appointed by the Administrative Agent pursuant to Section 10.5 for purposes of holding or enforcing any Lien on the Collateral (or any portion thereof) granted under the Security Documents, or for exercising any rights and remedies thereunder at the direction of the Administrative Agent, shall be entitled to the benefits of all provisions of this Section 10 and Section 11, as though such co-agents, sub-agents and attorneys-in-fact were the “collateral agent” under the Loan Documents as if set forth in full herein with respect thereto. Without limiting the generality of the foregoing, the Lenders hereby expressly authorize the Administrative Agent on its behalf and/or in its own name (including under any parallel debt) to execute any and all documents (including releases) with respect to the Collateral and the rights of the Secured Parties with respect thereto, as contemplated by and in accordance with the provisions of this Agreement and the Security Documents and acknowledge and agree that any such action by any Agent shall bind the Lenders. Each Lender agrees that it shall not take or institute any actions or proceedings, judicial or otherwise, for any right or remedy with respect to any Collateral against any Borrower or any other Loan Party or any other obligor under any of the Loan Documents, Specified Swap Agreements or any Specified Cash Management Agreement (including, in each case, the exercise of any right of setoff, rights on account of any banker’s lien or similar claim or other rights of self-help), or institute any actions or proceedings, or otherwise commence any remedial procedures, with respect to any Collateral of any Borrower or any other Loan Party, without the prior written consent of the Administrative Agent. In the event of a foreclosure by the Administrative Agent on any of the Collateral pursuant to a public or private sale or a sale of any of the Collateral pursuant to Section 363 of the Bankruptcy Code (or an equivalent process in any foreign jurisdiction), the Administrative Agent or any Lender may be the purchaser of any or all of such Collateral at any such sale and the Administrative Agent, as agent for and representative of the Lenders (but not any Lender or Lenders in its or their respective individual capacities unless the Required Lenders shall otherwise agree in writing) shall be entitled, with the consent or at the direction of the Required Lenders, for the purpose of bidding and making settlement or payment of the purchase price for all or any portion of the Collateral sold at any such sale, to use and apply any of the Obligations as a credit on account of the purchase price for any Collateral payable by the Administrative Agent at such sale.
Appears in 7 contracts
Sources: Credit Agreement (Clarivate PLC), Credit Agreement (CLARIVATE PLC), Incremental Facility Amendment (CLARIVATE PLC)
Collateral Agent. The Administrative Agent shall also act (a) Pursuant to that certain Co-Origination Agreement dated January 28, 2008 by and among, inter alia, JPM and the other Initial Lenders, German American Capital Corporation or their predecessors (as amended from time to time, the “Co-Origination Agreement”), JPM and the other parties thereto agreed amongst themselves to extend the Original Loan to Borrower and accordingly, JPM, on behalf of itself and the Lenders or their predecessors party to the Co-Origination Agreement, entered into the Original Loan Agreement and the various loan documents contemplated thereby and has acted as the “collateral agent” under the Loan Documents, and each secured party of the Lenders (including in its capacities as a potential Qualified Counterparty and a potential Cash Management Provider) and the Issuing Lenders hereby irrevocably appoints and authorizes the Administrative Agent to act as the agent of such Lender and the Issuing Lenders (with the full power to appoint and to substitute and to delegate) on its behalf, or in its own name as joint and several creditor or creditor of a parallel debt (as the case may be) record for purposes of acquiringthe grants of security and collateral contained in the various Loan Documents.
(b) Each Lender hereby irrevocably (i) designates and appoints Bank of America, holding and enforcing any and all Liens on Collateral granted by any of the Loan Parties to secure any of the Obligations, together with such powers and discretion N.A. as are reasonably incidental thereto. In this connection, the Administrative Agent, as “collateral agent” and any co-agents, sub-agents and attorneys-in-fact appointed by the Administrative Agent pursuant to Section 10.5 for purposes of holding or enforcing any Lien on the Collateral (or any portion thereof) granted under the Security Documents, or for exercising any rights and remedies thereunder at the direction of the Administrative Agent, shall be entitled to the benefits of all provisions of this Section 10 and Section 11, as though such co-agents, sub-agents and attorneys-in-fact were the “collateral agent” under the Loan Documents as if set forth in full herein with respect thereto. Without limiting the generality of the foregoing, the Lenders hereby expressly authorize the Administrative Agent on its behalf and/or in its own name (including under any parallel debt) to execute any and all documents (including releases) with respect to the agreements and other documents listed on Schedule XXXIII (collectively, the “Collateral Loan Documents”), to act as secured party or other applicable named party (including, without limitation, as named insured and the rights loss payee) on behalf of the Secured Parties with respect theretoLenders, (ii) names the Collateral Agent as contemplated by a replacement secured party of record, and (iii) authorizes the Collateral Agent, in accordance with such capacity, to take such action on its behalf under the provisions of this Agreement and the Security other Loan Documents and acknowledge to exercise such powers and agree perform such duties (A) as are expressly delegated to the Collateral Agent by the terms of this Agreement and the other Loan Documents and (B) as are necessary to comply with any direction given to the Collateral Agent by the Servicer, together with such other powers as are reasonably incidental thereto, with respect to the Collateral Loan Documents. Collateral Agent hereby (1) accepts such designation and appointment, (2) agrees to act as a replacement secured party of record, (3) agrees to reasonably cooperate with the Servicer in the performance of its obligations and in acting upon the direction of the Servicer, and (4) agrees to take such actions on behalf of Lender and exercise such powers and perform such duties (i) as are expressly delegated to it by the terms of this Agreement and the other Loan Documents and (ii) as are necessary or advisable to comply with any direction given to the Collateral Agent by the Servicer, together with such other powers as are reasonably incidental thereto, with respect to the Collateral Loan Documents. Notwithstanding any provision to the contrary elsewhere in this Agreement, the Collateral Agent shall not have any duties or responsibilities except those expressly set forth herein or in the Collateral Loan Documents, or any fiduciary relationship with any Lender, and no implied covenants, functions, responsibilities, duties, obligations or liabilities shall be read into this Agreement or any other Loan Document or otherwise exist against the Collateral Agent. Collateral Agent may execute any of its duties under this Agreement and the other Loan Documents by or through agents or attorneys-in-fact and shall be entitled to advice of counsel concerning all matters pertaining to such duties. Collateral Agent shall not be responsible for the negligence or misconduct of any agents or attorneys-in-fact selected by it with reasonable care. Neither Collateral Agent nor any of its officers, directors, employees, agents or attorneys-in-fact shall be (a) liable for any action lawfully taken or omitted to be taken by it or such person under or in connection with this Agreement or any other Loan Document (except for its or such person’s own gross negligence or willful misconduct) or (b) responsible in any manner to any Lender for any recitals, statements, representations or warranties made by any Borrower herein or in any report, statement or other document referred to or provided for in, or received by such Collateral Agent under or in connection with, this Agreement or any other Loan Document or for the value, validity, effectiveness, genuineness, enforceability or sufficiency of this Agreement or any other Loan Document or for any failure of any Borrower to perform its obligations hereunder or thereunder. Collateral Agent shall be under no obligation to any Lender to ascertain or to inquire as to the observance or performance of any of the agreements contained in, or conditions of, this Agreement or any other Loan Document, or to inspect the properties, books or records of Borrower. Collateral Agent shall not be deemed to have knowledge or notice of the occurrence of any Default or Event of Default hereunder unless it shall have received notice from a Lender, Servicer or the Borrower referring to this Agreement, describing such Default or Event of Default and stating that such notice is a “notice of default.”
(c) Collateral Agent agrees that it will confirm receipt (in writing to each Lender) of any Collateral Loan Document that it receives (including following the recordation of any such action by any Collateral Loan Documents, from time to time) within ten (10) Business Days of the receipt of each such Collateral Loan Document (in each case). Collateral Agent shall bind (or shall cause its designee to) review the LendersLoan Documents constituting the custodial file (as set forth on the closing checklist of Loan Documents to be delivered in connection with the origination of the amended and restated Loan on the Closing Date) and, within ten (10) Business Days of receipt thereof, deliver to the Lender a trust receipt, in compliance with that certain custodial arrangement between the Lender and Bank of America, N.A., as custodian, evidencing receipt of such Loan Documents, together with a schedule of exceptions to such receipt. The Collateral Agent (or its designee) shall continue to act as the custodian of the Loan Documents on behalf of Lender and shall comply with the terms and provisions of any existing custodial arrangement with the Lender with respect thereto.
(d) Collateral Agent, in its capacity as such, is a “representative” of each Lender within the meaning of the term “secured party” as defined in the New York Uniform Commercial Code. Each Lender authorizes the Collateral Agent to enter into each of the Collateral Loan Documents to which it is a party and to take all action contemplated in this Agreement and in such documents to be taken by the Collateral Agent. Each Lender agrees that it no Lender (other than the Collateral Agent, in its capacity as the Collateral Agent) shall not take or institute any actions or proceedings, judicial or otherwise, for any have the right or remedy with respect individually to seek to realize upon the security granted by any Collateral against any Borrower or any other Loan Party or any other obligor under any of the Loan DocumentsDocument, Specified Swap Agreements or any Specified Cash Management Agreement (including, in each case, the exercise of any right of setoff, it being understood and agreed that such rights on account of any banker’s lien or similar claim or other rights of self-help), or institute any actions or proceedings, or otherwise commence any remedial procedures, with respect to any Collateral of any Borrower or any other Loan Party, without the prior written consent of the Administrative Agent. In the event of a foreclosure and remedies may be exercised solely by the Administrative Collateral Agent on any (for the benefit of the Collateral pursuant to a public or private sale or a sale of any of the Collateral pursuant to Section 363 of the Bankruptcy Code (or an equivalent process in any foreign jurisdiction), the Administrative Agent or any Lender may be the purchaser of any or all of such Collateral at any such sale and the Administrative Agent, as agent for and representative of the Lenders (but not any Lender or Lenders in its or their respective individual capacities unless the Required Lenders shall otherwise agree in writingeach Lender) shall be entitled, with the consent or at the direction of the Required LendersServicer in accordance with the Collateral Loan Documents, any applicable Co-Lender Agreement and any applicable intercreditor or servicing agreements. In the event that any collateral is hereafter pledged by any person as collateral security for the purpose Debt, the Collateral Agent is hereby authorized, and hereby granted a power of bidding attorney, to execute and making settlement deliver on behalf of each Lender any Loan Documents necessary or payment of the purchase price for all or any portion appropriate to grant and perfect a first priority lien on such collateral in favor of the Collateral sold Agent for the benefit of Lender. Each Lender hereby authorizes the Collateral Agent to release any lien granted to or held by the Collateral Agent upon any collateral as permitted by, but only in accordance with, the direction of the Servicer and the express terms of this Agreement, the applicable Loan Document and the applicable provisions of the Co-Lender Agreement, if any. Upon request by the Collateral Agent at any such time, and in each case subject to the requirements and approvals required in the Co-Lender Agreement, if any, each Lender shall confirm in writing the Collateral Agent’s authority to release particular types or items of collateral pursuant to the provisions of this Agreement. Upon any sale, lease, transfer or other disposition of assets constituting collateral which is permitted pursuant to use the terms of any Loan Document or consented to in writing by the Lenders in accordance with the provisions of the Co-Lender Agreement, as applicable, and apply upon at least five (5) Business Days’ prior written request by the Borrower to the Collateral Agent, the Collateral Agent shall (and is hereby irrevocably authorized by each Lender to) execute such documents as may be necessary to evidence the release of the liens granted to the Collateral Agent for the benefit of Lender herein or pursuant hereto with respect to the collateral that was so sold or transferred; provided, however, that (i) the Collateral Agent shall not be required to execute any such document on terms which, in the Collateral Agent’s reasonable opinion, would expose the Collateral Agent to liability or create any obligation or entail any consequence other than the release of such liens without recourse or warranty, and (ii) such release shall not in any manner discharge, affect or impair the Debt or the secured obligations or any liens upon (or obligations of any Borrower in respect of) all interests retained by any Borrower, including (without limitation) the proceeds of the sale, all of which shall continue to constitute part of the collateral. Notwithstanding anything to the contrary contained herein or in any other Loan Document, the failure of Collateral Agent to take any action hereunder or under any other Loan Document shall not (a) be deemed to be a waiver of any term or condition of this Agreement or any of the Obligations as a credit on account other Loan Documents, or (b) adversely affect any rights of Lender hereunder or under any other Loan Document.
(e) The Collateral Agent (i) may resign at any time upon notice to each Lender, and (ii) may be removed at any time upon the decision of Lender made in accordance with the applicable provisions of the purchase price Co-Lender Agreement, if any. If the Collateral Agent shall resign or be removed, Lender shall have the right to select a replacement collateral agent in accordance with the Co-Lender Agreement, if any. Upon the replacement of the Collateral Agent, the Collateral Agent shall assign all of the liens upon and security interests in all collateral under the Collateral Loan Documents, and all right, title and interest of the Collateral Agent under all the Collateral Loan Documents, to the replacement Collateral Agent, without recourse to the Collateral Agent or any Lender and at the expense of Borrower. No resignation or removal of the Collateral Agent shall become effective until a replacement Collateral Agent shall have been selected as provided in this Agreement and the Co-Lender Agreement, if any, and shall have assumed in writing the obligations of the Collateral Agent under this Agreement and under the Collateral Loan Documents. In the event that a replacement Collateral Agent shall not have been selected as provided in this Agreement or shall not have assumed such obligations within ninety (90) days after the resignation or removal of the Collateral Agent, then the Collateral Agent may apply to a court of competent jurisdiction for the appointment of a replacement Collateral Agent. Lender shall notify Borrower in writing of any change to the identity of the Collateral Agent that may be appointed by Lender pursuant to the terms of the Co-Lender Agreement, if any.
(f) The parties hereto acknowledge that in the event that Bank of America, N.A. is replaced as Collateral Agent with respect to the Mortgage Loan but remains as Collateral Agent with respect to the Loan, Borrower shall be responsible for the annual fee payable by to the Administrative Collateral Agent at in the amount and pursuant to the terms set forth in the Mortgage Loan Agreement. The payment of such salefee shall not be duplicative of any such fee under any Other Mezzanine Loan (i.e. such fee is not payable under more than one of the Loan or any Other Mezzanine Loan).
Appears in 5 contracts
Sources: Second Mezzanine Loan Agreement (Harrahs Entertainment Inc), Mezzanine Loan Agreement (Harrahs Entertainment Inc), Mezzanine Loan Agreement (Harrahs Entertainment Inc)
Collateral Agent. The Administrative Agent shall also act as the “collateral agent” (and to the extent required for purposes of holding any Ship Mortgage or any other Security Document, as the “collateral trustee”) under the Loan Documents, and each of the Lenders (including in its capacities as a potential Qualified Counterparty and a potential Cash Management Provider) and the Issuing Lenders hereby irrevocably appoints and authorizes the Administrative Agent to act as the agent of such Lender and the Issuing Lenders (with the full power to appoint and to substitute and to delegate) on its behalf, or in its own name as joint and several creditor or creditor of a parallel debt (as the case may be) for purposes of acquiring, holding and enforcing any and all Liens on Collateral granted by any of the Loan Parties to secure any of the Obligations, together with such powers and discretion as are reasonably incidental thereto. In this connection, the Administrative Agent, as “collateral agent” (and to the extent required for purposes of holding any Ship Mortgage or any other Security Document, as the “collateral trustee”) and any co-agents, sub-agents and attorneys-in-fact appointed by the Administrative Agent pursuant to Section 10.5 9.5 for purposes of holding or enforcing any Lien on the Collateral (or any portion thereof) granted under the Security Documents, or for exercising any rights and remedies thereunder at the direction of the Administrative Agent, shall be entitled to the benefits of all provisions of this Section 10 9 and Section 1110, as though such co-agents, sub-agents and attorneys-in-fact were the “collateral agent” (or for purposes of holding any Ship Mortgage or any other Security Document “collateral trustee”) under the Loan Documents as if set forth in full herein with respect thereto. Without limiting the generality of the foregoing, the Lenders hereby expressly authorize the Administrative Agent on its behalf and/or in its own name (including under any parallel debt) to execute any and all documents (including releases) with respect to the Collateral and the rights of the Secured Parties with respect thereto, as contemplated by and in accordance with the provisions of this Agreement and the Security Documents and acknowledge and agree that any such action by any the Administrative Agent shall bind the Lenders. Each Lender agrees that it shall not take or institute any actions or proceedings, judicial or otherwise, for any right or remedy with respect to any Collateral against any Borrower the Company or any other Loan Party or any other obligor under any of the Loan Documents, Specified Swap Agreements or any Specified Cash Management Agreement Documents (including, in each case, the exercise of any right of setoff, rights on account of any banker’s lien or similar claim or other rights of self-help), or institute any actions or proceedings, or otherwise commence any remedial procedures, with respect to any Collateral of any Borrower the Company or any other Loan Party, without the prior written consent of the Administrative Agent. In the event of a foreclosure by the Administrative Agent on any of the Collateral pursuant to a public or private sale or a sale of any of the Collateral pursuant to Section 363 of the Bankruptcy Code (or an equivalent process in any foreign jurisdiction)Code, the Administrative Agent or any Lender may be the purchaser of any or all of such Collateral at any such sale and the Administrative Agent, as agent for and representative of the Lenders (but not any Lender or Lenders in its or their respective individual capacities unless the Required Lenders shall otherwise agree in writing) shall be entitled, with the consent or at the direction of the Required Lenders, for the purpose of bidding and making settlement or payment of the purchase price for all or any portion of the Collateral sold at any such sale, to use and apply any of the Obligations as a credit on account of the purchase price for any Collateral payable by the Administrative Agent at such sale.
Appears in 5 contracts
Sources: Credit Agreement (Navios South American Logistics Inc.), Credit Agreement (Navios Maritime Partners L.P.), Credit Agreement (Navios Maritime Midstream Partners LP)
Collateral Agent. (a) The provisions of Section 9 that apply to the Administrative Agent shall also act apply, mutatis mutandis, to the Collateral Agent and to any successor Collateral Agent, as applicable; provided that, notwithstanding anything herein to the “collateral agent” under contrary, the Collateral Agent shall have the right to appoint a successor to itself as Collateral Agent and without the consent of any Lender.
(b) The Collateral Agent is authorized on behalf of all the Lenders, without the necessity of any notice to or further consent from the Lenders, from time to time to take any action with respect to any Collateral or the Loan Documents which may be necessary to perfect and maintain a perfected security interest in and Liens upon the Collateral granted pursuant to the Loan Documents, . Except for the safe custody of any Collateral in its possession and each the accounting for moneys actually received by it hereunder or under any of the Lenders other Loan Documents, the Collateral Agent shall not have any duty as to any Collateral, as to ascertaining or taking action with respect to calls, conversions, exchanges, maturities, trades or other matters relative to any Collateral, whether or not the Collateral Agent is deemed to have knowledge of such matters, or as to taking of any necessary steps to preserve rights against any parties or any other rights pertaining to any Collateral (including the filing of UCC Financing and Continuation Statements). The Collateral Agent shall be deemed to have exercised appropriate and due care in the custody and preservation of any Collateral in its capacities as a potential Qualified Counterparty and a potential Cash Management Providerpossession if such Collateral is accorded treatment substantially equal to that which other collateral agents accord similar property.
(c) and the Issuing Lenders hereby irrevocably appoints and authorizes Each of the Administrative Agent to act as the agent of such Lender and the Issuing Lenders (with the full power to appoint and to substitute and to delegate) on its behalfCollateral Agent, or in its own name capacity as joint and several creditor or creditor of a parallel debt (as the case may be) for purposes of acquiring, holding and enforcing any and all Liens on Collateral granted by any of the Loan Parties to secure any of the Obligations, together with such powers and discretion as are reasonably incidental thereto. In this connection, the Administrative Agent, as “collateral agent” and any co-agents, sub-agents and attorneys-in-fact appointed by the Administrative Agent pursuant to Section 10.5 for purposes of holding or enforcing any Lien on the Collateral (or any portion thereof) granted an agent under the Security Documents, or for exercising any rights and remedies thereunder at the direction of the Administrative AgentIntercreditor Agreement, shall be entitled to the all right, privileges, protections, immunities, benefits of all provisions of this Section 10 and Section 11, as though such co-agents, sub-agents and attorneys-in-fact were the “collateral agent” under the Loan Documents as if set forth in full herein with respect thereto. Without limiting the generality of the foregoing, the Lenders hereby expressly authorize indemnities provided to the Administrative Agent on its behalf and/or in its own name (including under any parallel debt) to execute any and all documents (including releases) with respect to the Collateral and the rights of the Secured Parties with respect thereto, as contemplated by and in accordance with the provisions of this Agreement and the Security Documents and acknowledge and agree that any such action by any Agent shall bind the Lenders. Each Lender agrees that it shall not take or institute any actions or proceedings, judicial or otherwise, for any right or remedy with respect to any Collateral against any Borrower or any other Loan Party or any other obligor under any of the Loan Documents, Specified Swap Agreements or any Specified Cash Management Agreement (including, in each case, the exercise of any right of setoff, rights on account of any banker’s lien or similar claim or other rights of self-help), or institute any actions or proceedings, or otherwise commence any remedial procedures, with respect to any Collateral of any Borrower or any other Loan Party, without the prior written consent of the Administrative Agent. In the event of a foreclosure by the Administrative Agent on any of the Collateral pursuant to a public or private sale or a sale of any of the Collateral pursuant to Section 363 of the Bankruptcy Code (or an equivalent process in any foreign jurisdiction), the Administrative Agent or any Lender may be the purchaser of any or all of such Collateral at any such sale and the Administrative Agent, as agent for and representative of the Lenders (but not any Lender or Lenders in its or their respective individual capacities unless the Required Lenders shall otherwise agree in writing) shall be entitled, with the consent or at the direction of the Required Lenders, for the purpose of bidding and making settlement or payment of the purchase price for all or any portion of the Collateral sold at any such sale, to use and apply any of the Obligations as a credit on account of the purchase price for any Collateral payable by the Administrative Agent at such sale9.
Appears in 5 contracts
Sources: Credit Agreement (Lear Corp), Credit Agreement (Lear Corp), Credit Agreement (Lear Corp)
Collateral Agent. (a) The Administrative Agent shall also act as the “collateral agent” under the Loan Documents, Trustee and each of the Lenders (including in its capacities Holders by acceptance of the Notes hereby authorize the appointment of the Collateral Agent as a potential Qualified Counterparty and a potential Cash Management Provider) the Trustee’s and the Issuing Lenders Holders’ collateral agent under the Collateral Agreements, and the Trustee and each of the Holders by acceptance of the Notes hereby irrevocably appoints and authorizes authorize the Administrative Collateral Agent to act take such action on their behalf under the provisions of the Collateral Agreements, including the Intercreditor Agreements, and to exercise such powers and perform such duties as are expressly delegated to the agent Collateral Agent by the terms of such Lender this Indenture, the Intercreditor Agreements and the Issuing Lenders other Collateral Agreements, together with such powers as are reasonably incidental thereto.
(b) The Collateral Agent may resign and its successor appointed in accordance with the full power terms of the Intercreditor Agreement.
(c) The Trustee is authorized and directed by the Holders and the Holders by acquiring the Notes are deemed to appoint have authorized the Trustee, as applicable, to (1) enter into the Intercreditor Agreement, (2) bind the Holders on the terms as set forth in the Intercreditor Agreement, (3) perform and observe its obligations and exercise its rights and powers under the Intercreditor Agreement, including entering into amendments permitted by the terms of this Indenture, the Intercreditor Agreement or the other Collateral Agreements and (4) cause the Collateral Agent to substitute enter into and perform its obligations under the Collateral Agreements. The Collateral Agent is authorized and directed by the Trustee and the Holders and the Holders by acquiring the Notes are deemed to delegatehave authorized the Collateral Agent, to (i) enter into the other Collateral Agreements to which it is a party, (ii) bind the Trustee and the Holders on the terms as set forth in such Collateral Agreements and (iii) perform and observe its behalfobligations and exercise its rights and powers under such Collateral Agreements, including entering into amendments permitted by the terms of this Indenture or the Collateral Agreements. Each Holder, by its acceptance of a Note, is deemed to have consented and agreed to the terms of the Intercreditor Agreement and each other Collateral Agreement, as originally in effect and as amended, restated, replaced, supplemented or modified from time to time in accordance with its terms or the terms of this Indenture. Each of the Trustee and the Holders by acquiring the Notes is hereby deemed to (A) agree that it will be bound by and will take no actions contrary to the provisions of the Intercreditor Agreement and the Collateral Trust Agreement and (B) acknowledge that it has received copies of the Intercreditor Agreement and the Collateral Trust Agreement and that the exercise of certain of the Trustee’s rights and remedies hereunder may be subject to, and restricted by, the provisions of the Intercreditor Agreement and the Collateral Trust Agreement. NOTWITHSTANDING ANY OTHER PROVISION CONTAINED IN THIS INDENTURE, IN THE EVENT OF ANY CONFLICT OR INCONSISTENCY BETWEEN THE PROVISIONS OF THIS INDENTURE AND THE INTERCREDITOR AGREEMENT OR THE COLLATERAL TRUST AGREEMENT, THE INTERCREDITOR AGREEMENT OR THE COLLATERAL TRUST AGREEMENT, AS APPLICABLE, SHALL CONTROL.
(d) The Collateral Agent shall have no obligation whatsoever to the Trustee or any of the Holders to assure that the Collateral exists or is owned by the Company or any of the Collateral Grantors or is cared for, protected or insured or has been encumbered, or in its own name as joint that the Collateral Agent’s Liens have been properly or sufficiently or lawfully created, perfected, protected, maintained or enforced or are entitled to any particular priority, or to determine whether all of the applicable Collateral Grantor’s property constituting Collateral intended to be subject to the Lien and several creditor security interest of the Collateral Agreements has been properly and completely listed or creditor of a parallel debt (delivered, as the case may be) for purposes of acquiring, holding and enforcing any and all Liens on Collateral granted by any of the Loan Parties to secure any of the Obligations, together with such powers and discretion as are reasonably incidental thereto. In this connection, the Administrative Agent, as “collateral agent” and any co-agents, sub-agents and attorneys-in-fact appointed by the Administrative Agent pursuant to Section 10.5 for purposes of holding or enforcing any Lien on the Collateral (or any portion thereof) granted under the Security Documents, or for exercising any the genuineness, validity, marketability or sufficiency thereof or title thereto.
(e) The grant of permissive rights and remedies thereunder at the direction of the Administrative Agent, shall be entitled to the benefits of all provisions of this Section 10 and Section 11, as though such co-agents, sub-agents and attorneys-in-fact were the “collateral agent” under the Loan Documents as if set forth in full herein with respect thereto. Without limiting the generality of the foregoing, the Lenders hereby expressly authorize the Administrative Agent on its behalf and/or in its own name (including under any parallel debt) to execute any and all documents (including releases) with respect or powers to the Collateral Agent shall not be construed to impose duties to act. For the avoidance of doubt, nothing herein shall require the Collateral Agent to file financing statements or continuation statements, or be responsible for maintaining the security interests purported to be created by the Collateral Agreements and the rights such responsibility shall be solely that of the Secured Parties with respect thereto, as contemplated by and in accordance with the provisions of this Agreement and the Security Documents and acknowledge and agree that any such action by any Agent shall bind the Lenders. Each Lender agrees that it shall not take or institute any actions or proceedings, judicial or otherwise, for any right or remedy with respect to any Collateral against any Borrower or any other Loan Party or any other obligor under any of the Loan Documents, Specified Swap Agreements or any Specified Cash Management Agreement (including, in each case, the exercise of any right of setoff, rights on account of any banker’s lien or similar claim or other rights of self-help), or institute any actions or proceedings, or otherwise commence any remedial procedures, with respect to any Collateral of any Borrower or any other Loan Party, without the prior written consent of the Administrative Agent. In the event of a foreclosure by the Administrative Agent on any of the Collateral pursuant to a public or private sale or a sale of any of the Collateral pursuant to Section 363 of the Bankruptcy Code (or an equivalent process in any foreign jurisdiction), the Administrative Agent or any Lender may be the purchaser of any or all of such Collateral at any such sale and the Administrative Agent, as agent for and representative of the Lenders (but not any Lender or Lenders in its or their respective individual capacities unless the Required Lenders shall otherwise agree in writing) shall be entitled, with the consent or at the direction of the Required Lenders, for the purpose of bidding and making settlement or payment of the purchase price for all or any portion of the Collateral sold at any such sale, to use and apply any of the Obligations as a credit on account of the purchase price for any Collateral payable by the Administrative Agent at such saleCompany.
Appears in 4 contracts
Sources: Indenture (Comstock Oil & Gas, LP), Indenture (Comstock Oil & Gas, LP), Indenture (Comstock Oil & Gas, LP)
Collateral Agent. The Administrative Collateral Agent shall also act as the “collateral agent” under the Loan Documents, and each of the Lenders (including in its capacities as a potential Qualified Counterparty and a potential Cash Management Provider) and the Issuing Lenders hereby irrevocably appoints and authorizes the Administrative Agent has been appointed to act as Collateral Agent hereunder by Lenders and, by their acceptance of the agent benefits hereof, the other Secured Parties. The Collateral Agent shall be obligated, and shall have the right hereunder, to make demands, to give notices, to exercise or refrain from exercising any rights, and to take or refrain from taking any action (including, without limitation, the release or substitution of such Lender Collateral), solely in accordance with this Agreement and the Issuing Lenders (with Credit Agreement; provided, the Collateral Agent shall, after payment in full power to appoint of all Obligations under the Credit Agreement and to substitute and to delegate) on its behalfthe other Credit Documents, exercise, or in its own name as joint and several creditor or creditor of a parallel debt (as the case may be) refrain from exercising, any remedies provided for purposes of acquiring, holding and enforcing any and all Liens on Collateral granted by any of the Loan Parties to secure any of the Obligations, together with such powers and discretion as are reasonably incidental thereto. In this connection, the Administrative Agent, as “collateral agent” and any co-agents, sub-agents and attorneys-in-fact appointed by the Administrative Agent pursuant to Section 10.5 for purposes of holding or enforcing any Lien on the Collateral (or any portion thereof) granted under the Security Documents, or for exercising any rights and remedies thereunder at the direction of the Administrative Agent, shall be entitled to the benefits of all provisions of this Section 10 and Section 11, as though such co-agents, sub-agents and attorneys-in-fact were the “collateral agent” under the Loan Documents as if set forth in full herein with respect thereto. Without limiting the generality of the foregoing, the Lenders hereby expressly authorize the Administrative Agent on its behalf and/or in its own name (including under any parallel debt) to execute any and all documents (including releases) with respect to the Collateral and the rights of the Secured Parties with respect thereto, as contemplated by and in accordance with the provisions of this Agreement and the Security Documents and acknowledge and agree that any such action by any Agent shall bind the Lenders. Each Lender agrees that it shall not take or institute any actions or proceedings, judicial or otherwise, for any right or remedy with respect to any Collateral against any Borrower or any other Loan Party or any other obligor under any instructions of the Loan Documents, Specified Swap holders (the “Majority Holders”) of a majority of the aggregate “settlement amount” as defined in the Hedge Agreements or any Specified Cash Management Agreement (including, in each case, the exercise of any right of setoff, rights on account of any banker’s lien or similar claim or other rights of self-help), or institute any actions or proceedings, or otherwise commence any remedial proceduresor, with respect to any Hedge Agreement that has been terminated in accordance with its terms, the amount then due and payable (exclusive of expenses and similar payments but including any early termination payments then due) under such Hedge Agreement) under all Hedge Agreements. For purposes of the foregoing sentence, settlement amount for any Hedge that has not been terminated shall be the settlement amount as of the last Business Day of the month preceding any date of determination and shall be calculated by the appropriate swap counterparties and reported to the Collateral Agent upon request; provided any Hedge Agreement with a settlement amount that is a negative number shall be disregarded for purposes of any Borrower or any other Loan determining the Majority Holders. In furtherance of the foregoing provisions of this Section, each Secured Party, without the prior written consent by its acceptance of the Administrative Agent. In the event of a foreclosure by the Administrative Agent on benefits hereof, agrees that it shall have no right individually to realize upon any of the Collateral pursuant hereunder, it being understood and agreed by such Secured Party that all rights and remedies hereunder may be exercised solely by the Collateral Agent for the benefit of Secured Parties in accordance with the terms of this Section. The provisions of the Credit Agreement relating to a public the Collateral Agent including, without limitation, the provisions relating to resignation or private sale or a sale of any removal of the Collateral pursuant to Section 363 of the Bankruptcy Code (or an equivalent process in any foreign jurisdiction), the Administrative Agent or any Lender may be the purchaser of any or all of such Collateral at any such sale and the Administrative Agent, as agent for powers and representative of the Lenders (but not any Lender or Lenders in its or their respective individual capacities unless the Required Lenders shall otherwise agree in writing) shall be entitled, with the consent or at the direction of the Required Lenders, for the purpose of bidding duties and making settlement or payment of the purchase price for all or any portion immunities of the Collateral sold at Agent are incorporated herein by this reference and shall survive any such sale, to use and apply any termination of the Obligations as a credit on account of the purchase price for any Collateral payable by the Administrative Agent at such saleCredit Agreement.
Appears in 4 contracts
Sources: Credit and Guaranty Agreement (TerraForm Power, Inc.), Pledge and Security Agreement (Valeant Pharmaceuticals International), Pledge and Security Agreement (Hologic Inc)
Collateral Agent. The Administrative Collateral Agent has been appointed to act as Collateral Agent hereunder by Lenders and, by their acceptance of the benefits hereof, the other Secured Parties. The Collateral Agent shall also act as be obligated, and shall have the “collateral agent” right hereunder, to make demands, to give notices, to exercise or refrain from exercising any rights, and to take or refrain from taking any action (including, without limitation, the release or substitution of Collateral), solely in accordance with this Agreement and the Credit Agreement; provided, the Collateral Agent shall, after payment in full of all Obligations under the Credit Agreement and the other Loan Documents, and each of the Lenders (including in its capacities as a potential Qualified Counterparty and a potential Cash Management Provider) and the Issuing Lenders hereby irrevocably appoints and authorizes the Administrative Agent to act as the agent of such Lender and the Issuing Lenders (with the full power to appoint and to substitute and to delegate) on its behalfexercise, or in its own name as joint and several creditor or creditor of a parallel debt (as the case may be) refrain from exercising, any remedies provided for purposes of acquiring, holding and enforcing any and all Liens on Collateral granted by any of the Loan Parties to secure any of the Obligations, together with such powers and discretion as are reasonably incidental thereto. In this connection, the Administrative Agent, as “collateral agent” and any co-agents, sub-agents and attorneys-in-fact appointed by the Administrative Agent pursuant to Section 10.5 for purposes of holding or enforcing any Lien on the Collateral (or any portion thereof) granted under the Security Documents, or for exercising any rights and remedies thereunder at the direction of the Administrative Agent, shall be entitled to the benefits of all provisions of this Section 10 and Section 11, as though such co-agents, sub-agents and attorneys-in-fact were the “collateral agent” under the Loan Documents as if set forth in full herein with respect thereto. Without limiting the generality of the foregoing, the Lenders hereby expressly authorize the Administrative Agent on its behalf and/or in its own name (including under any parallel debt) to execute any and all documents (including releases) with respect to the Collateral and the rights of the Secured Parties with respect thereto, as contemplated by and in accordance with the provisions of this Agreement and the Security Documents and acknowledge and agree that any such action by any Agent shall bind the Lenders. Each Lender agrees that it shall not take or institute any actions or proceedings, judicial or otherwise, for any right or remedy with respect to any Collateral against any Borrower or any other Loan Party or any other obligor under any instructions of the Loan Documents, Specified Swap holders (the “Majority Holders”) of a majority of the aggregate “settlement amount” as defined in the Hedge Agreements or any Specified Cash Management Agreement (including, in each case, the exercise of any right of setoff, rights on account of any banker’s lien or similar claim or other rights of self-help), or institute any actions or proceedings, or otherwise commence any remedial proceduresor, with respect to any Hedge Agreement that has been terminated in accordance with its terms, the amount then due and payable (exclusive of expenses and similar payments but including any early termination payments then due) under such Hedge Agreement) under all Hedge Agreements. For purposes of the foregoing sentence, settlement amount for any Hedge that has not been terminated shall be the settlement amount as of the last Business Day of the month preceding any date of determination and shall be calculated by the appropriate swap counterparties and reported to the Collateral Agent upon request; provided any Hedge Agreement with a settlement amount that is a negative number shall be disregarded for purposes of any Borrower or any other Loan determining the Majority Holders. In furtherance of the foregoing provisions of this Section, each Secured Party, without the prior written consent by its acceptance of the Administrative Agent. In the event of a foreclosure by the Administrative Agent on benefits hereof, agrees that it shall have no right individually to realize upon any of the Collateral pursuant hereunder, it being understood and agreed by such Secured Party that all rights and remedies hereunder may be exercised solely by the Collateral Agent for the benefit of Secured Parties in accordance with the terms of this Section. The provisions of the Credit Agreement relating to a public the Collateral Agent including, without limitation, the provisions relating to resignation or private sale or a sale of any removal of the Collateral pursuant to Section 363 of the Bankruptcy Code (or an equivalent process in any foreign jurisdiction), the Administrative Agent or any Lender may be the purchaser of any or all of such Collateral at any such sale and the Administrative Agent, as agent for powers and representative of the Lenders (but not any Lender or Lenders in its or their respective individual capacities unless the Required Lenders shall otherwise agree in writing) shall be entitled, with the consent or at the direction of the Required Lenders, for the purpose of bidding duties and making settlement or payment of the purchase price for all or any portion immunities of the Collateral sold at Agent are incorporated herein by this reference and shall survive any such sale, to use and apply any termination of the Obligations as a credit on account of the purchase price for any Collateral payable by the Administrative Agent at such saleCredit Agreement.
Appears in 4 contracts
Sources: Pledge Agreement (Grifols SA), Pledge and Security Agreement (Grifols SA), Credit and Guaranty Agreement (Grifols Germany GmbH)
Collateral Agent. The Administrative Agent shall also act as the “collateral agent” under the Loan Documents(a) Each Secured Party irrevocably designates, and each of the Lenders (including in its capacities as a potential Qualified Counterparty and a potential Cash Management Provider) and the Issuing Lenders hereby irrevocably appoints and authorizes the Administrative Agent ▇▇▇▇▇▇▇▇▇▇ to act as Agent ▇▇▇▇▇▇▇▇▇, with such powers as are specifically delegated to Agent by the agent terms of such Lender and the Issuing Lenders (with the full power to appoint and to substitute and to delegate) on its behalf, or in its own name as joint and several creditor or creditor of a parallel debt (as the case may be) for purposes of acquiring, holding and enforcing any and all Liens on Collateral granted by any of the Loan Parties to secure any of the Obligationsthis Agreement, together with such other powers and discretion as are reasonably incidental theretothereto and Agent ▇▇▇▇▇▇ accepts such appointment. In this connectionAgent shall be obligated, and has the Administrative Agentright hereunder, as “collateral agent” and any co-agentsto make demands, sub-agents and attorneys-in-fact appointed by the Administrative Agent pursuant to Section 10.5 for purposes of holding give notices, to exercise or enforcing any Lien on the Collateral (or any portion thereof) granted under the Security Documents, or for refrain from exercising any rights rights, and remedies thereunder at the direction of the Administrative Agent, shall be entitled to the benefits of all provisions of this Section 10 and Section 11, as though such co-agents, sub-agents and attorneys-in-fact were the “collateral agent” under the Loan Documents as if set forth in full herein with respect thereto. Without limiting the generality of the foregoing, the Lenders hereby expressly authorize the Administrative Agent on its behalf and/or in its own name take or refrain from taking any action (including under any parallel debt) to execute any and all documents (including releases) with respect to the Collateral and the rights release or substitution of the Secured Parties with respect thereto, as contemplated by and in accordance with the provisions of this Agreement and the Security Documents and acknowledge and agree that any such action by any Agent shall bind the Lenders. Each Lender agrees that it shall not take or institute any actions or proceedings, judicial or otherwise, for any right or remedy with respect to any Collateral against any Borrower or any other Loan Party or any other obligor under any of the Loan Documents, Specified Swap Agreements or any Specified Cash Management Agreement (including, in each case, the exercise of any right of setoff, rights on account of any banker’s lien or similar claim or other rights of self-helpCollateral), or institute any actions or proceedings, or otherwise commence any remedial procedures, with respect to any Collateral of any Borrower or any other Loan Party, without the prior written consent of the Administrative Agent. In the event of a foreclosure by the Administrative Agent on any of the Collateral pursuant to a public or private sale or a sale of any of the Collateral pursuant to Section 363 of the Bankruptcy Code (or an equivalent process in any foreign jurisdiction), the Administrative Agent or any Lender may be the purchaser of any or all of such Collateral at any such sale and the Administrative Agent, as agent for and representative of the Lenders (but not any Lender or Lenders in its or their respective individual capacities unless the Required Lenders shall otherwise agree in writing) shall be entitled, with the consent or solely at the direction of the Required LendersSecured Parties. In furtherance of the foregoing provisions of this Section 9(a), each Secured Party, by its acceptance of the benefits hereof, agrees that it has no right individually to realize upon any of the Collateral hereunder, it being understood and agreed by such Secured Party that all rights and remedies hereunder may be exercised solely by Agent for the benefit of the Secured Parties in accordance with the terms of this Section 9.
(b) Agent shall not be responsible to the Secured Parties for any action taken or omitted to be taken by it hereunder or under any other document or instrument referred to or provided for herein or in connection herewith, except for its own gross negligence or willful misconduct as determined by a final non-appealable judgment of a court of competent jurisdiction.
(c) Agent shall be entitled to rely upon any certification, notice or other communication (including any thereof by telephone, or email) believed by it to be genuine and correct and to have been signed or sent by or on behalf of the proper Person or Persons, and upon advice and statements of legal counsel, independent accountants and other experts selected by Agent in good faith. As to any matters not expressly provided for by this Agreement, Agent shall in all cases be fully protected in acting, or in refraining from acting, hereunder or thereunder in accordance with instructions given by the Required Secured Parties and any action taken or failure to act pursuant thereto shall be binding on all Secured Parties.
(d) The Secured Parties agree to indemnify Agent (to the extent not reimbursed by the Grantor hereunder and without limiting any obligations of the Grantor hereunder) ratably, in accordance with their pro rata share, for any and all claims of any kind and nature whatsoever that may be imposed on, incurred by or asserted against Agent arising out of or by reason of any investigation in or in any way relating to or arising out of this Agreement or any other documents contemplated by or referred to herein or the purpose transactions contemplated hereby (including the costs and expenses that Agent is obligated to pay hereunder) or the enforcement of bidding and making settlement any of the terms hereof or of any such other documents; provided, that, no Secured Party shall be liable for any of the foregoing to the extent it arises from the gross negligence or willful misconduct of Agent as determined by a final non-appealable judgment of a court of competent jurisdiction. The foregoing indemnity shall survive the payment of the Secured Obligations and the termination or non-renewal of this Agreement; provided, further, that no Secured Party (nor any of its respective subsidiaries or affiliates) shall be liable for any indirect, special, punitive or consequential (including lost profits) damages.
(e) The powers conferred on Agent hereunder are solely to protect Agent’s interest (for the benefit of the Secured Parties) in the Collateral and shall not impose any duty upon it to exercise any such powers without the direction of the Required Secured Parties. Except for the exercise of good faith and of reasonable care in the accounting for monies actually received by Agent (on behalf of and for the benefit of the Secured Parties and Agent) hereunder, Agent shall have no duty as to any Collateral or as to the taking of any necessary steps to preserve rights against prior parties or any other rights pertaining to any Collateral. Agent shall have exercised reasonable care in the custody and preservation of Collateral in its possession if such Collateral is accorded treatment substantially equal to that which Agent accords its own property. Neither 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, Agent may itself perform, or cause performance of, such agreement, and the expenses of Agent incurred in connection therewith shall be payable by the Grantor under Section 12.
(f) The Secured Parties hereby irrevocably authorize Agent, with the consent of the Required Secured Parties, to submit a bid at a public or private sale in connection with the purchase price for of all or any portion of the Collateral sold at any such saleCollateral, to use and apply in which any of the Secured Obligations may be used and applied as a credit on account of the purchase price (a “credit bid”) and purchase at any such sale (either directly or through one or more entities established for such purpose) all or any portion of the Collateral on behalf of and for the benefit of the Secured Parties (but not as agent for any individual Secured Party or Secured Parties, unless the Secured Parties shall otherwise unanimously agree in writing). Each Secured Party agrees that it will not exercise any right that it might otherwise have to credit bid at any sales of all or any portion of the Collateral payable by conducted under the Administrative Agent at provisions of the UCC, or the Bankruptcy Code, foreclosure sales or other similar dispositions of Collateral, unless such saleSecured Party offers each other Secured Party a bona fide opportunity to participate in such foreclosure sale or other similar dispositions of Collateral on a ratable basis and on the same terms as such Secured Party proposing such transaction.
Appears in 4 contracts
Sources: Security Agreement (Scilex Holding Co), Security Agreement (Oramed Pharmaceuticals Inc.), Security Agreement (Oramed Pharmaceuticals Inc.)
Collateral Agent. The Administrative Agent shall also act as the “collateral agent” under the Loan Documents, and each of the Lenders (including in its capacities as a potential Qualified Counterparty and a potential Cash Management Bank Product Provider) and the Issuing Lenders Banks hereby irrevocably appoints and authorizes the Administrative Agent to act as the agent of such Lender and the Issuing Lenders (with the full power to appoint and to substitute and to delegate) on its behalf, or in its own name as joint and several creditor or creditor of a parallel debt (as the case may be) Banks for purposes of acquiring, holding and enforcing any and all Liens on Collateral granted by any of the Loan Parties to secure any of the Finance Obligations, together with such powers and discretion as are reasonably incidental thereto. In this connection, the Administrative Agent, as “collateral agent” and any co-agents, sub-agents and attorneys-in-fact appointed by the Administrative Agent pursuant to Section 10.5 9.5 for purposes of holding or enforcing any Lien on the Collateral (or any portion thereof) granted under the Security Documents, or for exercising any rights and remedies thereunder at the direction of the Administrative Agent, shall be entitled to the benefits of all provisions of this Section 10 9 and Section 1110, as though such co-agents, sub-agents and attorneys-in-fact were the “collateral agent” under the Loan Documents as if set forth in full herein with respect thereto. Without limiting the generality of the foregoing, the Lenders hereby expressly authorize the Administrative Agent on its behalf and/or in its own name (including under any parallel debt) to execute any and all documents (including releases) with respect to the Collateral and the rights of the Secured Parties with respect thereto, as contemplated by and in accordance with the provisions of this Agreement and the Security Documents and acknowledge and agree that any such action by the Administrative Agent or any Agent of its co-agents, sub-agents or attorneys-in-fact shall bind the Lenders. Each Lender agrees that it shall not take or institute any actions or proceedings, judicial or otherwise, for any right or remedy with respect to any Collateral against any Borrower the Borrowers or any other Loan Party or any other obligor under any of the Loan Documents, Specified Swap Agreements or any Specified Cash Management Bank Product Agreement (including, in each case, the exercise of any right of setoff, rights on account of any banker’s lien or similar claim or other rights of self-help), or institute any actions or proceedings, or otherwise commence any remedial procedures, with respect to any Collateral of any Borrower the Borrowers or any other Loan Party, without the prior written consent of the Administrative Agent. In the event of a foreclosure by the Administrative Agent on any of the Collateral pursuant to a public or private sale or a sale of any of the Collateral pursuant to Section 363 of the Bankruptcy Code (or an equivalent process in any foreign jurisdiction)other Debtor Relief Laws, the Administrative Agent or any Lender may be the purchaser of any or all of such Collateral at any such sale and the Administrative Agent, as agent for and representative of the Lenders (but not any Lender or Lenders in its or their respective individual capacities unless the Required Lenders shall otherwise agree in writing) shall be entitled, with the consent or at the direction of the Required Lenders, for the purpose of bidding and making settlement or payment of the purchase price for all or any portion of the Collateral sold at any such sale, to use and apply any of the Finance Obligations as a credit on account of the purchase price for any Collateral payable by the Administrative Agent at such sale.
Appears in 3 contracts
Sources: Amendment No. 2 (JELD-WEN Holding, Inc.), Revolving Credit Agreement (JELD-WEN Holding, Inc.), Amendment No. 1 (JELD-WEN Holding, Inc.)
Collateral Agent. The Administrative Agent shall also act as the “collateral agent” under the Loan Documents, and each of the Lenders (including in its capacities as a potential Qualified Counterparty and a potential Cash Management Provider) and the Issuing Lenders hereby irrevocably appoints and authorizes the Administrative Agent to act as the agent of such Lender and the Issuing Lenders (with the full power to appoint and to substitute and to delegate) on its behalf, or in its own name as joint and several creditor or creditor of a parallel debt (as the case may be) for purposes of acquiring, holding and enforcing any and all Liens on Collateral granted by any of the Loan Parties Borrowers to secure any of the Obligations, together with such powers and discretion as are reasonably incidental thereto. In this connection, the Administrative Each Lender hereby authorizes Agent, on behalf of and for the ratable benefit of Lenders, in its capacity as “collateral agent” and , to enter into any co-agents, sub-agents and attorneys-in-fact appointed by of the Administrative Agent pursuant to Section 10.5 Loan Documents as secured party for purposes of acquiring, holding or and enforcing any Lien all Liens on the Collateral (or and any portion thereof) granted under other collateral from time to time securing the Security DocumentsObligations), or and as Agent for exercising any and representative of Lender thereunder, and each Lender agrees to be bound by the terms of each such document. All powers, rights and remedies thereunder under the Loan Documents may be exercised solely by Agent, at the direction of the Administrative AgentRequired Lenders, shall be entitled to for the benefits benefit of all provisions of this Section 10 Lenders and Section 11, as though such co-agents, sub-agents and attorneys-in-fact were the “collateral agent” under the Loan Documents as if set forth in full herein with respect thereto. Without limiting the generality of the foregoing, the Lenders hereby expressly authorize the Administrative Agent on its behalf and/or in its own name (including under any parallel debt) to execute any and all documents (including releases) with respect to the Collateral and the rights of the Secured Parties with respect thereto, as contemplated by and in accordance with the provisions of this Agreement and the Security Documents and acknowledge and agree that any such action by any Agent shall bind the Lenders. Each Lender agrees that it shall not take or institute any actions or proceedings, judicial or otherwise, for any right or remedy with respect to any Collateral against any Borrower or any other Loan Party or any other obligor under any of the Loan Documents, Specified Swap Agreements or any Specified Cash Management Agreement (including, in each case, the exercise of any right of setoff, rights on account of any banker’s lien or similar claim or other rights of self-help), or institute any actions or proceedings, or otherwise commence any remedial procedures, with respect to any Collateral of any Borrower or any other Loan Party, without the prior written consent of the Administrative Agentterms thereof. In the event of a foreclosure by the Administrative Agent on any of the Collateral pursuant to a public or private sale or a sale of any of the Collateral pursuant to Section 363 of the Bankruptcy Code (or an equivalent process in any foreign jurisdiction)sale, the Administrative either Agent or any Lender may be the purchaser of any or all of such Collateral at any such sale and the Administrative Agent, as agent for and representative of the Lenders (but not any Lender or Lenders in its or their respective individual capacities unless the Required Lenders shall otherwise agree in writing) shall be entitled, with entitled (subject to the consent or proviso at the direction end of the Required Lendersthis sentence), for the purpose of bidding and making settlement or payment of the purchase price for all or any 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 the Administrative Agent at such sale; provided however, that neither Agent nor any Lender shall “credit bid” at any foreclosure and/or other public or private sale absent the consent of the Required Lenders. Without limiting the generality of the foregoing, Agent is hereby expressly authorized to execute any and all documents (including releases) that bind Lenders with respect to (i) the Collateral and the rights of Lenders with respect thereto, as contemplated by and in accordance with the provisions of the Loan Documents, and (ii) any other subordination agreement with respect to any Subordinated Debt.
Appears in 3 contracts
Sources: Loan and Security Agreement (CalciMedica, Inc.), Loan and Security Agreement (Ocugen, Inc.), Loan and Security Agreement (Cytosorbents Corp)
Collateral Agent. The Administrative Agent shall also act as the “collateral agent” under the Loan Documents, and each of the Lenders (including in its capacities as a potential Qualified Counterparty and a potential Cash Management Provider) and the Issuing Lenders hereby irrevocably appoints and authorizes the Administrative Agent to act as the agent of such Lender and the Issuing Lenders (with the full power to appoint and to substitute and to delegate) on its behalf, or in its own name as joint and several creditor or creditor of a parallel debt (as the case may be) for purposes of acquiring, holding and enforcing any and all Liens on Collateral granted by any of the Loan Parties Borrower to secure any of the Obligations, together with such powers and discretion as are reasonably incidental thereto. In this connection, the Administrative Each Lender hereby authorizes Agent, on behalf of and for the ratable benefit of Lenders, in its capacity as “collateral agent” and , to enter into any co-agents, sub-agents and attorneys-in-fact appointed by of the Administrative Agent pursuant to Section 10.5 Loan Documents as secured party for purposes of acquiring, holding or and enforcing any Lien all Liens on the Collateral (or and any portion thereof) granted under other collateral from time to time securing the Security DocumentsObligations), or and as Agent for exercising any and representative of Lender thereunder, and each Lender agrees to be bound by the terms of each such document. All powers, rights and remedies thereunder at the direction of the Administrative Agent, shall be entitled to the benefits of all provisions of this Section 10 and Section 11, as though such co-agents, sub-agents and attorneys-in-fact were the “collateral agent” under the Loan Documents as if set forth in full herein with respect thereto. Without limiting may be exercised solely by Agent for the generality benefit of the foregoing, the Lenders hereby expressly authorize the Administrative and Agent on its behalf and/or in its own name (including under any parallel debt) to execute any and all documents (including releases) with respect to the Collateral and the rights of the Secured Parties with respect thereto, as contemplated by and in accordance with the provisions of this Agreement and the Security Documents and acknowledge and agree that any such action by any Agent shall bind the Lenders. Each Lender agrees that it shall not take or institute any actions or proceedings, judicial or otherwise, for any right or remedy with respect to any Collateral against any Borrower or any other Loan Party or any other obligor under any of the Loan Documents, Specified Swap Agreements or any Specified Cash Management Agreement (including, in each case, the exercise of any right of setoff, rights on account of any banker’s lien or similar claim or other rights of self-help), or institute any actions or proceedings, or otherwise commence any remedial procedures, with respect to any Collateral of any Borrower or any other Loan Party, without the prior written consent of the Administrative Agentterms thereof. In the event of a foreclosure by the Administrative Agent on any of the Collateral pursuant to a public or private sale or a sale of any of the Collateral pursuant to Section 363 of the Bankruptcy Code (or an equivalent process in any foreign jurisdiction)sale, the Administrative either Agent or any Lender may be the purchaser of any or all of such Collateral at any such sale and the Administrative Agent, as agent for and representative of the Lenders (but not any Lender or Lenders in its or their respective individual capacities unless the Required Lenders shall otherwise agree in writing) shall be entitled, with entitled (subject to the consent or proviso at the direction end of the Required Lendersthis sentence), for the purpose of bidding and making settlement or payment of the purchase price for all or any 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 the Administrative Agent at such sale; provided however, that neither Agent nor any Lender shall “credit bid” at any foreclosure and/or other public or private sale absent the consent of the Required Lenders. Without limiting the generality of the foregoing, Agent is hereby expressly authorized to execute any and all documents (including releases) that bind Lenders with respect to (i) the Collateral and the rights of Lenders with respect thereto, as contemplated by and in accordance with the provisions of the Loan Documents, and (ii) any other subordination agreement with respect to any Subordinated Debt.
Appears in 3 contracts
Sources: Loan and Security Agreement (Abeona Therapeutics Inc.), Loan and Security Agreement (LifeMD, Inc.), Loan and Security Agreement (Health Sciences Acquisitions Corp 2)
Collateral Agent. The Administrative Agent Trustee acknowledges that during the initial Interest Period of the Initial LIBOR Term Indexed Mode and any Interest Period thereafter while the initial Bondholder Agreement remains in effect, the Bondholder Representative (if any) has, pursuant to Section 7.05, the power to take all actions and exercise all of the rights that the Trustee would otherwise have with respect to any guarantee of obligations (“Guarantee”) relating to the Bonds and any collateral (“Collateral”) securing obligations relating to the Bonds (in each case in accordance with the terms set forth in any agreement governing any Guarantee or Collateral), including, without limitation, the power to direct the exercise of remedies by any collateral agent appointed with respect to such Collateral. The Trustee shall also act as have no right, responsibility or obligation to take any action with respect to any such Guarantee or Collateral or in connection with the “collateral agent” under exercise of remedies in connection therewith. To the Loan Documentsextent required, and each of the Lenders (including in its capacities as a potential Qualified Counterparty and a potential Cash Management Provider) Trustee and the Issuing Lenders hereby irrevocably appoints Issuer authorizes the appointment of any collateral agent in connection with the Collateral and authorizes the Administrative Agent such collateral agent to act as the agent of such Lender and the Issuing Lenders (enter into any agreements it deems appropriate in connection with the full power to appoint Collateral and to substitute and to delegate) on its behalfany intercreditor arrangements or any remedial rights in connection therewith, including without limitation, any security agreement or in its own name as joint and several creditor or creditor of intercreditor agreement (each a parallel debt (as the case may be) for purposes of acquiring, holding and enforcing any and all Liens on Collateral granted by any of the Loan Parties to secure any of the Obligations, together with such powers and discretion as are reasonably incidental thereto“Security Document”). In this connectionconnection with the foregoing, and for the Administrative Agentavoidance of doubt, as “any such collateral agent” and agent shall not have any co-agents, sub-agents and attorneys-in-fact appointed by the Administrative Agent pursuant to Section 10.5 for purposes of holding duties or enforcing any Lien on the Collateral (or any portion thereof) granted under obligations except those expressly set forth in the Security Documents, or for exercising any rights and remedies its duties thereunder at the direction of the Administrative Agent, shall be entitled to the benefits of all provisions of this Section 10 and Section 11, as though such co-agents, sub-agents and attorneys-in-fact were the “collateral agent” under the Loan Documents as if set forth administrative in full herein with respect theretonature. Without limiting the generality of the foregoing, the Lenders hereby expressly authorize the Administrative Agent on any such collateral agent and its behalf and/or in its own name (including under any parallel debt) to execute any and all documents (including releases) with respect to the Collateral affiliates and the partners, directors, officers, employees, agents, trustees, administrators, managers, advisors and representatives of such collateral agent and of its affiliates:
(i) shall not be subject to any fiduciary or other implied duties, regardless of whether a default or 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 of the Secured Parties with respect thereto, as and powers expressly contemplated by the Security Documents and then only as directed in accordance with the provisions of this Agreement and the Security Documents and acknowledge and agree terms thereof; provided that any such action by any Agent shall bind the Lenders. Each Lender agrees that it collateral agent shall not be required to take any action that, in its opinion or institute any actions the opinion of its counsel, may expose the collateral agent to liability or proceedings, judicial or otherwise, for any right or remedy with respect that is contrary to any Collateral against Security Document or applicable law, including for the avoidance of doubt any action that may be in violation of the automatic stay under Title 11 of the United States Code, as amended, and any similar Federal, state or foreign law for the relief of debtors;
(iii) shall not, except as expressly set forth in any Security Document, have any duty or responsibility to disclose, and shall not be liable for the failure to disclose, any information relating to the Borrower or any other Loan Party Affiliate thereof that is communicated to or obtained by such collateral agent or any other obligor under any of the Loan Documents, Specified Swap Agreements or any Specified Cash Management Agreement (including, in each case, the exercise of any right of setoff, rights on account of any banker’s lien or similar claim or other rights of self-help), or institute any actions or proceedings, or otherwise commence any remedial procedures, with respect to any Collateral of any Borrower or any other Loan Party, without the prior written consent of the Administrative Agent. In the event of a foreclosure by the Administrative Agent on any of the Collateral pursuant to a public or private sale or a sale of any of the Collateral pursuant to Section 363 of the Bankruptcy Code (or an equivalent process its Affiliates in any foreign jurisdiction), the Administrative Agent or any Lender may be the purchaser of any or all of such Collateral at any such sale and the Administrative Agent, as agent for and representative of the Lenders capacity;
(but not any Lender or Lenders in its or their respective individual capacities unless the Required Lenders shall otherwise agree in writingiv) shall not be entitled, liable for any action taken or not taken by it under or in connection with any Security Document or the transactions contemplated thereby (A) with the consent or at the direction request of the Required Lenderssecured party entitled to direct the collateral agent under the applicable Security Document, for (B) in the purpose absence of bidding its own gross negligence or willful misconduct as determined by a court of competent jurisdiction by final and making settlement nonappealable judgment or payment (C) in reliance on a certificate of an authorized officer of the purchase price for all Borrower or any portion applicable guarantor of the Collateral sold at obligations secured under such Security Document stating that such action is permitted by the terms of such Security Document, the collateral agent being deemed not to have knowledge of any default or Event of Default unless and until notice describing such saledefault or Event Default is given in writing to the collateral agent by the in accordance with the terms of such Security Document; and
(v) shall not be responsible for or have any duty or obligation to any holder of obligations secured under any Security Document or any other person to ascertain or inquire into (A) any statement, to use and apply warranty or representation made in or in connection with 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 Obligations as a credit on account covenants, agreements or other terms or conditions set forth herein or therein or the occurrence of any default or Event of Default, (D) the purchase price for validity, enforceability, effectiveness or genuineness of any Collateral payable 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 Administrative Agent at value or the sufficiency of any Collateral, or (F) the satisfaction of any condition or representation or warranty set forth in any Security Document, other than to confirm receipt of items expressly required to be delivered to such salecollateral agent. Whether or not therein expressly so provided, every provision of this Bond Indenture, the Loan Agreement, the Credit Facilities, the Liquidity Facilities or related documents relating to the conduct or affecting the liability of or affording protection to any such collateral agent shall be subject to the provision of this Article.
Appears in 3 contracts
Sources: Bond Indenture (SemGroup Corp), Bond Indenture (SemGroup Corp), Bond Indenture (SemGroup Corp)
Collateral Agent. (i) The Administrative Agent shall also act as the “collateral agent” under the Loan Documents, and each of the Lenders (including in its capacities as a potential Qualified Counterparty Hedge Bank, and a potential Cash Management ProviderBank) and the Issuing Lenders L/C Issuer hereby irrevocably appoints and authorizes the Administrative Agent to act as the agent of such Lender and the Issuing Lenders (with the full power to appoint and to substitute and to delegate) on its behalf, or in its own name as joint and several creditor or creditor of a parallel debt (as the case may be) L/C Issuer for purposes of acquiring, holding and enforcing any and all Liens on Collateral granted by any of the Loan Parties to secure any of the Secured Obligations, together with such powers and discretion as are reasonably incidental thereto. In this connection, the Administrative Agent, as “collateral agent” and any co-agents, sub-agents and attorneys-in-fact appointed by the Administrative Agent pursuant to Section 10.5 9.05 for purposes of holding or enforcing any Lien on the Collateral (or any portion thereof) granted under the Security Collateral Documents, or for exercising any rights and remedies thereunder at the direction of the Administrative Agent, shall be entitled to the benefits of all provisions of this Article IX and Article XI (including Section 10 and Section 1111.04(c), as though such co-agents, sub-agents and attorneys-in-fact were the “collateral agent” under the Loan Documents Documents) as if set forth in full herein with respect thereto. .
(ii) Without limiting the generality powers of the foregoing, the Lenders hereby expressly authorize the Administrative Agent on its behalf and/or in its own name (including under any parallel debt) to execute any and all documents (including releases) with respect “collateral agent” pursuant to the Collateral and terms hereof or the rights of the Secured Parties with respect thereto, as contemplated by and in accordance with the provisions of this Agreement and the Security Documents and acknowledge and agree that any such action by any Agent shall bind the Lenders. Each Lender agrees that it shall not take or institute any actions or proceedings, judicial or otherwiseother Loan Documents, for the purposes of holding any right or remedy with respect to any Collateral against any Borrower or any other Loan Party or any other obligor under Liens granted by any of the Loan Parties under the laws of the Province of Quebec pursuant to the Collateral Documents, Specified Swap Agreements or any Specified Cash Management Agreement (including, in each case, the exercise of any right of setoff, rights on account of any banker’s lien or similar claim or other rights of self-help), or institute any actions or proceedings, or otherwise commence any remedial procedures, with respect to any Collateral of any Borrower or any other Loan Party, without the prior written consent of the Administrative Agent. In the event of a foreclosure by the Administrative Agent on any of the Collateral pursuant to a public or private sale or a sale of any of the Collateral pursuant to Section 363 of the Bankruptcy Code (or an equivalent process in any foreign jurisdiction), the Administrative Agent or any Lender may be the purchaser of any or all of such Collateral at any such sale and the Administrative Agent, as agent for and representative of the Lenders (but not any Lender or Lenders including in its or their respective individual capacities unless as a potential Hedge Bank, and a potential Cash Management Bank) and the Required Lenders shall otherwise agree in writing) L/C Issuer hereby acknowledges that the collateral agent shall be entitledand act as the hypothecary representative of all present and future Lenders (including in its capacities as a potential Hedge Bank, with and a potential Cash Management Bank) and the consent or at the direction L/C Issuer for all purposes of Article 2692 of the Required Lenders, for Civil Code of Quebec (the purpose of bidding and making settlement or payment “Hypothecary Representative”). Each of the purchase price for all or any portion of Lenders (including in its capacities as a potential Hedge Bank, and a potential Cash Management Bank) and the Collateral sold at any such saleL/C Issuer hereby appoints, to use and apply the extent necessary, the collateral agent as its Hypothecary Representative to hold the Liens created pursuant to such Collateral Documents in order to secure any of the Obligations Secured Obligations. The collateral agent accepts to act as Hypothecary Representative of all present and future Lenders (including in its capacities as a credit on account potential Hedge Bank, and a potential Cash Management Bank) and the L/C Issuer for all purposes of Article 2692 of the purchase price for any Collateral payable by the Administrative Agent at such saleCivil Code of Quebec.
Appears in 3 contracts
Sources: Credit Agreement (Radiant Logistics, Inc), Credit Agreement (Radiant Logistics, Inc), Credit Agreement (Radiant Logistics, Inc)
Collateral Agent. The Administrative Agent shall also act as the “collateral agent” under the Loan Documents, and each of the Lenders (including in hereby designates and appoints the Collateral Agent as its capacities as a potential Qualified Counterparty and a potential Cash Management Provider) agent under the Collateral Documents and the Issuing Administrative Agent and each of the Lenders hereby irrevocably appoints authorizes the Collateral Agent to take such action on its behalf under the provisions of the Collateral Documents and to exercise such powers and perform such duties as are expressly delegated to the Collateral Agent by the terms of this Agreement, the Collateral Documents and the other Loan Documents, together with such powers as are reasonably incidental thereto, and in connection therewith hereby authorizes the Administrative Agent to act as execute and deliver the agent Joinder to Intercreditor Agreement and Joinder to Collateral Agency Agreement whereby the Administrative Agent, on behalf of such Lender itself and the Issuing Lenders (with Lenders, agrees to be bound by the full power to appoint and to substitute and to delegate) on its behalf, or in its own name as joint and several creditor or creditor of a parallel debt (as the case may be) for purposes of acquiring, holding and enforcing any and all Liens on Collateral granted by any terms of the Loan Parties to secure any of Security Agreement, the ObligationsIntercreditor Agreement, together with such powers the Collateral Agency Agreement and discretion the other Collateral Documents in their capacities as are reasonably incidental theretoa “Secured Party” under and as defined in the Security Agreement. In this connection, the Administrative Collateral Agent, as “collateral agentCollateral Agent” and any co-agents, sub-agents and attorneys-in-fact appointed by the Administrative Collateral Agent pursuant to Section 10.5 the Collateral Documents for purposes of holding or enforcing any Lien on the Collateral (or any portion thereof) granted under the Security Collateral Documents, or for exercising any rights and remedies thereunder at the direction of the Administrative AgentSecured Parties (under and as defined in the Security Agreement) required pursuant to the terms of the Collateral Documents, shall be entitled to the benefits of all provisions of this Section 10 Article IX and Section 11, Article X (as though such co-agents, sub-agents and attorneys-in-fact were the “collateral agent” under the Loan Documents Documents) as if set forth in full herein with respect thereto. Notwithstanding any provision to the contrary contained elsewhere in this Agreement and the Collateral Documents, the Collateral Agent shall not have any duties or responsibilities hereunder or thereunder nor shall the Collateral Agent have or be deemed to have any fiduciary relationship with the Administrative Agent, the Lenders or any Loan Party, and no implied covenants, functions, responsibilities, duties, obligations or liabilities shall be read into this Agreement and the Collateral Documents or otherwise exist against the Collateral Agent. Without limiting the generality of the foregoingforegoing sentence, the Lenders hereby use of the term “agent” in this Agreement or any other Loan Document 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. 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. Except as expressly authorize otherwise provided in this Agreement or the Administrative other Loan Documents, the Collateral Agent on shall have and may use its behalf and/or in its own name (including under any parallel debt) to execute any and all documents (including releases) sole discretion with respect to exercising or refraining from exercising any discretionary rights or taking or refraining from taking any actions which the Collateral and the rights of the Secured Parties with respect thereto, as contemplated by and in accordance with the provisions of Agent is expressly entitled to take or assert under this Agreement and the Security Documents and acknowledge and agree that any such action by any Agent shall bind the Lenders. Each Lender agrees that it shall not take or institute any actions or proceedings, judicial or otherwise, for any right or remedy with respect to any Collateral against any Borrower or any other Loan Party or any other obligor under any of the Loan Documents, Specified Swap Agreements or any Specified Cash Management Agreement (including, in each case, including the exercise of remedies pursuant to Article VIII, and any right of setoff, rights on account of any banker’s lien action so taken or similar claim or other rights of self-help), or institute any actions or proceedings, or otherwise commence any remedial procedures, with respect not taken shall be deemed consented to any Collateral of any Borrower or any other Loan Party, without the prior written consent of the Administrative Agent. In the event of a foreclosure by the Administrative Agent on any of the Collateral pursuant to a public or private sale or a sale of any of the Collateral pursuant to Section 363 of the Bankruptcy Code (or an equivalent process in any foreign jurisdiction), the Administrative Agent or any Lender may be the purchaser of any or all of such Collateral at any such sale and the Administrative Agent, as agent for and representative of the Lenders (but not any Lender or Lenders in its or their respective individual capacities unless the Required Lenders shall otherwise agree in writing) shall be entitled, with the consent or at the direction of the Required Lenders, for the purpose of bidding and making settlement or payment of the purchase price for all or any portion of the Collateral sold at any such sale, to use and apply any of the Obligations as a credit on account of the purchase price for any Collateral payable by the Administrative Agent at such sale.
Appears in 3 contracts
Sources: Credit Agreement (Polymer Group Inc), Credit Agreement (Polymer Group Inc), Senior Secured Bridge Credit Agreement (Polymer Group Inc)
Collateral Agent. (a) The Administrative Agent shall also act as the “collateral agent” under the Loan Documents, Trustee and each of the Lenders (including in Holders by acceptance of the Notes hereby designates and appoints the Collateral Agent as its capacities as a potential Qualified Counterparty and a potential Cash Management Provider) agent under this Indenture and the Issuing Lenders Collateral Documents and the Trustee and each of the Holders by acceptance of the Notes hereby irrevocably appoints and authorizes the Administrative Collateral Agent to act as take such action on its behalf under the agent provisions of such Lender this Indenture and the Issuing Lenders (with the full power to appoint Collateral Documents and to substitute exercise such powers and perform such duties as are expressly delegated to delegate) on its behalf, or in its own name as joint the Collateral Agent by the terms of this Indenture and several creditor or creditor of a parallel debt (as the case may be) for purposes of acquiring, holding and enforcing any and all Liens on Collateral granted by any of the Loan Parties to secure any of the ObligationsDocuments, together with such powers and discretion as are reasonably incidental thereto. In this connection, the Administrative Agent, as “collateral agent” and any co-agents, sub-agents and attorneys-in-fact appointed by the Administrative Agent pursuant to Section 10.5 for purposes of holding or enforcing any Lien on the Collateral (or any portion thereof) granted under the Security Documents, or for exercising any rights and remedies thereunder at the direction of the Administrative Agent, shall be entitled to the benefits of all The provisions of this Section 10 11.11 are solely for the benefit of the Collateral Agent and none of the Trustee, any of the Holders nor any of the Grantors shall have any rights as a third party beneficiary of any of the provisions contained herein other than as expressly provided in Section 1111.03. Notwithstanding any provision to the contrary contained elsewhere in this Indenture and the Collateral Documents, as though such co-agentsthe Collateral Agent shall not have any duties or responsibilities hereunder nor shall the Collateral Agent have or be deemed to have any fiduciary relationship with the Trustee, sub-agents any Holder or any Grantor, and attorneys-in-fact were no implied covenants, functions, responsibilities, duties, obligations or liabilities shall be read into this Indenture and the “collateral agent” under Collateral Documents or otherwise exist against the Loan Documents as if set forth in full herein with respect theretoCollateral Agent. Without limiting the generality of the foregoingforegoing sentence, the Lenders use of the term “agent” in this Indenture 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. 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. Except as expressly otherwise provided in this Indenture, the Collateral Agent shall have and may use its sole discretion with respect to exercising or refraining from exercising any discretionary rights or taking or refraining from taking any actions which the Collateral Agent is expressly entitled to take or assert under this Indenture, and the Collateral Documents, including the exercise of remedies pursuant to Article 6, and any action so taken or not taken shall be deemed consented to by the Trustee and the Holders.
(b) None of the Collateral Agent or any of its respective Affiliates shall (i) be liable for any action taken or omitted to be taken by any of them under or in connection with this Indenture or the transactions contemplated hereby expressly authorize the Administrative Agent on its behalf and/or in (except for its own name gross negligence or willful misconduct) or under or in connection with any Collateral Document or the transactions contemplated thereby (except for its own gross negligence or willful misconduct), or (ii) be responsible in any manner to any of the Trustee or any Holder for any recital, statement, representation, warranty, covenant or agreement made by the Issuer or any Grantor or Affiliate of any Grantor, or any officer or Affiliate thereof, contained in this or any Indenture, any Collateral Document 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 or any other Indenture or the Collateral Documents, or the validity, effectiveness, genuineness, enforceability or sufficiency of this or any other Indenture or the Collateral Documents, or for any failure of any Grantor or any other party to this Indenture or the Collateral Documents to perform its obligations hereunder or thereunder. None of the Collateral Agent or any of its respective Affiliates shall be under any obligation to the Trustee or any Holder to ascertain or to inquire as to the observance or performance of any of the agreements contained in, or conditions of, this or any other Indenture or the Collateral Documents or to inspect the properties, books, or records of any Grantor or any Grantor’s Affiliates.
(c) The Collateral Agent and its Affiliates may make loans to, issue letters of credit for the account of, accept deposits from, acquire equity interests in and generally engage in any kind of banking, trust, financial advisory, underwriting, or other business with the Issuer, any Guarantor and their Affiliates as though it was not the Collateral Agent hereunder and without notice to or consent of the Trustee. The Trustee and the Holders acknowledge that, pursuant to such activities, the Collateral Agent or its Affiliates may receive information regarding any Grantor or its respective Affiliates (including information that may be subject to confidentiality obligations in favor of, any such Grantor or such Affiliate) and acknowledge that the Collateral Agent shall not be under any parallel debtobligation to provide such information to the Trustee or the Holders. Nothing herein shall impose or imply any obligation on the part of the Collateral Agent to advance funds.
(d) The Collateral Agent is authorized and directed to execute (i) enter into the Collateral Documents, (ii) bind the Holders on the terms as set forth in the Collateral Documents and (iii) perform and observe its obligations under the Collateral Documents.
(e) The Trustee agrees that it shall not (and shall not be obligated to), and shall not instruct the Collateral Agent to, unless specifically requested to do so by a majority of the Holders, take or cause to be taken any and all documents action to enforce its rights under this Indenture or against any Grantor, including the commencement of any legal or equitable proceedings, to foreclose any Lien on, or otherwise enforce any security interest in, any of the Collateral. If at any time or times the Trustee shall receive (including releasesi) by payment, foreclosure, set-off or otherwise, any proceeds of Collateral or any payments with respect to the Obligations arising under, or relating to, this Indenture, except for any such proceeds or payments received by the Trustee from the Collateral Agent pursuant to the terms of this Indenture, or (ii) payments from the Collateral Agent in excess of the amount required to be paid to the Trustee pursuant to Article 6, the Trustee shall promptly turn the same over to the Collateral Agent, in kind, and with such endorsements as may be required to negotiate the same to the Collateral Agent.
(f) The Collateral Agent is each Holder’s agent for the purpose of perfecting the Holders’ security interest in assets which, in accordance with Article 9 of the Uniform Commercial Code can be perfected only by possession. Should the Trustee obtain possession of any such Collateral, upon request from the Issuer, the Trustee shall notify the Collateral Agent thereof, and, promptly upon the Collateral Agent’s request therefor shall deliver such Collateral to the Collateral Agent or otherwise deal with such Collateral in accordance with the Collateral Agent’s instructions.
(g) The Collateral Agent shall have no obligation whatsoever to the Trustee or any of the Holders to assure that the Collateral exists or is owned by any Grantor or is cared for, protected, or insured or has been encumbered, or that the Collateral Agent’s Liens have been properly or sufficiently or lawfully created, perfected, protected, maintained (through the filing of continuation statements under the Uniform Commercial Code or otherwise) or enforced or are entitled to any particular priority, or to determine whether all or the Issuer or any Guarantor’s property constituting collateral intended to be subject to the Lien and security interest of the Collateral Documents has been properly and completely listed or delivered, as the case may be, or the genuineness, validity, marketability or sufficiency thereof or title thereto, 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 powers granted or available to the Collateral Agent pursuant to this Indenture or any Collateral Document, it being understood and agreed that in respect of the Collateral, or any act, omission, or event related thereto, the Collateral Agent may act in any manner it may deem appropriate, in its sole discretion given the Collateral Agent’s own interest in the Collateral and that the rights Collateral Agent shall have no other duty or liability whatsoever to the Trustee or any Holder as to any of the Secured Parties foregoing.
(h) No provision of this Indenture or any Collateral Document shall require the Collateral Agent (or the Trustee) to expend or risk its own funds or otherwise incur any financial liability in the performance of any of its duties hereunder or thereunder or to take or omit to take any action hereunder or thereunder or take any action at the request or direction of Holders (or the Trustee in the case of the Collateral Agent) if it shall have reasonable grounds for believing that repayment of such funds is not assured to it.
(i) The Collateral Agent (i) shall not be liable for any action it takes or omits to take in good faith which it reasonably believes to be authorized or within its rights or powers, or for any error of judgment made in good faith by a Responsible Officer, unless it is proved that the Collateral Agent was grossly negligent in ascertaining the pertinent facts, (ii) shall not be liable for interest on any money received by it except as the Collateral Agent may agree in writing with the Issuer (and money held in trust by the Collateral Agent need not be segregated from other funds except to the extent required by law), (iii) the Collateral Agent may consult with counsel of its selection and the advice or opinion of such counsel as to matters of law shall be full and complete authorization and protection from liability in respect theretoof any action taken, as contemplated omitted or suffered by it in good faith and in accordance with the provisions advice or opinion of this Agreement and such counsel. The grant of permissive rights or powers to the Security Documents and acknowledge and agree that any such action by any Collateral Agent shall bind not be construed to impose duties to act.
(j) Neither the LendersCollateral Agent nor the Trustee shall be liable for delays or failures in performance resulting from acts beyond its control. Each Lender agrees that it Such acts shall include but not take be limited to acts of God, strikes, lockouts, riots, acts of war, epidemics, governmental regulations superimposed after the fact, fire, communication line failures, computer viruses, power failures, earthquakes or institute any actions or proceedings, judicial or otherwise, other disasters. Neither the Collateral Agent nor the Trustee shall be liable for any right indirect, special or remedy with respect consequential damages (included but not limited to any Collateral against any Borrower or any other Loan Party or any other obligor under any lost profits) whatsoever, even if it has been informed of the Loan Documents, Specified Swap Agreements or any Specified Cash Management Agreement (including, in each case, the exercise of any right of setoff, rights on account of any banker’s lien or similar claim or other rights of self-help), or institute any actions or proceedings, or otherwise commence any remedial procedures, with respect to any Collateral of any Borrower or any other Loan Party, without the prior written consent likelihood thereof and regardless of the Administrative Agent. In the event form of a foreclosure by the Administrative Agent on any of the Collateral pursuant to a public or private sale or a sale of any of the Collateral pursuant to Section 363 of the Bankruptcy Code (or an equivalent process in any foreign jurisdiction), the Administrative Agent or any Lender may be the purchaser of any or all of such Collateral at any such sale and the Administrative Agent, as agent for and representative of the Lenders (but not any Lender or Lenders in its or their respective individual capacities unless the Required Lenders shall otherwise agree in writing) shall be entitled, with the consent or at the direction of the Required Lenders, for the purpose of bidding and making settlement or payment of the purchase price for all or any portion of the Collateral sold at any such sale, to use and apply any of the Obligations as a credit on account of the purchase price for any Collateral payable by the Administrative Agent at such saleaction.
Appears in 2 contracts
Sources: Indenture (APX Group Holdings, Inc.), Indenture (APX Group Holdings, Inc.)
Collateral Agent. (a) The Administrative Holder, by acceptance of the Note, hereby designates and appoint the Collateral Agent shall also act as its agent under the Security Documents and the Holder by acceptance of the Note, hereby irrevocably authorizes the Collateral Agent to take such action on its behalf under the provisions of this Note and the Security Documents and to exercise such powers and perform such duties as are expressly delegated to the Collateral Agent by the terms of this Note and the Security Documents and consents and agrees to the terms of this Note and each Security Document (as applicable), as the “collateral agent” under the Loan Documentssame may be in effect or may be amended, and each of the Lenders (including restated, supplemented or otherwise modified from time to time in its capacities as a potential Qualified Counterparty and a potential Cash Management Provider) and the Issuing Lenders hereby irrevocably appoints and authorizes the Administrative accordance with their respective terms. The Collateral Agent agrees to act as such on the agent of such Lender and express conditions contained in this Section 11.5. The Holder agrees that any action taken by the Issuing Lenders (Collateral Agent in accordance with the full power to appoint and to substitute and to delegate) on its behalf, or in its own name as joint and several creditor or creditor of a parallel debt (as the case may be) for purposes of acquiring, holding and enforcing any and all Liens on Collateral granted by any of the Loan Parties to secure any of the Obligations, together with such powers and discretion as are reasonably incidental thereto. In this connection, the Administrative Agent, as “collateral agent” and any co-agents, sub-agents and attorneys-in-fact appointed by the Administrative Agent pursuant to Section 10.5 for purposes of holding or enforcing any Lien on the Collateral (or any portion thereof) granted under the Security Documents, or for exercising any rights and remedies thereunder at the direction of the Administrative Agent, shall be entitled to the benefits of all provisions of this Section 10 Note or the Security Documents (as applicable), and Section 11, as though such co-agents, sub-agents and attorneys-in-fact were the “collateral agent” under exercise by the Loan Documents as if Collateral Agent of any rights or remedies set forth herein and therein shall be authorized and binding upon all Noteholders. Notwithstanding any provision to the contrary contained elsewhere in full this Note or the Security Documents (as applicable) the duties of the Collateral Agent shall be ministerial and administrative in nature, and the Collateral Agent shall not have any duties or responsibilities, except those expressly set forth herein and in the Security Documents (as applicable) to which the Collateral Agent is a party, nor shall the Collateral Agent have or be deemed to have any trust or other fiduciary relationship with respect theretoany holder or any grantor, and no implied covenants, functions, responsibilities, duties, obligations or liabilities shall be read into this Note, the Security Documents or otherwise exist against the Collateral Agent. Without limiting the generality of the foregoingforegoing sentence, the Lenders hereby expressly authorize use of the Administrative Agent on its behalf and/or term “agent” in its own name (including under any parallel debt) to execute any and all documents (including releases) this Note with respect 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. Instead, such term is used merely as a matter of market custom, and the rights is intended to create or reflect only an administrative relationship between independent contracting parties.
(b) The Collateral Agent may perform any of the Secured Parties with respect thereto, as contemplated by and in accordance with the provisions of its duties under this Agreement and Note and/or the Security Documents and acknowledge and agree that any such action (as applicable) by any Agent shall bind the Lenders. Each Lender agrees that it shall not take or institute any actions through receivers, agents, employees, attorneys-in-fact or proceedings, judicial or otherwise, for any right or remedy with respect to any specified Person, such Person’s Affiliates, and the respective officers, directors, employees, agents, advisors and attorneys-in-fact of such Person and its Affiliates (a “Related Person”), and shall be entitled to advice of counsel concerning all matters pertaining to such duties, and shall be entitled to act upon, and shall be fully protected in taking action in reliance upon any advice or opinion given by legal counsel. The Collateral against any Borrower Agent shall not be responsible for the negligence or any other Loan Party or any other obligor under any of the Loan Documents, Specified Swap Agreements or any Specified Cash Management Agreement (including, in each case, the exercise willful misconduct of any right receiver, agent, employee, attorney-in-fact or Related Person that it selects as long as such selection was made in good faith and with due care. The exculpatory provisions of setoff, rights on account of any banker’s lien or similar claim or other rights of self-help), or institute any actions or proceedings, or otherwise commence any remedial procedures, with respect this Article 11 shall apply to any Collateral of any Borrower or any other Loan Party, without such sub-agent and to the prior written consent of the Administrative Agent. In the event of a foreclosure by the Administrative Agent on any Affiliates of the Collateral pursuant to a public or private sale or a sale of any of the Collateral pursuant to Section 363 of the Bankruptcy Code (or an equivalent process in any foreign jurisdiction), the Administrative Agent or any Lender may be the purchaser of any or all of such Collateral at and any such sale and the Administrative Agent, as agent for and representative of the Lenders (but not any Lender or Lenders in its or their respective individual capacities unless the Required Lenders shall otherwise agree in writing) shall be entitled, with the consent or at the direction of the Required Lenders, for the purpose of bidding and making settlement or payment of the purchase price for all or any portion of the Collateral sold at any such sale, to use and apply any of the Obligations as a credit on account of the purchase price for any Collateral payable by the Administrative Agent at such salesub-agent.
Appears in 2 contracts
Sources: Investment Agreement (Inspirato Inc), Investment Agreement (Inspirato Inc)
Collateral Agent. The Administrative Agent shall also act as the “collateral agent” under the Loan Documents, and each of the Lenders (including in its capacities as a potential Qualified Counterparty and a potential Cash Management Provider) and each of the Issuing Lenders hereby irrevocably appoints and authorizes the Administrative Agent to act as the agent of such Lender ▇▇▇▇▇▇ and the Issuing Lenders (with the full power to appoint and to substitute and to delegate) on its behalf, or in its own name as joint and several creditor or creditor of a parallel debt (as the case may be) for purposes of acquiring, holding and enforcing any and all Liens on Collateral granted by any of the Loan Parties to secure any of the Obligations, together with such powers and discretion as are reasonably incidental thereto. In this connection, the Administrative Agent, as “collateral agent” and any co-agents, sub-agents and attorneys-in-fact appointed by the Administrative Agent pursuant to Section 10.5 for purposes of holding or enforcing any Lien on the Collateral (or any portion thereof) granted under the Security Documents, or for exercising any rights and remedies thereunder at the direction of the Administrative Agent, shall be entitled to the benefits of all provisions of this Section 10 and Section 11, as though such co-agents, sub-agents and attorneys-in-fact were the “collateral agent” under the Loan Documents as if set forth in full herein with respect thereto. Without limiting the generality of the foregoing, the Lenders hereby expressly authorize the Administrative Agent on its behalf and/or in its own name (including under any the parallel debt) to execute any and all documents (including releases) with respect to the Collateral and the rights of the Secured Parties with respect thereto, as contemplated by and in accordance with the provisions of this Agreement and the Security Documents and acknowledge and agree that any such action by any Agent shall bind the Lenders. Each Lender agrees that it shall not take or institute any actions or proceedings, judicial or otherwise, for any right or remedy with respect to any Collateral against any Borrower or any other Loan Party or any other obligor under any of the Loan Documents, Specified Swap Agreements or any Specified Cash Management Agreement (including, in each case, the exercise of any right of setoff, rights on account of any banker’s lien or similar claim or other rights of self-help), or institute any actions or proceedings, or otherwise commence any remedial procedures, with respect to any Collateral of any Borrower or any other Loan Party, without the prior written consent of the Administrative Agent. In the event of a foreclosure by the Administrative Agent on any of the Collateral pursuant to a public or private sale or a sale of any of the Collateral pursuant to Section 363 of the Bankruptcy Code (or an equivalent process in any foreign jurisdiction), the Administrative Agent or any Lender may be the purchaser of any or all of such Collateral at any such sale and the Administrative Agent, as agent for and representative of the Lenders (but not any Lender or Lenders in its or their respective individual capacities unless the Required Lenders shall otherwise agree in writing) shall be entitled, with the consent or at the direction of the Required Lenders, for the purpose of bidding and making settlement or payment of the purchase price for all or any portion of the Collateral sold at any such sale, to use and apply any of the Obligations as a credit on account of the purchase price for any Collateral payable by the Administrative Agent at such sale.
Appears in 2 contracts
Sources: Incremental and Refinancing Amendment (Powerschool Holdings, Inc.), First Lien Credit Agreement (Powerschool Holdings, Inc.)
Collateral Agent. The Administrative Agent shall also act as the “collateral agent” under the Loan Documents, and each of the Lenders (including in its capacities as a potential Qualified Counterparty and a potential Cash Management Provider) and the Issuing Lenders hereby irrevocably appoints and authorizes the Administrative Agent to act as the agent of such Lender and the Issuing Lenders (with the full power to appoint and to substitute and to delegate) on its behalf, or in its own name as joint and several creditor or creditor of a parallel debt (as the case may be) for purposes of acquiring, holding and enforcing any and all Liens on Collateral granted by any of the Loan Parties to secure any of the Obligations, together with such powers and discretion as are reasonably incidental thereto. In this connection, the Administrative Agent, as “collateral agent” and any co-agents, sub-agents and attorneys-in-fact appointed by the Administrative Agent pursuant to Section 10.5 9.5 for purposes of holding or enforcing any Lien on the Collateral (or any portion thereof) granted under the Security Documents, or for exercising any rights and remedies thereunder at the direction of the Administrative Agent, shall be entitled to the benefits of all provisions of this Section 10 9 and Section 1110, as though such co-agents, sub-agents and attorneys-in-fact were the “collateral agent” under the Loan Documents as if set forth in full herein with respect thereto. Without limiting the generality of the foregoing, the Lenders hereby expressly authorize the Administrative Agent on its behalf and/or in its own name (including under any parallel debt) to execute any and all documents (including releases) with respect to the Collateral and the rights of the Secured Parties with respect thereto, as contemplated by and in accordance with the provisions of this Agreement and the Security Documents and acknowledge and agree that any such action by any Agent shall bind the Lenders. Each Lender agrees that it shall not take or institute any actions or proceedings, judicial or otherwise, for any right or remedy with respect to any Collateral against any the Borrower or any other Loan Party or any other obligor under any of the Loan Documents, the Specified Swap Agreements or any Specified Cash Management Agreement (including, in each case, the exercise of any right of setoff, rights on account of any banker’s lien or similar claim or other rights of self-help), or institute any actions or proceedings, or otherwise commence any remedial procedures, with respect to any Collateral of any the Borrower or any other Loan Party, without the prior written consent of the Administrative Agent. In the event of a foreclosure by the Administrative Agent on any of the Collateral pursuant to a public or private sale or a sale of any of the Collateral pursuant to Section 363 of the Bankruptcy Code (or an equivalent process in any foreign jurisdiction)Code, the Administrative Agent or any Lender may be the purchaser of any or all of such Collateral at any such sale and the Administrative Agent, as agent for and representative of the Lenders (but not any Lender or Lenders in its or their respective individual capacities unless the Required Lenders shall otherwise agree in writing) shall be entitled, with the consent or at the direction of the Required Lenders, for the purpose of bidding and making settlement or payment of the purchase price for all or any portion of the Collateral sold at any such sale, to use and apply any of the Obligations as a credit on account of the purchase price for any Collateral payable by the Administrative Agent at such sale.
Appears in 2 contracts
Sources: Amendment No. 4 (JELD-WEN Holding, Inc.), Amendment No. 3 (JELD-WEN Holding, Inc.)
Collateral Agent. The Administrative Agent shall also act as the “collateral agent” under the Loan Documents, Trustee and each of the Lenders (including in Holders by acceptance of the Notes hereby designates and appoints the Collateral Agent as its capacities as a potential Qualified Counterparty and a potential Cash Management Provider) agent under this Indenture, the Security Agreement and the Issuing Lenders Security Documents and the Trustee and each of the Holders by acceptance of the Notes hereby irrevocably appoints and authorizes the Administrative Collateral Agent to act as take such action on its behalf under the agent provisions of such Lender this Indenture, the Security Agreement and the Issuing Lenders (with the full power to appoint Security Documents and to substitute exercise such powers and perform such duties as are expressly delegated to delegate) on its behalfthe Collateral Agent by the terms of this Indenture, or in its own name as joint the Security Agreement and several creditor or creditor of a parallel debt (as the case may be) for purposes of acquiring, holding and enforcing any and all Liens on Collateral granted by any of the Loan Parties to secure any of the ObligationsSecurity Documents, together with such powers and discretion as are reasonably incidental thereto. In The Collateral Agent agrees to act as such on the express conditions contained in this connectionSection 1410. The provisions of this Section 1410 are solely for the benefit of the Collateral Agent and none of the Trustee, any of the Holders nor the Issuers or any of the Subsidiary Guarantors shall have any rights as a third party beneficiary of any of the provisions contained herein other than as expressly provided in Section 1403. Notwithstanding any provision to the contrary contained elsewhere in this Indenture, the Administrative Agent, as “collateral agent” Security Agreement and any co-agents, sub-agents and attorneys-in-fact appointed by the Administrative Agent pursuant to Section 10.5 for purposes of holding or enforcing any Lien on the Collateral (or any portion thereof) granted under the Security Documents, the Collateral Agent shall not have any duties or for exercising responsibilities, except those expressly set forth herein, nor shall the Collateral Agent have or be deemed to have any rights fiduciary relationship with the Trustee, any Holder or the Issuers or any Subsidiary Guarantor, and remedies thereunder at the direction of the Administrative Agentno implied covenants, functions, responsibilities, duties, obligations or liabilities shall be entitled to read into this Indenture, the benefits of all provisions of this Section 10 Security Agreement and Section 11, as though such co-agents, sub-agents and attorneys-in-fact were the “collateral agent” under Security Documents or otherwise exist against the Loan Documents as if set forth in full herein with respect theretoCollateral Agent. Without limiting the generality of the foregoingforegoing sentence, the Lenders hereby use of the term “agent” in this Indenture 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. 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. Except as expressly authorize otherwise provided in this Indenture, the Administrative Collateral Agent on shall have and may use its behalf and/or in its own name (including under any parallel debt) to execute any and all documents (including releases) sole discretion with respect to exercising or refraining from exercising any discretionary rights or taking or refraining from taking any actions which the Collateral and Agent is expressly entitled to take or assert under this Indenture, the rights of the Secured Parties with respect thereto, as contemplated by and in accordance with the provisions of this Security Agreement and the Security Documents and acknowledge and agree that any such action by any Agent shall bind the Lenders. Each Lender agrees that it shall not take or institute any actions or proceedings, judicial or otherwise, for any right or remedy with respect to any Collateral against any Borrower or any other Loan Party or any other obligor under any of the Loan Documents, Specified Swap Agreements or any Specified Cash Management Agreement (including, in each case, including the exercise of remedies pursuant to Article Five, and any right of setoff, rights on account of any banker’s lien action so taken or similar claim or other rights of self-help), or institute any actions or proceedings, or otherwise commence any remedial procedures, with respect not taken shall be deemed consented to any Collateral of any Borrower or any other Loan Party, without the prior written consent of the Administrative Agent. In the event of a foreclosure by the Administrative Agent on any of the Collateral pursuant to a public or private sale or a sale of any of the Collateral pursuant to Section 363 of the Bankruptcy Code (or an equivalent process in any foreign jurisdiction), the Administrative Agent or any Lender may be the purchaser of any or all of such Collateral at any such sale Trustee and the Administrative Agent, as agent for and representative of the Lenders (but not any Lender or Lenders in its or their respective individual capacities unless the Required Lenders shall otherwise agree in writing) shall be entitled, with the consent or at the direction of the Required Lenders, for the purpose of bidding and making settlement or payment of the purchase price for all or any portion of the Collateral sold at any such sale, to use and apply any of the Obligations as a credit on account of the purchase price for any Collateral payable by the Administrative Agent at such saleHolders.
Appears in 2 contracts
Sources: Indenture (Clearwire Corp /DE), Indenture (Clearwire Corp /DE)
Collateral Agent. The Administrative Agent shall also act as the “collateral agent” under the Loan Documents, and each of the Lenders (including in its capacities as a potential Qualified Counterparty and a potential Cash Management Provider) and the Issuing Lenders hereby irrevocably appoints and authorizes the Administrative Agent to act as the agent of such Lender and the Issuing Lenders (with the full power to appoint and to substitute and to delegate) on its behalf, or in its own name as joint and several creditor or creditor of a parallel debt (as the case may be) for purposes of acquiring, holding and enforcing any and all Liens on Collateral granted by any of the Loan Parties Borrowers to secure any of the Obligations, together with such powers and discretion as are reasonably incidental thereto. In this connection, the Administrative Each Lender hereby authorizes Agent, on behalf of and for the ratable benefit of Lenders, in its capacity as “collateral agent” and , to enter into any co-agents, sub-agents and attorneys-in-fact appointed by of the Administrative Agent pursuant to Section 10.5 Loan Documents as secured party for purposes of acquiring, holding or and enforcing any Lien all Liens on the Collateral (or and any portion thereof) granted under other collateral from time to time securing the Security DocumentsObligations), or and as Agent for exercising any and representative of Lender thereunder, and each Lender agrees to be bound by the terms of each such document. All powers, rights and remedies thereunder at the direction of the Administrative Agent, shall be entitled to the benefits of all provisions of this Section 10 and Section 11, as though such co-agents, sub-agents and attorneys-in-fact were the “collateral agent” under the Loan Documents as if set forth in full herein with respect thereto. Without limiting may be exercised solely by Agent for the generality benefit of the foregoing, the Lenders hereby expressly authorize the Administrative and Agent on its behalf and/or in its own name (including under any parallel debt) to execute any and all documents (including releases) with respect to the Collateral and the rights of the Secured Parties with respect thereto, as contemplated by and in accordance with the provisions of this Agreement and the Security Documents and acknowledge and agree that any such action by any Agent shall bind the Lenders. Each Lender agrees that it shall not take or institute any actions or proceedings, judicial or otherwise, for any right or remedy with respect to any Collateral against any Borrower or any other Loan Party or any other obligor under any of the Loan Documents, Specified Swap Agreements or any Specified Cash Management Agreement (including, in each case, the exercise of any right of setoff, rights on account of any banker’s lien or similar claim or other rights of self-help), or institute any actions or proceedings, or otherwise commence any remedial procedures, with respect to any Collateral of any Borrower or any other Loan Party, without the prior written consent of the Administrative Agentterms thereof. In the event of a foreclosure by the Administrative Agent on any of the Collateral pursuant to a public or private sale or a sale of any of the Collateral pursuant to Section 363 of the Bankruptcy Code (or an equivalent process in any foreign jurisdiction)sale, the Administrative either Agent or any Lender may be the purchaser of any or all of such Collateral at any such sale and the Administrative Agent, as agent for and representative of the Lenders (but not any Lender or Lenders in its or their respective individual capacities unless the Required Lenders shall otherwise agree in writing) shall be entitled, with entitled (subject to the consent or proviso at the direction end of the Required Lendersthis sentence), for the purpose of bidding and making settlement or payment of the purchase price for all or any 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 the Administrative Agent at such sale; provided however, that neither Agent nor any Lender shall “credit bid” at any foreclosure and/or other public or private sale absent the consent of the Required Lenders. Without limiting the generality of the foregoing, Agent is hereby expressly authorized to execute any and all documents (including releases) that bind Lenders with respect to (i) the Collateral and the rights of Lenders with respect thereto, as contemplated by and in accordance with the provisions of the Loan Documents, and (ii) any other subordination agreement with respect to any Subordinated Debt.
Appears in 2 contracts
Sources: Loan and Security Agreement (Benson Hill, Inc.), Loan and Security Agreement (Biovie Inc.)
Collateral Agent. The Administrative Agent shall also act as the “collateral agent” under the Loan Documents, Trustee and each of the Lenders (including in Holders by acceptance of the Securities hereby designates and appoints the Collateral Agent as its capacities as a potential Qualified Counterparty and a potential Cash Management Provider) agent under this Indenture, the Security Documents and the Issuing Lenders Intercreditor Agreement and the Trustee and each of the Holders by acceptance of the Securities hereby irrevocably appoints and authorizes the Administrative Collateral Agent to take such action on its behalf under the provisions of this Indenture, the Security Documents and the Intercreditor Agreement and to exercise such powers and perform such duties as are expressly delegated to the Collateral Agent by the terms of this Indenture, the Security Documents and the Intercreditor Agreement, and consents and agrees to the terms of the Intercreditor Agreement and each Security Document, as the same may be in effect or may be amended, restated, supplemented or otherwise modified from time to time in accordance with their respective terms. The Collateral Agent agrees to act as such on the agent express conditions contained in this Section 11.08. The provisions of such Lender this Section 11.08 are solely for the benefit of the Collateral Agent and none of the Issuing Lenders (with the full power to appoint and to substitute and to delegate) on its behalfTrustee, or in its own name as joint and several creditor or creditor of a parallel debt (as the case may be) for purposes of acquiring, holding and enforcing any and all Liens on Collateral granted by any of the Loan Parties to secure Holders nor any of the Obligations, together Grantors shall have any rights as a third party beneficiary of any of the provisions contained herein other than as expressly provided in Section 11.03. Each Holder agrees that any action taken by the Collateral Agent in accordance with such powers and discretion as are reasonably incidental thereto. In the provision of this connectionIndenture, the Administrative Agent, as “collateral agent” Intercreditor Agreement and any co-agents, sub-agents and attorneys-in-fact appointed by the Administrative Agent pursuant to Section 10.5 for purposes of holding or enforcing any Lien on the Collateral (or any portion thereof) granted under the Security Documents, or for exercising and the exercise by the Collateral Agent of any rights or remedies set forth herein and remedies thereunder at therein shall be authorized and binding upon all Holders. Notwithstanding any provision to the direction contrary contained elsewhere in this Indenture, the Security Documents and the Intercreditor Agreement, the duties of the Administrative Agent, Collateral Agent shall be entitled to ministerial and administrative in nature, and the benefits of all provisions of this Section 10 and Section 11Collateral Agent shall not have any duties or responsibilities, as though such co-agents, sub-agents and attorneys-in-fact were the “collateral agent” under the Loan Documents as if except those expressly set forth herein and in full herein the other Notes Documents to which the Collateral Agent is a party, nor shall the Collateral Agent have or be deemed to have any trust or other fiduciary relationship with respect theretothe Trustee, any Holder or any Grantor, and no implied covenants, functions, responsibilities, duties, obligations or liabilities shall be read into this Indenture, the Security Documents and the Intercreditor Agreement or otherwise exist against the Collateral Agent. Without limiting the generality of the foregoingforegoing sentence, the Lenders hereby expressly authorize use of the Administrative Agent on its behalf and/or term “agent” in its own name (including under any parallel debt) to execute any and all documents (including releases) this Indenture with respect reference to the Collateral and the rights of the Secured Parties with respect thereto, as contemplated by and in accordance with the provisions of this Agreement and the Security Documents and acknowledge and agree that Agent is not intended to connote any such action by any Agent shall bind the Lenders. Each Lender agrees that it shall not take fiduciary or institute any actions other implied (or proceedings, judicial or otherwise, for any right or remedy with respect to any Collateral against any Borrower or any other Loan Party or any other obligor express) obligations arising under any of the Loan Documents, Specified Swap Agreements or any Specified Cash Management Agreement (including, in each case, the exercise agency doctrine of any right of setoffapplicable law. Instead, rights on account of any banker’s lien or similar claim or other rights of self-help), or institute any actions or proceedings, or otherwise commence any remedial procedures, with respect to any Collateral of any Borrower or any other Loan Party, without the prior written consent of the Administrative Agent. In the event of a foreclosure by the Administrative Agent on any of the Collateral pursuant to a public or private sale or a sale of any of the Collateral pursuant to Section 363 of the Bankruptcy Code (or an equivalent process in any foreign jurisdiction), the Administrative Agent or any Lender may be the purchaser of any or all of such Collateral at any such sale and the Administrative Agent, as agent for and representative of the Lenders (but not any Lender or Lenders in its or their respective individual capacities unless the Required Lenders shall otherwise agree in writing) shall be entitled, with the consent or at the direction of the Required Lenders, for the purpose of bidding and making settlement or payment of the purchase price for all or any portion of the Collateral sold at any such sale, to use and apply any of the Obligations term is used merely as a credit on account matter of the purchase price for any Collateral payable by the Administrative Agent at such salemarket custom, and is intended to create or reflect only an administrative relationship between independent contracting parties.
Appears in 2 contracts
Sources: Indenture (Scientific Games Corp), Indenture (Scientific Games Corp)
Collateral Agent. The Administrative Agent shall also act (a) Pursuant to that certain Co-Origination Agreement dated January 28, 2008 by and among, inter alia, JPM and the other Initial Lenders or their predecessors (as amended from time to time, the “Co-Origination Agreement”), JPM and the other parties thereto agreed amongst themselves to extend the Original Loan to Borrower and accordingly, JPM, on behalf of itself and the Lenders or their predecessors party to the Co-Origination Agreement, entered into the Original Loan Agreement and the various loan documents contemplated thereby and has acted as the “collateral agent” under the Loan Documents, secured party of record and each mortgagee of the Lenders (including in its capacities as a potential Qualified Counterparty and a potential Cash Management Provider) and the Issuing Lenders hereby irrevocably appoints and authorizes the Administrative Agent to act as the agent of such Lender and the Issuing Lenders (with the full power to appoint and to substitute and to delegate) on its behalf, or in its own name as joint and several creditor or creditor of a parallel debt (as the case may be) record for purposes of acquiringthe grants of security and collateral contained in the various Loan Documents.
(b) Each Lender hereby irrevocably (i) designates and appoints Bank of America, holding and enforcing any and all Liens on Collateral granted by any of the Loan Parties to secure any of the Obligations, together with such powers and discretion as are reasonably incidental thereto. In this connection, the Administrative AgentN.A., as “collateral agent” and any co-agents, sub-agents and attorneys-in-fact appointed by the Administrative Agent pursuant to Section 10.5 for purposes of holding or enforcing any Lien on the Collateral (or any portion thereof) granted under the Security Documents, or for exercising any rights and remedies thereunder at the direction of the Administrative Agent, shall be entitled to the benefits of all provisions of this Section 10 and Section 11, as though such co-agents, sub-agents and attorneys-in-fact were the “collateral agent” under the Loan Documents as if set forth in full herein with respect thereto. Without limiting the generality of the foregoing, the Lenders hereby expressly authorize the Administrative Agent on its behalf and/or in its own name (including under any parallel debt) to execute any and all documents (including releases) with respect to the agreements, instruments, insurance policies and certificates (including title policies and endorsements) and other documents listed on Schedule XXXIV (collectively, the “Collateral Loan Documents”), to act as secured party or other applicable named party (including, without limitation, as named insured and loss payee) on behalf of the Lenders, (ii) names the Collateral Agent as a replacement mortgagee of record and the rights replacement secured party of record, and (iii) authorizes the Secured Parties with respect theretoCollateral Agent, as contemplated by and in accordance with such capacity, to take such action on its behalf under the provisions of this Agreement and the Security other Loan Documents and acknowledge to exercise such powers and agree perform such duties (A) as are expressly delegated to the Collateral Agent by the terms of this Agreement and the other Loan Documents and (B) as are necessary to comply with any direction given to the Collateral Agent by the Servicer, together with such other powers as are reasonably incidental thereto, with respect to the Collateral Loan Documents. Collateral Agent hereby (1) accepts such designation and appointment, (2) agrees to act as a replacement mortgagee of record and as the replacement secured party of record, (3) agrees to reasonably cooperate with the Servicer in the performance of its obligations and in acting upon the direction of the Servicer, and (4) agrees to take such actions on behalf of Lender and exercise such powers and perform such duties (i) as are expressly delegated to it by the terms of this Agreement and the other Loan Documents and (ii) as are necessary or advisable to comply with any direction given to the Collateral Agent by the Servicer, together with such other powers as are reasonably incidental thereto, with respect to the Collateral Loan Documents. Notwithstanding any provision to the contrary elsewhere in this Agreement, the Collateral Agent shall not have any duties or responsibilities except those expressly set forth herein or in the Collateral Loan Documents, or any fiduciary relationship with any Lender, and no implied covenants, functions, responsibilities, duties, obligations or liabilities shall be read into this Agreement or any other Loan Document or otherwise exist against the Collateral Agent. Collateral Agent may execute any of its duties under this Agreement and the other Loan Documents by or through agents or attorneys-in-fact and shall be entitled to advice of counsel concerning all matters pertaining to such duties. Collateral Agent shall not be responsible for the negligence or misconduct of any agents or attorneys-in-fact selected by it with reasonable care. Neither Collateral Agent nor any of its officers, directors, employees, agents or attorneys-in-fact shall be (a) liable for any action lawfully taken or omitted to be taken by it or such person under or in connection with this Agreement or any other Loan Document (except for its or such person’s own gross negligence or willful misconduct) or (b) responsible in any manner to any Lender for any recitals, statements, representations or warranties made by any Borrower herein or in any report, statement or other document referred to or provided for in, or received by such Collateral Agent under or in connection with, this Agreement or any other Loan Document or for the value, validity, effectiveness, genuineness, enforceability or sufficiency of this Agreement or any other Loan Document or for any failure of any Borrower to perform its obligations hereunder or thereunder. Collateral Agent shall be under no obligation to any Lender to ascertain or to inquire as to the observance or performance of any of the agreements contained in, or conditions of, this Agreement or any other Loan Document, or to inspect the properties, books or records of Borrower. Collateral Agent shall not be deemed to have knowledge or notice of the occurrence of any Default or Event of Default hereunder unless it shall have received notice from a Lender, Servicer or the Borrower referring to this Agreement, describing such Default or Event of Default and stating that such notice is a “notice of default.”
(c) Collateral Agent agrees that it will confirm receipt (in a writing to each Lender) of any Collateral Loan Document that it receives (including following the recordation of any such action by any Collateral Loan Documents, from time to time) within ten (10) Business Days of the receipt of each such Collateral Loan Document (in each case). Collateral Agent shall bind (or shall cause its designee) to review the LendersLoan Documents constituting the custodial file (as set forth on the closing checklist of the Loan Documents to be delivered in connection with the origination of the amended and restated Loan on the Closing Date) and, within ten (10) Business Days of receipt thereof, deliver to the Lender a trust receipt, in compliance with that certain custodial arrangement between the Lender and Bank of America, N.A., as custodian, evidencing receipt of such Loan Documents, together with a schedule of exceptions to such receipt. The Collateral Agent (or its designee) shall continue to act as the custodian of the Loan Documents on behalf of Lender and shall comply with the terms and provisions of any existing custodial arrangement with the Lender with respect thereto.
(d) Collateral Agent, in its capacity as such, is a “representative” of each Lender within the meaning of the term “secured party” as defined in the New York Uniform Commercial Code. Each Lender authorizes the Collateral Agent to enter into each of the Collateral Loan Documents to which it is a party and to take all action contemplated in this Agreement and in such documents to be taken by the Collateral Agent. Each Lender agrees that it no Lender (other than the Collateral Agent, in its capacity as the Collateral Agent) shall not take or institute any actions or proceedings, judicial or otherwise, for any have the right or remedy with respect individually to seek to realize upon the security granted by any Collateral against any Borrower or any other Loan Party or any other obligor under any of the Loan DocumentsDocument, Specified Swap Agreements or any Specified Cash Management Agreement (including, in each case, the exercise of any right of setoff, it being understood and agreed that such rights on account of any banker’s lien or similar claim or other rights of self-help), or institute any actions or proceedings, or otherwise commence any remedial procedures, with respect to any Collateral of any Borrower or any other Loan Party, without the prior written consent of the Administrative Agent. In the event of a foreclosure and remedies may be exercised solely by the Administrative Collateral Agent on any (for the benefit of the Collateral pursuant to a public or private sale or a sale of any of the Collateral pursuant to Section 363 of the Bankruptcy Code (or an equivalent process in any foreign jurisdiction), the Administrative Agent or any Lender may be the purchaser of any or all of such Collateral at any such sale and the Administrative Agent, as agent for and representative of the Lenders (but not any Lender or Lenders in its or their respective individual capacities unless the Required Lenders shall otherwise agree in writingeach Lender) shall be entitled, with the consent or at the direction of the Required LendersServicer in accordance with the Collateral Loan Documents, any applicable Co-Lender Agreement and any applicable intercreditor or servicing agreements. In the event that any collateral is hereafter pledged by any person as collateral security for the purpose Debt, the Collateral Agent is hereby authorized, and hereby granted a power of bidding attorney, to execute and making settlement deliver on behalf of each Lender any Loan Documents necessary or payment of the purchase price for all or any portion appropriate to grant and perfect a first priority lien on such collateral in favor of the Collateral sold Agent for the benefit of Lender. Each Lender hereby authorizes the Collateral Agent to release any lien granted to or held by the Collateral Agent upon any collateral as permitted by, but only in accordance with, the direction of the Servicer and the express terms of this Agreement, the applicable Loan Document and the applicable provisions of the Co-Lender Agreement. Upon request by the Collateral Agent at any such time, and in each case subject to the requirements and approvals required in the Co-Lender Agreement, each Lender shall confirm in writing the Collateral Agent’s authority to release particular types or items of collateral pursuant to the provisions of this Agreement. Upon any sale, lease, transfer or other disposition of assets constituting collateral which is permitted pursuant to use the terms of any Loan Document or consented to in writing by the Lenders in accordance with the provisions of the Co-Lender Agreement, as applicable, and apply upon at least five (5) Business Days’ prior written request by the Borrower to the Collateral Agent, the Collateral Agent shall (and is hereby irrevocably authorized by each Lender to) execute such documents as may be necessary to evidence the release of the liens granted to the Collateral Agent for the benefit of Lender herein or pursuant hereto with respect to the collateral that was so sold or transferred; provided, however, that (i) the Collateral Agent shall not be required to execute any such document on terms which, in the Collateral Agent’s reasonable opinion, would expose the Collateral Agent to liability or create any obligation or entail any consequence other than the release of such liens without recourse or warranty, and (ii) such release shall not in any manner discharge, affect or impair the Debt or the secured obligations or any liens upon (or obligations of any Borrower in respect of) all interests retained by any Borrower, including (without limitation) the proceeds of the sale, all of which shall continue to constitute part of the collateral. Notwithstanding anything to the contrary contained herein or in any other Loan Document, the failure of Collateral Agent to take any action hereunder or under any other Loan Document shall not (a) be deemed to be a waiver of any term or condition of this Agreement or any of the Obligations as a credit on account other Loan Documents, or (b) adversely affect any rights of Lender hereunder or under any other Loan Document.
(e) The Collateral Agent (i) may resign at any time upon notice to each Lender, and (ii) may be removed at any time upon the decision of Lender made in accordance with the applicable provisions of the purchase price Co-Lender Agreement. If the Collateral Agent shall resign or be removed, Lender shall have the right to select a replacement collateral agent in accordance with the Co-Lender Agreement. Upon the replacement of the Collateral Agent, the Collateral Agent shall assign all of the liens upon and security interests in all collateral under the Collateral Loan Documents, and all right, title and interest of the Collateral Agent under all the Collateral Loan Documents, to the replacement Collateral Agent, without recourse to the Collateral Agent or any Lender and at the expense of Borrower. No resignation or removal of the Collateral Agent shall become effective until a replacement Collateral Agent shall have been selected as provided in this Agreement and the Co-Lender Agreement and shall have assumed in writing the obligations of the Collateral Agent under this Agreement and under the Collateral Loan Documents. In the event that a replacement Collateral Agent shall not have been selected as provided in this Agreement or shall not have assumed such obligations within ninety (90) days after the resignation or removal of the Collateral Agent, then the Collateral Agent may apply to a court of competent jurisdiction for the appointment of a replacement Collateral Agent. Lender shall notify Borrower in writing of any change to the identity of the Collateral payable Agent that may be appointed by Lender pursuant to the Administrative terms of the Co-Lender Agreement.
(f) The Collateral Agent at shall be paid an annual fee of $15,000 for its services by Borrower. For 2010, Borrower shall pay the prorated amount of such salefee to Collateral Agent on the Closing Date (i.e. services from the Closing Date forward until December 31, 2010). Commencing January 2011 and annually each January thereafter, Collateral Agent shall submit its invoice for $15,000 to Borrower for payment. Borrower shall promptly pay such invoice within ten (10) Business Days of receipt.
Appears in 2 contracts
Sources: Loan Agreement, Loan Agreement (Harrahs Entertainment Inc)
Collateral Agent. (a) All items of Collateral and any interest therein to be delivered to or held by Holder pursuant to this Agreement shall be held by Holder, for the benefit of itself. Debtor may conclusively and absolutely rely, without inquiry, upon any action of ▇▇▇▇▇▇ in all matters referred to in this Agreement.
(b) Holder shall have no duties or responsibilities except those expressly set forth in this Agreement. Neither Holder nor any of its officers, directors, employees or agents shall be liable for any action taken or omitted by it as such hereunder to the maximum extent permitted by law. The Administrative Agent duties of Holder shall also act be mechanical and administrative in nature.
(c) Prior to delivery of a written notice from Holder that an Event of Default has occurred (“Notice of Default”), Holder shall have the power, but not the obligation, to take such actions as Holder in its discretion deems necessary or desirable to perfect, preserve, or otherwise protect the “security interest and Liens in the Collateral or any part thereof. After a Notice of Default has been delivered by ▇▇▇▇▇▇, Holder shall take such actions under this Agreement as it deems desirable, necessary or by a final order, decree or judgment of a court of competent jurisdiction and from which no appeal has been taken and as to which the time the right to appeal has expired.
(d) All proceeds of the Collateral shall be applied as follows:
(i) first, to the payment of all fees and expenses (including, without limitation, all fees, taxes, attorneys’ fees and legal expenses) incurred by Holder in connection with retaking, holding, collecting, or liquidating the Collateral, until paid in full;
(ii) second, to payment of all fees, expenses, indemnities and other amounts owed to Holder under Sections 19 or 28(c) or otherwise under this Agreement, until paid in full;
(iii) third, to payment of that portion of the Obligations constituting fees, expenses and indemnities owed to Holder, until paid in full;
(iv) fourth, to payment of that portion of the Obligations constituting interest owed to Holder, until paid in full;
(v) fifth, to payment of that portion of the Obligations constituting unpaid principal of the Secured Note, until paid in full;
(vi) sixth, to pay any other Obligations owed to Holder, until paid in full; and
(vii) last, the balance, if any, after all of the Obligations have been indefeasibly paid in full, to Debtor or as otherwise required by law.
(e) The Holder, in consultation with ▇▇▇▇▇▇, shall have the right to appoint a third-party collateral agent” under ; provided, however, that, notwithstanding the Loan Documentsresults of such consultation with ▇▇▇▇▇▇, and each the right of the Lenders (including Holder to appoint a successor shall be exercised by the Holder in its capacities as a potential Qualified Counterparty sole discretion.
(f) Holder shall use reasonable care in the custody and a potential Cash Management Providerpreservation of any Collateral in Holder’s possession. Holder shall not be liable for (i) and the Issuing Lenders hereby irrevocably appoints and authorizes the Administrative Agent to act as the agent of such Lender and the Issuing Lenders (any action taken or omitted by it in its discretion under or in connection with the full power to appoint and to substitute and to delegate) on its behalfthis Agreement, or any other applicable document or the transactions contemplated hereby (except for its own gross negligence or willful misconduct as determined by a final non-appealable judgment by a court of competent jurisdiction).
(g) Notwithstanding anything in this Agreement or any other agreement or document, express or implied, it is agreed that (i) Holder shall not be subject to any fiduciary or other implied duties, (ii) Holder shall not be required to take any action that, in its own name as joint opinion or the opinion of its counsel, may expose Holder to liability or that is contrary to applicable law; (iii) Holder may consult with legal counsel or independent public accountants and several creditor or creditor of a parallel debt (as the case may be) for purposes of acquiring, holding other experts selected by it and enforcing any and all Liens on Collateral granted by any of the Loan Parties to secure any of the Obligations, together with such powers and discretion as are reasonably incidental thereto. In this connection, the Administrative Agent, as “collateral agent” and any co-agents, sub-agents and attorneys-in-fact appointed by the Administrative Agent pursuant to Section 10.5 for purposes of holding or enforcing any Lien on the Collateral (or any portion thereof) granted under the Security Documents, or for exercising any rights and remedies thereunder at the direction of the Administrative Agent, shall be entitled to fully rely upon any opinion of such counsel or accountant in connection with any action taken or omitted to be taken by Holder in accordance with the benefits advice of such counsel, accountants or experts; and (iv) Holder may perform any and all of its duties and exercise its rights and powers hereunder by or through any one or more sub-agents appointed by ▇▇▇▇▇▇.
(h) The provisions of this Section 10 28 are solely for the benefit of ▇▇▇▇▇▇, and Section 11, as though such co-agents, sub-agents and attorneys-in-fact were the “collateral agent” under the Loan Documents as if set forth in full herein with respect thereto. Without limiting the generality of the foregoing, the Lenders hereby expressly authorize the Administrative Agent on its behalf and/or in its own name (including under any parallel debt) to execute any and all documents (including releases) with respect to the Collateral and the rights of the Secured Parties with respect thereto, as contemplated by and in accordance with the provisions of this Agreement and the Security Documents and acknowledge and agree that any such action by any Agent shall bind the Lenders. Each Lender agrees that it Debtor shall not take or institute any actions or proceedings, judicial or otherwise, for any right or remedy with respect to any Collateral against any Borrower or any other Loan Party or any other obligor under any of the Loan Documents, Specified Swap Agreements or any Specified Cash Management Agreement (including, in each case, the exercise of any right of setoff, have rights on account of any banker’s lien or similar claim or other rights of self-help), or institute any actions or proceedings, or otherwise commence any remedial procedures, with respect to any Collateral of any Borrower or any other Loan Party, without the prior written consent of the Administrative Agent. In the event of as a foreclosure by the Administrative Agent on any of the Collateral pursuant to a public or private sale or a sale third party beneficiary of any of the Collateral pursuant to Section 363 of the Bankruptcy Code (or an equivalent process in any foreign jurisdiction), the Administrative Agent or any Lender may be the purchaser of any or all of such Collateral at any such sale and the Administrative Agent, as agent for and representative of the Lenders (but not any Lender or Lenders in its or their respective individual capacities unless the Required Lenders shall otherwise agree in writing) shall be entitled, with the consent or at the direction of the Required Lenders, for the purpose of bidding and making settlement or payment of the purchase price for all or any portion of the Collateral sold at any such sale, to use and apply any of the Obligations as a credit on account of the purchase price for any Collateral payable by the Administrative Agent at such saleprovisions.
Appears in 2 contracts
Sources: Security Agreement (HealthLynked Corp), Security Agreement (HealthLynked Corp)
Collateral Agent. The Administrative Agent shall also act as the “collateral agent” under the Loan Documents, and each of the Lenders (including in its capacities as a potential Qualified Counterparty and a potential Cash Management Provider) and the Issuing Lenders hereby irrevocably appoints and authorizes the Administrative Agent to act as the agent of such Lender and the Issuing Lenders (with the full power to appoint and to substitute and to delegate) on its behalf, or in its own name as joint and several creditor or creditor of a parallel debt (as the case may be) for purposes of acquiring, holding and enforcing any and all Liens on Collateral granted by any of the Loan Parties to secure any of the Obligations, together with such powers and discretion as are reasonably incidental thereto. In this connection, the Administrative Agent, as “collateral agent” and any co-agents, sub-agents and attorneys-in-fact appointed by the Administrative Agent pursuant to Section 10.5 9.5 for purposes of holding or enforcing any Lien on the Collateral (or any portion thereof) granted under the Security Documents, or for exercising any rights and remedies thereunder at the direction of the Administrative Agent, shall be entitled to the benefits of all provisions of this Section 10 9 and Section 1110, as though such co-agents, sub-agents and attorneys-in-fact were the “collateral agent” under the Loan Documents as if set forth in full herein with respect thereto. Without limiting the generality of the foregoing, the Lenders hereby expressly authorize the Administrative Agent on its behalf and/or in its own name (including under any parallel debt) to execute any and all documents (including releases) with respect to the Collateral and the rights of the Secured Parties with respect thereto, as contemplated by and in accordance with the provisions of this Agreement and the Security Documents and acknowledge and agree that any such action by any the Administrative Agent shall bind the Lenders. Each Lender agrees that it shall not take or institute any actions or proceedings, judicial or otherwise, for any right or remedy with respect to any Collateral against any the Borrower or any other Loan Party or any other obligor under any of the Loan Documents, the Specified Swap Agreements or any Specified Cash Management Agreement (including, in each case, the exercise of any right of setoff, rights on account of any banker’s lien or similar claim or other rights of self-help), or institute any actions or proceedings, or otherwise commence any remedial procedures, with respect to any Collateral of any the Borrower or any other Loan Party, without the prior written consent of the Administrative Agent. In the event of a foreclosure by the Administrative Agent on any of the Collateral pursuant to a public or private sale or a sale of any of the Collateral pursuant to Section 363 of the Bankruptcy Code (or an equivalent process in any foreign jurisdiction)Code, the Administrative Agent or any Lender may be the purchaser of any or all of such Collateral at any such sale and the Administrative Agent, as agent for and representative of the Lenders (but not any Lender or Lenders in its or their respective individual capacities unless the Required Lenders shall otherwise agree in writing) shall be entitled, with the consent or at the direction of the Required Lenders, for the purpose of bidding and making settlement or payment of the purchase price for all or any portion of the Collateral sold at any such sale, to use and apply any of the Obligations as a credit on account of the purchase price for any Collateral payable by the Administrative Agent at such sale.
Appears in 2 contracts
Sources: Credit Agreement (Mueller Water Products, Inc.), Term Loan Credit Agreement (Mueller Water Products, Inc.)
Collateral Agent. The Administrative Agent shall also act as the “collateral agent” under the Loan Documents, and each of the Lenders (including in its capacities as a potential Qualified Counterparty and a potential Cash Management Provider) and the Issuing Lenders hereby irrevocably appoints and authorizes the Administrative Agent to act as the agent of such Lender and the Issuing Lenders (with the full power to appoint and to substitute and to delegate) on its behalf, or in its own name as joint and several creditor or creditor of a parallel debt (as the case may be) for purposes of acquiring, holding and enforcing any and all Liens on Collateral granted by any of the Loan Parties to secure any of the Obligations, together with such powers and discretion as are reasonably incidental thereto. In this connection, the Administrative Agent, as “collateral agent” and any co-agents, sub-agents and attorneys-in-fact appointed by the Administrative Agent pursuant to Section 10.5 for purposes of holding or enforcing any Lien on the Collateral (or any portion thereof) granted under the Security Documents, or for exercising any rights and remedies thereunder at the direction of the Administrative Agent, shall be entitled to the benefits of all provisions of this Section 10 and Section 11, as though such co-agents, sub-agents and attorneys-in-fact were the “collateral agent” under the Loan Documents as if set forth in full herein with respect thereto. Without limiting the generality of the foregoing, the Lenders hereby expressly authorize the Administrative Agent on its behalf and/or in its own name (including under any parallel debt) to execute any and all documents (including releases) with respect to the Collateral and the rights of the Secured Parties with respect thereto, as contemplated by and in accordance with the provisions of this Agreement and the Security Documents and acknowledge and agree that any such action by any the Administrative Agent shall bind the Lenders. Each Lender agrees that it shall not take or institute any actions or proceedings, judicial or otherwise, for any right or remedy with respect to any Collateral against any Borrower or any other Loan Party or any other obligor under any of the Loan Documents, the Specified Swap Agreements or any Specified Cash Management Agreement (including, in each case, the exercise of any right of setoff, rights on account of any banker’s lien or similar claim or other rights of self-help), or institute any actions or proceedings, or otherwise commence any remedial procedures, with respect to any Collateral of any Borrower or any other Loan Party, without the prior written consent of the Administrative Agent. In the event of a foreclosure by the Administrative Agent on any of the Collateral pursuant to a public or private sale or a sale of any of the Collateral pursuant to Section 363 of the Bankruptcy Code (or an equivalent process in any foreign jurisdiction)Code, the Administrative Agent or any Lender may be the purchaser of any or all of such Collateral at any such sale and the Administrative Agent, as agent for and representative of the Lenders (but not any Lender or Lenders in its or their respective individual capacities unless the Required Lenders shall otherwise agree in writing) shall be entitled, with the consent or at the direction of the Required Lenders, for the purpose of bidding and making settlement or payment of the purchase price for all or any portion of the Collateral sold at any such sale, to use and apply any of the Obligations as a credit on account of the purchase price for any Collateral payable by the Administrative Agent at such sale.
Appears in 2 contracts
Sources: Credit Agreement (Emerald Holding, Inc.), Credit Agreement (Emerald Expositions Events, Inc.)
Collateral Agent. (a) The Administrative Agent shall also act Secured Party is hereby designated as the “collateral agent” agent under this Agreement, the Loan Security Documents and the Note Documents, and each the Holders irrevocably authorize the Secured Party to take such action on their behalf under the provisions of this Agreement, the Security Documents and the other Note Documents, and to exercise such powers and perform such duties as are expressly delegated to the Secured Party by the terms of this Agreement and the other Note Documents, and consents and agrees to the terms of the Lenders (including each Note Document, as the same may be in its capacities as a potential Qualified Counterparty and a potential Cash Management Provider) and effect or may be amended, restated, supplemented or otherwise modified from time to time in accordance with their respective terms. Each Holder, by accepting the Issuing Lenders hereby irrevocably appoints and authorizes benefits of this Agreement, agrees to the Administrative Agent appointment of the Secured Party pursuant to this Section 6.12. The Secured Party agrees to act as such on the agent of such Lender and the Issuing Lenders (with the full power to appoint and to substitute and to delegate) on its behalf, or express conditions contained in its own name as joint and several creditor or creditor of a parallel debt (as the case may be) for purposes of acquiring, holding and enforcing this Section 6.12. The Holders agree that any and all Liens on Collateral granted by any of the Loan Parties to secure any of the Obligations, together with such powers and discretion as are reasonably incidental thereto. In this connection, the Administrative Agent, as “collateral agent” and any co-agents, sub-agents and attorneys-in-fact appointed action taken by the Administrative Agent pursuant to Section 10.5 for purposes of holding or enforcing any Lien on the Collateral (or any portion thereof) granted under the Security Documents, or for exercising any rights and remedies thereunder at the direction of the Administrative Agent, shall be entitled to the benefits of all provisions of this Section 10 and Section 11, as though such co-agents, sub-agents and attorneys-in-fact were the “collateral agent” under the Loan Documents as if set forth in full herein with respect thereto. Without limiting the generality of the foregoing, the Lenders hereby expressly authorize the Administrative Agent on its behalf and/or in its own name (including under any parallel debt) to execute any and all documents (including releases) with respect to the Collateral and the rights of the Secured Parties with respect thereto, as contemplated by and Party in accordance with the provisions of this Agreement and the other Note Documents, and the exercise by the Secured Party of any rights or remedies set forth herein and therein shall be authorized and binding upon the Holders. Notwithstanding any provision to the contrary contained elsewhere in this Agreement and the other Note Documents, the duties of the Secured Party shall be ministerial and administrative in nature, and the Secured Party shall not have any duties or responsibilities, except those expressly set forth herein and in the Security Documents, to which the Secured Party is a party, nor shall the Secured Party have or be deemed to have any trust or other fiduciary relationship with the Holders, and no implied covenants, functions, responsibilities, duties, obligations or liabilities shall be read into the Security Documents and acknowledge the other Note Documents, or otherwise exist against the Secured Party. Without limiting the generality of the foregoing sentence, the use of the term “agent” in this Agreement with reference to the Secured Party is not intended to connote any fiduciary or other implied (or express) obligations arising under agency doctrine of any applicable law. Instead, such term is used merely as a matter of market custom, and agree that is intended to create or reflect only an administrative relationship between independent contracting parties.
(b) The Secured Party may perform any such action of its duties under this Agreement or the other the Note Documents, by any Agent shall bind the Lenders. Each Lender agrees that it shall not take or institute any actions through receivers, agents, employees, attorneys-in-fact or proceedings, judicial or otherwise, for any right or remedy with respect to any Collateral against specified Person, such Person’s Affiliates, and the respective officers, directors, employees, agents, advisors and attorneys-in-fact of such Person and its Affiliates (a “Related Person”), and shall be entitled to advice of counsel concerning all matters pertaining to such duties, and shall be entitled to act upon, and shall be fully protected in taking action in reliance upon any Borrower advice or opinion given by legal counsel. The Secured Party shall not be responsible for the acts or omissions of any receiver, agent, employee, attorney-in-fact or Related Person that it selects as long as such selection was made in good faith and with due care.
(c) The Secured Party shall be entitled to rely, and shall be fully protected in relying, upon any writing, resolution, notice, consent, certificate, affidavit, order, letter, telegram, facsimile, certification, telephone message, statement, or other Loan communication, document or conversation (including those by telephone or e-mail) believed by it to be genuine and correct and to have been signed, sent, or made by the proper Person or Persons, and upon advice and statements of legal counsel (including, without limitation, counsel to the any Grantor), independent accountants and other experts and advisors selected by the Secured Party. The Secured Party shall not be bound to make any investigation into the facts or matters stated in any resolution, certificate, statement, instrument, opinion, report, notice, request, direction, consent, order, bond, debenture, or other obligor paper or document. The Secured Party shall be fully justified in failing or refusing to take any action under this Agreement and the other Note Documents. The Secured Party shall in all cases be fully protected in acting, or in refraining from acting, under this Agreement and the other Note Documents, in accordance with a request, direction, instruction or consent of the Holders and such request and any action taken or failure to act pursuant thereto shall be binding upon all of the Holders.
(d) The Secured Party shall not be deemed to have knowledge or notice of the occurrence of any default or Event of Default.
(e) The Secured Party may resign at any time by 5 days’ written notice to the Holders, such resignation to be effective upon the acceptance of a successor agent to its appointment as Secured Party. If the Secured Party resigns under this Agreement, the Pledgor shall appoint a successor collateral agent. If no successor collateral agent is appointed pursuant to the preceding sentence within ten (10) days after the intended effective date of resignation (as stated in the notice of resignation) the Secured Party shall be entitled to petition a court of competent jurisdiction to appoint a successor. Upon the acceptance of its appointment as successor collateral agent hereunder, such successor collateral agent shall succeed to all the rights, powers and duties of the retiring Secured Party, and the retiring Secured Party’s appointment, powers and duties as the Secured Party shall be terminated. After the retiring Secured Party’s resignation hereunder, the provisions of this Section 6.12(e) shall continue to inure to its benefit and the retiring Secured Party shall not by reason of such resignation be deemed to be released from liability as to any actions taken or omitted to be taken by it while it was the Secured Party under this Agreement.
(f) High Trail Investments ON LLC shall initially act as collateral agent and shall be authorized to appoint co-collateral agents as necessary in its sole discretion. Except as otherwise explicitly provided herein or in the Security Documents, neither the Secured Party nor any of its respective officers, directors, employees or agents or other Related Persons shall be liable for failure to demand, collect or realize upon any of the Loan Documents, Specified Swap Agreements 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 Specified Cash Management Agreement (including, in each case, part thereof. The Secured Party shall be accountable only for amounts that it actually receives as a result of the exercise of such powers, and neither the Secured Party nor any right of setoffits officers, rights directors, employees or agents shall be responsible for any act or failure to act hereunder, except for its own gross negligence or willful misconduct.
(g) The Secured Party is authorized and directed to (i) enter into the Security Documents to which it is party, whether executed on account or after the Closing, (ii) bind the Holders on the terms as set forth in the Security Documents and the other Note Documents, and (iii) perform and observe its obligations under the Security Documents and the other Note Documents.
(h) The Secured Party shall have no obligation whatsoever to assure that the Collateral exists or is owned by any Grantor or is cared for, protected, or insured or has been encumbered, or that the Secured Party’s Liens have been properly or sufficiently or lawfully created, perfected, protected, maintained or enforced or are entitled to any particular priority, or to determine whether all or part of the Grantor’s property constituting Collateral intended to be subject to the Lien and security interest of the Security Documents has been properly and completely listed or delivered, as the case may be, or the genuineness, validity, marketability or sufficiency thereof or title thereto, 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 powers granted or available to the Secured Party pursuant to this Agreement, any Security Document or the other Note Documents.
(i) No provision of this Agreement, any Security Document or the other Note Documents shall require the Secured Party to expend or risk its own funds or otherwise incur any financial liability in the performance of any banker’s lien of its duties hereunder or similar claim thereunder or to take or omit to take any action hereunder or thereunder unless it shall have received indemnity satisfactory to the Secured Party in its sole discretion against potential costs and liabilities incurred by the Secured Party relating thereto. Notwithstanding anything to the contrary contained in this Agreement, the Security Documents or the other Note Documents, in the event the Secured Party is entitled or required to commence an action to foreclose or otherwise exercise its remedies to acquire control or possession of the Collateral, the Secured Party 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 Secured Party has determined that the Secured Party may incur personal liability as a result of the presence at, or release on or from, the Collateral or such property, of any hazardous substances. The Secured Party shall at any time be entitled to cease taking any action described in this clause (i) if it no longer reasonably deems any indemnity, security or undertaking to be sufficient.
(j) The Secured Party (i) shall not be liable for any action taken or omitted to be taken by it in connection with this Agreement, any Security Document, the other Note Documents, or any instrument referred to herein or therein, except to the extent that any of the foregoing are found by a final, non-appealable judgment of a court of competent jurisdiction to have resulted from its own gross negligence or willful misconduct, (ii) shall not be liable for interest on any money received by it and (iii) may consult with counsel of its selection and the advice or opinion of such counsel as to matters of law shall be full and complete authorization and protection from liability in respect of any action taken, omitted or suffered by it in good faith and in accordance with the advice or opinion of such counsel. The grant of permissive rights or powers to the Secured Party shall not be construed to impose duties to act.
(k) The Secured Party shall not be liable for delays or failures in performance resulting from acts beyond its control. Such acts shall include but not be limited to acts of God, strikes, lockouts, riots, acts of war, epidemics, governmental regulations superimposed after the fact, fire, communication line failures, computer viruses, power failures, earthquakes or other rights disasters. The Secured Party shall not be liable for any indirect, special, punitive, incidental or consequential damages (included but not limited to lost profits) whatsoever, even if it has been informed of self-helpthe likelihood thereof and regardless of the form of action.
(l) The Secured Party does not assume any responsibility for any failure or delay in performance or any breach by the Pledgor or any Grantor under this Agreement, the Security Documents and the other Note Documents. The Secured Party shall not be responsible any Person for any recitals, statements, information, representations or warranties contained in this Agreement, the Security Documents, the other Note Documents, or in any certificate, report, statement, or other document referred to or provided for in, or received by the Secured Party under or in connection with, this Agreement, the Security Documents or the other Note Documents; the execution, validity, genuineness, effectiveness or enforceability of the Security Documents and any other Note Document of any other party thereto; the genuineness, enforceability, collectability, value, sufficiency, location or existence of any Collateral, or the validity, effectiveness, enforceability, sufficiency, extent, perfection or priority of any Lien therein; the validity, enforceability or collectability of any obligations; the assets, liabilities, financial condition, results of operations, business, creditworthiness or legal status of any obligor; or for any failure of any obligor to perform its obligations under this Agreement, the Security Documents and the other Note Documents. The Secured Party shall have no obligation to any Person to ascertain or inquire into the existence of any default or Event of Default, the observance or performance by any obligor of any terms of this Agreement, the Security Documents or the other Note Documents, or the satisfaction of any conditions precedent contained in this Agreement, the Security Documents or the other Note Documents. The Secured Party shall not be required to initiate or conduct any litigation or collection or other proceeding under this Agreement, the Intercreditor Agreements, and the Security Documents unless expressly set forth hereunder or thereunder.
(m) The parties hereto hereby agree and acknowledge that the Secured Party shall not assume, be responsible for or otherwise be obligated for any liabilities, claims, causes of action, suits, losses, allegations, requests, demands, penalties, fines, settlements, damages (including foreseeable and unforeseeable), judgments, expenses and costs (including but not limited to, any remediation, corrective action, response, removal or institute remedial action, or investigation, operations and maintenance or monitoring costs, for personal injury or property damages, real or personal) of any kind whatsoever, pursuant to any environmental law as a result of this Agreement, the Security Documents or the other Note Documents or any actions taken pursuant hereto or proceedingsthereto. Further, the parties hereto hereby agree and acknowledge that in the exercise of its rights under Agreement, the Security Documents or the other Note Documents, the Secured Party may hold or obtain indicia of ownership primarily to protect the security interest of the Secured Party in the Collateral and that any such actions taken by the Secured Party shall not be construed as or otherwise commence constitute any remedial procedures, with respect to any Collateral participation in the management of any Borrower or any other Loan Party, without the prior written consent of the Administrative Agentsuch Collateral. In the event that the Secured Party is required to acquire title to an asset for any reason, or take any managerial action of a foreclosure by any kind in regard thereto, in order to carry out any fiduciary or trust obligation for the Administrative Agent on any benefit of another, which in either of the Collateral pursuant Secured Party’s sole discretion may cause the Secured Party 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 the Secured Party to incur liability under CERCLA or any other federal, state or local law, each of the Secured Party and the Secured Party reserves the right, instead of taking such action, to either resign as the collateral agent or arrange for the transfer of the title or control of the asset to a public court-appointed receiver. The Secured Party shall not be liable to the Pledgor, the Grantors, or private sale any other Person for any environmental claims or a sale of contribution actions under any federal, state or local law, rule or regulation by reason of the Collateral pursuant Secured Party’s actions and conduct as authorized, empowered and directed hereunder or relating to Section 363 the discharge, release or threatened release of hazardous materials into the environment.
(n) Subject to the provisions of the Bankruptcy Code (or an equivalent process in any foreign jurisdiction)applicable Security Documents and the other Note Documents, the Administrative Agent or any Lender may be Secured Party shall execute and deliver this Agreement, the purchaser of any or all of such Collateral at any such sale Security Documents and the Administrative Agentother Note Documents to which it is a party and all agreements, as agent for documents and representative of the Lenders (but not any Lender or Lenders instruments incidental thereto, and act in its or their respective individual capacities unless the Required Lenders shall otherwise agree in writing) shall be entitled, accordance with the consent terms thereof. For the avoidance of doubt, the Secured Party shall have no discretion under this Agreement, the Security Documents or at the other Note Documents and shall not be required to make or give any determination, consent, approval, request or direction without the written direction of the Required Lenders, for the purpose of bidding and making settlement or payment of the purchase price for all or any portion of the Collateral sold at any such sale, to use and apply any of the Obligations as a credit on account of the purchase price for any Collateral payable by the Administrative Agent at such sale.Hold
Appears in 2 contracts
Sources: Security Agreement (Velo3D, Inc.), Security Agreement (Velo3D, Inc.)
Collateral Agent. The Administrative Agent shall also act (a) Pursuant to that certain Co-Origination Agreement dated January 28, 2008 by and among, inter alia, JPM and the other Initial Lenders, German American Capital Corporation or their predecessors (as amended from time to time, the “Co-Origination Agreement”), JPM and the other parties thereto agreed amongst themselves to extend the Original Loan to Borrower and accordingly, JPM, on behalf of itself and the Lenders or their predecessors party to the Co-Origination Agreement, entered into the Original Loan Agreement and the various loan documents contemplated thereby and has acted as the “collateral agent” under the Loan Documents, and each secured party of the Lenders (including in its capacities as a potential Qualified Counterparty and a potential Cash Management Provider) and the Issuing Lenders hereby irrevocably appoints and authorizes the Administrative Agent to act as the agent of such Lender and the Issuing Lenders (with the full power to appoint and to substitute and to delegate) on its behalf, or in its own name as joint and several creditor or creditor of a parallel debt (as the case may be) record for purposes of acquiringthe grants of security and collateral contained in the various Loan Documents.
(b) Each Lender hereby irrevocably (i) designates and appoints Bank of America, holding and enforcing any and all Liens on Collateral granted by any of the Loan Parties to secure any of the Obligations, together with such powers and discretion N.A. as are reasonably incidental thereto. In this connection, the Administrative Agent, as “collateral agent” and any co-agents, sub-agents and attorneys-in-fact appointed by the Administrative Agent pursuant to Section 10.5 for purposes of holding or enforcing any Lien on the Collateral (or any portion thereof) granted under the Security Documents, or for exercising any rights and remedies thereunder at the direction of the Administrative Agent, shall be entitled to the benefits of all provisions of this Section 10 and Section 11, as though such co-agents, sub-agents and attorneys-in-fact were the “collateral agent” under the Loan Documents as if set forth in full herein with respect thereto. Without limiting the generality of the foregoing, the Lenders hereby expressly authorize the Administrative Agent on its behalf and/or in its own name (including under any parallel debt) to execute any and all documents (including releases) with respect to the agreements and other documents listed on Schedule XXXIV (collectively, the “Collateral Loan Documents”), to act as secured party or other applicable named party (including, without limitation, as named insured and the rights loss payee) on behalf of the Secured Parties with respect theretoLenders, (ii) names the Collateral Agent as contemplated by a replacement secured party of record, and (iii) authorizes the Collateral Agent, in accordance with such capacity, to take such action on its behalf under the provisions of this Agreement and the Security other Loan Documents and acknowledge to exercise such powers and agree perform such duties (A) as are expressly delegated to the Collateral Agent by the terms of this Agreement and the other Loan Documents and (B) as are necessary to comply with any direction given to the Collateral Agent by the Servicer, together with such other powers as are reasonably incidental thereto, with respect to the Collateral Loan Documents. Collateral Agent hereby (1) accepts such designation and appointment, (2) agrees to act as a replacement secured party of record, (3) agrees to reasonably cooperate with the Servicer in the performance of its obligations and in acting upon the direction of the Servicer, and (4) agrees to take such actions on behalf of Lender and exercise such powers and perform such duties (i) as are expressly delegated to it by the terms of this Agreement and the other Loan Documents and (ii) as are necessary or advisable to comply with any direction given to the Collateral Agent by the Servicer, together with such other powers as are reasonably incidental thereto, with respect to the Collateral Loan Documents. Notwithstanding any provision to the contrary elsewhere in this Agreement, the Collateral Agent shall not have any duties or responsibilities except those expressly set forth herein or in the Collateral Loan Documents, or any fiduciary relationship with any Lender, and no implied covenants, functions, responsibilities, duties, obligations or liabilities shall be read into this Agreement or any other Loan Document or otherwise exist against the Collateral Agent. Collateral Agent may execute any of its duties under this Agreement and the other Loan Documents by or through agents or attorneys-in-fact and shall be entitled to advice of counsel concerning all matters pertaining to such duties. Collateral Agent shall not be responsible for the negligence or misconduct of any agents or attorneys-in-fact selected by it with reasonable care. Neither Collateral Agent nor any of its officers, directors, employees, agents or attorneys-in-fact shall be (a) liable for any action lawfully taken or omitted to be taken by it or such person under or in connection with this Agreement or any other Loan Document (except for its or such person’s own gross negligence or willful misconduct) or (b) responsible in any manner to any Lender for any recitals, statements, representations or warranties made by any Borrower herein or in any report, statement or other document referred to or provided for in, or received by such Collateral Agent under or in connection with, this Agreement or any other Loan Document or for the value, validity, effectiveness, genuineness, enforceability or sufficiency of this Agreement or any other Loan Document or for any failure of any Borrower to perform its obligations hereunder or thereunder. Collateral Agent shall be under no obligation to any Lender to ascertain or to inquire as to the observance or performance of any of the agreements contained in, or conditions of, this Agreement or any other Loan Document, or to inspect the properties, books or records of Borrower. Collateral Agent shall not be deemed to have knowledge or notice of the occurrence of any Default or Event of Default hereunder unless it shall have received notice from a Lender, Servicer or the Borrower referring to this Agreement, describing such Default or Event of Default and stating that such notice is a “notice of default.”
(c) Collateral Agent agrees that it will confirm receipt (in writing to each Lender) of any Collateral Loan Document that it receives (including following the recordation of any such action by any Collateral Loan Documents, from time to time) within ten (10) Business Days of the receipt of each such Collateral Loan Document (in each case). Collateral Agent shall bind (or shall cause its designee to) review the LendersLoan Documents constituting the custodial file (as set forth on the closing checklist of Loan Documents to be delivered in connection with the origination of the amended and restated Loan on the Closing Date) and, within ten (10) Business Days of receipt thereof, deliver to the Lender a trust receipt, in compliance with that certain custodial arrangement between the Lender and Bank of America, N.A., as custodian, evidencing receipt of such Loan Documents, together with a schedule of exceptions to such receipt. The Collateral Agent (or its designee) shall continue to act as the custodian of the Loan Documents on behalf of Lender and shall comply with the terms and provisions of any existing custodial arrangement with the Lender with respect thereto.
(d) Collateral Agent, in its capacity as such, is a “representative” of each Lender within the meaning of the term “secured party” as defined in the New York Uniform Commercial Code. Each Lender authorizes the Collateral Agent to enter into each of the Collateral Loan Documents to which it is a party and to take all action contemplated in this Agreement and in such documents to be taken by the Collateral Agent. Each Lender agrees that it no Lender (other than the Collateral Agent, in its capacity as the Collateral Agent) shall not take or institute any actions or proceedings, judicial or otherwise, for any have the right or remedy with respect individually to seek to realize upon the security granted by any Collateral against any Borrower or any other Loan Party or any other obligor under any of the Loan DocumentsDocument, Specified Swap Agreements or any Specified Cash Management Agreement (including, in each case, the exercise of any right of setoff, it being understood and agreed that such rights on account of any banker’s lien or similar claim or other rights of self-help), or institute any actions or proceedings, or otherwise commence any remedial procedures, with respect to any Collateral of any Borrower or any other Loan Party, without the prior written consent of the Administrative Agent. In the event of a foreclosure and remedies may be exercised solely by the Administrative Collateral Agent on any (for the benefit of the Collateral pursuant to a public or private sale or a sale of any of the Collateral pursuant to Section 363 of the Bankruptcy Code (or an equivalent process in any foreign jurisdiction), the Administrative Agent or any Lender may be the purchaser of any or all of such Collateral at any such sale and the Administrative Agent, as agent for and representative of the Lenders (but not any Lender or Lenders in its or their respective individual capacities unless the Required Lenders shall otherwise agree in writingeach Lender) shall be entitled, with the consent or at the direction of the Required LendersServicer in accordance with the Collateral Loan Documents, any applicable Co-Lender Agreement and any applicable intercreditor or servicing agreements. In the event that any collateral is hereafter pledged by any person as collateral security for the purpose Debt, the Collateral Agent is hereby authorized, and hereby granted a power of bidding attorney, to execute and making settlement deliver on behalf of each Lender any Loan Documents necessary or payment of the purchase price for all or any portion appropriate to grant and perfect a first priority lien on such collateral in favor of the Collateral sold Agent for the benefit of Lender. Each Lender hereby authorizes the Collateral Agent to release any lien granted to or held by the Collateral Agent upon any collateral as permitted by, but only in accordance with, the direction of the Servicer and the express terms of this Agreement, the applicable Loan Document and the applicable provisions of the Co-Lender Agreement, if any. Upon request by the Collateral Agent at any such time, and in each case subject to the requirements and approvals required in the Co-Lender Agreement, if any, each Lender shall confirm in writing the Collateral Agent’s authority to release particular types or items of collateral pursuant to the provisions of this Agreement. Upon any sale, lease, transfer or other disposition of assets constituting collateral which is permitted pursuant to use the terms of any Loan Document or consented to in writing by the Lenders in accordance with the provisions of the Co-Lender Agreement, as applicable, and apply upon at least five (5) Business Days’ prior written request by the Borrower to the Collateral Agent, the Collateral Agent shall (and is hereby irrevocably authorized by each Lender to) execute such documents as may be necessary to evidence the release of the liens granted to the Collateral Agent for the benefit of Lender herein or pursuant hereto with respect to the collateral that was so sold or transferred; provided, however, that (i) the Collateral Agent shall not be required to execute any such document on terms which, in the Collateral Agent’s reasonable opinion, would expose the Collateral Agent to liability or create any obligation or entail any consequence other than the release of such liens without recourse or warranty, and (ii) such release shall not in any manner discharge, affect or impair the Debt or the secured obligations or any liens upon (or obligations of any Borrower in respect of) all interests retained by any Borrower, including (without limitation) the proceeds of the sale, all of which shall continue to constitute part of the collateral. Notwithstanding anything to the contrary contained herein or in any other Loan Document, the failure of Collateral Agent to take any action hereunder or under any other Loan Document shall not (a) be deemed to be a waiver of any term or condition of this Agreement or any of the Obligations as a credit on account other Loan Documents, or (b) adversely affect any rights of Lender hereunder or under any other Loan Document.
(e) The Collateral Agent (i) may resign at any time upon notice to each Lender, and (ii) may be removed at any time upon the decision of Lender made in accordance with the applicable provisions of the purchase price Co-Lender Agreement, if any. If the Collateral Agent shall resign or be removed, Lender shall have the right to select a replacement collateral agent in accordance with the Co-Lender Agreement, if any. Upon the replacement of the Collateral Agent, the Collateral Agent shall assign all of the liens upon and security interests in all collateral under the Collateral Loan Documents, and all right, title and interest of the Collateral Agent under all the Collateral Loan Documents, to the replacement Collateral Agent, without recourse to the Collateral Agent or any Lender and at the expense of Borrower. No resignation or removal of the Collateral Agent shall become effective until a replacement Collateral Agent shall have been selected as provided in this Agreement and the Co-Lender Agreement, if any, and shall have assumed in writing the obligations of the Collateral Agent under this Agreement and under the Collateral Loan Documents. In the event that a replacement Collateral Agent shall not have been selected as provided in this Agreement or shall not have assumed such obligations within ninety (90) days after the resignation or removal of the Collateral Agent, then the Collateral Agent may apply to a court of competent jurisdiction for the appointment of a replacement Collateral Agent. Lender shall notify Borrower in writing of any change to the identity of the Collateral Agent that may be appointed by Lender pursuant to the terms of the Co-Lender Agreement, if any.
(f) The parties hereto acknowledge that in the event that Bank of America, N.A. is replaced as Collateral Agent with respect to the Mortgage Loan but remains as Collateral Agent with respect to the Loan, Borrower shall be responsible for the annual fee payable by to the Administrative Collateral Agent at in the amount and pursuant to the terms set forth in the Mortgage Loan Agreement. The payment of such salefee shall not be duplicative of any such fee under any Other Mezzanine Loan (i.e. such fee is not payable under more than one of the Loan or any Other Mezzanine Loan).
Appears in 2 contracts
Sources: Eighth Mezzanine Loan Agreement (Harrahs Entertainment Inc), Ninth Mezzanine Loan Agreement (Harrahs Entertainment Inc)
Collateral Agent. (a) The Administrative Secured Parties hereby: (i) irrevocably designate the Collateral Agent shall also as their agent to act on behalf of the Secured Parties as their representative and on their behalf for the purposes of all the terms of this Security Agreement and the Notes; (ii) agree and consent that the Collateral Agent be named as the “collateral agent” under the Loan Documents, and each of the Lenders (including in its capacities as a potential Qualified Counterparty and a potential Cash Management Provider) and the Issuing Lenders hereby irrevocably appoints and authorizes the Administrative Agent to act as the agent of such Lender and the Issuing Lenders (with the full power to appoint and to substitute and to delegate) sole secured party on its behalf, or in its own name as joint and several creditor or creditor of a parallel debt (as the case may be) for purposes of acquiring, holding and enforcing any and all Liens on Collateral granted by any of the Loan Parties to secure any of the Obligationssecurity documents, together with such powers and discretion as are reasonably incidental thereto. In this connection, the Administrative Agent, as “collateral agent” and any co-agents, sub-agents and attorneys-in-fact appointed by the Administrative Agent filings or notices executed or filed pursuant to Section 10.5 for purposes or in respect of holding or enforcing any Lien on this Security Agreement; and (iii) agree that the Collateral (or any portion thereof) granted under the Security Documents, or for exercising any rights and remedies thereunder at the direction of the Administrative Agent, shall be entitled Agent is authorized to the benefits of all provisions of this Section 10 and Section 11, as though such co-agents, sub-agents and attorneys-in-fact were the “collateral agent” under the Loan Documents as if set forth in full herein with respect thereto. Without limiting the generality of the foregoing, the Lenders hereby expressly authorize the Administrative Agent on its behalf and/or in its own name (including under any parallel debt) to execute file any and all documents terminations of such documents, filings or notices at such time or times as it determines is appropriate.
(including releasesb) with respect As soon as practicable following the execution and delivery of this Agreement, the Collateral Agent shall deliver this Security Agreement for registration at the Companies Registry.
(c) Until the Obligations are paid and performed in full, MTIX covenants and agrees that it will, at its own expense and upon the request of the Collateral Agent, but in all cases subject to the rights of the grantees of the Permitted Liens: (i) after an Event of Default, file or cause to be filed such applications and take such other actions as the Majority in Interest or a duly appointed Collateral and Agent may reasonably request to obtain the consent or approval of any governmental authority to the rights of the Secured Parties with respect theretoand the Collateral Agent hereunder, including, without limitation, the right to sell all the Collateral upon an Event of Default without additional consent or approval from such governmental authority; (ii) from time to time, either before or after an Event of Default, promptly execute and deliver to the duly appointed Collateral Agent all such other assignments, certificates, supplemental documents, and do all other acts or things as contemplated by the Collateral Agent may reasonably request in order to more fully create, evidence, perfect, continue, and in accordance with preserve the priority of the Security Interest and to carry out the provisions of this Agreement Agreement; and the Security Documents and acknowledge and agree that (iii) either before or after an Event of Default, pay all filing fees in connection with any such action by any Agent shall bind the Lenders. Each Lender agrees that it shall not take financing, continuation, or institute any actions termination statement or proceedings, judicial or otherwise, for any right or remedy other instrument with respect to any Collateral against any Borrower or any other Loan Party or any other obligor under any of the Loan Documents, Specified Swap Agreements or any Specified Cash Management Agreement (including, in each case, the exercise of any right of setoff, rights on account of any banker’s lien or similar claim or other rights of self-help), or institute any actions or proceedings, or otherwise commence any remedial procedures, with respect to any Collateral of any Borrower or any other Loan Party, without the prior written consent of the Administrative Agent. In the event of a foreclosure by the Administrative Agent on any of the Collateral pursuant to a public or private sale or a sale of any of the Collateral pursuant to Section 363 of the Bankruptcy Code (or an equivalent process in any foreign jurisdiction), the Administrative Agent or any Lender may be the purchaser of any or all of such Collateral at any such sale and the Administrative Agent, as agent for and representative of the Lenders (but not any Lender or Lenders in its or their respective individual capacities unless the Required Lenders shall otherwise agree in writing) shall be entitled, with the consent or at the direction of the Required Lenders, for the purpose of bidding and making settlement or payment of the purchase price for all or any portion of the Collateral sold at any such sale, to use and apply any of the Obligations as a credit on account of the purchase price for any Collateral payable by the Administrative Agent at such saleSecurity Interest.
Appears in 2 contracts
Sources: Share Exchange Agreement (DPW Holdings, Inc.), Share Exchange Agreement (Avalanche International, Corp.)
Collateral Agent. The Administrative (a) Each Secured Party hereby appoints ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ as Collateral Agent shall also act for the benefit of the Secured Parties under this Agreement to serve from the date hereof until the termination of this Agreement.
(b) Each Secured Party hereby irrevocably authorizes Collateral Agent to take such action and to exercise such powers hereunder as provided herein or as requested in writing by the Secured Parties who hold a majority in interest of outstanding principal and interest under the Notes (the “collateral agent” under the Loan Documents, and each of the Lenders (including Majority Note Holders”) in its capacities as a potential Qualified Counterparty and a potential Cash Management Provider) and the Issuing Lenders hereby irrevocably appoints and authorizes the Administrative Agent to act as the agent of such Lender and the Issuing Lenders (accordance with the full power to appoint and to substitute and to delegate) on its behalf, or in its own name as joint and several creditor or creditor of a parallel debt (as the case may be) for purposes of acquiring, holding and enforcing any and all Liens on Collateral granted by any of the Loan Parties to secure any of the Obligationsterms hereof, together with such powers and discretion as are reasonably incidental thereto. In this connection, the Administrative Agent, as “collateral agent” Collateral Agent may execute any of its duties hereunder by or through agents or employees and any co-agents, sub-agents and attorneys-in-fact appointed by the Administrative Agent pursuant to Section 10.5 for purposes of holding or enforcing any Lien on the Collateral (or any portion thereof) granted under the Security Documents, or for exercising any rights and remedies thereunder at the direction of the Administrative Agent, shall be entitled to request and act in reliance upon the benefits advise of counsel concerning all provisions of this Section 10 matters pertaining to its duties hereunder and Section 11, as though such co-agents, sub-agents and attorneys-in-fact were the “collateral agent” under the Loan Documents as if set forth shall not be liable for any action taken or omitted to be taken by it in full herein with respect thereto. Without limiting the generality of the foregoing, the Lenders hereby expressly authorize the Administrative Agent on its behalf and/or in its own name (including under any parallel debt) to execute any and all documents (including releases) with respect to the Collateral and the rights of the Secured Parties with respect thereto, as contemplated by and good faith in accordance with the provisions of this Agreement and the Security Documents and acknowledge and agree that any such action by any therewith.
(c) Collateral Agent shall bind the Lenders. Each Lender agrees that it shall not take be liable or institute responsible to any actions Secured Party or proceedings, judicial to LLCL or otherwise, any of its Affiliates for any right action taken or remedy with respect omitted to any be taken by Collateral against any Borrower Agent or any other Loan Party such person hereunder or under any related agreement, instrument or document, except in the case of gross negligence or willful misconduct on the part of Collateral Agent, nor shall Collateral Agent be liable or responsible for (A) the validity, effectiveness, sufficiency, enforceability or enforcement of the Notes, this Agreement or any other obligor under instrument or document delivered hereunder or relating hereto; (B) the title of LCLX or any of the Loan Documents, Specified Swap Agreements or any Specified Cash Management Agreement (including, in each case, the exercise of any right of setoff, rights on account of any banker’s lien or similar claim or other rights of self-help), or institute any actions or proceedings, or otherwise commence any remedial procedures, with respect its Affiliates to any Collateral of any Borrower or any other Loan Party, without the prior written consent of the Administrative Agent. In the event of a foreclosure by the Administrative Agent on any of the Collateral pursuant to a public or private sale or a sale the freedom of any of the Collateral from any prior or other liens or security interests; (C) the determination, verification or enforcement of LCLL’s compliance with any of the terms and conditions of this Agreement; (D) the failure by LCLX or any of its Affiliates to deliver any instrument or document required to be delivered pursuant to Section 363 the terms hereof; or (E) the receipt, disbursement, waiver, extension or other handling of payments or proceeds made or received with respect to the Bankruptcy Code (or an equivalent process in any foreign jurisdiction)Collateral, the Administrative Agent or any Lender may be the purchaser of any or all of such Collateral at any such sale and the Administrative Agent, as agent for and representative of the Lenders (but not any Lender or Lenders in its or their respective individual capacities unless the Required Lenders shall otherwise agree in writing) shall be entitled, with the consent or at the direction of the Required Lenders, for the purpose of bidding and making settlement or payment of the purchase price for all or any portion servicing of the Collateral sold at or the enforcement or the collection of any such sale, amounts owing with respect to use the Collateral.
(d) In connection with this Security Agreement and apply the transactions contemplated hereby and any related document relating to any of the Obligations as a credit on account Collateral, each of the purchase price for Secured Parties agrees to pay to Collateral Agent, on demand, its pro rata share (based on relative Secured Obligations) of all fees and all expenses incurred in connection with the operation and enforcement of this Agreement, the Notes or any related agreement to the extent that such fees or expenses have not been paid by LCLL or its Affiliates. In connection with this Security Agreement and each instrument and document relating to any of the Collateral, each of the Secured Parties (on a pro rata basis based upon the outstanding Secured Obligations owing to the Secured Parties) and LCLX, on behalf of itself and its Affiliates, hereby agree to hold Collateral payable Agent harmless, and to indemnify Collateral Agent from and against any and all loss, damage, expense or liability which may be incurred by Collateral Agent under this Agreement and the transactions contemplated hereby and any related agreement or other instrument or document, as the case may be, unless such liability shall be caused by the Administrative Agent at such salewillful misconduct or gross negligence of Collateral Agent.
Appears in 2 contracts
Sources: Security Agreement (SearchCore, Inc.), Security Agreement (General Cannabis, Inc.)
Collateral Agent. The Administrative Agent shall also act as the “collateral agent” under the Loan Documents, and each of the Lenders (including in its capacities as a potential Qualified Counterparty and a potential Cash Management Provider) and the Issuing Lenders hereby irrevocably appoints and authorizes the Administrative Agent to act as the agent of such Lender and the Issuing Lenders (with the full power to appoint and to substitute and to delegate) on its behalf, or in its own name as joint and several creditor or creditor of a parallel debt (as the case may be) for purposes of acquiring, holding and enforcing any and all Liens on Collateral granted by any of the Loan Parties to secure any of the Obligations, together with such powers and discretion as are reasonably incidental thereto. In this connection, the Administrative Agent, as “collateral agent” and any co-agents, sub-agents and attorneys-in-fact appointed by the Administrative Agent pursuant to Section 10.5 9.5 for purposes of holding or enforcing any Lien on the Collateral (or any portion thereof) granted under the Security Documents, or for exercising any rights and remedies thereunder at the direction of the Administrative Agent, shall be entitled to the benefits of all provisions of this Section 10 9 and Section 1110, as though such co-agents, sub-agents and attorneys-in-fact were the “collateral agent” under the Loan Documents as if set forth in full herein with respect thereto. Without limiting the generality of the foregoing, the Lenders hereby expressly authorize the Administrative Agent on its behalf and/or in its own name (including under any parallel debt) to execute any and all documents (including releases) with respect to the Collateral and the rights of the Secured Parties with respect thereto, as contemplated by and in accordance with the provisions of this Agreement and the Security Documents and acknowledge and agree that any such action by any Agent shall bind the Lenders. Each Lender agrees that it shall not take or institute any actions or proceedings, judicial or otherwise, for any right or remedy with respect to any Collateral against any Borrower or any other Loan Party or any other obligor under any of the Loan Documents, the Specified Swap Agreements or any Specified Cash Management Agreement (including, in each case, the exercise of any right of setoff, rights on account of any banker’s lien or similar claim or other rights of self-help), or institute any actions or proceedings, or otherwise commence any remedial procedures, with respect to any Collateral of any Borrower or any other Loan Party, without the prior written consent of the Administrative Agent. In the event of a foreclosure by the Administrative Agent on any of the Collateral pursuant to a public or private sale or a sale of any of the Collateral pursuant to Section 363 of the Bankruptcy Code (or an equivalent process in any foreign jurisdiction)Code, the Administrative Agent or any Lender may be the purchaser of any or all of such Collateral at any such sale and the Administrative Agent, as agent for and representative of the Lenders (but not any Lender or Lenders in its or their respective individual capacities unless the Required Lenders shall otherwise agree in writing) shall be entitled, with the consent or at the direction of the Required Lenders, for the purpose of bidding and making settlement or payment of the purchase price for all or any portion of the Collateral sold at any such sale, to use and apply any of the Obligations as a credit on account of the purchase price for any Collateral payable by the Administrative Agent at such sale.
Appears in 2 contracts
Sources: Term Loan Credit Agreement (JELD-WEN Holding, Inc.), Amendment No. 1 (JELD-WEN Holding, Inc.)
Collateral Agent. The Administrative Collateral Agent shall also act as the “collateral agent” under the Loan Documents, and each of the Lenders (including in its capacities as a potential Qualified Counterparty and a potential Cash Management Provider) and the Issuing Lenders hereby irrevocably appoints and authorizes the Administrative Agent has been appointed to act as Collateral Agent hereunder by Lenders and, by their acceptance of the agent benefits hereof, the other Secured Parties. The Collateral Agent shall be obligated, and shall have the right hereunder, to make demands, to give notices, to exercise or refrain from exercising any rights, and to take or refrain from taking any action (including, without limitation, the release or substitution of such Lender Collateral), solely in accordance with this Agreement and the Issuing Lenders (with Credit Agreement; provided, the Collateral Agent shall, after payment in full power to appoint of all Obligations under the Credit Agreement and to substitute and to delegate) on its behalfthe other Credit Documents, exercise, or in its own name as joint and several creditor or creditor of a parallel debt (as the case may be) refrain from exercising, any remedies provided for purposes of acquiring, holding and enforcing any and all Liens on Collateral granted by any of the Loan Parties to secure any of the Obligations, together with such powers and discretion as are reasonably incidental thereto. In this connection, the Administrative Agent, as “collateral agent” and any co-agents, sub-agents and attorneys-in-fact appointed by the Administrative Agent pursuant to Section 10.5 for purposes of holding or enforcing any Lien on the Collateral (or any portion thereof) granted under the Security Documents, or for exercising any rights and remedies thereunder at the direction of the Administrative Agent, shall be entitled to the benefits of all provisions of this Section 10 and Section 11, as though such co-agents, sub-agents and attorneys-in-fact were the “collateral agent” under the Loan Documents as if set forth in full herein with respect thereto. Without limiting the generality of the foregoing, the Lenders hereby expressly authorize the Administrative Agent on its behalf and/or in its own name (including under any parallel debt) to execute any and all documents (including releases) with respect to the Collateral and the rights of the Secured Parties with respect thereto, as contemplated by and in accordance with the provisions of this Agreement and the Security Documents and acknowledge and agree that any such action by any Agent shall bind the Lenders. Each Lender agrees that it shall not take or institute any actions or proceedings, judicial or otherwise, for any right or remedy with respect to any Collateral against any Borrower or any other Loan Party or any other obligor under any instructions of the Loan Documents, Specified Swap holders (the “Majority Holders”) of a majority of the aggregate “settlement amount” as defined in the Hedge Agreements or any Specified Cash Management Agreement (including, in each case, the exercise of any right of setoff, rights on account of any banker’s lien or similar claim or other rights of self-help), or institute any actions or proceedings, or otherwise commence any remedial proceduresor, with respect to any Hedge Agreement that has been terminated in accordance with its terms, the amount then due and payable (exclusive of expenses and similar payments but including any early termination payments then due) under such Hedge Agreement) under all Hedge Agreements. For purposes of the foregoing sentence, settlement amount for any Hedge that has not been terminated shall be the settlement amount as of the last Business Day of the month preceding any date of determination and shall be calculated by the appropriate swap counterparties and reported to the Collateral Agent upon request; provided any Hedge Agreement with a settlement amount that is a negative number shall be disregarded for purposes of any Borrower or any other Loan determining the Majority Holders. In furtherance of the foregoing provisions of this Section, each Secured Party, without the prior written consent by its acceptance of the Administrative Agent. In the event of a foreclosure by the Administrative Agent on benefits hereof, agrees that it shall have no right individually to realize upon any of the Collateral pursuant hereunder, it being understood and agreed by such Secured Party that all rights and remedies hereunder may be exercised solely by the Collateral Agent for the benefit of Secured Parties in accordance with the terms of this Section. The provisions of the Credit Agreement relating to a public or private sale or a sale of any the Collateral Agent including, without limitation, the provisions relating to resignation of the Collateral pursuant to Section 363 of the Bankruptcy Code (or an equivalent process in any foreign jurisdiction), the Administrative Agent or any Lender may be the purchaser of any or all of such Collateral at any such sale and the Administrative Agent, as agent for powers and representative of the Lenders (but not any Lender or Lenders in its or their respective individual capacities unless the Required Lenders shall otherwise agree in writing) shall be entitled, with the consent or at the direction of the Required Lenders, for the purpose of bidding duties and making settlement or payment of the purchase price for all or any portion immunities of the Collateral sold at Agent are incorporated herein by this reference and shall survive any such sale, to use and apply any termination of the Obligations as a credit on account of the purchase price for any Collateral payable by the Administrative Agent at such saleCredit Agreement.
Appears in 2 contracts
Sources: Credit and Guaranty Agreement (Bz Intermediate Holdings LLC), Pledge and Security Agreement (Boise Inc.)
Collateral Agent. The Administrative Agent shall also act as the “collateral agent” under the Loan Documents, and each of the Lenders (including in its capacities as a potential Qualified Counterparty and a potential Cash Management Provider) and the Issuing Lenders hereby irrevocably appoints and authorizes the Administrative Agent to act as the agent of such Lender and the Issuing Lenders (with the full power to appoint and to substitute and to delegate) on its behalf, or in its own name as joint and several creditor or creditor of a parallel debt (as the case may be) for purposes of acquiring, holding and enforcing any and all Liens on Collateral granted by any of the Loan Parties to secure any of the Obligations, together with such powers and discretion as are reasonably incidental thereto. In this connection, the Administrative Agent, as “collateral agent” and any co-agents, sub-agents and attorneys-in-fact appointed by the Administrative Agent pursuant to Section 10.5 for purposes of holding or enforcing any Lien on the Collateral (or any portion thereof) granted under the Security Documents, or for exercising any rights and remedies thereunder at the direction of the Administrative Agent, shall be entitled to the benefits of all provisions of this Section 10 and Section 11, as though such co-agents, sub-agents and attorneys-in-fact were the “collateral agent” under the Loan Documents as if set forth in full herein with respect thereto. Without limiting the generality of the foregoing, the Lenders hereby expressly authorize the Administrative Agent on its behalf and/or in its own name (including under any the parallel debt) to execute any and all documents (including releases) with respect to the Collateral and the rights of the Secured Parties with respect thereto, as contemplated by and in accordance with the provisions of this Agreement and the Security Documents and acknowledge and agree that any such action by any Agent shall bind the Lenders. Each Lender agrees that it shall not take or institute any actions or proceedings, judicial or otherwise, for any right or remedy with respect to any Collateral against any Borrower or any other Loan Party or any other obligor under any of the Loan Documents, Specified Swap Agreements or any Specified Cash Management Agreement Documents (including, in each case, the exercise of any right of setoff, rights on account of any banker’s lien or similar claim or other rights of self-help), or institute any actions or proceedings, or otherwise commence any remedial procedures, with respect to any Collateral of any Borrower or any other Loan Party, without the prior written consent of the Administrative Agent. In the event of a foreclosure by the Administrative Agent on any of the Collateral pursuant to a public or private sale or a sale of any of the Collateral pursuant to Section 363 of the Bankruptcy Code (or an equivalent process in any foreign jurisdiction), the Administrative Agent or any Lender may be the purchaser of any or all of such Collateral at any such sale and the Administrative Agent, as agent for and representative of the Lenders (but not any Lender or Lenders in its or their respective individual capacities unless the Required Lenders shall otherwise agree in writing) shall be entitled, with the consent or at the direction of the Required Lenders, for the purpose of bidding and making settlement or payment of the purchase price for all or any portion of the Collateral sold at any such sale, to use and apply any of the Obligations as a credit on account of the purchase price for any Collateral payable by the Administrative Agent at such sale.
Appears in 2 contracts
Sources: Bridge Loan Credit Agreement (Powerschool Holdings, Inc.), Second Lien Credit Agreement (Powerschool Holdings, Inc.)
Collateral Agent. (a) The Administrative Collateral Agent shall also act as the “collateral agent” under the Loan Documents, and each of the Lenders (including in its capacities as a potential Qualified Counterparty and a potential Cash Management Provider) and the Issuing Lenders hereby irrevocably appoints and authorizes the Administrative Agent has been appointed to act as Collateral Agent hereunder by Lenders and, by their acceptance of the agent benefits hereof, the other Secured Parties. The Collateral Agent shall be obligated, and shall have the right hereunder, to make demands, to give notices, to exercise or refrain from exercising any rights, and to take or refrain from taking any action (including, without limitation, the release or substitution of such Lender Collateral), solely in accordance with this Agreement and the Issuing Lenders (with Credit Agreement; provided, the full power to appoint Collateral Agent shall, after all Obligations have been Paid in Full under the Credit Agreement and to substitute and to delegate) on its behalfthe other Credit Documents, exercise, or in its own name as joint and several creditor or creditor of a parallel debt (as the case may be) refrain from exercising, any remedies provided for purposes of acquiring, holding and enforcing any and all Liens on Collateral granted by any of the Loan Parties to secure any of the Obligations, together with such powers and discretion as are reasonably incidental thereto. In this connection, the Administrative Agent, as “collateral agent” and any co-agents, sub-agents and attorneys-in-fact appointed by the Administrative Agent pursuant to Section 10.5 for purposes of holding or enforcing any Lien on the Collateral (or any portion thereof) granted under the Security Documents, or for exercising any rights and remedies thereunder at the direction of the Administrative Agent, shall be entitled to the benefits of all provisions of this Section 10 and Section 11, as though such co-agents, sub-agents and attorneys-in-fact were the “collateral agent” under the Loan Documents as if set forth in full herein with respect thereto. Without limiting the generality of the foregoing, the Lenders hereby expressly authorize the Administrative Agent on its behalf and/or in its own name (including under any parallel debt) to execute any and all documents (including releases) with respect to the Collateral and the rights of the Secured Parties with respect thereto, as contemplated by and in accordance with the provisions of this Agreement and the Security Documents and acknowledge and agree that any such action by any Agent shall bind the Lenders. Each Lender agrees that it shall not take or institute any actions or proceedings, judicial or otherwise, for any right or remedy with respect to any Collateral against any Borrower or any other Loan Party or any other obligor under any instructions of the Loan Documents, Specified Swap holders (the “Majority Holders”) of a majority of the aggregate “settlement amount” as defined in the Hedge Agreements or any Specified Cash Management Agreement (including, in each case, the exercise of any right of setoff, rights on account of any banker’s lien or similar claim or other rights of self-help), or institute any actions or proceedings, or otherwise commence any remedial proceduresor, with respect to any Hedge Agreement that has been terminated in accordance with its terms, the amount then due and payable (exclusive of expenses and similar payments but including any early termination payments then due) under such Hedge Agreement) under all Hedge Agreements. For purposes of the foregoing sentence, settlement amount for any Hedge Agreement that has not been terminated shall be the settlement amount as of the last Business Day of the month preceding any date of determination and shall be calculated by the appropriate swap counterparties and reported to the Collateral Agent upon request; provided any Hedge Agreement with a settlement amount that is a negative number shall be disregarded for purposes of any Borrower or any other Loan determining the Majority Holders. In furtherance of the foregoing provisions of this Section 10, each Secured Party, without the prior written consent by its acceptance of the Administrative Agent. In the event of a foreclosure by the Administrative Agent on benefits hereof, agrees that it shall have no right individually to realize upon any of the Collateral pursuant hereunder, it being understood and agreed by such Secured Party that all rights and remedies hereunder may be exercised solely by the Collateral Agent for the benefit of Secured Parties in accordance with the terms of this Section 10. The provisions of the Credit Agreement relating to a public the Collateral Agent including, without limitation, the provisions relating to resignation or private sale or a sale of any removal of the Collateral pursuant to Section 363 Agent and the powers and duties and immunities of the Bankruptcy Code (or an equivalent process in Collateral Agent are incorporated herein by this reference and shall survive any foreign jurisdiction), the Administrative Agent or any Lender may be the purchaser of any or all of such Collateral at any such sale and the Administrative Agent, as agent for and representative termination of the Lenders (but not any Lender Credit Agreement. The Collateral Agent shall have the right to appoint one or Lenders in its or their respective individual capacities unless the Required Lenders shall otherwise agree in writing) shall be entitled, with the consent or at the direction of the Required Lenders, more sub-agents for the purpose of bidding and making settlement or payment retaining physical possession of the purchase price for all or any portion Collateral, which may be held (in the discretion of the Collateral sold at any such sale, to use and apply any Agent) in the name of the Obligations as a credit on account relevant Grantor, endorsed or assigned in blank or in favor of the purchase price for Collateral Agent or any nominee or nominees of the Collateral payable Agent or a sub-agent appointed by the Administrative Agent at such saleCollateral Agent.
Appears in 2 contracts
Sources: Pledge and Security Agreement (American Casino & Entertainment Properties LLC), First Lien Pledge and Security Agreement (American Casino & Entertainment Properties LLC)
Collateral Agent. The Administrative Collateral Agent shall also act as the “collateral agent” under the Loan Documents, and each of the Lenders (including in its capacities as a potential Qualified Counterparty and a potential Cash Management Provider) and the Issuing Lenders hereby irrevocably appoints and authorizes the Administrative Agent has been appointed to act as Collateral Agent hereunder by Lenders and, by their acceptance of the agent benefits hereof, the other Secured Parties. The Collateral Agent shall be obligated, and shall have the right hereunder, to make demands, to give notices, to exercise or refrain from exercising any rights, and to take or refrain from taking any action (including, without limitation, the release or substitution of such Lender Collateral), solely in accordance with this Agreement and the Issuing Lenders (with Credit Agreement; provided, the Collateral Agent shall, after payment in full power to appoint and to substitute and to delegate) on its behalfof all Obligations under the Credit Agreement, exercise, or in its own name as joint and several creditor or creditor of a parallel debt (as the case may be) refrain from exercising, any remedies provided for purposes of acquiring, holding and enforcing any and all Liens on Collateral granted by any of the Loan Parties to secure any of the Obligations, together with such powers and discretion as are reasonably incidental thereto. In this connection, the Administrative Agent, as “collateral agent” and any co-agents, sub-agents and attorneys-in-fact appointed by the Administrative Agent pursuant to Section 10.5 for purposes of holding or enforcing any Lien on the Collateral (or any portion thereof) granted under the Security Documents, or for exercising any rights and remedies thereunder at the direction of the Administrative Agent, shall be entitled to the benefits of all provisions of this Section 10 and Section 11, as though such co-agents, sub-agents and attorneys-in-fact were the “collateral agent” under the Loan Documents as if set forth in full herein with respect thereto. Without limiting the generality of the foregoing, the Lenders hereby expressly authorize the Administrative Agent on its behalf and/or in its own name (including under any parallel debt) to execute any and all documents (including releases) with respect to the Collateral and the rights of the Secured Parties with respect thereto, as contemplated by and in accordance with the provisions of this Agreement and the Security Documents and acknowledge and agree that any such action by any Agent shall bind the Lenders. Each Lender agrees that it shall not take or institute any actions or proceedings, judicial or otherwise, for any right or remedy with respect to any Collateral against any Borrower or any other Loan Party or any other obligor under any instructions of the Loan Documents, Specified Swap holders (the “Majority Holders”) of a majority of the aggregate “settlement amount” as defined in the Hedge Agreements or any Specified Cash Management Agreement (including, in each case, the exercise of any right of setoff, rights on account of any banker’s lien or similar claim or other rights of self-help), or institute any actions or proceedings, or otherwise commence any remedial proceduresor, with respect to any Hedge Agreement that has been terminated in accordance with its terms, the amount then due and payable (exclusive of expenses and similar payments but including any early termination payments then due) under such Hedge Agreement) under all Hedge Agreements. For purposes of the foregoing sentence, settlement amount for any Hedge Agreement that has not been terminated shall be the settlement amount as of the last Business Day of the month preceding any date of determination and shall be calculated by the appropriate swap counterparties and reported to the Collateral Agent upon request; provided any Hedge Agreement with a settlement amount that is a negative number shall be disregarded for purposes of any Borrower or any other Loan determining the Majority Holders. In furtherance of the foregoing provisions of this Section, each Secured Party, without the prior written consent by its acceptance of the Administrative Agent. In the event of a foreclosure by the Administrative Agent on benefits hereof, agrees that it shall have no right individually to realize upon any of the Collateral pursuant hereunder, it being understood and agreed by such Secured Party that all rights and remedies hereunder may be exercised solely by the Collateral Agent for the benefit of Secured Parties in accordance with the terms of this Section. The provisions of the Credit Agreement relating to a public the Collateral Agent including, without limitation, the provisions relating to resignation or private sale or a sale of any removal of the Collateral pursuant to Section 363 of the Bankruptcy Code (or an equivalent process in any foreign jurisdiction), the Administrative Agent or any Lender may be the purchaser of any or all of such Collateral at any such sale and the Administrative Agent, as agent for powers and representative of the Lenders (but not any Lender or Lenders in its or their respective individual capacities unless the Required Lenders shall otherwise agree in writing) shall be entitled, with the consent or at the direction of the Required Lenders, for the purpose of bidding duties and making settlement or payment of the purchase price for all or any portion immunities of the Collateral sold at Agent are incorporated herein by this reference and shall survive any such sale, to use and apply any termination of the Obligations as a credit on account of the purchase price for any Collateral payable by the Administrative Agent at such saleCredit Agreement.
Appears in 2 contracts
Sources: Pledge and Security Agreement (RadNet, Inc.), Pledge and Security Agreement (RadNet, Inc.)
Collateral Agent. The Administrative Agent shall also act as the “collateral agent” under the Loan Documents, and each of the Lenders (including in its capacities as a potential Qualified Counterparty and a potential Cash Management Provider) and the Issuing Lenders hereby irrevocably appoints and authorizes the Administrative Agent to act as the agent of such Lender and the Issuing Lenders (with the full power to appoint and to substitute and to delegate) on its behalf, or in its own name as joint and several creditor or creditor of a parallel debt (as the case may be) for purposes of acquiring, holding and enforcing any and all Liens on Collateral granted by any of the Loan Parties to secure any of the Obligations, together with such powers and discretion as are reasonably incidental thereto. In this connection, the Administrative Agent, as “collateral agent” and any co-agents, sub-agents and attorneys-in-fact appointed by the Administrative Agent pursuant to Section 10.5 10.5 for purposes of holding or enforcing any Lien on the Collateral (or any portion thereof) granted under the Security Documents, or for exercising any rights and remedies thereunder at the direction of the Administrative Agent, shall be entitled to the benefits of all provisions of this Section Section 10 and Section Section 11, as though such co-agents, sub-agents and attorneys-in-fact were the “collateral agent” under the Loan Documents as if set forth in full herein with respect thereto. Without limiting the generality of the foregoing, the Lenders hereby expressly authorize the Administrative Agent on its behalf and/or in its own name (including under any parallel debt) to execute any and all documents (including releases) with respect to the Collateral and the rights of the Secured Parties with respect thereto, as contemplated by and in accordance with the provisions of this Agreement and the Security Documents and acknowledge and agree that any such action by any Agent shall bind the Lenders. Each Lender agrees that it shall not take or institute any actions or proceedings, judicial or otherwise, for any right or remedy with respect to any Collateral against any Borrower or any other Loan Party or any other obligor under any of the Loan Documents, Specified Swap Agreements or any Specified Cash Management Agreement (including, in each case, the exercise of any right of setoff, rights on account of any banker’s lien or similar claim or other rights of self-help), or institute any actions or proceedings, or otherwise commence any remedial procedures, with respect to any Collateral of any Borrower or any other Loan Party, without the prior written consent of the Administrative Agent. In the event of a foreclosure by the Administrative Agent on any of the Collateral pursuant to a public or private sale or a sale of any of the Collateral pursuant to Section 363 of the Bankruptcy Code (or an equivalent process in any foreign jurisdiction), the Administrative Agent or any Lender may be the purchaser of any or all of such Collateral at any such sale and the Administrative Agent, as agent for and representative of the Lenders (but not any Lender or Lenders in its or their respective individual capacities unless the Required Lenders shall otherwise agree in writing) shall be entitled, with the consent or at the direction of the Required Lenders, for the purpose of bidding and making settlement or payment of the purchase price for all or any portion of the Collateral sold at any such sale, to use and apply any of the Obligations as a credit on account of the purchase price for any Collateral payable by the Administrative Agent at such sale.
Appears in 2 contracts
Sources: Credit Agreement (Clarivate PLC), Credit Agreement (Clarivate PLC)
Collateral Agent. (a) The Administrative Agent shall also act as the “collateral agent” under the Loan Documents, Trustee and each of the Lenders (including in its capacities Holders by acceptance of the Notes hereby authorize the appointment of the Collateral Agent as a potential Qualified Counterparty and a potential Cash Management Provider) the Trustee’s and the Issuing Lenders Holders’ collateral agent under the Collateral Agreements, and the Trustee and each of the Holders by acceptance of the Notes hereby irrevocably appoints and authorizes authorize the Administrative Collateral Agent to act take such action on their behalf under the provisions of the Collateral Agreements, including the Intercreditor Agreements, and to exercise such powers and perform such duties as are expressly delegated to the agent Collateral Agent by the terms of such Lender this Indenture, the Intercreditor Agreements and the Issuing Lenders other Collateral Agreements, together with such powers as are reasonably incidental thereto.
(b) The Collateral Agent may resign and its successor appointed in accordance with the full power terms of the Intercreditor Agreements.
(c) The Trustee is authorized and directed by the Holders and the Holders by acquiring the Notes are deemed to appoint have authorized the Trustee, as applicable, to (1) enter into the Intercreditor Agreements, (2) bind the Holders on the terms as set forth in the Intercreditor Agreements, (3) perform and observe its obligations and exercise its rights and powers under the Intercreditor Agreements, including entering into amendments permitted by the terms of this Indenture, the Intercreditor Agreements or the other Collateral Agreements and (4) cause the Collateral Agent to substitute enter into and perform its obligations under the Collateral Agreements. The Collateral Agent is authorized and directed by the Trustee and the Holders and the Holders by acquiring the Notes are deemed to delegatehave authorized the Collateral Agent, to (i) enter into the other Collateral Agreements to which it is a party, (ii) bind the Trustee and the Holders on the terms as set forth in such Collateral Agreements and (iii) perform and observe its behalfobligations and exercise its rights and powers under such Collateral Agreements, including entering into amendments permitted by the terms of this Indenture or the Collateral Agreements. Each Holder, by its acceptance of a Note, is deemed to have consented and agreed to the terms of the Intercreditor Agreements and each other Collateral Agreement, as originally in effect and as amended, restated, replaced, supplemented or modified from time to time in accordance with its terms or the terms of this Indenture. Each of the Trustee and the Holders by acquiring the Notes is hereby deemed to (A) agree that it will be bound by and will take no actions contrary to the provisions of the Intercreditor Agreements and (B) acknowledge that it has received a copy of the Intercreditor Agreements and that the exercise of certain of the Trustee’s rights and remedies hereunder may be subject to, and restricted by, the provisions of the Intercreditor Agreements. NOTWITHSTANDING ANY OTHER PROVISION CONTAINED IN THIS INDENTURE, IN THE EVENT OF ANY CONFLICT OR INCONSISTENCY BETWEEN THE PROVISIONS OF THIS INDENTURE AND EITHER OF THE INTERCREDITOR AGREEMENTS, THE APPLICABLE INTERCREDITOR AGREEMENT SHALL CONTROL.
(d) The Collateral Agent shall have no obligation whatsoever to the Trustee or any of the Holders to assure that the Collateral exists or is owned by the Company or any of the Collateral Grantors or is cared for, protected or insured or has been encumbered, or in its own name as joint that the Collateral Agent’s Liens have been properly or sufficiently or lawfully created, perfected, protected, maintained or enforced or are entitled to any particular priority, or to determine whether all of the applicable Collateral Grantor’s property constituting Collateral intended to be subject to the Lien and several creditor security interest of the Collateral Agreements has been properly and completely listed or creditor of a parallel debt (delivered, as the case may be) for purposes of acquiring, holding and enforcing any and all Liens on Collateral granted by any of the Loan Parties to secure any of the Obligations, together with such powers and discretion as are reasonably incidental thereto. In this connection, the Administrative Agent, as “collateral agent” and any co-agents, sub-agents and attorneys-in-fact appointed by the Administrative Agent pursuant to Section 10.5 for purposes of holding or enforcing any Lien on the Collateral (or any portion thereof) granted under the Security Documents, or for exercising any the genuineness, validity, marketability or sufficiency thereof or title thereto.
(e) The grant of permissive rights and remedies thereunder at the direction of the Administrative Agent, shall be entitled to the benefits of all provisions of this Section 10 and Section 11, as though such co-agents, sub-agents and attorneys-in-fact were the “collateral agent” under the Loan Documents as if set forth in full herein with respect thereto. Without limiting the generality of the foregoing, the Lenders hereby expressly authorize the Administrative Agent on its behalf and/or in its own name (including under any parallel debt) to execute any and all documents (including releases) with respect or powers to the Collateral Agent shall not be construed to impose duties to act. For the avoidance of doubt, nothing herein shall require the Collateral Agent to file financing statements or continuation statements, or be responsible for maintaining the security interests purported to be created by the Collateral Agreements and the rights such responsibility shall be solely that of the Secured Parties with respect thereto, as contemplated by and in accordance with the provisions of this Agreement and the Security Documents and acknowledge and agree that any such action by any Agent shall bind the Lenders. Each Lender agrees that it shall not take or institute any actions or proceedings, judicial or otherwise, for any right or remedy with respect to any Collateral against any Borrower or any other Loan Party or any other obligor under any of the Loan Documents, Specified Swap Agreements or any Specified Cash Management Agreement (including, in each case, the exercise of any right of setoff, rights on account of any banker’s lien or similar claim or other rights of self-help), or institute any actions or proceedings, or otherwise commence any remedial procedures, with respect to any Collateral of any Borrower or any other Loan Party, without the prior written consent of the Administrative Agent. In the event of a foreclosure by the Administrative Agent on any of the Collateral pursuant to a public or private sale or a sale of any of the Collateral pursuant to Section 363 of the Bankruptcy Code (or an equivalent process in any foreign jurisdiction), the Administrative Agent or any Lender may be the purchaser of any or all of such Collateral at any such sale and the Administrative Agent, as agent for and representative of the Lenders (but not any Lender or Lenders in its or their respective individual capacities unless the Required Lenders shall otherwise agree in writing) shall be entitled, with the consent or at the direction of the Required Lenders, for the purpose of bidding and making settlement or payment of the purchase price for all or any portion of the Collateral sold at any such sale, to use and apply any of the Obligations as a credit on account of the purchase price for any Collateral payable by the Administrative Agent at such saleCompany.
Appears in 2 contracts
Sources: Indenture (Comstock Oil & Gas, LP), Indenture (Comstock Oil & Gas, LP)
Collateral Agent. The Administrative (a) Each of the Lenders hereby irrevocably appoints the Collateral Agent shall also act as its agent and authorizes the “collateral agent” under Collateral Agent to take such actions on its behalf, including execution of the other Loan Documents, and to exercise such powers as are delegated to the Collateral Agent by the terms of the Loan Documents, and each of the Lenders (including in its capacities as a potential Qualified Counterparty and a potential Cash Management Provider) and the Issuing Lenders hereby irrevocably appoints and authorizes the Administrative Agent to act as the agent of such Lender and the Issuing Lenders (with the full power to appoint and to substitute and to delegate) on its behalf, or in its own name as joint and several creditor or creditor of a parallel debt (as the case may be) for purposes of acquiring, holding and enforcing any and all Liens on Collateral granted by any of the Loan Parties to secure any of the Obligations, together with such actions and powers and discretion as are reasonably incidental thereto. In this connection, the Administrative Agent, as “collateral agent” and any co-agents, sub-agents and attorneys-in-fact appointed by the Administrative Agent pursuant to Section 10.5 for purposes of holding or enforcing any Lien on the Collateral (or any portion thereof) granted under the Security Documents, or for exercising any rights and remedies thereunder at the direction of the Administrative Agent, shall be entitled to the benefits of all provisions of this Section 10 and Section 11, as though such co-agents, sub-agents and attorneys-in-fact were the “collateral agent” under the Loan Documents as if set forth in full herein with respect thereto. Without limiting the generality of the foregoing, Collateral Agent shall have the sole and exclusive authority to (a) [reserved]; (b) execute and deliver as Collateral Agent, each Loan Document, including any intercreditor or subordination agreement, and accept delivery of each Loan Document; (c) act as collateral agent for Lenders hereby expressly authorize for purposes of perfecting and administering Liens under the Administrative Agent on its behalf and/or in its own name (including under any parallel debt) to Loan Documents, and for all other purposes stated therein and execute or file any and all documents (including releases) financing or similar statements or notices, amendments, renewals, supplements, documents, instruments, proofs of claim, notices and other written agreements with respect to the Collateral Loan Documents; (e) manage, supervise or otherwise deal with Collateral; (f) exclusively receive, apply, and the rights distribute payments and proceeds of the Secured Parties with respect theretoCollateral as provided in the Loan Documents, (g) open and maintain such bank accounts and cash management arrangements as contemplated by Collateral Agent deems necessary and appropriate in accordance with the provisions of this Agreement and the Security Documents and acknowledge and agree that Loan Documents, (h) take any such enforcement action by or otherwise exercise any Agent shall bind the Lenders. Each Lender agrees that it shall not take rights or institute any actions or proceedings, judicial or otherwise, for any right or remedy remedies with respect to any Collateral against any Borrower or any other Loan Party or any other obligor under any Loan Documents, applicable law or otherwise, and (i) incur and pay such expenses as Collateral Agent may deem necessary or appropriate for the performance and fulfillment of its functions and powers pursuant to the Loan Documents, Specified Swap Agreements whether or not any Specified Cash Management Agreement (includingLoan Party is obligated to reimburse Collateral Agent or Lenders for such expenses pursuant to the Loan Documents or otherwise. The provisions of this Section 22 are solely for the benefit of Collateral Agent and the Lenders, in each case, and the exercise Loan Parties and the Parent shall not have rights as a third-party beneficiary of any right of setoff, rights on account such provisions. It is understood and agreed that the use of any banker’s lien the term “agent” as used herein or similar claim or other rights of self-help), or institute any actions or proceedings, or otherwise commence any remedial procedures, with respect to any Collateral of any Borrower or in any other Loan PartyDocuments (or any similar term) 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. Instead, without such term is used as a matter of market custom, and is intended to create or reflect only an administrative relationship between independent contracting parties.
(b) The Lenders irrevocably authorize Collateral Agent, at its option and in its discretion, (a) to release any Lien granted to or held by Collateral Agent under any Loan Document (i) as required pursuant to the prior written consent Intercreditor Agreement, (ii) upon payment in full of all Loans and all other Obligations (other than contingent obligations for which no claims have been made); (ii) constituting property sold or to be sold or disposed of as part of or in connection with any disposition permitted hereunder (including the release of any guarantor); or (iii) subject to Section 17 above, if approved, authorized or ratified in writing by the Required Lenders; or (b) to subordinate its interest in any Collateral to any holder of a Lien on such Collateral which is permitted by clause (a) or (b) of the Administrative definition of “Permitted Liens” (it being understood that the Collateral Agent may conclusively rely on a certificate from Borrower in determining whether the Indebtedness secured by any such Lien is permitted hereunder). Upon request by Collateral Agent at any time, the Lenders will confirm in writing Agent. In the event ’s authority to release, or subordinate its interest in, particular types or items of a foreclosure by the Administrative Agent on any of the Collateral pursuant to a public or private sale or a sale of any of the this Section 22(b). Collateral pursuant to Section 363 of the Bankruptcy Code (or an equivalent process in any foreign jurisdiction)Agent may, the Administrative Agent or any Lender may be the purchaser of any or all of such Collateral at any such sale and the Administrative Agent, as agent for and representative of the Lenders (but not any Lender or Lenders in its or their respective individual capacities unless the Required Lenders shall otherwise agree in writing) shall be entitled, with the consent or at the direction of Required Lenders shall, subject to the Required Intercreditor Agreement, give blockage notices in connection with the Intercompany Subordinated Debt and each Lender hereby authorizes the Collateral Agent to give such notices. Each Lender further agrees that it will not act unilaterally to deliver such notices.
(c) Sections 14.3 (Duties and Obligations), 14.4 (Reliance), 14.5 (Sub-Agents), 14.6 (Resignation), 14.7(a) (Non-Reliance), 14.8 (Not Partners or Co-Venturers; Collateral Agent as Representative of the Secured Parties) (other than the last sentence of Section 14.8(a)); 14.9 (Credit Bidding), 14.11 (Restrictions on Actions by Lenders), 14.12 (Expenses); 14.13 (Notice of Default or Event of Default), and 14.14 (Liability of Agent) of the Senior Secured Credit Agreement are hereby incorporated into this Agreement, mutatis mutandis, as a part hereof for all purposes (for the purpose avoidance of bidding doubt, with references to “Agent” in such provisions (and making settlement or payment of the purchase price defined terms used in such provisions) being deemed for all or any portion of the purposes hereof to refer to Collateral sold at any such sale, to use and apply any of the Obligations as a credit on account of the purchase price for any Collateral payable by the Administrative Agent at such saleAgent).
Appears in 2 contracts
Sources: Subordinated Loan and Security Agreement (Kaspien Holdings Inc.), Subordination Agreement (Trans World Entertainment Corp)
Collateral Agent. The Administrative Agent shall also act as the “collateral agent” under the Loan Documents, and each of the Lenders (including in its capacities as a potential Qualified Counterparty and a potential Cash Management Provider) and the Issuing Lenders hereby irrevocably appoints and authorizes the Administrative Agent to act as the agent of such Lender and the Issuing Lenders (with the full power to appoint and to substitute and to delegate) on its behalf, or in its own name as joint and several creditor or creditor of a parallel debt (as the case may be) for purposes of acquiring, holding and enforcing any and all Liens on Collateral granted by any of the Loan Parties to secure any of the Obligations, together with such powers and discretion as are reasonably incidental thereto. In this connection, the Administrative Agent, as “collateral agent” and any co-agents, sub-agents and attorneys-in-fact appointed by the Administrative Agent pursuant to Section 10.5 9.05 for purposes of holding or enforcing any Lien on the Collateral (or any portion thereof) granted under the Security Collateral Documents, or for exercising any rights and remedies thereunder at the direction of the Administrative Agent, shall be entitled to the benefits of all provisions of this Article IX and Article XI (including Section 10 and Section 1111.04(c), as though such co-agents, sub-agents and attorneys-in-fact were the “collateral agent” under the Loan Documents Documents) as if set forth in full herein with respect thereto, and all references to Administrative Agent in this Article IX and Article XI (including Section 11.04(c)) shall, where applicable, be read as including a reference to the Administrative Agent acting as the “collateral agent”. Without limiting the generality of the foregoing, the Lenders hereby expressly authorize the Administrative Agent on its behalf and/or in its own name to (including under any parallel debti) to execute any and all documents (including releases) with respect to the Collateral (including any intercreditor agreement and any amendment, supplement, modification or joinder with respect thereto) and the rights of the Secured Parties with respect thereto, as contemplated by and in accordance with the provisions of this Agreement and the Security Collateral Documents and acknowledge and agree that any such action by any the Administrative Agent shall bind the Lenders. Each Lender agrees that it shall not take Lenders and (ii) negotiate, enforce or institute settle any actions claim, action or proceedings, judicial or otherwise, for any right or remedy with respect to any Collateral against any Borrower or any other Loan Party or any other obligor under any of the Loan Documents, Specified Swap Agreements or any Specified Cash Management Agreement (including, in each case, the exercise of any right of setoff, rights on account of any banker’s lien or similar claim or other rights of self-help), or institute any actions or proceedings, or otherwise commence any remedial procedures, with respect to any Collateral of any Borrower or any other Loan Party, without the prior written consent of the Administrative Agent. In the event of a foreclosure by the Administrative Agent on any of the Collateral pursuant to a public or private sale or a sale of any of the Collateral pursuant to Section 363 of the Bankruptcy Code (or an equivalent process in any foreign jurisdiction), the Administrative Agent or any Lender may be the purchaser of any or all of such Collateral at any such sale and the Administrative Agent, as agent for and representative of proceeding affecting the Lenders (but not any Lender or Lenders in its or their respective individual capacities unless the Required Lenders shall otherwise agree in writing) shall be entitledcapacity as such, with the consent or at the direction of the Required Lenders, for the purpose of bidding and making which negotiation, enforcement or settlement or payment of the purchase price for all or any portion of the Collateral sold at any such sale, to use and apply any of the Obligations as a credit on account of the purchase price for any Collateral payable by the Administrative Agent at such salewill be binding upon each Lender.
Appears in 2 contracts
Sources: Credit Agreement (PTC Therapeutics, Inc.), Credit Agreement (Harmony Biosciences Holdings, Inc.)
Collateral Agent. The Administrative Agent shall also act as the “collateral agent” under the Loan Documents, and each of the Lenders (including in its capacities as a potential Qualified Counterparty and a potential Cash Management Provider) and the Issuing Lenders hereby irrevocably appoints and authorizes the Administrative Agent has been appointed to act as Agent hereunder by Lenders pursuant to the agent terms and provisions of such Lender Section 9.8 of the Credit Agreement and, by their acceptance of the benefits hereof, the other Secured Parties. Agent shall be obligated, and shall have the right hereunder, to make demands, to give notices, to exercise or refrain from exercising any rights, and to take or refrain from taking any action (including, without limitation, the release or substitution of Collateral), solely in accordance with this Agreement and the Issuing Lenders (with Credit Agreement. In furtherance of the full power foregoing provisions of this Section, each Secured Party, by its acceptance of the benefits hereof, agrees that it shall have no right individually to appoint and to substitute and to delegate) on its behalf, or in its own name as joint and several creditor or creditor of a parallel debt (as the case may be) for purposes of acquiring, holding and enforcing any and all Liens on Collateral granted by realize upon any of the Loan Collateral hereunder, it being understood and agreed by such Secured Party that all rights and remedies hereunder may be exercised solely by Agent for the benefit of Secured Parties in accordance with the terms of this Section. Agent may resign at any time by giving prior written notice thereof to secure Lenders and the Grantors. Upon any such notice of resignation, Agent immediately shall be discharged from its duties and obligations under this Agreement and Requisite Lenders shall have the right, upon notice to Agent, to appoint a successor Agent. Upon the acceptance of any appointment as Agent hereunder by a successor Agent, that successor Agent shall thereupon succeed to and become vested with all the rights, powers, privileges and duties of the Obligationsretiring Agent under this Agreement, and the retiring Agent under this Agreement shall promptly at the Grantors’ expense (i) transfer to such successor Agent all sums and other items of Collateral held hereunder, together with all records and other documents necessary or appropriate in connection with the performance of the duties of the successor Agent under this Agreement, and (ii) execute and deliver to such powers successor Agent or otherwise authorize the filing of such amendments to financing statements, and discretion take such other actions, as are reasonably incidental theretomay be necessary in connection with the assignment to such successor Agent of the security interests created hereunder. In this connection, the Administrative After any retiring Agent’s resignation hereunder as Agent, as “collateral agent” and any co-agents, sub-agents and attorneys-in-fact appointed by the Administrative Agent pursuant to Section 10.5 for purposes of holding or enforcing any Lien on the Collateral (or any portion thereof) granted under the Security Documents, or for exercising any rights and remedies thereunder at the direction of the Administrative Agent, shall be entitled to the benefits of all provisions of this Section 10 and Section 11, as though such co-agents, sub-agents and attorneys-in-fact were the “collateral agent” under the Loan Documents as if set forth in full herein with respect thereto. Without limiting the generality of the foregoing, the Lenders hereby expressly authorize the Administrative Agent on its behalf and/or in its own name (including under any parallel debt) to execute any and all documents (including releases) with respect to the Collateral and the rights of the Secured Parties with respect thereto, as contemplated by and in accordance with the provisions of this Agreement and the Security Documents and acknowledge and agree that any such action by any Agent shall bind the Lenders. Each Lender agrees that it shall not take or institute inure to its benefit as to any actions taken or proceedings, judicial or otherwise, for any right or remedy with respect omitted to any Collateral against any Borrower or any other Loan Party or any other obligor be taken by it under any of the Loan Documents, Specified Swap Agreements or any Specified Cash Management this Agreement (including, in each case, the exercise of any right of setoff, rights on account of any banker’s lien or similar claim or other rights of self-help), or institute any actions or proceedings, or otherwise commence any remedial procedures, with respect to any Collateral of any Borrower or any other Loan Party, without the prior written consent of the Administrative Agent. In the event of a foreclosure by the Administrative while it was Agent on any of the Collateral pursuant to a public or private sale or a sale of any of the Collateral pursuant to Section 363 of the Bankruptcy Code (or an equivalent process in any foreign jurisdiction), the Administrative Agent or any Lender may be the purchaser of any or all of such Collateral at any such sale and the Administrative Agent, as agent for and representative of the Lenders (but not any Lender or Lenders in its or their respective individual capacities unless the Required Lenders shall otherwise agree in writing) shall be entitled, with the consent or at the direction of the Required Lenders, for the purpose of bidding and making settlement or payment of the purchase price for all or any portion of the Collateral sold at any such sale, to use and apply any of the Obligations as a credit on account of the purchase price for any Collateral payable by the Administrative Agent at such salehereunder.
Appears in 2 contracts
Sources: Senior Secured Revolving Credit and Guaranty Agreement (Euramax International, Inc.), Pledge and Security Agreement (Euramax International, Inc.)
Collateral Agent. The Administrative Agent shall also act as the “collateral agent” under the Loan Documents, and each of the Lenders (including in its capacities as a potential Qualified Counterparty Hedge Bank and a potential Cash Management ProviderBank) and the Issuing Lenders L/C Issuers hereby irrevocably appoints and authorizes the Administrative Agent to act as the agent of such Lender and the Issuing Lenders (with the full power to appoint and to substitute and to delegate) on its behalf, or in its own name as joint and several creditor or creditor of a parallel debt (as the case may be) L/C Issuers for purposes of acquiring, holding and enforcing any and all Liens on Collateral granted by any of the Loan Parties to secure any of the Obligations, together with such powers and discretion as are reasonably incidental thereto. In this connection, the Administrative Agent, as “collateral agent” and any co-agents, sub-agents and attorneys-in-fact appointed by the Administrative Agent pursuant to Section 10.5 9.05 for purposes of holding or enforcing any Lien on the Collateral (or any portion thereof) granted under the Security Collateral Documents, or for exercising any rights and remedies thereunder at the direction of the Administrative Agent, shall be entitled to the benefits of all provisions of this Article IX and Article X (including the second paragraph of Section 10 and Section 1110.05), as though such co-agents, sub-agents and attorneys-in-fact were the “collateral agent” under the Loan Documents as if set forth in full herein with respect thereto. Without limiting the generality of the foregoing, the Lenders hereby expressly authorize the Administrative Agent on its behalf and/or in its own name (including under any parallel debt) to execute any and all documents (including releases) with respect to the Collateral and the rights of the Secured Parties with respect thereto, as contemplated by and in accordance with the provisions of this Agreement and the Security Collateral Documents and acknowledge and agree that any such action by any Agent shall bind the Lenders. Each Lender agrees that it shall not take or institute any actions or proceedings, judicial or otherwise, for any right or remedy with respect to any Collateral against any Borrower or any other Loan Party or any other obligor under any of the Loan Documents, Specified Swap Agreements or any Specified Cash Management Agreement (including, in each case, the exercise of any right of setoff, rights on account of any banker’s lien or similar claim or other rights of self-help), or institute any actions or proceedings, or otherwise commence any remedial procedures, with respect to any Collateral of any Borrower or any other Loan Party, without the prior written consent of the Administrative Agent. In the event of a foreclosure by the Administrative Agent on any of the Collateral pursuant to a public or private sale or a sale of any of the Collateral pursuant to Section 363 of the Bankruptcy Code (or an equivalent process in any foreign jurisdiction), the Administrative Agent or any Lender may be the purchaser of any or all of such Collateral at any such sale and the Administrative Agent, as agent for and representative of the Lenders (but not any Lender or Lenders in its or their respective individual capacities unless the Required Lenders shall otherwise agree in writing) shall be entitled, with the consent or at the direction of the Required Lenders, for the purpose of bidding and making settlement or payment of the purchase price for all or any portion of the Collateral sold at any such sale, to use and apply any of the Obligations as a credit on account of the purchase price for any Collateral payable by the Administrative Agent at such sale.
Appears in 2 contracts
Sources: Credit Agreement (Res Care Inc /Ky/), Credit Agreement (Res Care Inc /Ky/)
Collateral Agent. (a) The Administrative Collateral Agent shall also act as the “collateral agent” under the Loan Documents, and each of the Lenders (including in its capacities as a potential Qualified Counterparty and a potential Cash Management Provider) and the Issuing Lenders hereby irrevocably appoints and authorizes the Administrative Agent agrees to act as the agent of such Lender and the Issuing Lenders (with the full power to appoint and to substitute and to delegate) on its behalf, or in its own name as joint and several creditor or creditor of a parallel debt (as the case may be) for purposes of acquiring, holding and enforcing any and all Liens on Collateral granted by any of the Loan Parties to secure any of the Obligations, together with such powers and discretion as are reasonably incidental thereto. In this connection, the Administrative Agent, as “collateral agent” and any co-agents, sub-agents and attorneys-in-fact appointed by the Administrative Agent pursuant to Section 10.5 for purposes of holding or enforcing any Lien on the Collateral (or any portion thereof) granted under the Security Documents, or for exercising any rights and remedies thereunder at the direction of the Administrative Agent, shall be entitled to the benefits of all express conditions contained in this Section 12.12. The provisions of this Section 10 12.12 are solely for the benefit of the Collateral Agent (and Section 11where provided, the Trustee) and none of the Holders, the Issuer nor any of the Guarantors shall have any rights as though such co-agentsa third party beneficiary of any of the provisions contained herein. Notwithstanding any provision to the contrary contained elsewhere in this Indenture, sub-agents the Security Documents and attorneys-in-fact were the “collateral agent” under Intercreditor Agreements, the Loan Documents as if duties of the Collateral Agent shall be ministerial and administrative in nature, and the Collateral Agent shall not have any duties or responsibilities, except those expressly set forth herein and in full herein the other Notes Documents to which the Collateral Agent is a party, nor shall the Collateral Agent have or be deemed to have any trust or other fiduciary relationship with respect theretothe Trustee, any Holder, the Issuer or any Guarantor, and no implied covenants, functions, responsibilities, duties, obligations or liabilities shall be read into this Indenture or the other Notes Documents. Without limiting the generality of the foregoingforegoing sentence, the Lenders use of the term “agent” in this Indenture 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. 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.
(b) None of the Collateral Agent or any of its respective related persons shall be liable for any action taken or omitted to be taken by any of them under or in connection with this Indenture or the transactions contemplated hereby expressly authorize (except for its own gross negligence or willful misconduct as determined by a final order of a court of competent jurisdiction) or under or in connection with any Notes Document or the Administrative transactions contemplated thereby. Beyond the exercise of reasonable care in the custody and preservation thereof, the Collateral Agent on its behalf and/or will have no duty as to any Collateral in its possession or control or in the possession or control of any sub-agent or bailee or any income therefrom or as to the preservation of rights against prior parties or any other rights pertaining thereto. The Collateral Agent will be deemed to have exercised reasonable care in the custody and preservation of the Collateral in its possession or control if such Collateral is accorded treatment substantially equal to that which it accords its own name property, and will not be liable or responsible for any loss or damage to any Collateral, or for any diminution in the value thereof, by reason of any act or omission of any sub-agent or bailee selected by the Collateral Agent in good faith, except to the extent that such liability arises from the Collateral Agent’s gross negligence or willful misconduct as determined by a final order of a court of competent jurisdiction. 3 NTD: Covered by the security agreement.
(including c) The Collateral Agent shall be fully justified in failing or refusing to take any action under any parallel debt) this Indenture and the other Notes Documents unless it shall first receive such advice or concurrence of the Trustee or the Holders of a majority in aggregate principal amount of the Notes as it determines and, if it so requests, it shall first be indemnified to execute its satisfaction by the Holders against any and all documents loss, liability and expense which may be incurred by it by reason of taking or continuing to take any such action. The Collateral Agent shall in all cases be fully protected in acting, or in refraining from acting, under this Indenture and the Notes Documents in accordance with a request, direction, instruction or consent of the Trustee or the Holders of a majority in aggregate principal amount of the then outstanding Notes and such request and any action taken or failure to act pursuant thereto shall be binding upon all of the Holders.
(including releasesd) Wilmington Trust, National Association shall initially act as Collateral Agent and shall be authorized to appoint co-Collateral Agents as necessary in its sole discretion. None of the Trustee, the Collateral Agent nor any of their 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 respect regard to the Collateral or any part thereof. The Collateral Agent and Trustee shall be accountable only for amounts that they actually receive as a result of the exercise of such powers.
(e) The Collateral Agent shall have no obligation whatsoever to the Trustee or any of the Holders to assure that the Collateral exists or is owned by the Issuer or any Guarantor or is cared for, protected, or insured or has been encumbered, or that the Collateral Agent’s Liens have been properly or sufficiently or lawfully created, perfected, protected, maintained or enforced or are entitled to any particular priority, or to determine whether all of the property constituting Collateral intended to be subject to the Lien and security interest of the Security Documents has been properly and completely listed or delivered, as the case may be, or the genuineness, validity, marketability or sufficiency thereof or title thereto, 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 powers granted or available to the Collateral Agent pursuant to this Indenture or any Notes Document other than pursuant to the instructions of the Trustee or the Holders of a majority in aggregate principal amount of the Notes or as instructed pursuant to the Security Documents, it being understood and agreed that in respect of the Collateral, or any act, omission, or event related thereto, the Collateral Agent shall have no other duty or liability whatsoever to the Trustee or any Holder as to any of the foregoing.
(f) Notwithstanding anything to the contrary contained in this Indenture, the Intercreditor Agreements or the Security Documents, in the event the 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 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 Collateral Agent has determined that the Collateral Agent may incur personal liability as a result of the presence at, or release on or from, the Collateral or such property, of any hazardous substances unless the Collateral Agent has received security or indemnity from the Holders in an amount and in a form all satisfactory to the Collateral Agent in its sole discretion, protecting the Collateral Agent from all such liability. The Collateral Agent shall at any time be entitled to cease taking any action described in this paragraph (f) if it no longer reasonably deems any indemnity, security or undertaking from the Issuers or the Holders to be sufficient.
(g) For the avoidance of doubt, the Collateral Agent shall have no discretion under this Indenture, the Intercreditor Agreements or the Notes Documents and shall not be required to make or give any determination, consent, approval, request or direction without the written direction of the Holders of a majority in aggregate principal amount of the then outstanding Notes or the Trustee or as instructed pursuant to the Security Documents. After the occurrence of an Event of Default, the Trustee may direct the Collateral Agent in connection with any action required or permitted by this Indenture or the Notes Documents. If the Collateral Agent shall request direction from the Holders of a majority in aggregate principal amount of the then outstanding Notes, the Collateral Agent shall be entitled to refrain acting unless and until the Collateral Agent shall have received direction from the Holders of a majority in aggregate principal amount of the then outstanding Notes (accompanied by, if requested, indemnity or security satisfactory to the Collateral Agent), and the rights Collateral Agent shall not incur liability to any Person by reason of so refraining.
(h) Notwithstanding anything to the contrary in this Indenture or any other Notes Document, in no event shall the Collateral Agent or the Trustee be responsible for, or have any duty or obligation with respect to, the recording, filing, registering, perfection, protection or maintenance of the Secured Parties with respect theretosecurity interests or Liens intended to be created by this Indenture or the other Notes Documents (including without limitation the filing or continuation of any UCC financing or continuation statements or similar documents or instruments), nor shall the Collateral Agent or the Trustee be responsible for, and neither the Collateral Agent nor the Trustee makes any representation regarding, (i) the validity, effectiveness, enforceability or priority of any of the Notes Documents or the security interests or Liens intended to be created thereby, (ii) the genuineness, enforceability, collectability, value, sufficiency, location or existence of any Collateral, the Issuer’s or Guarantors’ rights therein, or the validity, effectiveness, enforceability, sufficiency, extent, perfection or priority of any Lien therein, or (iii) any failure or delay in performance or any breach by the Issuer or any other Guarantor under this Indenture or the Notes Documents or for any failure of any obligor to perform its Obligations under this Indenture or the Notes Documents.
(i) By its acceptance of the Notes, each Holder is deemed to have consented to the terms of the Intercreditor Agreements and the other Notes Documents, and authorized and directed the Collateral Agent and the Trustee to execute, deliver and perform its obligations under each Security Document and Intercreditor Agreement to which it is a party.
(j) Whether or not expressly provided in any Security Document, in entering into and performing under any Security Document, the Trustee and Collateral Agent, as contemplated by applicable, shall be entitled to all of the rights, privileges, immunities or indemnities granted to them under this Indenture, as if the provisions herein setting forth such rights, privileges, immunities or indemnities were set forth therein.
(k) The Collateral Agent may resign or be removed and a successor be appointed in accordance with the provisions of this Agreement Sections 7.08 and 7.09, with the Security Documents and acknowledge and agree that any such action by any references therein to “Trustee” deemed to be references to “Collateral Agent.”
(l) The Trustee or the Collateral Agent shall bind not be responsible for the Lenders. Each Lender agrees that it shall not take existence, genuineness or institute any actions value (or proceedings, judicial or otherwise, for any right or remedy with respect to any Collateral against any Borrower or any other Loan Party or any other obligor under any diminution of the Loan Documents, Specified Swap Agreements or any Specified Cash Management Agreement (including, in each case, the exercise of any right of setoff, rights on account of any banker’s lien or similar claim or other rights of self-help), or institute any actions or proceedings, or otherwise commence any remedial procedures, with respect to any Collateral of any Borrower or any other Loan Party, without the prior written consent of the Administrative Agent. In the event of a foreclosure by the Administrative Agent on any of the Collateral pursuant to a public or private sale or a sale value) of any of the Collateral pursuant to Section 363 or for the validity, perfection, priority or enforceability of the Bankruptcy Code Liens in any of the Collateral, whether impaired by operation of law or by reason of any action on its part hereunder, except to the extent such action constitutes gross negligence or willful misconduct on the part of the Trustee or the Collateral Agent as determined by a final order of a court of competent jurisdiction, for the validity or sufficiency of the Collateral or any agreement or assignment contained therein, for the validity of the title of the Issuer 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 or the Collateral Agent shall have no responsibility for recording, filing, re-recording or refiling any financing statement (or an equivalent process amendment thereto), continuation statement, termination statement, document, instrument or other notice in any foreign jurisdiction)public office at any time or times or to otherwise take any action to perfect or maintain the perfection of any security interest granted to it under the Security Documents or otherwise. Beyond the exercise of reasonable care in the custody thereof, the Administrative Trustee and the Collateral Agent shall have no duty as to any Collateral in their possession or control or in the possession or control of any agent or bailee or any Lender may income thereon or as to preservation of rights against prior parties or any other rights pertaining thereto. The Trustee and the Collateral Agent shall be deemed to have exercised reasonable care in the purchaser custody of the Collateral in their possession if the Collateral is accorded treatment substantially equal to that which they accord their 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 all omission of such any carrier, forwarding agency or other agent or bailee selected by the Trustee or the Collateral at any such sale and the Administrative Agent, as agent for the case may be, in good faith. The Trustee and representative of the Lenders (but not any Lender or Lenders in its or their respective individual capacities unless the Required Lenders shall otherwise agree in writing) shall be entitled, with the consent or at the direction of the Required Lenders, for the purpose of bidding and making settlement or payment of the purchase price for all or any portion of the Collateral sold at any such sale, Agent shall have no duty to use and apply ascertain or inquire as to the performance or observance of any of the Obligations terms of this Indenture or the Security Documents by the Issuer or the Guarantors.
(m) The Trustee or the Collateral Agent, in giving any consent or approval under the Security Documents, shall be entitled to receive, as a credit condition to such consent or approval, an Officer’s Certificate stating that the action or omission for which consent or approval is to be given is authorized and permitted according to the terms of this Indenture and the Security Documents, and the Trustee or the Collateral Agent shall be fully protected in giving such consent or approval on account the basis of the purchase price for any Collateral payable by the Administrative Agent at such saleOfficer’s Certificate.
Appears in 1 contract
Sources: Indenture (Tronox Holdings PLC)
Collateral Agent. ▇▇▇▇▇▇▇▇.▇▇▇/ Power of Attorney. /a/ The Administrative Creditor hereby grants an irrevocable power of attorney to Itaú Chile under the terms set forth in section 18 of Law No. 20190 enacted on June 5, 2007 to act as Collateral Agent. /b/ The Collateral Agent will be fully empowered to perform all the acts, enter into all the agreements and subscribe all public and private instruments that may be required, including all rectification and/or clarification deeds that may be relevant in order to cause the creation and legal implementation of the Collateral or the adequacy of the existing ones. The Collateral Agent shall also act be liable to perform the following acts, including but not limited to receiving the respective stock certificates and contracts, keeping them in custody, managing them and fulfilling the legal requirements applicable to each of them, as appropriate, as well as for managing and foreclosing the “collateral agent” under the Loan DocumentsCollateral, and each the delivery of the Lenders (including proceeds thereof to the Creditor, if required. /Thirteen. Two/ Powers of the Collateral Agent. /a/ In order to the exercise this power of attorney, and without prejudice to the broad powers granted to it, the Collateral Agent shall be broadly and expressly empowered to self-contract, and also, acting in its capacities as a potential Qualified Counterparty the name and a potential Cash Management Provider) on behalf of the Creditor, to receive and the Issuing Lenders hereby irrevocably appoints and authorizes the Administrative Agent to act as the agent of such Lender and the Issuing Lenders (with the full power to appoint and to substitute and to delegate) on its behalfkeep in custody securities, stock certificates, corporate rights, contractual documents, or in its own name as joint any others that are to be delivered to and several creditor or creditor of a parallel debt (as be received by the case may be) Creditor for purposes of acquiring, holding and enforcing any and all Liens on Collateral granted by any the total implementation of the Loan Parties Collateral; perform any acts, enter into any agreements, take all steps, proceedings and formalities, execute any public or private documents, and make all registrations or publications that may be relevant, necessary and/or advisable to secure any of the Obligations, together with such powers levy and discretion as are reasonably incidental thereto. In this connectionimplement entirely and according to law, the Administrative AgentCollateral described herein, as “collateral agent” and any co-agents, sub-agents and attorneys-in-fact appointed by the Administrative Agent pursuant to Section 10.5 for purposes of holding or enforcing any Lien on the Collateral (or any portion thereof) others that may be granted under the Security Credit Documents, being also authorized to required a notary public to attest to the notifications, registrations, publications and/or annotations that may be relevant in compliance with the law for such purposes, as well as to require or delegate a power of attorney to require the customarily annotations and registrations and publications that may be relevant and receive any titles, certificates or instruments that may be relevant to such effect; to require any kind of customarily annotations and registrations and publications that may be relevant; keep custody of all stock certificates, corporate rights, contractual documents and any other kind of documents that may be required by the law; to perform any other acts, take any steps and measures that may be relevant, and shall also be empowered to collect and receive, for exercising any rights and remedies thereunder at which purpose the direction Collateral Agent shall have the prior authorization of the Administrative AgentCreditor; /b/ In addition, the Collateral shall be entitled to represent the benefits Creditor in all trials and judicial proceedings relating to the Collateral, which are relevant in which they may have an interest either at present or in the future, in any jurisdiction, ordinary, special, arbitral, or administrative court, or otherwise, to which the Creditor may be act as plaintiff, defendant or third party of any kind whatsoever, until the complete execution of the judgment, and shall be entitled to file any kind of ordinary, executive, special, non-contentious actions or otherwise; in order to exercise this power of attorney with regard to the execution and foreclosure of the Collateral, the Collateral Agent shall be empowered by the Credit to act in the Creditor’s name and behalf with all provisions ordinary and extraordinary powers to perform judicial acts contemplated in both subsections of this Section 10 section 7 of the Code of Civil Procedure of Chile, which are deemed as fully reproduced herein, on a one-by-one basis, and Section 11shall also be empowered, as though such co-agentswithout the following enumeration being restrictive in any way, sub-agents to ▇▇▇, file complaints, bring any other kind of judicial proceedings either in a voluntary or contentious jurisdiction, answer to complaints, desist, withdraw and attorneysdiscontinue all kind of legal actions and proceedings, defenses, pleas-in-fact were bar, remedies and appeals; waive remedies or legal terms, answer interrogatories, enter into compromises, appoint arbitrators collect and receive monies, enter into accord and satisfaction, to settle or is authorized to represent the “collateral agent” under company with all the Loan Documents as if set forth ordinary and extraordinary powers granted in full herein with respect thereto. Without limiting this power of attorney, being empowered to file any voluntary nonsuit in the generality court of original jurisdiction or lower court, file and answer complaints, accept the foregoingcomplaint brought by the opposite party, the Lenders hereby expressly authorize the Administrative Agent on its behalf and/or in its own name (including under any parallel debt) to execute any and all documents (including releases) with respect answer interrogatories or give testimony, waive remedies or legal terms, compromise, settle, grant arbiter’s powers to the Collateral and the rights of the Secured Parties with respect theretoarbitrators, as contemplated by and in accordance with the provisions of this Agreement and the Security Documents and acknowledge and agree that any such action by any Agent shall bind the Lenders. Each Lender agrees that it shall not take or institute any actions or proceedingschange venues, judicial or otherwise, for any right or remedy with respect to any Collateral against any Borrower or any other Loan Party or any other obligor under any of the Loan Documents, Specified Swap Agreements or any Specified Cash Management Agreement (including, in each case, the exercise of any right of setoff, rights on account of any banker’s lien or similar claim or other rights of self-help), or institute any actions or proceedings, or otherwise commence any remedial procedures, with respect to any Collateral of any Borrower or any other Loan Party, without the prior written consent of the Administrative Agent. In the event of a foreclosure by the Administrative Agent on any of the Collateral pursuant to a public or private sale or a sale of any of the Collateral pursuant to Section 363 of the Bankruptcy Code (or an equivalent process in any foreign jurisdiction), the Administrative Agent or any Lender may be the purchaser of any or all of such Collateral at any such sale and the Administrative Agent, as agent for and representative of the Lenders (but not any Lender or Lenders in its or their respective individual capacities unless the Required Lenders shall otherwise agree in writing) shall be entitled, with the consent or at the direction of the Required Lenders, for the purpose of bidding and making settlement or payment of the purchase price for all or any portion of the Collateral sold at any such sale, to use and apply any of the Obligations as a credit on account of the purchase price for any Collateral payable by the Administrative Agent at such sale.participate in
Appears in 1 contract
Sources: Credit Facility Agreement
Collateral Agent. (a) The Administrative Agent shall also act as the “collateral agent” under the Loan Documents, Trustee and each of the Lenders (including in Holders by acceptance of the Notes hereby designates and appoints the Collateral Agent as its capacities as a potential Qualified Counterparty and a potential Cash Management Provider) agent under this Indenture and the Issuing Lenders Collateral Documents and the Trustee and each of the Holders by acceptance of the Notes hereby irrevocably appoints and authorizes the Administrative Collateral Agent to act as take such action on its behalf under the agent provisions of such Lender this Indenture and the Issuing Lenders (with the full power to appoint Collateral Documents and to substitute exercise such powers and perform such duties as are expressly delegated to delegate) on its behalf, or in its own name as joint the Collateral Agent by the terms of this Indenture and several creditor or creditor of a parallel debt (as the case may be) for purposes of acquiring, holding and enforcing any and all Liens on Collateral granted by any of the Loan Parties to secure any of the ObligationsDocuments, together with such powers and discretion as are reasonably incidental thereto. In this connection, the Administrative Agent, The Collateral Agent agrees to act as “collateral agent” and any co-agents, sub-agents and attorneys-in-fact appointed by the Administrative Agent pursuant to Section 10.5 for purposes of holding or enforcing any Lien such on the Collateral (or any portion thereof) granted under the Security Documents, or for exercising any rights and remedies thereunder at the direction of the Administrative Agent, shall be entitled to the benefits of all express conditions contained in this Section 11.10. The provisions of this Section 10 11.10 are solely for the benefit of the Collateral Agent and none of the Trustee, any of the Holders nor any of the Grantors shall have any rights as a third party beneficiary of any of the provisions contained herein other than as expressly provided in this Section 1111.10. Notwithstanding any provision to the contrary contained elsewhere in this Indenture and the Collateral Documents, as though such co-agentsthe Collateral Agent shall not have any duties or responsibilities, sub-agents and attorneys-in-fact were the “collateral agent” under the Loan Documents as if except those expressly set forth in full herein herein, nor shall the Collateral Agent have or be deemed to have any fiduciary relationship with respect theretothe Trustee, any Holder, the Company or any Guarantor, and no implied covenants, functions, responsibilities, duties, obligations or liabilities shall be read into this Indenture and the Collateral Documents or otherwise exist against the Collateral Agent. Without limiting the generality of the foregoingforegoing sentence, the Lenders use of the term “agent” in this Indenture 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. 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. Except as expressly otherwise provided in this Indenture, the Collateral Agent shall have and may use its sole discretion with respect to exercising or refraining from exercising any discretionary rights or taking or refraining from taking any actions which the Collateral Agent is expressly entitled to take or assert under this Indenture and the Collateral Documents, including the exercise of remedies pursuant to Article VI, and any action so taken or not taken shall be deemed consented to by the Trustee and the Holders.
(b) The Collateral Agent may execute any of its duties under this Indenture or the Collateral Documents by or through agents, employees, attorneys-in-fact or through its Affiliates and shall be entitled to an Officers’ Certificate or an Opinion of Counsel or both concerning all matters pertaining to such duties. The Collateral Agent shall not be responsible for the negligence or misconduct of any agent, employee, attorney-in-fact or Affiliate that it selects as long as such selection was made without negligence or willful misconduct.
(c) None of the Collateral Agent or any of its Affiliates shall (i) be liable for any action taken or omitted to be taken by any of them under or in connection with this Indenture or the transactions contemplated hereby expressly authorize the Administrative Agent on its behalf and/or in (except for its own name negligence or willful misconduct) or under or in connection with the Collateral Documents or the transactions contemplated thereby (including except for its own negligence or willful misconduct), or (ii) be responsible in any manner to any of the Trustee or any Holder for any recital, statement, representation, warranty, covenant or agreement made by the Company or Guarantor, or any officer thereof, contained in this Indenture, 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 Indenture or the Collateral Documents, or the validity, effectiveness, genuineness, enforceability or sufficiency of this Indenture or the Collateral Documents, or for any failure of the Company any Guarantor or any other party to this Indenture or the Collateral Documents to perform its obligations hereunder or thereunder. None of the Collateral Agent or any of its Affiliates shall be under any parallel debtobligation to the Trustee or any Holder to ascertain or to inquire as to the observance or performance of any of the agreements contained in, or conditions of, this Indenture or the Collateral Documents or to inspect the properties, books, or records of the Company, any Guarantor or their respective Affiliates.
(d) The Collateral Agent shall be entitled to execute rely, and shall be fully protected in relying, upon any writing, resolution, notice, consent, certificate, affidavit, letter, telegram, facsimile, telex, or other document believed by it to be genuine and correct and to have been signed, sent, or made by the proper Person or Persons, and upon advice and statements of legal counsel (including, without limitation, counsel to the Company), independent accountants and other experts and advisors selected by the Collateral Agent. The Collateral Agent shall be fully justified in failing or refusing to take any action under this Indenture or the Collateral Documents unless it shall first receive such advice or concurrence of the Trustee as it deems appropriate and, if it so requests, it shall first be indemnified to its satisfaction by the Holders against any and all documents liability and expense which may be incurred by it by reason of taking or continuing to take any such action. The Collateral Agent shall in all cases be fully protected in acting, or in refraining from acting, under this Indenture or the Collateral Documents in accordance with a request or consent of the Trustee and such request and any action taken or failure to act pursuant thereto shall be binding upon all of the Holders.
(including releasese) The Collateral Agent shall not be deemed to have knowledge or notice of the occurrence of any Default or Event of Default, unless the Collateral Agent shall have received written notice from the Trustee, Holders of Notes, the Company or a Guarantor referring to this Indenture, describing such Default or Event of Default and stating that such notice is a “notice of default.” Subject to the terms of the Intercreditor Agreement, the Collateral Agent shall take such action with respect to such Default or Event of Default as may be requested by the Collateral and the rights of the Secured Parties with respect thereto, as contemplated by and Trustee in accordance with Article VI (subject to this Section 11. 10); provided, however, that unless and until the provisions of this Agreement and the Security Documents and acknowledge and agree that Collateral Agent has received any such action by any request, the Collateral Agent shall bind the Lenders. Each Lender agrees that it may (but shall not be obligated to) take or institute any actions or proceedings, judicial or otherwise, for any right or remedy with respect to any Collateral against any Borrower or any other Loan Party or any other obligor under any of the Loan Documents, Specified Swap Agreements or any Specified Cash Management Agreement (including, in each case, the exercise of any right of setoff, rights on account of any banker’s lien or similar claim or other rights of self-help)such action, or institute any actions or proceedings, or otherwise commence any remedial proceduresrefrain from taking such action, with respect to such Default or Event of Default as it shall deem advisable.
(f) The Collateral Agent and its respective Affiliates may make loans to, issue letters of credit for the account of, accept deposits from, acquire equity interests in and generally engage in any kind of banking, trust, financial advisory, underwriting, or other business with the Company, any Guarantor or their respective Affiliates as though it was not the Collateral of any Borrower Agent hereunder and without notice to or any other Loan Party, without the prior written consent of the Administrative AgentTrustee. In The Trustee and the event Holders acknowledge that, pursuant to such activities, the Collateral Agent or its respective Affiliates may receive information regarding the Company or any Guarantor or any of a foreclosure by their Affiliates (including information that may be subject to confidentiality obligations in favor of the Administrative Company or any Guarantor or any of their Affiliates) and acknowledge that the Collateral Agent shall not be under any obligation to provide such information to the Trustee or the Holders. Nothing herein shall impose or imply any obligation on any the part of the Collateral pursuant Agent to advance funds.
(g) The Collateral Agent may resign at any time upon thirty (30) days prior written notice to the Trustee and the Company, such resignation to be effective upon the acceptance of a public successor agent to its appointment as Collateral Agent. If the Collateral Agent resigns under this Indenture, the Trustee, subject to the consent of the Company (which shall not be unreasonably withheld and which shall not be required during a continuing Default or private sale or Event of Default), shall appoint a sale successor collateral agent. If no successor collateral agent is appointed prior to the intended effective date of any the resignation of the Collateral pursuant to Section 363 Agent (as stated in the notice of the Bankruptcy Code (or an equivalent process in any foreign jurisdictionresignation), the Administrative Collateral Agent or any Lender may be appoint, after consulting with the purchaser of any or all of such Collateral at any such sale and Trustee, subject to the Administrative Agent, as agent for and representative consent of the Lenders Company (but which shall not any Lender or Lenders in its or their respective individual capacities unless the Required Lenders be unreasonably withheld and which shall otherwise agree in writing) shall be entitled, with the consent or at the direction of the Required Lenders, for the purpose of bidding and making settlement or payment of the purchase price for all or any portion of the Collateral sold at any such sale, to use and apply any of the Obligations as a credit on account of the purchase price for any Collateral payable by the Administrative Agent at such sale.not be
Appears in 1 contract
Sources: Indenture (APW Supermarkets, Inc.)
Collateral Agent. (a) The Administrative Agent shall also act as the “collateral agent” under the Loan Documents, Trustee and each of the Lenders (including in Holders by acceptance of the Notes hereby designates and appoints the Collateral Agent as its capacities as a potential Qualified Counterparty and a potential Cash Management Provider) agent under this Indenture, the Security Documents and the Issuing Lenders Intercreditor Agreements and the Trustee and each of the Holders by acceptance of the Notes hereby irrevocably appoints and authorizes the Administrative Collateral Agent to act as take such action on its behalf under the agent provisions of such Lender this Indenture, the Security Documents and the Issuing Lenders (with the full power to appoint Intercreditor Agreements and to substitute exercise such powers and perform such duties as are expressly delegated to delegate) on its behalfthe Collateral Agent by the terms of this Indenture, or in its own name as joint the Security Documents and several creditor or creditor of a parallel debt (as the case may be) for purposes of acquiring, holding and enforcing any and all Liens on Collateral granted by any of the Loan Parties to secure any of the ObligationsIntercreditor Agreements, together with such powers and discretion as are reasonably incidental thereto. In this connection, and consents and agrees to the Administrative Agentterms of the Intercreditor Agreements and each Security Document, as “collateral agent” and any co-agentsthe same may be in effect or may be amended, sub-agents and attorneys-in-fact appointed by the Administrative Agent pursuant restated, supplemented or otherwise modified from time to Section 10.5 for purposes of holding or enforcing any Lien on the Collateral (or any portion thereof) granted under the Security Documents, or for exercising any rights and remedies thereunder at the direction of the Administrative Agent, shall be entitled to the benefits of all provisions of this Section 10 and Section 11, as though such co-agents, sub-agents and attorneys-in-fact were the “collateral agent” under the Loan Documents as if set forth in full herein with respect thereto. Without limiting the generality of the foregoing, the Lenders hereby expressly authorize the Administrative Agent on its behalf and/or in its own name (including under any parallel debt) to execute any and all documents (including releases) with respect to the Collateral and the rights of the Secured Parties with respect thereto, as contemplated by and time in accordance with their respective terms. In acting under this Indenture, the provisions of this Agreement Security Documents or any Intercreditor Agreement, the Collateral Agent shall have all the same rights, privileges, indemnities and immunities provided hereunder and in the Security Documents and acknowledge shall have all the same rights, privileges, indemnities and agree that any such action by any immunities as the Trustee set forth in Article 7 of this Indenture to the extent not otherwise expressly set forth herein. For the avoidance of doubt, the rights, privileges, protections, immunities and benefits given to the Collateral Agent shall bind the Lenders. Each Lender agrees that it shall not take or institute any actions or proceedingshereunder, judicial or otherwise, for any right or remedy with respect to any Collateral against any Borrower or any other Loan Party or any other obligor under any of the Loan Documents, Specified Swap Agreements or any Specified Cash Management Agreement (including, in each casewithout limitation, its right to be indemnified prior to taking action, shall survive the exercise satisfaction, discharge or termination of any right of setoffthis Indenture or its earlier termination, rights on account of any banker’s lien resignation or similar claim or other rights of self-help), or institute any actions or proceedings, or otherwise commence any remedial procedures, with respect to any Collateral of any Borrower or any other Loan Party, without the prior written consent of the Administrative Agent. In the event of a foreclosure by the Administrative Agent on any removal of the Collateral pursuant to a public or private sale or a sale of any of the Collateral pursuant to Section 363 of the Bankruptcy Code (or an equivalent process in any foreign jurisdiction), the Administrative Agent or any Lender may be the purchaser of any or all of such Collateral at any such sale and the Administrative Agent, in such capacity. The Collateral Agent agrees to act as agent for and representative of such on the Lenders (but not any Lender or Lenders express conditions contained in its or their respective individual capacities unless the Required Lenders shall otherwise agree in writing) shall be entitled, with the consent or at the direction of the Required Lenders, for the purpose of bidding and making settlement or payment of the purchase price for all or any portion of the Collateral sold at any such sale, to use and apply any of the Obligations as a credit on account of the purchase price for any Collateral payable by the Administrative Agent at such salethis Section 12.
Appears in 1 contract
Sources: Indenture (DIEBOLD NIXDORF, Inc)
Collateral Agent. (a) The Administrative Agent shall also act as the “collateral agent” under the Loan Documents, Trustee and each of the Lenders (including in Holders by acceptance of the Notes hereby designates and appoints The Bank of New York Mellon Trust Company, N.A., as its capacities as a potential Qualified Counterparty and a potential Cash Management Provider) agent under this Indenture and the Issuing Lenders Security Documents and the Trustee and each of the Holders by acceptance of the Notes hereby irrevocably appoints and authorizes The Bank of New York Mellon Trust Company, N.A. to take such action on its behalf under the Administrative Agent to act as the agent provisions of such Lender this Indenture and the Issuing Lenders (with the full power to appoint Security Documents and to substitute exercise such rights and powers and perform such duties as are expressly delegated to delegate) on its behalf, or in its own name as joint the Collateral Agent by the terms of this Indenture and several creditor or creditor of a parallel debt (as the case may be) for purposes of acquiring, holding and enforcing any and all Liens on Collateral granted by any of the Loan Parties to secure any of the ObligationsSecurity Documents, together with such powers and discretion as are reasonably incidental thereto. In this connection, the Administrative Agent, The Collateral Agent agrees to act as “collateral agent” and any co-agents, sub-agents and attorneys-in-fact appointed by the Administrative Agent pursuant to Section 10.5 for purposes of holding or enforcing any Lien such on the express conditions contained in this Section 12.10. The provisions of this Section 12.10 are solely for the benefit of the Collateral (Agent and none of the Trustee, any of the Holders nor the Company or any portion thereof) granted under of the Subsidiary Guarantors shall have any rights as a third party beneficiary of any of the provisions contained herein other than as expressly provided in this Section 12.10 and in Section 12.03. Notwithstanding any provision to the contrary contained elsewhere in this Indenture and the Security Documents, the Collateral Agent shall not have any duties or for exercising responsibilities, except those expressly set forth herein, nor shall the Collateral Agent have or be deemed to have any rights fiduciary relationship with the Trustee, any Holder or the Company or any Subsidiary Guarantor, and remedies thereunder at the direction of the Administrative Agentno implied covenants, functions, responsibilities, duties, obligations or liabilities shall be entitled to read into this Indenture and the benefits of all provisions of this Section 10 and Section 11, as though such co-agents, sub-agents and attorneys-in-fact were Security Documents or otherwise exist against the “collateral agent” under the Loan Documents as if set forth in full herein with respect theretoCollateral Agent. Without limiting the generality of the foregoingforegoing sentence, the Lenders use of the term “agent” in this Indenture 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. 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.
(b) None of the Collateral Agent or any of its agents or employees shall (i) be liable for any action taken or omitted to be taken by any of them under or in connection with this Indenture or the transactions contemplated hereby expressly authorize the Administrative Agent on its behalf and/or in (except for its own name gross negligence or willful misconduct) or under or in connection with any Security Document or the transactions contemplated thereby (including except for its own gross negligence or willful misconduct), or (ii) be responsible in any manner to the Trustee or any Holder for any recital, statement, representation, warranty, covenant or agreement made by the Company or any Subsidiary Guarantor, contained in this or any Indenture, 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 or any other Indenture or the Security Documents, or the validity, effectiveness, genuineness, enforceability or sufficiency of this or any other Indenture or the Security Documents, or for any failure of the Company or any Subsidiary Guarantor or any other party to this Indenture or the Security Documents to perform its obligations hereunder or thereunder. None of the Collateral Agent or any of its agents or employees shall be under any parallel debtobligation to the Trustee or any Holder to ascertain or to inquire as to the observance or performance of any of the agreements contained in, or conditions of, this or any other Indenture or the Security Documents or to inspect the properties, books or records of the Company or any Subsidiary Guarantor.
(c) The Collateral Agent shall in all cases be fully protected in acting, or in refraining from acting, under this or any other Indenture or the Security Documents in accordance with a request or consent of the Trustee and such request and any action taken or failure to execute act pursuant thereto shall be binding upon all of the Holders.
(d) The Collateral Agent shall not be deemed to have knowledge or notice of the occurrence of any Default or Event of Default, unless the Collateral Agent shall have received written notice from the Trustee or the Company referring to this Indenture, describing such Default or Event of Default and all documents (including releases) stating that such notice is a “notice of default.” The Collateral Agent shall take such action with respect to such Default or Event of Default as may be requested by the Collateral and the rights of the Secured Parties with respect thereto, as contemplated by and Trustee in accordance with Article 6 (subject to this Section 12.10); provided, however, that unless and until the provisions of this Agreement and the Security Documents and acknowledge and agree that Collateral Agent has received any such action by any request, the Collateral Agent shall bind the Lenders. Each Lender agrees that it may (but shall not be obligated to) take or institute any actions or proceedings, judicial or otherwise, for any right or remedy with respect to any Collateral against any Borrower or any other Loan Party or any other obligor under any of the Loan Documents, Specified Swap Agreements or any Specified Cash Management Agreement (including, in each case, the exercise of any right of setoff, rights on account of any banker’s lien or similar claim or other rights of self-help)such action, or institute any actions or proceedings, or otherwise commence any remedial proceduresrefrain from taking such action, with respect to such Default or Event of Default as it shall deem advisable.
(e) The Bank of New York Mellon Trust Company, N.A. and its Affiliates (and any successor Collateral Agent and its Affiliates) may make loans to, issue letters of credit for the account of, accept deposits from, acquire equity interests in and generally engage in any Borrower kind of banking, trust, financial advisory, underwriting, or any other Loan Party, business with the Company and the Subsidiary Guarantors as though it was not the Collateral Agent hereunder and without the prior written notice to or consent of the Administrative Trustee. The Trustee and the Holders acknowledge that, pursuant to such activities, The Bank of New York Mellon Trust Company, N.A. or its Affiliates (and any successor Collateral Agent and its Affiliates) may receive information regarding the Company and the Subsidiary Guarantors (including information that may be subject to confidentiality obligations in favor of the Company and the Subsidiary Guarantors) and acknowledge that the Collateral Agent shall not be under any obligation to provide such information to the Trustee or the Holders. Nothing herein shall impose or imply any obligation on the part of The Bank of New York Mellon Trust Company, N.A. (or any successor Collateral Agent) to advance funds.
(f) The Collateral Agent may resign at any time upon thirty (30) days prior written notice to the Trustee and the Company, such resignation to be effective upon the acceptance of a successor agent to its appointment as Collateral Agent. In If the event Collateral Agent resigns under this Indenture, the Company shall appoint a successor Collateral Agent. If no successor collateral agent is appointed prior to the intended effective date of a foreclosure by the Administrative Agent on any resignation of the Collateral pursuant to a public or private sale or a sale Agent (as stated in the notice of any of the Collateral pursuant to Section 363 of the Bankruptcy Code (or an equivalent process in any foreign jurisdictionresignation), the Administrative Collateral Agent or any Lender may be the purchaser of any or all of such Collateral at any such sale and the Administrative Agent, as agent for and representative of the Lenders (but not any Lender or Lenders in its or their respective individual capacities unless the Required Lenders shall otherwise agree in writing) shall be entitledappoint, with the consent or at the direction of the Required LendersCompany, for the purpose of bidding a successor Collateral Agent. If no successor Collateral Agent is appointed and making settlement or payment of the purchase price for all or any portion of the Collateral sold at any such sale, consented to use and apply any of the Obligations as a credit on account of the purchase price for any Collateral payable by the Administrative Agent at such sale.Company pursuant to the preceding sentence within thirty (30)
Appears in 1 contract
Sources: Indenture (Oppenheimer Holdings Inc)
Collateral Agent. The Administrative Agent shall also act as the “collateral agent” under the Loan Documents, and each of the Lenders (including in its capacities as a potential Qualified Counterparty and a potential Cash Management Provider) and the Issuing Lenders hereby irrevocably appoints and authorizes the Administrative Agent to act as the agent of such Lender and the Issuing Lenders (with the full power to appoint and to substitute and to delegate) on its behalf, or in its own name as joint and several creditor or creditor of a parallel debt (as the case may be) for purposes of acquiring, holding and enforcing any and all Liens on Collateral granted by any of the Loan Parties to secure any of the Obligations, together with such powers and discretion as are reasonably incidental thereto. In this connection, the Administrative Agent, as “collateral agent” and any co-agents, sub-agents and attorneys-in-fact appointed by the Administrative Agent pursuant to Section 10.5 9.5 for purposes of holding or enforcing any Lien on the Collateral (or any portion thereof) granted under the Security Documents, or for exercising any rights and remedies thereunder at the direction of the Administrative Agent, shall be entitled to the benefits of all provisions of this Section 10 9 and Section 1110, as though such co-agents, sub-agents and attorneys-in-fact were the “collateral agent” under the Loan Documents as if set forth in full herein with respect thereto. Without limiting the generality of the foregoing, the Lenders hereby expressly authorize the Administrative Agent on its behalf and/or in its own name (including under any parallel debt) to execute any and all documents (including releases) with respect to the Collateral and the rights of the Secured Parties with respect thereto, as contemplated by and in accordance with the provisions of this Agreement and the Security Documents and acknowledge and agree that any such action by any Agent shall bind the Lenders. Each Lender agrees that it shall not take or institute any actions or proceedings, judicial or otherwise, for any right or remedy with respect to any Collateral against any anythe Borrower or any other Loan Party or any other obligor under any of the Loan Documents, the Specified Swap Agreements or any Specified Cash Management Agreement (including, in each case, the exercise of any right of setoff, rights on account of any banker’s lien or similar claim or other rights of self-help), or institute any actions or proceedings, or otherwise commence any remedial procedures, with respect to any Collateral of any anythe Borrower or any other Loan Party, without the prior written consent of the Administrative Agent. In the event of a foreclosure by the Administrative Agent on any of the Collateral pursuant to a public or private sale or a sale of any of the Collateral pursuant to Section 363 of the Bankruptcy Code (or an equivalent process in any foreign jurisdiction)Code, the Administrative Agent or any Lender may be the purchaser of any or all of such Collateral at any such sale and the Administrative Agent, as agent for and representative of the Lenders (but not any Lender or Lenders in its or their respective individual capacities unless the Required Lenders shall otherwise agree in writing) shall be entitled, with the consent or at the direction of the Required Lenders, for the purpose of bidding and making settlement or payment of the purchase price for all or any portion of the Collateral sold at any such sale, to use and apply any of the Obligations as a credit on account of the purchase price for any Collateral payable by the Administrative Agent at such sale.
Appears in 1 contract
Collateral Agent. The Administrative Agent shall also act (1) Each of the Holders by acceptance of the Notes hereby irrevocably appoints ▇▇▇▇▇ Fargo Bank, National Association as the “collateral agent” initial Collateral Agent (and any successor appointed pursuant to the terms of this Indenture) for the benefit of the Holders under this Indenture and the Loan Documents, Security Documents and each of the Lenders (including in Holders by acceptance of the Notes hereby irrevocably authorizes the Collateral Agent to take such action on its capacities as a potential Qualified Counterparty and a potential Cash Management Provider) behalf under the provisions of this Indenture and the Issuing Lenders hereby irrevocably appoints Security Documents and authorizes to exercise such powers and perform such duties as are expressly delegated to the Administrative Collateral Agent to act as by the agent terms of such Lender this Indenture and the Issuing Lenders (with the full power to appoint and to substitute and to delegate) on its behalf, or in its own name as joint and several creditor or creditor of a parallel debt (as the case may be) for purposes of acquiring, holding and enforcing any and all Liens on Collateral granted by any of the Loan Parties to secure any of the ObligationsSecurity Documents, together with such powers and discretion as are reasonably incidental thereto. In this connectionThe Trustee and the Collateral Agent each is authorized and directed by the Holders, and the Administrative Holders by acquiring the Notes have deemed to have authorized the Trustee or the Collateral Agent, as “applicable, to (i) enter into the Security Documents (including any amendments thereto), (ii) bind the Holders on the terms as set forth in the Security Documents (including any amendments thereto) and (iii) perform and observe its obligations under the Security Documents (including any amendments thereto).
(2) Neither the Company nor any of its Affiliates nor any Person acting as collateral agent” agent for the benefit of the lenders under the Senior Loan Documents may serve as Collateral Agent.
(3) The Collateral Agent shall hold (directly or through agents), and any co-agentswill be entitled to enforce, sub-agents and attorneys-in-fact appointed by the Administrative Agent pursuant to Section 10.5 for purposes of holding or enforcing any Lien all Liens on the Collateral created by the Security Documents.
(4) Except as provided in the Intercreditor Agreement, the Collateral Agent shall not be obligated:
(a) to act upon directions purported to be delivered to it by any Person;
(b) to foreclose upon or otherwise enforce any portion thereofLien; or
(c) granted under to take any other action whatsoever with regard to any or all of the Security Documents, the Liens created thereby or for exercising any rights and remedies thereunder at the direction Collateral. A resignation or removal of the Administrative Agent, shall be entitled Collateral Agent and appointment of a successor Collateral Agent will become effective pursuant to the benefits of all provisions of this Section 10 and Section 11, as though such co-agents, sub-agents and attorneys-in-fact were the “collateral agent” under the Loan Documents as if terms set forth in full herein with respect thereto. Without limiting the generality of the foregoing, the Lenders hereby expressly authorize the Administrative Agent on its behalf and/or in its own name (including under any parallel debt) to execute any and all documents (including releases) above with respect to the Collateral resignation or removal of the Trustee and the rights of the Secured Parties with respect thereto, as contemplated by and in accordance with the provisions of this Agreement and the Security Documents and acknowledge and agree that any such action by any Agent shall bind the Lenders. Each Lender agrees that it shall not take or institute any actions or proceedings, judicial or otherwise, for any right or remedy with respect to any Collateral against any Borrower or any other Loan Party or any other obligor under any of the Loan Documents, Specified Swap Agreements or any Specified Cash Management Agreement (including, in each case, the exercise of any right of setoff, rights on account of any banker’s lien or similar claim or other rights of self-help), or institute any actions or proceedings, or otherwise commence any remedial procedures, with respect to any Collateral of any Borrower or any other Loan Party, without the prior written consent of the Administrative Agent. In the event appointment of a foreclosure by the Administrative Agent on any of the Collateral pursuant to a public or private sale or a sale of any of the Collateral pursuant to Section 363 of the Bankruptcy Code (or an equivalent process in any foreign jurisdiction), the Administrative Agent or any Lender may be the purchaser of any or all of such Collateral at any such sale and the Administrative Agent, as agent for and representative of the Lenders (but not any Lender or Lenders in its or their respective individual capacities unless the Required Lenders shall otherwise agree in writing) shall be entitled, with the consent or at the direction of the Required Lenders, for the purpose of bidding and making settlement or payment of the purchase price for all or any portion of the Collateral sold at any such sale, to use and apply any of the Obligations as a credit on account of the purchase price for any Collateral payable by the Administrative Agent at such salesuccessor Trustee.
Appears in 1 contract
Sources: Indenture (Handy & Harman Ltd.)
Collateral Agent. (a) The Administrative Agent shall also act as the “collateral agent” under the Loan Documents, Trustee and each of the Lenders (including in its capacities Holders by acceptance of the Notes hereby acknowledge the Company’s appointment of the Collateral Agent as a potential Qualified Counterparty and a potential Cash Management Provider) the Trustee’s and the Issuing Lenders Holders’ collateral agent under this Indenture and the Security Documents, and the Trustee and each of the Holders by acceptance of the Notes hereby irrevocably appoints authorize and authorizes direct the Administrative Collateral Agent to act as execute and deliver the agent Security Documents and authorize the Collateral Agent to take such action on their behalf under the provisions of such Lender this Indenture and the Issuing Lenders (with the full power to appoint Security Documents and to substitute exercise such powers and perform such duties as are expressly delegated to delegate) on its behalf, or in its own name as joint the Collateral Agent by the terms of this Indenture and several creditor or creditor of a parallel debt (as the case may be) for purposes of acquiring, holding and enforcing any and all Liens on Collateral granted by any of the Loan Parties to secure any of the ObligationsSecurity Documents, together with such powers and discretion as are reasonably incidental thereto. In The Collateral Agent agrees to act as such on the express conditions contained in this connectionSection 11.07. The provisions of this Section 11.07 are solely for the benefit of the Collateral Agent and none of the Trustee, any of the Holders, the Administrative Agent, as “collateral agent” and any co-agents, sub-agents and attorneys-in-fact appointed by the Administrative Agent pursuant to Section 10.5 for purposes of holding or enforcing any Lien on the Collateral (Company or any portion thereof) granted under of the Domestic Subsidiaries shall have any rights as a third party beneficiary of any of the provisions contained herein. Notwithstanding any provision to the contrary contained elsewhere in this Indenture and the Security Documents, the Collateral Agent shall not have any duties or for exercising responsibilities, except those expressly set forth herein and in the Security Documents, nor shall the Collateral Agent have or be deemed to have any rights fiduciary relationship with the Trustee, any Holder or the Company or any Domestic Subsidiary, and remedies thereunder at the direction of the Administrative Agentno implied covenants, functions, responsibilities, duties, obligations or liabilities shall be entitled to read into this Indenture and the benefits of all provisions of this Section 10 and Section 11, as though such co-agents, sub-agents and attorneys-in-fact were Security Documents or otherwise exist against the “collateral agent” under the Loan Documents as if set forth in full herein with respect theretoCollateral Agent. Without limiting the generality of the foregoingforegoing sentence, the Lenders use of the term “agent” in this Indenture with reference to the Collateral Agent shall not be construed to connote any fiduciary or other implied (or express) obligations arising under agency doctrine of any Applicable Law. Instead, such term is used merely as a matter of market custom, and is intended to create or reflect only an administrative relationship between independent contracting parties. Notwithstanding anything else to the contrary herein, whenever reference is made in this Agreement, or any other Security Document, to any discretionary 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 fully justified in failing or refusing to take any such action if it shall not have received written instruction, advice or concurrence from the Trustee or the Holders of a majority in aggregate principal amount of the outstanding Notes in respect of such action. The Collateral Agent shall have no liability for any failure or delay in taking any actions contemplated above as a result of a failure or delay on the part of any such Person to provide such instruction, advice or concurrence. This provision is intended solely for the benefit of the Collateral Agent and its successors and permitted assigns and is not intended to and will not entitle the other parties hereto to any defense, claim or counterclaim, or confer any rights or benefits on any party hereto.
(b) The Collateral Agent may execute any of its duties under this Indenture and the Security Documents by or through agents, employees or attorneys-in-fact and shall be entitled to advice of counsel concerning all matters pertaining to such duties, and the written advice of such counsel shall be full and complete authorization and protection from liability in respect of any action taken, suffered or omitted by it hereunder in good faith and in reliance thereon. The Collateral Agent shall not be responsible for the negligence or misconduct of any agent, employee or attorney-in-fact that it selects as long as such selection was made without negligence or willful misconduct.
(c) None of the Collateral Agent or any of its agents or employees shall (i) be liable for any action taken or omitted to be taken by any of them under or in connection with this Indenture or the transactions contemplated hereby expressly authorize (except for its own gross negligence or willful misconduct) or under or in connection with any Security Document or the Administrative transactions contemplated thereby (except for its own gross negligence or willful misconduct), or (ii) be responsible in any manner to the Trustee or any Holder for any recital, statement, representation, warranty, covenant or agreement made by the Company or any Guarantor contained in this Indenture or any of the 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 Indenture or any of the Security Documents, or the validity, effectiveness, genuineness, enforceability or sufficiency of this Indenture or any of the Security Documents, or for any failure of the Company or any Guarantor or any other party to this Indenture or any of the Security Documents to perform its obligations hereunder or thereunder. None of the Collateral Agent or any of its agents or employees shall be under any obligation to the Trustee or any Holder to ascertain or to inquire as to the observance or performance of any of the agreements contained in, or conditions of, this Indenture or any of the Security Documents or to inspect the properties, books or records of the Company or any other Pledgor.
(d) The Collateral Agent shall not be deemed to have knowledge or notice of the occurrence of any Default or Event of Default, unless the Collateral Agent shall have received written notice from the Trustee or the Company referring to this Indenture, describing such Default or Event of Default and stating that such notice is a “notice of default.” The Collateral Agent shall take such action with respect to such Default or Event of Default as may be directed by the Trustee acting in accordance with Article 6 (subject to this Section 11.07); provided, however, that unless and until the Collateral Agent has received any such request, the Collateral Agent may (but shall not be obligated to) take such action, or refrain from taking such action, with respect to such Default or Event of Default as it shall deem advisable.
(e) The Collateral Agent may resign at any time by so notifying the Company and the Trustee in writing at least thirty (30) days prior to the proposed date of resignation, such resignation to be effective upon the acceptance of a successor agent to its appointment as Collateral Agent. The Holders of a majority in principal amount of the then outstanding Notes may remove the Collateral Agent by so notifying the Collateral Agent, the Trustee and the Company in writing, such removal to be effective upon the acceptance of a successor agent to its appointment as Collateral Agent. If the Collateral Agent resigns or is removed under this Indenture, the Trustee, subject to the consent of the Company (which shall not be unreasonably withheld and which shall not be required during a continuing Event of Default), shall appoint a successor Collateral Agent. In the case of the resignation by the Collateral Agent, if no successor collateral agent is appointed prior to the intended effective date of the resignation of the Collateral Agent (as stated in the notice of resignation), the Collateral Agent may appoint, after consulting with the Trustee, subject to the consent of the Company (which shall not be unreasonably withheld and which shall not be required during a continuing Event of Default), a successor Collateral Agent, which may be the same Person as the Trustee. If (i) in the case of the resignation by the Collateral Agent, no successor Collateral Agent is appointed and consented to by the Company pursuant to the preceding sentence within thirty (30) days after the intended effective date of resignation (as stated in the notice of resignation) the Collateral Agent, and (ii) in the case of the removal of the Collateral Agent, if no successor Collateral Agent is appointed by the Trustee and consented to by the Company within thirty (30) days after the intended effective date of removal (as stated in the notice of removal), then in each case the Company or the Holders of at least 10% in principal amount of the then outstanding principal amount of the Notes shall be entitled to petition at the expense of the Company a court of competent jurisdiction to appoint a successor Collateral Agent. A successor Collateral Agent shall deliver a written acceptance of its appointment to the retiring Collateral Agent and to the Company. Thereupon, the resignation or removal of the retiring Collateral Agent shall become effective, and the successor Collateral Agent shall have all the rights, powers and the duties of the Collateral Agent under this Indenture and the Security Documents. The successor Collateral Agent shall mail a notice of its succession to the Trustee. The retiring Collateral Agent shall promptly transfer all property held by it as Collateral Agent to the successor Collateral Agent, provided that all sums owing to the retiring Collateral Agent hereunder have been paid. Notwithstanding the replacement of the Collateral Agent pursuant to this Section 11.07(e), the Company’s obligations under this Section 11.07 and Section 11.12 shall continue for the benefit of the retiring Collateral Agent.
(f) Except as otherwise explicitly provided herein or in the Security Documents, neither the Collateral Agent nor any of its 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 Collateral Agent shall be accountable only for amounts that it actually receives as a result of the exercise of such powers, and neither the Collateral Agent nor any of its officers, directors, employees or agents shall be responsible for any act or failure to act hereunder, except for its own willful misconduct, gross negligence or bad faith.
(g) The Collateral Agent is authorized and directed by the Trustee and the Holders and the Holders by acquiring the Notes are deemed to have authorized the Collateral Agent to (i) enter into the Security Documents to which it is a party, (ii) bind the Trustee and the Holders on the terms as set forth in such Security Documents and (iii) perform and observe its behalf and/or obligations under such Security Documents.
(h) The Collateral Agent shall have no obligation whatsoever to the Trustee or any of the Holders (and the Trustee shall have no obligation whatsoever to the Holders) to assure that the Collateral exists or is owned by the Company and the other Pledgors or is cared for, protected or insured or has been encumbered, or that the Collateral Agent’s Liens have been properly or sufficiently or lawfully created, perfected, protected, maintained or enforced or are entitled to any particular priority, or to determine whether all of the Grantor’s property constituting Collateral intended to be subject to the Lien and security interest of the Security Documents has been properly and completely listed or delivered, as the case may be, or the genuineness, validity, marketability or sufficiency thereof or title thereto.
(i) The Collateral Agent (i) shall not be liable for any action it takes or omits to take in good faith that it believes to be authorized or within its rights or powers, or for any error of judgment made in good faith by an authorized officer, unless it is proved that the Collateral Agent was negligent in ascertaining the pertinent facts, (ii) shall not be liable for interest on any money received by it except as the Collateral Agent may agree in writing with the Company (and money held in trust by the Collateral Agent need not be segregated from other funds except to the extent required by law), and (iii) may consult with counsel of its selection and the advice or opinion of such counsel shall be full and complete authorization and protection from liability in respect of any action taken, suffered or omitted by it hereunder in good faith and in reliance thereon. The grant of permissive rights or powers to the Collateral Agent shall not be construed to impose duties to act.
(j) It is hereby understood that the Dutch Parallel Debt (as defined in the Dutch Pledge Agreement) has been included in the Dutch Pledge Agreement for the purpose of determining the secured obligations in any Collateral that is governed by Dutch law, and in relation to such Dutch Parallel Debt:
(i) the Collateral Agent, solely for the legal purposes required under Dutch law, shall act in its own name and not as agent of any Secured Party (including under any parallel debt) to execute any and all documents (including releases) with respect to but always for the Collateral and the rights benefit of the Secured Parties with respect thereto, as contemplated by and in accordance with the provisions of this Agreement Indenture, the Notes and the Security Documents Documents);
(ii) the rights, powers and acknowledge authorities vested in the Collateral Agent pursuant to this Indenture, the Notes, the Security Documents, the Subsidiary Guarantees and agree that any such action other agreements or instruments required to be executed pursuant to the terms thereof are subject to any restrictions imposed by any mandatory Dutch law; and
(iii) the Collateral Agent shall bind be entitled to accept the Lenders. Each Lender agrees that it shall not take or institute any actions or proceedings, judicial or otherwise, for any right or remedy with respect to any Collateral against any Borrower or any other Loan Party or any other obligor under any Dutch Parallel Debt on behalf of each of the Loan DocumentsSecured Parties, Specified Swap Agreements notwithstanding the foregoing.
(k) If the Collateral Agent resigns or any Specified Cash Management Agreement is removed in accordance with this Section 11.07, EOC shall execute such documents and take such other action as is necessary or desirable (includingor as may otherwise be requested by the Trustee) in connection with the substitution, in each caseaccordance with Applicable Law, of the successor Collateral Agent as creditor of the Dutch Parallel Debt and as beneficiary of the Dutch Pledge Agreement securing the Dutch Parallel Debt.
(l) If the Collateral Agent consolidates with, or merges or converts into, or transfers or sells all or substantially all of its corporate trust business or assets to, another corporation or banking association, the exercise successor corporation or banking association without any further act shall be the successor Collateral Agent. As soon as practicable, the successor Collateral Agent shall mail a notice of any right of setoff, rights on account of any banker’s lien or similar claim or other rights of self-help), or institute any actions or proceedings, or otherwise commence any remedial procedures, with respect its succession to any Collateral of any Borrower or any other Loan Party, without the prior written consent Company and the Holders of the Administrative Agent. In the event of a foreclosure by the Administrative Agent on any of the Collateral pursuant to a public or private sale or a sale of any of the Collateral pursuant to Section 363 of the Bankruptcy Code (or an equivalent process in any foreign jurisdiction), the Administrative Agent or any Lender may be the purchaser of any or all of such Collateral at any such sale and the Administrative Agent, as agent for and representative of the Lenders (but not any Lender or Lenders in its or their respective individual capacities unless the Required Lenders shall otherwise agree in writing) shall be entitled, with the consent or at the direction of the Required Lenders, for the purpose of bidding and making settlement or payment of the purchase price for all or any portion of the Collateral sold at any such sale, to use and apply any of the Obligations as a credit on account of the purchase price for any Collateral payable by the Administrative Agent at such saleNotes.
Appears in 1 contract
Collateral Agent. The Administrative Agent shall also act Treasury and EDC, each in their capacity as a Lender, hereby appoint Treasury (or its agents or bailees), as collateral agent (in such capacity, the “collateral agent” Collateral Agent”) and bailee for purposes of perfecting Treasury’s and EDC’s respective Liens on any part of the Collateral required to be delivered hereunder that is in the Collateral Agent’s possession or control (or in the possession or control of its agents or bailees), to the extent that possession or control thereof is taken to perfect a Lien thereon under the New York UCC (such Collateral being the “Pledged Collateral”) as Collateral Agent and gratuitous bailee for the Lenders (such bailment being intended, among other things, to satisfy the requirements of Sections 8-301(a)(2) and 9-313(c) of the New York UCC), and any assignee, solely for the purpose of perfecting the Liens granted under the Loan Documents, subject to the terms and each conditions of this Section 17.10. Treasury shall not have any obligation whatsoever to the Lenders (including in its capacities as a potential Qualified Counterparty and a potential Cash Management Provider) and to ensure that the Issuing Lenders hereby irrevocably appoints and authorizes the Administrative Agent to act as the agent of such Lender and the Issuing Lenders (with the full power to appoint and to substitute and to delegate) on its behalf, Pledged Collateral is genuine or in its own name as joint and several creditor or creditor of a parallel debt (as the case may be) for purposes of acquiring, holding and enforcing any and all Liens on Collateral granted owned by any of the Loan Parties to secure any of the Obligations, together with such powers and discretion as are reasonably incidental thereto. In this connection, the Administrative Agent, as “collateral agent” and any co-agents, sub-agents and attorneys-in-fact appointed by the Administrative Agent pursuant to Section 10.5 for purposes of holding or enforcing any Lien on the Collateral (or any portion thereof) granted under the Security DocumentsPledgors, or for exercising any to preserve rights and remedies thereunder at the direction of the Administrative Agent, shall be entitled to the or benefits of all provisions of this Section 10 and Section 11, any Person except as though such co-agents, sub-agents and attorneys-in-fact were the “collateral agent” under the Loan Documents as if expressly set forth in full herein this Section 17.10. The duties or responsibilities of Treasury under this Section 17.10 shall be limited solely to holding the Pledged Collateral as Collateral Agent and as bailee in accordance with this Section 17.10. Treasury shall not have by reason of this Agreement or any other document a fiduciary relationship in respect thereto. Without limiting the generality of the foregoing, Lenders and each Lender hereby waives and releases Treasury from all claims and liabilities arising pursuant to the Lenders hereby expressly authorize the Administrative Treasury’s role under this Section 17.10 as gratuitous bailee and Collateral Agent on its behalf and/or in its own name (including under any parallel debt) to execute any and all documents (including releases) with respect to the Pledged Collateral and including, without limitation, for loss or damage to the rights of the Secured Parties with respect thereto, as contemplated by and in accordance with the provisions of this Agreement and the Security Documents and acknowledge and agree that any such action by any Agent shall bind the LendersPledged Collateral. Each Lender Pledgor hereby acknowledges and agrees that it shall not take or institute any actions or proceedings, judicial or otherwise, for any right or remedy with respect to any Collateral against any Borrower or any other Loan Party or any other obligor under any of the Loan Documents, Specified Swap Agreements or any Specified Cash Management Agreement (including, in each case, the exercise of any right of setoff, rights on account of any banker’s lien or similar claim or other rights of self-help), or institute any actions or proceedings, or otherwise commence any remedial procedures, with respect to any Collateral of any Borrower or any other Loan Party, without the prior written consent of the Administrative Agent. In the event of a foreclosure by the Administrative Agent on any of the Collateral pursuant to a public or private sale or a sale of any of the Collateral pursuant to this Section 363 of the Bankruptcy Code (or an equivalent process in any foreign jurisdiction), the Administrative Agent or any Lender may be the purchaser of any or all of such Collateral at any such sale and the Administrative Agent, as agent for and representative of the Lenders (but not any Lender or Lenders in its or their respective individual capacities unless the Required Lenders shall otherwise agree in writing) shall be entitled, with the consent or at the direction of the Required Lenders, for the purpose of bidding and making settlement or payment of the purchase price for all or any portion of the Collateral sold at any such sale, to use and apply any of the Obligations as a credit on account of the purchase price for any Collateral payable by the Administrative Agent at such sale17.10.
Appears in 1 contract
Sources: Secured Debtor in Possession Credit Agreement (Motors Liquidation Co)
Collateral Agent. The Administrative Collateral Agent shall also act as the “collateral agent” under the Loan Documents, and each of the Lenders (including in its capacities as a potential Qualified Counterparty and a potential Cash Management Provider) and the Issuing Lenders hereby irrevocably appoints and authorizes the Administrative Agent has been appointed to act as Collateral Agent hereunder by the agent Lenders and, by their acceptance of such Lender the benefits hereof, the other Secured Parties. The Collateral Agent shall be obligated, and shall have the right hereunder, to make demands, to give notices, to exercise or refrain from exercising any rights, and to take or refrain from taking any action (including, without limitation, the release or substitution of Collateral), solely in accordance with this Agreement and the Issuing Lenders Credit Agreement; provided that the Collateral Agent shall, after payment in full of all Obligations under the Credit Agreement and the other Loan Documents (other than Secured Hedging Agreements), exercise, or refrain from exercising, any remedies provided for herein in accordance with the full power to appoint and to substitute and to delegateinstructions of the holders (the “Majority Holders”) on its behalf, or in its own name as joint and several creditor or creditor of a parallel debt majority of the aggregate “settlement amount” as defined in the Secured Hedging Agreements (or, with respect to any Secured Hedging Agreement that has been terminated in accordance with its terms, the amount then due and payable (exclusive of expenses and similar payments but including any early termination payments then due) under such Secured Hedging Agreement) under all Secured Hedging Agreements. For purposes of the foregoing sentence, settlement amount for any Secured Hedging Agreement that has not been terminated shall be the settlement amount as of the case may be) last Business Day of the month preceding any date of determination and shall be calculated by the appropriate Lender Counterparties and reported to the Collateral Agent upon request; provided that any Secured Hedging Agreement with a settlement amount that is a negative number shall be disregarded for purposes of acquiringdetermining the Majority Holders. In furtherance of the foregoing provisions of this Section 10, holding and enforcing any and all Liens on Collateral granted each Secured Party, by its acceptance of the benefits hereof, agrees that it shall have no right individually to realize upon any of the Loan Parties to secure any of the ObligationsCollateral hereunder, together with it being understood and agreed by such powers and discretion as are reasonably incidental thereto. In this connection, the Administrative Agent, as “collateral agent” and any co-agents, sub-agents and attorneys-in-fact appointed by the Administrative Agent pursuant to Section 10.5 for purposes of holding or enforcing any Lien on the Collateral (or any portion thereof) granted under the Security Documents, or for exercising any Secured Party that all rights and remedies thereunder at hereunder may be exercised solely by the direction Collateral Agent for the benefit of the Administrative Agent, shall be entitled to Secured Parties in accordance with the benefits of all provisions terms of this Section 10 and Section 11, as though such co-agents, sub-agents and attorneys-in-fact were with the “collateral agent” under the Loan Documents as if set forth in full herein with respect thereto. Without limiting the generality terms of Article IX of the foregoing, Credit Agreement The provisions of the Lenders hereby expressly authorize the Administrative Agent on its behalf and/or in its own name (including under any parallel debt) to execute any and all documents (including releases) with respect Credit Agreement relating to the Collateral and the rights of the Secured Parties with respect theretoAgent including, as contemplated by and in accordance with without limitation, the provisions of this Agreement and the Security Documents and acknowledge and agree that any such action by any Agent shall bind the Lenders. Each Lender agrees that it shall not take relating to resignation or institute any actions or proceedings, judicial or otherwise, for any right or remedy with respect to any Collateral against any Borrower or any other Loan Party or any other obligor under any of the Loan Documents, Specified Swap Agreements or any Specified Cash Management Agreement (including, in each case, the exercise of any right of setoff, rights on account of any banker’s lien or similar claim or other rights of self-help), or institute any actions or proceedings, or otherwise commence any remedial procedures, with respect to any Collateral of any Borrower or any other Loan Party, without the prior written consent of the Administrative Agent. In the event of a foreclosure by the Administrative Agent on any removal of the Collateral pursuant to a public or private sale or a sale of any Agent and the powers and duties and immunities of the Collateral pursuant to Section 363 Agent are incorporated herein by this reference, mutatis mutandis, as if fully set forth herein, and such incorporation shall survive any termination of the Bankruptcy Code (or an equivalent process in any foreign jurisdiction), the Administrative Agent or any Lender may be the purchaser of any or all of such Collateral at any such sale and the Administrative Agent, as agent for and representative of the Lenders (but not any Lender or Lenders in its or their respective individual capacities unless the Required Lenders shall otherwise agree in writing) shall be entitled, with the consent or at the direction of the Required Lenders, for the purpose of bidding and making settlement or payment of the purchase price for all or any portion of the Collateral sold at any such sale, to use and apply any of the Obligations as a credit on account of the purchase price for any Collateral payable by the Administrative Agent at such saleCredit Agreement.
Appears in 1 contract
Collateral Agent. The Administrative Agent shall also act (a) Pursuant to that certain Co-Origination Agreement dated January 28, 2008 by and among, inter alia, JPM and the other Initial Lenders, German American Capital Corporation or their predecessors (as amended from time to time, the “Co-Origination Agreement”), JPM and the other parties thereto agreed amongst themselves to extend the Original Loan to Borrower and accordingly, JPM, on behalf of itself and the Lenders or their predecessors party to the Co-Origination Agreement, entered into the Original Loan Agreement and the various loan documents contemplated thereby and has acted as the “collateral agent” under the Loan Documents, and each secured party of the Lenders (including in its capacities as a potential Qualified Counterparty and a potential Cash Management Provider) and the Issuing Lenders hereby irrevocably appoints and authorizes the Administrative Agent to act as the agent of such Lender and the Issuing Lenders (with the full power to appoint and to substitute and to delegate) on its behalf, or in its own name as joint and several creditor or creditor of a parallel debt (as the case may be) record for purposes of acquiringthe grants of security and collateral contained in the various Loan Documents.
(b) Each Lender hereby irrevocably (i) designates and appoints Bank of America, holding and enforcing any and all Liens on Collateral granted by any of the Loan Parties to secure any of the Obligations, together with such powers and discretion N.A. as are reasonably incidental thereto. In this connection, the Administrative Agent, as “collateral agent” and any co-agents, sub-agents and attorneys-in-fact appointed by the Administrative Agent pursuant to Section 10.5 for purposes of holding or enforcing any Lien on the Collateral (or any portion thereof) granted under the Security Documents, or for exercising any rights and remedies thereunder at the direction of the Administrative Agent, shall be entitled to the benefits of all provisions of this Section 10 and Section 11, as though such co-agents, sub-agents and attorneys-in-fact were the “collateral agent” under the Loan Documents as if set forth in full herein with respect thereto. Without limiting the generality of the foregoing, the Lenders hereby expressly authorize the Administrative Agent on its behalf and/or in its own name (including under any parallel debt) to execute any and all documents (including releases) with respect to the agreements and other documents listed on Schedule XXXIII (collectively, the “Collateral Loan Documents”), to act as secured party or other applicable named party (including, without limitation, as named insurer and the rights loss payee) on behalf of the Secured Parties with respect theretoLenders, (ii) names the Collateral Agent as contemplated by a replacement secured party of record, and (iii) authorizes the Collateral Agent, in accordance with such capacity, to take such action on its behalf under the provisions of this Agreement and the Security other Loan Documents and acknowledge to exercise such powers and agree perform such duties (A) as are expressly delegated to the Collateral Agent by the terms of this Agreement and the other Loan Documents and (B) as are necessary to comply with any direction given to the Collateral Agent by the Servicer, together with such other powers as are reasonably incidental thereto, with respect to the Collateral Loan Documents. Collateral Agent hereby (1) accepts such designation and appointment, (2) agrees to act as a replacement secured party of record, (3) agrees to reasonably cooperate with the Servicer in the performance of its obligations and in acting upon the direction of the Servicer, and (4) agrees to take such actions on behalf of Lender and exercise such powers and perform such duties (i) as are expressly delegated to it by the terms of this Agreement and the other Loan Documents and (ii) as are necessary or advisable to comply with any direction given to the Collateral Agent by the Servicer, together with such other powers as are reasonably incidental thereto, with respect to the Collateral Loan Documents. Notwithstanding any provision to the contrary elsewhere in this Agreement, the Collateral Agent shall not have any duties or responsibilities except those expressly set forth herein or in the Collateral Loan Documents, or any fiduciary relationship with any Lender, and no implied covenants, functions, responsibilities, duties, obligations or liabilities shall be read into this Agreement or any other Loan Document or otherwise exist against the Collateral Agent. Collateral Agent may execute any of its duties under this Agreement and the other Loan Documents by or through agents or attorneys-in-fact and shall be entitled to advice of counsel concerning all matters pertaining to such duties. Collateral Agent shall not be responsible for the negligence or misconduct of any agents or attorneys-in-fact selected by it with reasonable care. Neither Collateral Agent nor any of its officers, directors, employees, agents or attorneys-in-fact shall be (a) liable for any action lawfully taken or omitted to be taken by it or such person under or in connection with this Agreement or any other Loan Document (except for its or such person’s own gross negligence or willful misconduct) or (b) responsible in any manner to any Lender for any recitals, statements, representations or warranties made by any Borrower herein or in any report, statement or other document referred to or provided for in, or received by such Collateral Agent under or in connection with, this Agreement or any other Loan Document or for the value, validity, effectiveness, genuineness, enforceability or sufficiency of this Agreement or any other Loan Document or for any failure of any Borrower to perform its obligations hereunder or thereunder. Collateral Agent shall be under no obligation to any Lender to ascertain or to inquire as to the observance or performance of any of the agreements contained in, or conditions of, this Agreement or any other Loan Document, or to inspect the properties, books or records of Borrower. Collateral Agent shall not be deemed to have knowledge or notice of the occurrence of any Default or Event of Default hereunder unless it shall have received notice from a Lender, Servicer or the Borrower referring to this Agreement, describing such Default or Event of Default and stating that such notice is a “notice of default.”
(c) Collateral Agent agrees that it will confirm receipt (in a writing to each Lender) of any Collateral Loan Document that it receives (including following the recordation of any such action by any Collateral Loan Documents, from time to time) within ten (10) Business Days of the receipt of each such Collateral Loan Document (in each case). Collateral Agent shall bind (or shall cause its designee to) review the LendersLoan Documents constituting the custodial file (as set forth on the closing checklist of Loan Documents to be delivered in connection with the origination of the amended and restated Loan on the Closing Date) and, within ten (10) Business Days of receipt thereof, deliver to the Lender a trust receipt, in compliance with that certain custodial arrangement between the Lender and Bank of America, N.A., as custodian, evidencing receipt of such Loan Documents, together with a schedule of exceptions to such receipt. The Collateral Agent (or its designee) shall continue to act as the custodian of the Loan Documents on behalf of Lender and shall comply with the terms and provisions of any existing custodial arrangement with the Lender with respect thereto.
(d) Collateral Agent, in its capacity as such, is a “representative” of each Lender within the meaning of the term “secured party” as defined in the New York Uniform Commercial Code. Each Lender authorizes the Collateral Agent to enter into each of the Collateral Loan Documents to which it is a party and to take all action contemplated in this Agreement and in such documents to be taken by the Collateral Agent. Each Lender agrees that it no Lender (other than the Collateral Agent, in its capacity as the Collateral Agent) shall not take or institute any actions or proceedings, judicial or otherwise, for any have the right or remedy with respect individually to seek to realize upon the security granted by any Collateral against any Borrower or any other Loan Party or any other obligor under any of the Loan DocumentsDocument, Specified Swap Agreements or any Specified Cash Management Agreement (including, in each case, the exercise of any right of setoff, it being understood and agreed that such rights on account of any banker’s lien or similar claim or other rights of self-help), or institute any actions or proceedings, or otherwise commence any remedial procedures, with respect to any Collateral of any Borrower or any other Loan Party, without the prior written consent of the Administrative Agent. In the event of a foreclosure and remedies may be exercised solely by the Administrative Collateral Agent on any (for the benefit of the Collateral pursuant to a public or private sale or a sale of any of the Collateral pursuant to Section 363 of the Bankruptcy Code (or an equivalent process in any foreign jurisdiction), the Administrative Agent or any Lender may be the purchaser of any or all of such Collateral at any such sale and the Administrative Agent, as agent for and representative of the Lenders (but not any Lender or Lenders in its or their respective individual capacities unless the Required Lenders shall otherwise agree in writingeach Lender) shall be entitled, with the consent or at the direction of the Required LendersServicer in accordance with the Collateral Loan Documents, any applicable Co-Lender Agreement, if any, and any applicable intercreditor or servicing agreements. In the event that any collateral is hereafter pledged by any person as collateral security for the purpose Debt, the Collateral Agent is hereby authorized, and hereby granted a power of bidding attorney, to execute and making settlement deliver on behalf of each Lender any Loan Documents necessary or payment of the purchase price for all or any portion appropriate to grant and perfect a first priority lien on such collateral in favor of the Collateral sold Agent for the benefit of Lender. Each Lender hereby authorizes the Collateral Agent to release any lien granted to or held by the Collateral Agent upon any collateral as permitted by, but only in accordance with, the direction of the Servicer and the express terms of this Agreement, the applicable Loan Document and the applicable provisions of the Co-Lender Agreement, if any. Upon request by the Collateral Agent at any such time, and in each case subject to the requirements and approvals required in the Co-Lender Agreement, if any, each Lender shall confirm in writing the Collateral Agent’s authority to release particular types or items of collateral pursuant to the provisions of this Agreement. Upon any sale, lease, transfer or other disposition of assets constituting collateral which is permitted pursuant to use the terms of any Loan Document or consented to in writing by the Lenders in accordance with the provisions of the Co-Lender Agreement, as applicable, and apply upon at least five (5) Business Days’ prior written request by the Borrower to the Collateral Agent, the Collateral Agent shall (and is hereby irrevocably authorized by each Lender to) execute such documents as may be necessary to evidence the release of the liens granted to the Collateral Agent for the benefit of Lender herein or pursuant hereto with respect to the collateral that was so sold or transferred; provided, however, that (i) the Collateral Agent shall not be required to execute any such document on terms which, in the Collateral Agent’s reasonable opinion, would expose the Collateral Agent to liability or create any obligation or entail any consequence other than the release of such liens without recourse or warranty, and (ii) such release shall not in any manner discharge, affect or impair the Debt or the secured obligations or any liens upon (or obligations of any Borrower in respect of) all interests retained by any Borrower, including (without limitation) the proceeds of the sale, all of which shall continue to constitute part of the collateral. Notwithstanding anything to the contrary contained herein or in any other Loan Document, the failure of Collateral Agent to take any action hereunder or under any other Loan Document shall not (a) be deemed to be a waiver of any term or condition of this Agreement or any of the Obligations as a credit on account other Loan Documents, or (b) adversely affect any rights of the purchase price for Lender hereunder or under any Collateral payable by the Administrative Agent at such saleother Loan Document.
Appears in 1 contract
Sources: First Mezzanine Loan Agreement (Harrahs Entertainment Inc)
Collateral Agent. The Administrative Agent shall also act as the “collateral agent” under the Loan Documents, and each (a) Each of the Lenders (including in its capacities as a potential Qualified Counterparty and a potential Cash Management Provider) and the Issuing Lenders Buyers hereby irrevocably appoints and authorizes the Administrative Agent Secured Party to act as collateral agent hereunder (the “Collateral Agent”), to enter into each of the instruments, documents and agreements, including any pledge agreement, guaranty, financing statements, mortgage, Account Control Agreement or any other Bridge Security Documents (collectively with this Agreement, the “Financing Documents”), to which it is a party as agent of such Lender and the Issuing Lenders (with the full power to appoint including as a collateral agent) on Buyers’ behalf and to substitute take such actions as Collateral Agent on Buyers’ behalf under the Financing Documents and to delegate) on its behalf, or in its own name exercise such powers under the Financing Documents as joint and several creditor or creditor of a parallel debt are delegated to Collateral Agent (as agent, secured party or otherwise) by the case may be) for purposes of acquiring, holding and enforcing any and all Liens on Collateral granted by any of the Loan Parties to secure any of the Obligationsterms thereof, together with all such powers and discretion as are reasonably incidental thereto. In The Collateral Agent shall take such action under this connectionAgreement and/or any other Transaction Documents as the Collateral Agent shall reasonably be directed by Buyers in accordance with the terms of the Transaction Documents (and, in any event, as reasonably directed by written direction of Majority Buyers). Subject to Section 5.4, Secured Party is authorized and empowered to amend, modify, or waive any provisions of this Agreement or the other Financing Documents to which it is a party or which run in its favor on behalf of the Buyers; provided, however, that the parties hereto hereby agree that no such amendment, modification or waiver shall be effective without the unanimous written consent of the Buyers.
(b) Whether or not the transactions contemplated hereby shall be consummated, upon demand therefor, the Administrative AgentBuyers shall indemnify the Collateral Agent (to the extent not reimbursed by or on behalf of the Company and without limiting the obligation of the Company to do so), as “collateral agent” ratably (based on the ratio of the amount of Obligations a Buyer holds to the aggregate Obligations held by all Buyers) from and against any co-agentsand all liabilities, sub-agents obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses and attorneys-in-fact appointed by the Administrative Agent pursuant to Section 10.5 disbursements of any kind whatsoever, including, for purposes of holding clarification, all taxes, which may at any time (including at any time following the payment in full of the Notes and the termination or enforcing resignation of the Collateral Agent) be imposed on, incurred by or asserted against the Collateral Agent in any Lien way relating to or arising out of this Agreement, any other Transaction Document or any document contemplated hereby or referred to herein or the transactions contemplated hereby or thereby or any action taken or omitted by the Collateral Agent under or in connection with any of the foregoing; provided, however, that Buyers shall not be liable for the payment to the Collateral Agent of any portion of such liabilities, obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses or disbursements resulting solely from the Collateral Agent’s gross negligence or willful misconduct. In addition, Buyers shall reimburse the Collateral Agent upon demand for its ratable share (based on the ratio of the amount of Obligations a Buyer holds to the aggregate Obligations held by all Buyers) of any costs or out-of-pocket expenses (including attorney costs) incurred by the Collateral Agent in connection with the preparation, execution, delivery, administration, modification, amendment or enforcement (whether through negotiations, legal proceedings or otherwise) of, or legal advice in respect of rights or responsibilities under, this Agreement, any other Transaction Document, or any portion thereof) granted under document contemplated hereby or referred to herein to the Security Documents, extent that the Collateral Agent is not reimbursed for such expenses by or for exercising any rights and remedies thereunder at the direction on behalf of the Administrative Agent, shall be entitled to the benefits of all provisions of this Section 10 and Section 11, as though such co-agents, sub-agents and attorneys-in-fact were the “collateral agent” under the Loan Documents as if set forth in full herein with respect theretoCompany. Without limiting the generality of the foregoing, if any Governmental Authority of any jurisdiction asserts a claim that the Lenders hereby expressly authorize Collateral Agent did not properly withhold tax from amounts paid to or for the Administrative account of a Buyer (because the appropriate form was not delivered, was not properly executed, or because such Buyer failed to notify the Collateral Agent of a change in circumstances which rendered the exemption from, or reduction of, withholding tax ineffective, or for any other reason), Buyers shall indemnify the Collateral Agent fully for all amounts paid, directly or indirectly, by the Collateral Agent as tax or otherwise, including penalties and interest, and including any taxes imposed by any jurisdiction on its behalf and/or in its own name the amounts payable to the Collateral Agent under this Section 5.12(b), together with all related costs and expenses (including attorney costs). The obligation of Buyers in this Section 5.12(b) shall survive the payment of all Obligations.
(c) The Collateral Agent shall not be deemed to have knowledge or notice of the occurrence of any Event of Default or any event that with the giving of notice or passage of time would constitute an Event of Default unless the Collateral Agent shall have received written notice from Buyers describing such Event of Default or event that with the giving of notice or passage of time would constitute an Event of Default and stating that such notice is a “notice of default”. Upon the occurrence and continuance of an Event of Default, or an event that with the giving of notice or passage of time would constitute an Event of Default, the Collateral Agent shall take such action under this Agreement and/or any parallel debt) to execute any and all documents (including releases) other Transaction Documents with respect to such Event of Default or event that with the giving of notice or passage of time would constitute an Event of Default as Collateral and the rights of the Secured Parties with respect thereto, as contemplated Agent shall reasonably be directed by and Buyers in accordance with the terms of the Transaction Documents (and, in any event, as reasonably directed by written direction of Majority Buyers); provided that, unless and until the Collateral Agent shall have received such directions, the Collateral Agent may (but shall not be obligated to) take such action, or refrain from taking such action, with respect to such Event of Default or event that with the giving of notice or passage of time would constitute an Event of Default as the Collateral Agent shall deem advisable in the best interests of Buyers. In taking such action or refraining from taking such action without specific direction from Buyers, the Collateral Agent shall use the same degree of care and skill as a prudent person would exercise or use under the circumstances in the conduct of such person’s own affairs.
(d) Nothing in this Section 5.12 shall be deemed to limit or otherwise affect the rights of Secured Party or Buyers to exercise any remedy provided in this Agreement or any other Transaction Document.
(e) The Collateral Agent may resign from the performance of all of its functions and duties hereunder and/or under the other Transaction Documents at any time by giving thirty (30) Business Days’ prior written notice to Buyers. Such resignation shall take effect upon the appointment of a successor Collateral Agent pursuant to clause (f) below or as otherwise provided below.
(f) Upon (i) Buyers’ receipt of a notice of resignation by the Collateral Agent in accordance with clause (e) above, or (ii) written notice by Buyers to Collateral Agent of Buyers’ election to remove the existing Collateral Agent and appoint a successor Collateral Agent, Buyers shall have the right to appoint a successor Collateral Agent. Upon the acceptance of a successor's appointment as Collateral Agent hereunder and notice of such acceptance to the retiring Collateral Agent, such successor shall succeed to and become vested with all of the rights, powers, privileges and duties of the retiring (or retired) Collateral Agent, the retiring Collateral Agent's resignation shall become immediately effective and the retiring Collateral Agent shall be discharged from all of its duties and obligations hereunder and under the other Transaction Documents (if such resignation was not already effective and such duties and obligations not already discharged, as provided below in this paragraph). If no such successor shall have been so appointed by Buyers and shall have accepted such appointment within thirty (30) days after the retiring Collateral Agent gives notice of its resignation or Buyers give notice of their election to replace the retiring Collateral Agent, then the retiring Collateral Agent may, on behalf of Buyers (but without any obligation) appoint a successor Collateral Agent without the consent of Buyers. From and following the expiration of such thirty (30) day period, Collateral Agent shall have the exclusive right without any Person's consent, upon one (1) Business Days' notice to Buyers, to make its resignation or removal effective immediately. From and following the effectiveness of such notice, (i) the retiring Collateral Agent shall be discharged from its duties and obligations hereunder and under the other Transaction Documents and (ii) all actions, payments, communications and determinations provided to be made by, to or through Collateral Agent shall instead be made by or to Buyers directly, until such time as Buyers appoint a Collateral Agent as provided for above in this paragraph. The provisions of this Agreement shall continue in effect for the benefit of any retiring Collateral Agent and its sub-agents after the Security effectiveness of its resignation or removal hereunder and under the other Transaction Documents and acknowledge and agree that in respect of any such action actions taken or omitted to be taken by any of them while the retiring Collateral Agent shall bind was acting or was continuing to act as Collateral Agent.
(g) If pursuant to any Financing Document the Lenders. Each Lender agrees that it shall not take Collateral Agent is given the discretion to allocate proceeds received by Collateral Agent pursuant to the exercise of remedies under the Financing Documents or institute any actions at law or proceedings, judicial or otherwise, for any right or remedy in equity (including without limitation with respect to any secured creditor remedies exercised against the Collateral against any Borrower or and any other Loan Party collateral security provided for under any Financing Document), Collateral Agent shall apply such proceeds to the then outstanding Obligations in the following order of priority (with amounts received being applied in the numerical order set forth below until exhausted prior to the application to the next succeeding category and each of the Buyers or other Persons entitled to payment shall receive an amount equal to its pro rata share of amounts available to be applied pursuant to clauses second, third and fourth below): first, to payment of fees, costs and expenses (including reasonable attorney’s fees) owing to the Collateral Agent; second, to payment of all accrued unpaid interest and fees (other than fees owing to Collateral Agent) on the Obligations; third, to payment of principal of the Obligations; fourth, to payment of any other obligor under amounts owing constituting Obligations; and fifth, any of remainder shall be for the Loan Documents, Specified Swap Agreements or any Specified Cash Management Agreement (including, in each case, the exercise of any right of setoff, rights on account of any banker’s lien or similar claim or other rights of self-help), or institute any actions or proceedings, or otherwise commence any remedial procedures, with respect and paid to any Collateral of any Borrower or any other Loan Party, without the prior written consent of the Administrative Agent. In the event of a foreclosure by the Administrative Agent on any of the Collateral pursuant to a public or private sale or a sale of any of the Collateral pursuant to Section 363 of the Bankruptcy Code (or an equivalent process in any foreign jurisdiction), the Administrative Agent or any Lender whoever may be the purchaser of any or all of such Collateral at any such sale and the Administrative Agent, as agent for and representative of the Lenders (but not any Lender or Lenders in its or their respective individual capacities unless the Required Lenders shall otherwise agree in writing) shall be entitled, with the consent or at the direction of the Required Lenders, for the purpose of bidding and making settlement or payment of the purchase price for all or any portion of the Collateral sold at any such sale, to use and apply any of the Obligations as a credit on account of the purchase price for any Collateral payable by the Administrative Agent at such salelawfully entitled thereto.
Appears in 1 contract
Collateral Agent. The Administrative Agent shall also act as the “collateral agent” under the Loan Documents, and each of the Lenders (including in its capacities as a potential Qualified Counterparty and a potential Cash Management Provider) and the Issuing Lenders hereby irrevocably appoints and authorizes the Administrative Agent to act as the agent of such Lender ▇▇▇▇▇▇ and the Issuing Lenders (with the full power to appoint and to substitute and to delegate) on its behalf, or in its own name as joint and several creditor or creditor of a parallel debt (as the case may be) for purposes of acquiring, holding and enforcing any and all Liens on Collateral granted by any of the Loan Parties to secure any of the Obligations, together with such powers and discretion as are reasonably incidental thereto. In this connection, the Administrative Agent, as “collateral agent” and any co-agents, sub-agents and attorneys-in-fact appointed by the Administrative Agent pursuant to Section 10.5 for purposes of holding or enforcing any Lien on the Collateral (or any portion thereof) granted under the Security Documents, or for exercising any rights and remedies thereunder at the direction of the Administrative Agent, shall be entitled to the benefits of all provisions of this Section 10 and Section 11, as though such co-agents, sub-agents and attorneys-in-fact were the “collateral agent” under the Loan Documents as if set forth in full herein with respect thereto. Without limiting the generality of the foregoing, the Lenders hereby expressly authorize the Administrative Agent on its behalf and/or in its own name (including under any parallel debt) to execute any and all documents (including releases) with respect to the Collateral and the rights of the Secured Parties with respect thereto, as contemplated by and in accordance with the provisions of this Agreement and the Security Documents and acknowledge and agree that any such action by any the Administrative Agent shall bind the Lenders. Each Lender agrees that it shall not take or institute any actions or proceedings, judicial or otherwise, for any right or remedy with respect to any Collateral against any Borrower or any other Loan Party or any other obligor under any of the Loan Documents, the Specified Swap Agreements or any Specified Cash Management Agreement (including, in each case, the exercise of any right of setoff, rights on account of any banker’s lien or similar claim or other rights of self-help), or institute any actions or proceedings, or otherwise commence any remedial procedures, with respect to any Collateral of any Borrower or any other Loan Party, without the prior written consent of the Administrative Agent. In the event of a foreclosure by the Administrative Agent on any of the Collateral pursuant to a public or private sale or a sale of any of the Collateral pursuant to Section 363 of the Bankruptcy Code (or an equivalent process in any foreign jurisdiction)Code, the Administrative Agent or any Lender may be the purchaser of any or all of such Collateral at any such sale and the Administrative Agent, as agent for and representative of the Lenders (but not any Lender or Lenders in its or their respective individual capacities unless the Required Lenders shall otherwise agree in writing) shall be entitled, with the consent or at the direction of the Required Lenders, for the purpose of bidding and making settlement or payment of the purchase price for all or any portion of the Collateral sold at any such sale, to use and apply any of the Obligations as a credit on account of the purchase price for any Collateral payable by the Administrative Agent at such sale.
Appears in 1 contract
Collateral Agent. (a) The Administrative Agent shall also act as the “collateral agent” under the Loan Documents, Trustee and each of the Lenders (including in Holders by acceptance of the Notes hereby designates and appoints the Collateral Agent as its capacities as a potential Qualified Counterparty and a potential Cash Management Provider) agent under this Indenture, the Security Documents and the Issuing Lenders Intercreditor Agreement and the Trustee and each of the Holders by acceptance of the Notes hereby irrevocably appoints and authorizes the Administrative Collateral Agent to take such action on its behalf under the provisions of this Indenture, the Security Documents and the Intercreditor Agreement and to exercise such powers and perform such duties as are expressly delegated to the Collateral Agent by the terms of this Indenture, the Security Documents and the Intercreditor Agreement, and consents and agrees to the terms of the Intercreditor Agreement and each Security Document, as the same may be in effect or may be amended, restated, supplemented or otherwise modified from time to time in accordance with their respective terms. The Collateral Agent agrees to act as such on the agent express conditions contained in this Section 12.9. The provisions of such Lender this Section 12.9 are solely for the benefit of the Collateral Agent and none of the Issuing Lenders (with the full power to appoint and to substitute and to delegate) on its behalfTrustee, or in its own name as joint and several creditor or creditor of a parallel debt (as the case may be) for purposes of acquiring, holding and enforcing any and all Liens on Collateral granted by any of the Loan Parties to secure Holders nor any of the Obligations, together Grantors shall have any rights as a third party beneficiary of any of the provisions contained herein other than as expressly provided in Section 12.4. Each Holder agrees that any action taken by the Collateral Agent in accordance with such powers and discretion as are reasonably incidental thereto. In the provision of this connectionIndenture, the Administrative Agent, as “collateral agent” Intercreditor Agreement and any co-agents, sub-agents and attorneys-in-fact appointed by the Administrative Agent pursuant to Section 10.5 for purposes of holding or enforcing any Lien on the Collateral (or any portion thereof) granted under the Security Documents, or for exercising and the exercise by the Collateral Agent of any rights or remedies set forth herein and remedies thereunder at therein shall be authorized and binding upon all Holders. Notwithstanding any provision to the direction contrary contained elsewhere in this Indenture, the Security Documents and the Intercreditor Agreement, the duties of the Administrative Agent, Collateral Agent shall be entitled to ministerial and administrative in nature, and the benefits of all provisions of this Section 10 and Section 11Collateral Agent shall not have any duties or responsibilities, as though such co-agents, sub-agents and attorneys-in-fact were the “collateral agent” under the Loan Documents as if except those expressly set forth herein and in full herein the other Note Documents to which the Collateral Agent is a party, nor shall the Collateral Agent have or be deemed to have any trust or other fiduciary relationship with respect theretothe Trustee, any Holder or any Grantor, and no implied covenants, functions, responsibilities, duties, obligations or liabilities shall be read into this Indenture, the Security Documents and the Intercreditor Agreement or otherwise exist against the Collateral Agent. Without limiting the generality of the foregoingforegoing sentence, the Lenders use of the term “agent” in this Indenture 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. 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.
(b) The Collateral Agent may perform any of its duties under this Indenture, the Security Documents or the Intercreditor Agreement by or through receivers, agents, employees, attorneys-in-fact or with respect to any specified Person, such Person’s Affiliates, and the respective officers, directors, employees, agents, advisors and attorneys-in-fact of such Person and its Affiliates, (a “Related Person”) and shall be entitled to advice of counsel concerning all matters pertaining to such duties, and shall be entitled to act upon, and shall be fully protected in taking action in reliance upon any advice or opinion given by legal counsel. The Collateral Agent shall not be responsible for the negligence or willful misconduct of any receiver, agent, employee, attorney-in-fact or Related Person that it selects as long as such selection was made in good faith.
(c) None of the Collateral Agent or any of its respective Related Persons shall (i) be liable for any action taken or omitted to be taken by any of them under or in connection with this Indenture or the transactions contemplated hereby expressly authorize the Administrative Agent on its behalf and/or in (except for its own name gross negligence or willful misconduct) or under or in connection with any Security Document or the Intercreditor Agreement or the transactions contemplated thereby (except for its own gross negligence or willful misconduct), or (ii) be responsible in any manner to any of the Trustee or any Holder for any recital, statement, representation, warranty, covenant or agreement made by the Issuer or any other Grantor or Affiliate of any Grantor, or any Officer or Related Person thereof, contained in this Indenture, or any other Note 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 Indenture, the Security Documents or the Intercreditor Agreement, or the validity, effectiveness, genuineness, enforceability or sufficiency of this Indenture, the Security Documents or the Intercreditor Agreement, or for any failure of any Grantor or any other party to this Indenture, the Security Documents or the Intercreditor Agreement to perform its obligations hereunder or thereunder. None of the Collateral Agent or any of its respective Related Persons shall be under any obligation to the Trustee or any Holder to ascertain or to inquire as to the observance or performance of any of the agreements contained in, or conditions of, this Indenture, the Security Documents or the Intercreditor Agreement or to inspect the properties, books, or records of any Grantor or any Grantor’s Affiliates.
(d) The Collateral Agent shall be entitled to rely, and shall be fully protected in relying, upon any writing, resolution, notice, consent, certificate, affidavit, letter, telegram, facsimile, certification, telephone message, statement, or other communication, document or conversation (including those by telephone or e-mail) believed by it to be genuine and correct and to have been signed, sent, or made by the proper Person or Persons, and upon advice and statements of legal counsel (including, without limitation, counsel to the Issuer or any other Grantor), independent accountants and other experts and advisors selected by the Collateral Agent. The Collateral Agent shall not be bound to make any investigation into the facts or matters stated in any resolution, certificate, statement, instrument, opinion, report, notice, request, direction, consent, order, bond, debenture, or other paper or document. The Collateral Agent shall be fully justified in failing or refusing to take any action under any parallel debt) this Indenture, the Security Documents or the Intercreditor Agreement unless it shall first receive such advice or concurrence of the Trustee or the Holders of a majority in aggregate principal amount of the Notes as it determines and, if it so requests, it shall first be indemnified to execute its satisfaction by the Holders against any and all documents liability and expense which may be incurred by it by reason of taking or continuing to take any such action. The Collateral Agent shall in all cases be fully protected in acting, or in refraining from acting, under this Indenture, the Security Documents or the Intercreditor Agreement in accordance with a request, direction, instruction or consent of the Trustee or the Holders of a majority in aggregate principal amount of the then outstanding Notes and such request and any action taken or failure to act pursuant thereto shall be binding upon all of the Holders.
(including releasese) The Collateral Agent shall not be deemed to have knowledge or notice of the occurrence of any Default or Event of Default, unless a Trust Officer of the Collateral Agent shall have received written notice from the Trustee or the Issuer referring to this Indenture, describing such Default or Event of Default and stating that such notice is a “notice of default.” The Collateral Agent shall take such action with respect to such Default or Event of Default as may be requested by the Collateral and the rights of the Secured Parties with respect thereto, as contemplated by and Trustee in accordance with Article VI or the Holders of a majority in aggregate principal amount of the Notes (subject to this Section 12.9).
(f) The Collateral Agent may resign at any time by notice to the Trustee and the Issuer, such resignation to be effective upon the acceptance of a successor agent to its appointment as Collateral Agent. If the Collateral Agent resigns under this Indenture, the Issuer shall appoint a successor collateral agent. If no successor collateral agent is appointed prior to the intended effective date of the resignation of the Collateral Agent (as stated in the notice of resignation), the Collateral Agent may appoint, after consulting with the Trustee, subject to the consent of the Issuer (which shall not be unreasonably withheld and which shall not be required during a continuing Event of Default), a successor collateral agent. If no successor collateral agent is appointed and consented to by the Issuer pursuant to the preceding sentence within thirty (30) days after the intended effective date of resignation (as stated in the notice of resignation) the Collateral Agent shall be entitled to petition a court of competent jurisdiction to appoint a successor. Upon the acceptance of its appointment as successor collateral agent hereunder, such successor collateral agent shall succeed to all the rights, powers and duties of the retiring Collateral Agent, and the term “Collateral Agent” shall mean such successor collateral agent, and the retiring Collateral Agent’s appointment, powers and duties as the Collateral Agent shall be terminated. After the retiring Collateral Agent’s resignation hereunder, the provisions of this Agreement Section 12.9 (and Section 7.7) shall continue to inure to its benefit and the Security Documents and acknowledge and agree that any such action by any retiring Collateral Agent shall bind the Lenders. Each Lender agrees that it shall not take or institute by reason of such resignation be deemed to be released from liability as to any actions taken or proceedings, judicial or otherwise, for any right or remedy with respect omitted to any Collateral against any Borrower or any other Loan Party or any other obligor under any of the Loan Documents, Specified Swap Agreements or any Specified Cash Management Agreement (including, in each case, the exercise of any right of setoff, rights on account of any banker’s lien or similar claim or other rights of self-help), or institute any actions or proceedings, or otherwise commence any remedial procedures, with respect to any Collateral of any Borrower or any other Loan Party, without the prior written consent of the Administrative Agent. In the event of a foreclosure be taken by the Administrative Agent on any of it while it was the Collateral pursuant to a public or private sale or a sale of any of the Collateral pursuant to Section 363 of the Bankruptcy Code (or an equivalent process in any foreign jurisdiction), the Administrative Agent or any Lender may be the purchaser of any or all of such Collateral at any such sale and the Administrative Agent, as agent for and representative of the Lenders (but not any Lender or Lenders in its or their respective individual capacities unless the Required Lenders shall otherwise agree in writing) shall be entitled, with the consent or at the direction of the Required Lenders, for the purpose of bidding and making settlement or payment of the purchase price for all or any portion of the Collateral sold at any such sale, to use and apply any of the Obligations as a credit on account of the purchase price for any Collateral payable by the Administrative Agent at such saleunder this Indenture.
Appears in 1 contract
Sources: Indenture (Kinetic Concepts Inc)
Collateral Agent. The Administrative Each Lender hereby further authorizes Collateral Agent to enter into the Collateral Documents as secured party on behalf of and for the benefit of Lenders and agrees to be bound by the terms of the Collateral Documents; provided that Collateral Agent shall also act as the “collateral agent” under the Loan Documentsnot enter into or consent to any amendment, and each modification, termination or waiver of the Lenders (including any provision contained in its capacities as a potential Qualified Counterparty and a potential Cash Management Provider) and the Issuing Lenders hereby irrevocably appoints and authorizes the Administrative Agent to act as the agent of such Lender and the Issuing Lenders (with the full power to appoint and to substitute and to delegate) on its behalf, or in its own name as joint and several creditor or creditor of a parallel debt (as the case may be) for purposes of acquiring, holding and enforcing any and all Liens on Collateral granted by any of the Loan Parties to secure any of the Obligations, together with such powers and discretion as are reasonably incidental thereto. In this connection, the Administrative Agent, as “collateral agent” and any co-agents, sub-agents and attorneys-in-fact appointed by the Administrative Agent pursuant to Section 10.5 for purposes of holding or enforcing any Lien on the Collateral (Documents without the prior consent of Requisite Lenders; provided further, that anything in this Agreement or any portion thereof) granted under the Security Documents, or for exercising any rights and remedies thereunder at the direction of the Administrative Agent, shall be entitled other Loan Documents to the benefits contrary notwithstanding:
(i) The Collateral Agent is authorized on behalf of all provisions Lenders, without the necessity of this Section 10 and Section 11, as though such co-agents, sub-agents and attorneys-in-fact were the “collateral agent” under the Loan Documents as if set forth in full herein with respect thereto. Without limiting the generality of the foregoing, the Lenders hereby expressly authorize the Administrative Agent on its behalf and/or in its own name (including under any parallel debt) notice to execute any and all documents (including releases) with respect to the Collateral and the rights of the Secured Parties with respect thereto, as contemplated by and in accordance with the provisions of this Agreement and the Security Documents and acknowledge and agree that any such action by any Agent shall bind or further consent from the Lenders. Each Lender agrees that it shall not , from time to time to take or institute any actions or proceedings, judicial or otherwise, for any right or remedy action with respect to any Collateral against or the Collateral Documents which may be necessary to perfect and maintain perfected the security interest in and Liens upon the Collateral granted pursuant to the Collateral Documents.
(ii) The Lenders irrevocably authorize the Collateral Agent, at its option and in its discretion, to release any Lien granted to or held by the Collateral Agent upon any Collateral (a) upon termination of the Commitments and payment in full of the Loans and all other Obligations payable under this Agreement and under any other Loan Document; (b) constituting property sold or to be sold or disposed of as part of or in connection with any disposition permitted hereunder; (c) constituting property in which Borrower or any other Loan Party Subsidiary of Borrower owned no interest at the time the Lien was granted or any other obligor under any of the Loan Documents, Specified Swap Agreements or any Specified Cash Management Agreement (including, in each case, the exercise of any right of setoff, rights on account of any banker’s lien or similar claim or other rights of self-help), or institute any actions or proceedings, or otherwise commence any remedial procedures, with respect to any Collateral of any Borrower or any other Loan Party, without the prior written consent of the Administrative Agent. In the event of a foreclosure by the Administrative Agent on any of the Collateral pursuant to a public or private sale or a sale of any of the Collateral pursuant to Section 363 of the Bankruptcy Code (or an equivalent process in any foreign jurisdiction), the Administrative Agent or any Lender may be the purchaser of any or all of such Collateral at any such sale and time thereafter; (d) consisting of an instrument evidencing Indebtedness if the Administrative AgentIndebtedness evidenced thereby has been paid in full; or (e) if otherwise approved, as agent for and representative of the Lenders (but not any Lender authorized or Lenders ratified in its or their respective individual capacities unless the Required Lenders shall otherwise agree in writing) shall be entitled, with the consent or at the direction of the Required writing by Requisite Lenders, for the purpose of bidding and making settlement or payment of the purchase price for all or any portion of the Collateral sold at any such sale, subject to use and apply any of the Obligations as a credit on account of the purchase price for any Collateral payable by the Administrative Agent at such saleSubsection 10.
Appears in 1 contract
Sources: Credit Agreement (Hartmarx Corp/De)
Collateral Agent. The Administrative (a) Notwithstanding anything else to the contrary herein, whenever reference is made in this Indenture or the Collateral Documents (including the Intercreditor Agreement or any Other Intercreditor Agreement) to any discretionary 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 also act be fully justified in failing or refusing to take any such action if it shall not have received written instruction, advice or concurrence from, as applicable, the “collateral agent” under Controlling Party or the Loan Documents, and each Applicable Party (or Holders representing such number or percentage of outstanding aggregate principal of the Lenders (including Notes as shall be expressly provided for herein or in its capacities as a potential Qualified Counterparty and a potential Cash Management Providerany other Collateral Document) and the Issuing Lenders hereby irrevocably appoints and authorizes the Administrative Agent to act as the agent in respect of such Lender and the Issuing Lenders (with the full power action and, if it so requests, it shall first be indemnified to appoint and to substitute and to delegate) on its behalf, or in its own name as joint and several creditor or creditor of a parallel debt (as the case may be) for purposes of acquiring, holding and enforcing satisfaction against any and all Liens liability and expense which may be incurred by it by reason of taking or continuing to take any such action. The Collateral Agent shall have no liability for any failure or delay in taking any actions contemplated above as a result of a failure or delay on Collateral granted by any the part of the Loan Parties Controlling Party, the Applicable Party or such Holders, as applicable, to secure any provide such instruction, advice or concurrence. This provision is intended solely for the benefit of the ObligationsCollateral Agent and its successors and permitted assigns and is not intended to and will not entitle the other parties hereto to any defense, together with such powers and discretion as are reasonably incidental thereto. In this connection, the Administrative Agent, as “collateral agent” and any co-agents, sub-agents and attorneys-in-fact appointed by the Administrative Agent pursuant to Section 10.5 for purposes of holding claim or enforcing any Lien on the Collateral (or any portion thereof) granted under the Security Documentscounterclaim, or for exercising confer any rights and remedies thereunder at the direction of the Administrative Agent, shall be entitled or benefits on any party hereto. Subject to the benefits of all foregoing (and the other provisions of this Section 10 12.15) and Section 11, as though such co-agents, sub-agents and attorneys-in-fact were the “collateral agent” under the Loan Documents as if set forth in full herein with respect thereto. Without limiting the generality terms of the foregoingCollateral Documents and any other applicable provisions of this Indenture, the Lenders hereby expressly authorize the Administrative Collateral Agent on its behalf and/or in its own name (including under any parallel debt) to execute any and all documents (including releases) shall take such action with respect to any Default or Event of Default as may be requested by the Controlling Party.
(b) The Collateral Agent may resign at any time by notice to the Trustee and the Company, such resignation to be effective upon the acceptance of a successor agent to its appointment as Collateral Agent. The Collateral Agent may be removed by the Company at any time, upon thirty days written notice to the Collateral Agent. If the Collateral Agent resigns or is removed under this Indenture, the Company shall appoint a successor collateral agent. If no successor collateral agent is appointed and has accepted such appointment within 30 days after the Collateral Agent gives notice of resignation or is removed, the retiring Collateral Agent may (at the expense of the Company), at its option, appoint a successor Collateral Agent or petition a court of competent jurisdiction for the appointment of a successor. Upon the acceptance of its appointment as successor collateral agent hereunder, such successor collateral agent shall succeed to all the rights, powers and duties of the retiring Collateral Agent, and the rights of term “Collateral Agent” shall mean such successor collateral agent, and the Secured Parties with respect theretoretiring or removed Collateral Agent’s appointment, powers and duties as contemplated by and in accordance with the Collateral Agent shall be terminated. After the retiring Collateral Agent’s resignation or removal hereunder, the provisions of this Agreement Section 12.15 (and Section 7.06) shall continue to inure to its benefit and the Security Documents and acknowledge and agree that any such action by any retiring or removed Collateral Agent shall bind the Lenders. Each Lender agrees that it shall not take by reason of such resignation or institute removal be deemed to be released from liability as to any actions taken or proceedings, judicial or otherwise, for any right or remedy with respect omitted to any Collateral against any Borrower or any other Loan Party or any other obligor under any of the Loan Documents, Specified Swap Agreements or any Specified Cash Management Agreement (including, in each case, the exercise of any right of setoff, rights on account of any banker’s lien or similar claim or other rights of self-help), or institute any actions or proceedings, or otherwise commence any remedial procedures, with respect to any Collateral of any Borrower or any other Loan Party, without the prior written consent of the Administrative Agent. In the event of a foreclosure be taken by the Administrative Agent on any of it while it was the Collateral pursuant to a public or private sale or a sale of any of the Collateral pursuant to Section 363 of the Bankruptcy Code (or an equivalent process in any foreign jurisdiction), the Administrative Agent or any Lender may be the purchaser of any or all of such Collateral at any such sale and the Administrative Agent, as agent for and representative of the Lenders (but not any Lender or Lenders in its or their respective individual capacities unless the Required Lenders shall otherwise agree in writing) shall be entitled, with the consent or at the direction of the Required Lenders, for the purpose of bidding and making settlement or payment of the purchase price for all or any portion of the Collateral sold at any such sale, to use and apply any of the Obligations as a credit on account of the purchase price for any Collateral payable by the Administrative Agent at such saleunder this Indenture.
Appears in 1 contract
Sources: Indenture (American Airlines, Inc.)
Collateral Agent. The Administrative Agent shall also act as the “collateral agent” under the Loan Documents, and each of the Lenders (including in its capacities as a potential Qualified Counterparty and a potential Cash Management Providera) and the Issuing Lenders Each Lender hereby irrevocably appoints the DPDF Lender (together with any successor collateral agent appointed by DPDF Lender or any successor collateral agent that was appointed by the Required Lenders), as Collateral Agent hereunder and under the other Transaction Documents and authorizes the Administrative Collateral Agent to (i) act as the agent of such Lender and the Issuing Lenders (with the full power to appoint and to substitute and to delegate) on its behalf, or in its own name as joint and several creditor or creditor of a parallel debt (as the case may be) for purposes of acquiring, holding and enforcing any and all Liens on Collateral (as defined in the Guaranty and Security Agreement) granted by any of the Loan Credit Parties to secure any of the Obligations, together with (ii) execute and deliver the Transaction Documents to which it is a party and accept delivery thereof on its behalf from any Credit Party, (iii) take such other actions on its behalf and to exercise all rights, powers and remedies and perform the duties as are expressly delegated to Collateral Agent under the Transaction Documents, including without limitation, file any financing statements in a representative capacity, and (iv) exercise such powers and discretion as are reasonably incidental thereto. In Notwithstanding any provision to the contrary contained elsewhere in this connectionAgreement or in any other Transaction Document, the Administrative AgentCollateral Agent shall not have any duty or responsibility except those expressly set forth herein or therein; nor shall Collateral Agent have or be deemed to have any fiduciary relationship with any Lender or participant, as “collateral agent” and any co-agentsno implied covenants, sub-agents and attorneys-in-fact appointed by the Administrative Agent pursuant to Section 10.5 for purposes of holding functions, responsibilities, duties, obligations or enforcing any Lien on the Collateral (liabilities shall be read into this Agreement or any portion thereof) granted under the Security Documents, other Transaction Document or for exercising any rights and remedies thereunder at the direction of the Administrative otherwise exist against Collateral Agent, shall be entitled to the benefits of all provisions of this Section 10 and Section 11, as though such co-agents, sub-agents and attorneys-in-fact were the “collateral agent” under the Loan Documents as if set forth in full herein with respect thereto. Without limiting the generality of the foregoingforegoing sentence, the use of the term “collateral agent” or “agent” herein and in other Transaction Documents with reference to Collateral Agent is not intended to connote any fiduciary or other implied (or express) obligations arising under agency doctrine of any Applicable Law. Instead, such term is used merely as a matter of market custom, and is intended to create or reflect only an administrative relationship between independent contracting parties. The provisions of this Section 6.17 are solely for the benefit of the Collateral Agent and the Lenders hereby expressly authorize and none of the Administrative Agent on its behalf and/or in its own name (including under Borrower or the other Credit Parties shall have any parallel debt) to execute rights as a third party beneficiary of any and all documents (including releases) of the provisions of this Section 6.17, except with respect to the Collateral and the Borrower’s consultation rights of the Secured Parties with respect thereto, as contemplated by and in accordance connection with the provisions appointment of a successor Collateral Agent as set forth in Section 6.17(h) hereof. In performing its functions and duties under this Agreement and the Security Documents and acknowledge and agree that any such action by any other Transaction Documents, Collateral Agent shall bind the Lenders. Each Lender agrees that it act solely as collateral agent of Lenders and does not assume and shall not take be deemed to have assumed any obligation toward or institute any actions relationship of agency or proceedings, judicial trust with or otherwise, for any right or remedy with respect to any Collateral against any Borrower or any other Loan Credit Party. Collateral Agent shall have the same rights and powers under the Transaction Documents as any other Lender and may exercise or refrain from exercising the same as though it were not Collateral Agent, and Collateral Agent and its Affiliates may lend money to, invest in and generally engage in any kind of business with each Credit Party, Affiliate of any Credit Party as if it were not Collateral Agent hereunder.
(b) Collateral Agent may execute any of its duties under this Agreement or any other Transaction Document by or through agents, subagents, employees or attorneys in fact, and shall be entitled to advice of counsel and other consultants or experts concerning all matters pertaining to such duties and any Person shall benefit from this Section 6.17. Collateral Agent shall not be responsible for the negligence or misconduct of any agent, subagent or attorney in fact that it selects in the absence of gross negligence or willful misconduct as determined by a final, non-appealable judgment of a court of competent jurisdiction.
(c) Neither Collateral Agent nor any of its directors, officers, employees, attorneys, advisors, representatives or agents shall (i) be liable to any Lender for any action taken or omitted to be taken by any of them under or in connection with this Agreement or any other Transaction Document or the transactions contemplated hereby or thereby (except to the extent resulting from its own gross negligence or willful misconduct in connection with its duties expressly set forth herein as determined by a final, non-appealable judgment of a court of competent jurisdiction), or (ii) be responsible in any manner to any Lender or participant for any recital, statement, representation or warranty made by any Credit Party or Affiliate of any Credit Party, or any officer thereof, contained in this Agreement or in any other Transaction Document, or in any certificate, report, statement or other document referred to or provided for in, or received by Collateral Agent under or in connection with, this Agreement or any other Transaction Document, or the validity, effectiveness, genuineness, enforceability or sufficiency of this Agreement or any other Transaction Document (or the creation, perfection or priority of any Lien or security interest therein), or for any failure of any Credit Party or any other obligor party to any Transaction Document to perform its obligations (including the Obligations) hereunder or thereunder. Collateral Agent shall not be under any obligation to any Lender to ascertain or to inquire as to the observance or performance of any of the Loan agreements contained in, or conditions of, this Agreement or any other Transaction Document, or to inspect the properties, books or records of any Credit Party or any Credit Party’s Affiliates.
(d) Collateral Agent shall be entitled to rely, and shall be fully protected in relying, upon any communication believed by it to be genuine and correct and to have been signed, sent or made by the proper Person or Persons, and upon advice and statements of legal counsel (including counsel to any Credit Party), independent accountants and other experts selected by Collateral Agent. Collateral Agent shall be fully justified in failing or refusing to take any action under any Transaction Document unless it shall first receive such advice or concurrence of the Required Lenders as it deems appropriate and, if it so requests, confirmation from the Lenders of their obligation to indemnify Collateral Agent against any and all liabilities and expenses (including any fees and expenses of counsel to Collateral Agent) that may be incurred by it by reason of taking or continuing to take any such action. Collateral Agent shall in all cases be fully protected in acting, or in refraining from acting, under any Transaction Document in accordance with a request or consent of the Required Lenders and such request and any action taken or failure to act pursuant thereto shall be binding upon each Lender.
(e) Collateral Agent shall not be deemed to have knowledge or notice of the occurrence of any Event of Default or Default, unless Collateral Agent shall have received written notice from a Lender or any Credit Party referring to this Agreement and the other Transaction Documents, Specified Swap Agreements describing such Event of Default or Default and stating that such notice is a “notice of default.” Collateral Agent shall take such action with respect to such Event of Default or Default as the Required Lenders may direct; provided that, unless and until Collateral Agent has received any Specified Cash Management Agreement (includingsuch request, in each case, the exercise of Collateral Agent shall not take any right of setoff, rights on account of any banker’s lien or similar claim or other rights of self-help)such action, or institute refrain from taking any actions or proceedings, or otherwise commence any remedial proceduressuch action, with respect to such Event of Default or Default.
(f) Each Lender acknowledges that Collateral Agent has not made any representation or warranty to it, and that no act by Collateral Agent hereafter taken, including any consent and acceptance of any assignment or review of the affairs of the Credit Parties or any of their Subsidiaries, shall be deemed to constitute any representation or warranty by Collateral Agent to any Lender as to any matter, including whether Collateral Agent has disclosed material information in its possession. Each Lender represents to Collateral Agent that it has, independently and without reliance upon Collateral Agent and based on such documents and information as it has deemed appropriate, made its own appraisal of, and investigation into, the business, prospects, operations, property, financial and other condition and creditworthiness of Borrower and the other Credit Parties, and made its own decision to enter into this Agreement and the other Transaction Documents and to extend credit to Borrower hereunder and under the other Transaction Documents. Each Lender also represents that it will, independently and without reliance upon Collateral Agent and based on such documents and information as it shall deem appropriate at the time, continue to make its own credit analysis, appraisals and decisions in taking or not taking action under this Agreement and the other Transaction Documents, and to make such investigations as it deems necessary or appropriate to inform itself as to the business, prospects, operations, property, financial and other condition and creditworthiness of Borrower and the other Credit Parties. Except for notices, reports and other documents expressly herein or in the Guaranty and Security Agreement required to be furnished to the Lenders by Collateral Agent, Collateral Agent shall not have any duty or responsibility to provide any Lender with any credit or other information concerning the business, prospects, operations, property, financial or other condition or creditworthiness of Borrower or any other Loan PartyCredit Party that may come into the possession of Collateral Agent.
(g) Other than with respect to the matters described in clause (i) below, which shall be governed by such clause, whether or not the transactions contemplated hereby are consummated, each Lender shall severally indemnify upon demand Collateral Agent and its directors, officers, partners, employees, attorneys, advisors, representatives and agents (to the extent not reimbursed by or on behalf of any Credit Party and without limiting the prior written consent obligation of the Administrative Agent. In Credit Parties to do so), according to its Pro Rata Share, from and against any and all losses, claims (including the event of a foreclosure by the Administrative Agent on reasonable attorneys’ fees incurred in defending against such claims), damages, liabilities, penalties or other expenses arising out of, or relating to, any of the Collateral Agent’s duties, responsibilities or actions set forth in or that taken pursuant to a public or private sale or a sale the Transaction Documents; provided that no Lender shall be liable for any payment to any such Person of any portion of the Collateral pursuant foregoing to Section 363 the extent determined by a final, non-appealable judgment by a court of competent jurisdiction to have resulted from the applicable Person’s gross negligence or willful misconduct. No action taken (or in refraining from having taken action) in accordance with the directions of the Bankruptcy Code Required Lenders shall be deemed to constitute gross negligence or willful misconduct for purposes of this Section 6.17(g). Without limitation of the foregoing, each Lender shall reimburse Collateral Agent upon demand for such Lender’s ratable share of any costs or out of pocket expenses incurred by Collateral Agent in connection with the preparation, execution, delivery, administration, modification, amendment or enforcement (whether through negotiations, legal proceedings or an equivalent process otherwise) of, or legal advice in respect of rights or responsibilities under, this Agreement, any foreign jurisdiction), the Administrative Agent other Transaction Document or any Lender may be document contemplated by or referred to herein or therein, to the purchaser extent that Collateral Agent is not reimbursed for such fees, costs and expenses by or on behalf of the Credit Parties. The undertaking in this Section 6.17(g) shall survive repayment of the Loans and the other Obligations, any foreclosure under, or modification, release or discharge of, any or all of such Collateral at any such sale the Transaction Documents, termination of this Agreement or the other Transaction Documents and the Administrative resignation or replacement of Collateral Agent.
(h) Collateral Agent may resign as Collateral Agent upon thirty (30) days’ notice to the Lenders and Borrower, and the Required Lenders have the right, at their sole election, to remove the Person serving as Collateral Agent upon ten (10) days’ notice to Collateral Agent (or immediately upon any material breach of Collateral Agent of its obligations under the Transaction Documents). If Collateral Agent resigns under this Agreement or the Required Lenders remove the Person serving as Collateral Agent, as agent the Required Lenders (in consultation with the Borrower) shall appoint from among the Lenders a successor Collateral Agent for such successor Collateral Agent and representative the Lenders. If no successor Collateral Agent is appointed prior to the effective date of the resignation or removal of Collateral Agent, Collateral Agent may appoint, after consulting with the Lenders and the Borrower, a successor Collateral Agent from among the Lenders. Upon the acceptance of its appointment as successor Collateral Agent hereunder, such successor Collateral Agent shall succeed to all the rights, powers and duties of the retiring or removed Collateral Agent, and the term “Collateral Agent” shall mean such successor Collateral Agent, and the retiring or removed Collateral Agent’s appointment, powers and duties as Collateral Agent shall be immediately and automatically terminated at such time. After any retiring Collateral Agent’s resignation or removal hereunder as Collateral Agent, the provisions of this Section 6.17 shall inure to its benefit (but not any Lender or Lenders in its capacity as Collateral Agent) as to any actions taken or their respective individual capacities unless omitted to be taken by it while it was Collateral Agent under this Agreement and the other Transaction Documents. If no successor Collateral Agent has accepted appointment as Collateral Agent by the date that is thirty (30) days following a retiring Collateral Agent’s notice of resignation (or at the time of removal of a Person as Collateral Agent), the retiring Collateral Agent’s resignation or removal shall nevertheless thereupon become effective, and the Required Lenders shall otherwise agree in writing) shall be entitled, with the consent or at the direction perform all of the duties of Collateral Agent hereunder until such time, if any, as the Required Lenders, Lenders appoint a successor Collateral Agent as provided for the purpose of bidding and making settlement or payment of the purchase price for all or any portion of the Collateral sold at any such sale, to use and apply any of the Obligations as a credit on account of the purchase price for any Collateral payable by the Administrative Agent at such saleabove.
Appears in 1 contract
Sources: Exchange Agreement and Amendment to Facility Agreement (Kempharm, Inc)
Collateral Agent. (a) The Administrative Agent shall also act as the “collateral agent” under the Loan Documents, Trustee and each of the Lenders (including in its capacities Holders by acceptance of the Notes hereby acknowledge the Issuer’s appointment of the Collateral Agent as a potential Qualified Counterparty and a potential Cash Management Provider) the Trustee’s and the Issuing Lenders Holders’ collateral agent under this Indenture and the Collateral Agreements, and the Trustee and each of the Holders by acceptance of the Notes hereby irrevocably appoints and authorizes authorize the Administrative Collateral Agent to act as take such action on their behalf under the agent provisions of such Lender this Indenture and the Issuing Lenders (with the full power to appoint Collateral Agreements and to substitute exercise such powers and perform such duties as are expressly delegated to delegate) on its behalf, or in its own name as joint the Collateral Agent by the terms of this Indenture and several creditor or creditor of a parallel debt (as the case may be) for purposes of acquiring, holding and enforcing any and all Liens on Collateral granted by any of the Loan Parties to secure any of the ObligationsAgreements, together with such powers and discretion as are reasonably incidental thereto. In this connection, the Administrative Agent, The Collateral Agent agrees to act as “collateral agent” and any co-agents, sub-agents and attorneys-in-fact appointed by the Administrative Agent pursuant to Section 10.5 for purposes of holding or enforcing any Lien such on the Collateral (or any portion thereof) granted under the Security Documents, or for exercising any rights and remedies thereunder at the direction of the Administrative Agent, shall be entitled to the benefits of all express conditions contained in this Section 11.06. The provisions of this Section 10 11.06 are solely for the benefit of the Collateral Agent and Section 11none of the Trustee, any of the Holders, the Issuer or any of the other Collateral Grantors shall have any rights as though such co-agentsa third party beneficiary of any of the provisions contained herein. Notwithstanding any provision to the contrary contained elsewhere in this Indenture and the Collateral Agreements, sub-agents and attorneys-in-fact were the “collateral agent” under the Loan Documents as if Collateral Agent shall not have any duties or responsibilities, except those expressly set forth herein and in full herein the Collateral Agreements, nor shall the Collateral Agent have or be deemed to have any fiduciary relationship with respect theretothe Trustee, any Holder or the Issuer or any other Collateral Grantor, and no implied covenants, functions, responsibilities, duties, obligations or liabilities shall be read into this Indenture and the Collateral Agreements or otherwise exist against the Collateral Agent. Without limiting the generality of the foregoingforegoing sentence, the Lenders use of the term “agent” in this Indenture with reference to the Collateral Agent shall not be construed to connote any fiduciary or other implied (or express) obligations arising under agency doctrine of any applicable law. Instead, such term is used merely as a matter of market custom, and is intended to create or reflect only an administrative relationship between independent contracting parties.
(b) The Collateral Agent may execute any of its duties under this Indenture and the Collateral Agreements by or through agents, employees or attorneys-in-fact and shall be entitled to advice of counsel concerning all matters pertaining to such duties, and the written advice of such counsel shall be full and complete authorization and protection from liability in respect of any action taken, suffered or omitted by it hereunder in good faith and in reliance thereon. The Collateral Agent shall not be responsible for the negligence or misconduct of any agent, employee or attorney-in-fact that it selects as long as such selection was made without negligence or willful misconduct.
(c) None of the Collateral Agent or any of its agents or employees shall (i) be liable for any action taken or omitted to be taken by any of them under or in connection with this Indenture or the transactions contemplated hereby expressly authorize the Administrative Agent on its behalf and/or in (except for its own name gross negligence, bad faith or willful misconduct) or under or in connection with any Collateral Agreements or the transactions contemplated thereby (including except for its own gross negligence, bad faith or willful misconduct), or (ii) be responsible in any manner to the Trustee or any Holder for any recital, statement, representation, warranty, covenant or agreement made by the Issuer or any other Collateral Grantor contained in this Indenture or any of the Collateral Agreements, 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 Indenture or any of the Collateral Agreements, or the validity, effectiveness, genuineness, enforceability or sufficiency of this Indenture or any of the Collateral Agreements, or for any failure of the Issuer or any other Collateral Grantor or any other party to this Indenture or any of the Collateral Agreements to perform its obligations hereunder or thereunder. None of the Collateral Agent or any of its agents or employees shall be under any parallel debtobligation to the Trustee or any Holder to ascertain or to inquire as to the observance or performance of any of the agreements contained in, or conditions of, this Indenture or any of the Collateral Agreements or to inspect the properties, books or records of the Issuer or any other Collateral Grantor.
(d) The Collateral Agent shall not be deemed to execute have knowledge or notice of the occurrence of any Default or Event of Default, unless the Collateral Agent shall have received written notice from the Trustee or the Issuer referring to this Indenture, describing such Default or Event of Default and all documents (including releases) stating that such notice is a “notice of default.” The Collateral Agent shall take such action with respect to such Default or Event of Default as may be requested by the Collateral and the rights of the Secured Parties with respect thereto, as contemplated by and Trustee acting in accordance with Article 6 (subject to this Section 11.06); provided, however, that unless and until the provisions of this Agreement and the Security Documents and acknowledge and agree that Collateral Agent has received any such action by any request, the Collateral Agent shall bind the Lenders. Each Lender agrees that it may (but shall not be obligated to) take or institute any actions or proceedings, judicial or otherwise, for any right or remedy with respect to any Collateral against any Borrower or any other Loan Party or any other obligor under any of the Loan Documents, Specified Swap Agreements or any Specified Cash Management Agreement (including, in each case, the exercise of any right of setoff, rights on account of any banker’s lien or similar claim or other rights of self-help)such action, or institute any actions or proceedings, or otherwise commence any remedial proceduresrefrain from taking such action, with respect to such Default or Event of Default as it shall deem advisable.
(e) The Collateral Agent may resign at any time by so notifying the Issuer and the Trustee in writing at least thirty (30) days prior to the proposed date of resignation, such resignation to be effective upon the acceptance of a successor agent to its appointment as Collateral of any Borrower or any other Loan PartyAgent. If the Collateral Agent resigns under this Indenture, without the prior written Trustee, subject to the consent of the Administrative Issuer (which shall not be unreasonably withheld and which shall not be required during a continuing Event of Default), shall appoint a successor Collateral Agent. If no successor collateral agent is appointed prior to the intended effective date of the resignation of the Collateral Agent (as stated in the notice of resignation), the Collateral Agent may appoint, after consulting with the Trustee, subject to the consent of the Issuer (which shall not be unreasonably withheld and which shall not be required during a continuing Event of Default), a successor Collateral Agent, which may be the same Person as the Trustee. If no successor Collateral Agent is appointed and consented to by the Issuer pursuant to the preceding sentence within thirty (30) days after the intended effective date of resignation (as stated in the notice of resignation), the Collateral Agent, the Issuer or the Holders of at least 10% in principal amount of the then outstanding principal amount of the Notes shall be entitled to petition at the expense of the Issuer a court of competent jurisdiction to appoint a successor Collateral Agent. A successor Collateral Agent shall deliver a written acceptance of its appointment to the retiring Collateral Agent and to the Issuer. Thereupon, the resignation of the retiring Collateral Agent shall become effective, and the successor Collateral Agent shall have all the rights, powers and the duties of the Collateral Agent under this Indenture and the Collateral Agreements. The successor Collateral Agent shall mail a notice of its succession to the Trustee. The retiring Collateral Agent shall promptly transfer all property held by it as Collateral Agent to the successor Collateral Agent, provided that all sums owing to the retiring Collateral Agent hereunder have been paid. Notwithstanding the replacement of the Collateral Agent pursuant to this Section 11.06(e), the Issuer’s obligations under this Section 11.06 and Section 11.11 shall continue for the benefit of the retiring Collateral Agent. In the event that the Collateral Agent is required to acquire title to an asset for any reason, or take any operational or 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 incur potential liability under CERCLA, any Environmental Law or any other federal, state or local law, the Collateral Agent reserves the right, instead of taking such action, to either resign as the Collateral Agent or arrange for the transfer of the title or control of the asset to a foreclosure court-appointed receiver. The Collateral Agent shall not be liable to the Parent, the Issuer, the Holders of Notes, or any other Person for any Environmental Claims or any liability arising under CERCLA, any Environmental Law, or under any federal, state or local law, rule or regulation by reason of the Administrative Collateral Agent’s actions and conduct as authorized, empowered and directed hereunder or relating to the presence, release or threatened release of Hazardous Materials.
(f) Except as otherwise explicitly provided herein or in the Collateral Agreements, neither the Collateral Agent on nor any of its officers, directors, employees or agents shall be liable for failure to demand, collect or realize upon any of the Collateral pursuant 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 Collateral Agent shall be accountable only for amounts that it actually receives as a public result of the exercise of such powers, and neither the Collateral Agent nor any of its officers, directors, employees or private sale agents shall be responsible for any act or failure to act hereunder, except for its own willful misconduct, gross negligence or bad faith.
(g) The Trustee is authorized and directed by the Holders and the Holders by acquiring the Notes are deemed to have authorized the Trustee, as applicable, to (i) enter into the Collateral Agreements to which it is a sale party, (ii) bind the Holders on the terms as set forth in such Collateral Agreements, (iii) perform and observe its obligations and exercise its rights and powers under such Collateral Agreements, including entering into amendments permitted by the terms of this Indenture or the Collateral Agreements and (iv) cause the Collateral Agent to enter into and perform its obligations under the Collateral Agreements. The Collateral Agent is authorized and directed by the Trustee and the Holders and the Holders by acquiring the Notes are deemed to have authorized the Collateral Agent, to (i) enter into the Collateral Agreements to which it is a party, (ii) bind the Trustee and the Holders on the terms as set forth in such Collateral Agreements and (iii) perform and observe its obligations and exercise its rights and powers under such Collateral Agreements, including entering into amendments permitted by the terms of this Indenture or the Collateral Agreements. Each Holder, by its acceptance of a Note, is deemed to have consented and agreed to the terms of each Collateral Agreement, as originally in effect and as amended, restated, replaced, supplemented or modified from time to time in accordance with its terms or the terms of this Indenture.
(h) The Collateral Agent shall have no obligation whatsoever to the Trustee or any of the Holders to assure that the Collateral pursuant to Section 363 exists or is owned by the Issuer or any of the Bankruptcy Code (other Collateral Grantors or an equivalent process in is cared for, protected or insured or has been encumbered, or that the Collateral Agent’s Liens have been properly or sufficiently or lawfully created, perfected, protected, maintained or enforced or are entitled to any foreign jurisdiction)particular priority, the Administrative Agent or any Lender may be the purchaser of any or to determine whether all of such Collateral at any such sale and the Administrative Agent, as agent for and representative of the Lenders (but not any Lender or Lenders in its or their respective individual capacities unless the Required Lenders shall otherwise agree in writing) shall be entitled, with the consent or at the direction of the Required Lenders, for the purpose of bidding and making settlement or payment of the purchase price for all or any portion of the Collateral sold Grantor’s property constituting Collateral intended to be subject to the Lien and security interest of the Collateral Agreements has been properly and completely listed or delivered, as the case may be, or the genuineness, validity, marketability or sufficiency thereof or title thereto.
(i) The Collateral Agent (i) shall not be liable for any action it takes or omits to take in good faith that it believes to be authorized or within its rights or powers, or for any error of judgment made in good faith by an authorized officer, unless it is proved that the Collateral Agent was negligent in ascertaining the pertinent facts, (ii) shall not be liable for interest on any money received by it except as the Collateral Agent may agree in writing with the Issuer (and money held in trust by the Collateral Agent need not be segregated from other funds except to the extent required by law), and (iii) may consult with counsel of its selection and the written advice or opinion of such counsel shall be full and complete authorization and protection from liability in respect of any action taken, suffered or omitted by it hereunder in good faith and in reliance thereon. The grant of permissive rights or powers to the Collateral Agent shall not be construed to impose duties to act. For the avoidance of doubt, nothing herein shall require the Collateral Agent to file financing statements or continuation statements, or be responsible for maintaining the security interests purported to be created by the Collateral Agreements (except for the safe custody of any Collateral in its possession and the accounting for moneys actually received by it under this Indenture or any Collateral Agreement) and such responsibility shall be solely that of the Issuer. Notwithstanding anything else to the contrary herein, the Collateral Agent shall not have any duty to take any discretionary action or exercise any discretionary powers, except discretionary rights and powers required in writing by the Holders of at least a majority in aggregate principal amount of the Notes then outstanding (or such other number or percentage of the aggregate principal amount of Notes as shall be necessary under the circumstances as provided in the Indenture). Whenever reference is made in any Collateral Agreements to any discretionary 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 have no duty and shall be fully justified in failing or refusing to take any such sale, to use and apply any action under unless it shall have received written instructions from the Holders of at least a majority in aggregate principal amount of the Obligations as a credit on account Notes then outstanding (or such other number or percentage of the purchase price for aggregate principal amount of Notes as shall be necessary under the circumstances as provided in the Indenture). The Collateral Agent may refuse to act if in the Collateral Agent’s opinion such action (i) is contrary to law or the provisions of any Collateral payable by Agreements; (ii) may expose the Administrative Collateral Agent at to financial or personal liability (unless the Collateral Agent shall have received indemnity and security to its satisfaction for such saleliability); or (iii) is unduly prejudicial to Secured Parties not joining in such notice, consent, direction or instruction.
Appears in 1 contract
Sources: Indenture (Pacific Drilling S.A.)
Collateral Agent. The Administrative Collateral Agent shall also act as the “collateral agent” under the Loan Documents, and each of the Lenders (including in its capacities as a potential Qualified Counterparty and a potential Cash Management Provider) and the Issuing Lenders hereby irrevocably appoints and authorizes the Administrative Agent has been appointed to act as Collateral Agent hereunder by Lenders and, by their acceptance of the agent benefits hereof, the other Secured Parties. The Collateral Agent shall be obligated, and shall have the right hereunder, to make demands, to give notices, to exercise or refrain from exercising any rights, and to take or refrain from taking any action (including, without limitation, the release or substitution of such Lender Collateral), solely in accordance with this Agreement, the Credit Agreement and the Issuing Lenders Intercreditor Agreement; provided, the Collateral Agent shall, after payment in full of all Obligations (with excluding contingent obligations in respect of customary indemnification liabilities that survive termination of the full power to appoint Credit Documents or such Person's release or discharge therefrom) under the Credit Agreement and to substitute and to delegate) on its behalfthe other Credit Documents, exercise, or in its own name as joint and several creditor or creditor of a parallel debt (as the case may be) refrain from exercising, any remedies provided for purposes of acquiring, holding and enforcing any and all Liens on Collateral granted by any of the Loan Parties to secure any of the Obligations, together with such powers and discretion as are reasonably incidental thereto. In this connection, the Administrative Agent, as “collateral agent” and any co-agents, sub-agents and attorneys-in-fact appointed by the Administrative Agent pursuant to Section 10.5 for purposes of holding or enforcing any Lien on the Collateral (or any portion thereof) granted under the Security Documents, or for exercising any rights and remedies thereunder at the direction of the Administrative Agent, shall be entitled to the benefits of all provisions of this Section 10 and Section 11, as though such co-agents, sub-agents and attorneys-in-fact were the “collateral agent” under the Loan Documents as if set forth in full herein with respect thereto. Without limiting the generality of the foregoing, the Lenders hereby expressly authorize the Administrative Agent on its behalf and/or in its own name (including under any parallel debt) to execute any and all documents (including releases) with respect to the Collateral and the rights of the Secured Parties with respect thereto, as contemplated by and in accordance with the provisions of this Agreement and the Security Documents and acknowledge and agree that any such action by any Agent shall bind the Lenders. Each Lender agrees that it shall not take or institute any actions or proceedings, judicial or otherwise, for any right or remedy with respect to any Collateral against any Borrower or any other Loan Party or any other obligor under any instructions of the Loan Documents, Specified Swap Agreements or any Specified Cash Management Agreement holders of a majority of the aggregate notional amount (including, in each case, the exercise of any right of setoff, rights on account of any banker’s lien or similar claim or other rights of self-help), or institute any actions or proceedings, or otherwise commence any remedial proceduresor, with respect to any Collateral Hedge Agreement that has been terminated in accordance with its terms, the amount then due and payable (exclusive of expenses and similar payments but including any Borrower or any other Loan early termination payments then due) under such Hedge Agreement) under all Hedge Agreements. In furtherance of the foregoing provisions of this Section, each Secured Party, without the prior written consent by its acceptance of the Administrative Agent. In the event of a foreclosure by the Administrative Agent on benefits hereof, agrees that it shall have no right individually to realize upon any of the Collateral pursuant to hereunder, it being understood and agreed by such Secured Party that all rights and remedies hereunder may be exercised solely by the Collateral Agent for the benefit of Lenders/Secured Parties in accordance with the terms of this Section. Collateral Agent may resign or be removed and a public or private sale or a sale of any successor Collateral Agent may be appointed, all in accordance with Section 9.7 of the Collateral pursuant to Section 363 of the Bankruptcy Code (or an equivalent process in any foreign jurisdiction), the Administrative Agent or any Lender may be the purchaser of any or all of such Collateral at any such sale and the Administrative Agent, as agent for and representative of the Lenders (but not any Lender or Lenders in its or their respective individual capacities unless the Required Lenders shall otherwise agree in writing) shall be entitled, with the consent or at the direction of the Required Lenders, for the purpose of bidding and making settlement or payment of the purchase price for all or any portion of the Collateral sold at any such sale, to use and apply any of the Obligations as a credit on account of the purchase price for any Collateral payable by the Administrative Agent at such saleCredit Agreement.
Appears in 1 contract
Collateral Agent. (a) The Administrative Agent shall also act as the “collateral agent” under the Loan Documents, Trustee and each of the Lenders (including in Holders by acceptance of the Notes hereby designates and appoints the Collateral Agent as its capacities as a potential Qualified Counterparty and a potential Cash Management Provider) agent under this Indenture, the Security Agreement, the Security Documents and the Issuing Lenders Intercreditor Agreement and the Trustee and each of the Holders by acceptance of the Notes hereby irrevocably appoints and authorizes the Administrative Collateral Agent to act as take such action on its behalf under the agent provisions of such Lender this Indenture, the Security Agreement, the Security Documents and the Issuing Lenders (with the full power to appoint Intercreditor Agreement and to substitute exercise such powers and perform such duties as are expressly delegated to delegate) on its behalfthe Collateral Agent by the terms of this Indenture, or in its own name as joint the Security Agreement, the Security Documents and several creditor or creditor of a parallel debt (as the case may be) for purposes of acquiring, holding and enforcing any and all Liens on Collateral granted by any of the Loan Parties to secure any of the ObligationsIntercreditor Agreement, together with such powers and discretion as are reasonably incidental thereto. In this connection, the Administrative Agent, The Collateral Agent agrees to act as “collateral agent” and any co-agents, sub-agents and attorneys-in-fact appointed by the Administrative Agent pursuant to Section 10.5 for purposes of holding or enforcing any Lien such on the Collateral (or any portion thereof) granted under the Security Documents, or for exercising any rights and remedies thereunder at the direction of the Administrative Agent, shall be entitled to the benefits of all express conditions contained in this Section 10.11. The provisions of this Section 10 10.11 are solely for the benefit of the Collateral Agent and none of the Trustee, any of the Holders nor any of the Grantors shall have any rights as a third party beneficiary of any of the provisions contained herein other than as expressly provided in Section 1110.03. Notwithstanding any provision to the contrary contained elsewhere in this Indenture, as though such co-agentsthe Security Agreement, sub-agents the Security Documents and attorneys-in-fact were the “collateral agent” under Intercreditor Agreement, the Loan Documents as if Collateral Agent shall not have any duties or responsibilities, except those expressly set forth in full herein herein, nor shall the Collateral Agent have or be deemed to have any fiduciary relationship with respect theretothe Trustee, any Holder or any Grantor, and no implied covenants, functions, responsibilities, duties, obligations or liabilities shall be read into this Indenture, the Security Agreement, the Security Documents and the Intercreditor Agreement or otherwise exist against the Collateral Agent. Without limiting the generality of the foregoingforegoing sentence, the Lenders hereby use of the term “agent” in this Indenture 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. 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. Except as expressly authorize otherwise provided in this Indenture, the Administrative Collateral Agent on shall have and may use its behalf and/or in its own name (including under any parallel debt) to execute any and all documents (including releases) sole discretion with respect to exercising or refraining from exercising any discretionary rights or taking or refraining from taking any actions which the Collateral and Agent is expressly entitled to take or assert under this Indenture, the rights of the Secured Parties with respect theretoSecurity Agreement, as contemplated by and in accordance with the provisions of this Agreement and the Security Documents and acknowledge the Intercreditor Agreement, including the exercise of remedies pursuant to Article VI, and agree any action so taken or not taken shall be deemed consented to by the Trustee and the Holders.
(b) The Collateral Agent may execute any of its duties under this Indenture, the Security Documents or the Intercreditor Agreement by or through agents, employees, attorneys-in-fact or through its Related Persons and shall be entitled to advice of counsel concerning all matters pertaining to such duties. The Collateral Agent shall not be responsible for the negligence or misconduct of any agent, employee, attorney-in-fact or Related Person that it selects as long as such selection was made without negligence or willful misconduct.
(c) None of the Collateral Agent, any of its respective Related Persons shall (i) be liable for any action taken or omitted to be taken by any of them under or in connection with this Indenture or the transactions contemplated hereby (except for its own negligence or willful misconduct) or under or in connection with the Security Agreement, any Security Document or Intercreditor Agreement or the transactions contemplated thereby (except for its own negligence or willful misconduct), or (ii) be responsible in any manner to any of the Trustee or any Holder for any recital, statement, representation, warranty, covenant or agreement made by the Issuer or any Grantor or Affiliate of any Grantor, or any officer or Related Person thereof, contained in this or any Indenture, 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 or any other Indenture, the Security Agreement, the Security Documents or the Intercreditor Agreement, or the validity, effectiveness, genuineness, enforceability or sufficiency of this or any other Indenture, the Security Agreement, the Security Documents or the Intercreditor Agreement, or for any failure of any Grantor or any other party to this Indenture, the Security Agreement, the Security Documents or the Intercreditor Agreement to perform its obligations hereunder or thereunder. None of the Collateral Agent or any of its respective Related Persons shall be under any obligation to the Trustee or any Holder to ascertain or to inquire as to the observance or performance of any of the agreements contained in, or conditions of, this or any other Indenture, the Security Agreement, the Security Documents or the Intercreditor Agreement or to inspect the properties, books, or records of any Grantor or any Grantor’s Affiliates.
(d) The Collateral Agent shall be entitled to rely, and shall be fully protected in relying, upon any writing, resolution, notice, consent, certificate, affidavit, letter, telegram, facsimile, telex, or telephone message, statement, or other document or conversation believed by it to be genuine and correct and to have been signed, sent, or made by the proper Person or Persons, and upon advice and statements of legal counsel (including, without limitation, counsel to any Grantor), independent accountants and other experts and advisors selected by the Collateral Agent. The Collateral Agent shall be fully justified in failing or refusing to take any action under this or any other Indenture, the Security Documents or the Intercreditor Agreement unless it shall first receive such advice or concurrence of the Trustee as it deems appropriate and, if it so requests, it shall first be indemnified to its satisfaction by the Holders against any and all liability and expense which may be incurred by it by reason of taking or continuing to take any such action by any action. The Collateral Agent shall bind in all cases be fully protected in acting, or in refraining from acting, under this or any other Indenture, the Lenders. Each Lender agrees that it Security Documents or the Intercreditor Agreement in accordance with a request or consent of the Trustee and such request and any action taken or failure to act pursuant thereto shall be binding upon all of the Holders.
(e) The Collateral Agent shall not be deemed to have knowledge or notice of the occurrence of any Default or Event of Default, unless the Collateral Agent shall have received written notice from the Trustee or a Grantor referring to this Indenture, describing such Default or Event of Default and stating that such notice is a “notice of default.” The Collateral Agent shall take or institute any actions or proceedings, judicial or otherwise, for any right or remedy such action with respect to such Default or Event of Default as may be requested by the Trustee in accordance with Article VI (subject to Section 10.11); provided, however, that unless and until the Collateral Agent has received any Collateral against any Borrower or any other Loan Party or any other obligor under any of the Loan Documents, Specified Swap Agreements or any Specified Cash Management Agreement (including, in each casesuch request, the exercise of any right of setoff, rights on account of any banker’s lien or similar claim or other rights of self-help)Collateral Agent may (but shall not be obligated to) take such action, or institute any actions or proceedings, or otherwise commence any remedial proceduresrefrain from taking such action, with respect to such Default or Event of Default as it shall deem advisable.
(f) U.S. Bank National Association and its respective Affiliates may make loans to, issue letters of credit for the account of, accept deposits from, acquire equity interests in and generally engage in any kind of banking, trust, financial advisory, underwriting, or other business with any Grantor and its Affiliates as though it was not the Collateral of any Borrower Agent hereunder and without notice to or any other Loan Party, without the prior written consent of the Administrative AgentTrustee. In The Trustee and the event Holders acknowledge that, pursuant to such activities, U.S. Bank National Association or its respective Affiliates may receive information regarding any Grantor or its Affiliates (including information that may be subject to confidentiality obligations in favor of a foreclosure by any such Grantor or such Affiliate) and acknowledge that the Administrative Collateral Agent shall not be under any obligation to provide such information to the Trustee or the Holders. Nothing herein shall impose or imply any obligation on any the part of the Collateral pursuant U.S. Bank National Association to a public or private sale or a sale of any of the Collateral pursuant to Section 363 of the Bankruptcy Code (or an equivalent process in any foreign jurisdiction), the Administrative Agent or any Lender may be the purchaser of any or all of such Collateral at any such sale and the Administrative Agent, as agent for and representative of the Lenders (but not any Lender or Lenders in its or their respective individual capacities unless the Required Lenders shall otherwise agree in writing) shall be entitled, with the consent or at the direction of the Required Lenders, for the purpose of bidding and making settlement or payment of the purchase price for all or any portion of the Collateral sold at any such sale, to use and apply any of the Obligations as a credit on account of the purchase price for any Collateral payable by the Administrative Agent at such saleadvance funds.
Appears in 1 contract
Sources: Indenture (Broan-NuTone LLC)
Collateral Agent. The Administrative Collateral Agent shall also act as the “collateral agent” under the Loan Documents, and each of the Lenders (including in its capacities as a potential Qualified Counterparty and a potential Cash Management Provider) and the Issuing Lenders hereby irrevocably appoints and authorizes the Administrative Agent has been appointed to act as Collateral Agent hereunder by Lenders and, by their acceptance of the agent benefits hereof, the other Secured Parties. The Collateral Agent shall be obligated, and shall have the right hereunder, to make demands, to give notices, to exercise or refrain from exercising any rights, and to take or refrain from taking any action (including, without limitation, the release or substitution of such Lender Collateral), solely in accordance with this Agreement and the Credit Agreement; provided, the Collateral Agent shall, after (x) payment in full of all Obligations under the Credit Agreement and the other Credit Documents (other than contingent indemnification and reimbursement obligations for which no claim has been made) and (y) all Letters of Credit have been cancelled or have expired or have been Cash Collateralized or otherwise secured to the satisfaction of the Issuing Lenders (with the full power to appoint and to substitute and to delegate) on its behalfBank thereof, exercise, or in its own name as joint and several creditor or creditor of a parallel debt (as the case may be) refrain from exercising, any remedies provided for purposes of acquiring, holding and enforcing any and all Liens on Collateral granted by any of the Loan Parties to secure any of the Obligations, together with such powers and discretion as are reasonably incidental thereto. In this connection, the Administrative Agent, as “collateral agent” and any co-agents, sub-agents and attorneys-in-fact appointed by the Administrative Agent pursuant to Section 10.5 for purposes of holding or enforcing any Lien on the Collateral (or any portion thereof) granted under the Security Documents, or for exercising any rights and remedies thereunder at the direction of the Administrative Agent, shall be entitled to the benefits of all provisions of this Section 10 and Section 11, as though such co-agents, sub-agents and attorneys-in-fact were the “collateral agent” under the Loan Documents as if set forth in full herein with respect thereto. Without limiting the generality of the foregoing, the Lenders hereby expressly authorize the Administrative Agent on its behalf and/or in its own name (including under any parallel debt) to execute any and all documents (including releases) with respect to the Collateral and the rights of the Secured Parties with respect thereto, as contemplated by and in accordance with the provisions of this Agreement and the Security Documents and acknowledge and agree that any such action by any Agent shall bind the Lenders. Each Lender agrees that it shall not take or institute any actions or proceedings, judicial or otherwise, for any right or remedy with respect to any Collateral against any Borrower or any other Loan Party or any other obligor under any instructions of the Loan Documents, Specified Swap Agreements or any Specified Cash Management Agreement holders of a majority of the aggregate notional amount (including, in each case, the exercise of any right of setoff, rights on account of any banker’s lien or similar claim or other rights of self-help), or institute any actions or proceedings, or otherwise commence any remedial proceduresor, with respect to any Collateral Permitted Hedge Agreement that has been terminated in accordance with its terms, the amount then due and payable (exclusive of expenses and similar payments but including any Borrower or any other Loan early termination payments then due) under such Permitted Hedge Agreement) under all Permitted Hedge Agreements and Permitted Cash Management Agreements. In furtherance of the foregoing provisions of this Section, each Secured Party, without the prior written consent by its acceptance of the Administrative Agent. In the event of a foreclosure by the Administrative Agent on benefits hereof, agrees that it shall have no right individually to realize upon any of the Collateral pursuant hereunder, it being understood and agreed by such Secured Party that all rights and remedies hereunder may be exercised solely by the Collateral Agent for the benefit of Secured Parties in accordance with the terms of this Section. Collateral Agent may at any time give notice of its resignation to a public or private sale or a sale of any the Secured Parties and Company in accordance with Section 9.6 of the Collateral pursuant to Section 363 of the Bankruptcy Code (or an equivalent process in any foreign jurisdiction), the Administrative Agent or any Lender may be the purchaser of any or all of such Collateral at any such sale and the Administrative Agent, as agent for and representative of the Lenders (but not any Lender or Lenders in its or their respective individual capacities unless the Required Lenders shall otherwise agree in writing) shall be entitled, with the consent or at the direction of the Required Lenders, for the purpose of bidding and making settlement or payment of the purchase price for all or any portion of the Collateral sold at any such sale, to use and apply any of the Obligations as a credit on account of the purchase price for any Collateral payable by the Administrative Agent at such saleCredit Agreement.
Appears in 1 contract
Collateral Agent. (a) The Administrative Agent shall also act as the “collateral agent” under the Loan Documents, Trustee and each of the Lenders (including in Holders by acceptance of the Notes hereby designates and appoints the Collateral Agent as its capacities as a potential Qualified Counterparty and a potential Cash Management Provider) agent under this Indenture and the Issuing Lenders Notes Security Documents and the Trustee and each of the Holders by acceptance of the Notes hereby irrevocably appoints and authorizes the Administrative Collateral Agent to act as take such action on its behalf under the agent provisions of such Lender this Indenture and the Issuing Lenders (with the full power to appoint Notes Security Documents and to substitute exercise such powers and perform such duties as are expressly delegated to delegate) on its behalf, or in its own name as joint the Collateral Agent by the terms of this Indenture and several creditor or creditor of a parallel debt (as the case may be) for purposes of acquiring, holding and enforcing any and all Liens on Collateral granted by any of the Loan Parties to secure any of the ObligationsNotes Security Documents, together with such powers and discretion as are reasonably incidental thereto. In this connection, the Administrative Agent, as “collateral agent” and any co-agents, sub-agents and attorneys-in-fact appointed by the Administrative Agent pursuant to Section 10.5 for purposes of holding or enforcing any Lien on the Collateral (or any portion thereof) granted under the Security Documents, or for exercising any rights and remedies thereunder at the direction of the Administrative Agent, shall be entitled to the benefits of all The provisions of this Section 10 11.11 are solely for the benefit of the Collateral Agent and none of the Trustee, any of the Holders nor any of the Grantors shall have any rights as a third party beneficiary of any of the provisions contained herein other than as expressly provided in Section 1111.03. Notwithstanding any provision to the contrary contained elsewhere in this Indenture and the Notes Security Documents, as though such co-agentsthe Collateral Agent shall not have any duties or responsibilities hereunder nor shall the Collateral Agent have or be deemed to have any fiduciary relationship with the Trustee, sub-agents any Holder or any Grantor, and attorneys-in-fact were no implied covenants, functions, responsibilities, duties, obligations or liabilities shall be read into this Indenture and the “collateral agent” under Notes Security Documents or otherwise exist against the Loan Documents as if set forth in full herein with respect theretoCollateral Agent. Without limiting the generality of the foregoingforegoing sentence, the Lenders use of the term “agent” in this Indenture 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. 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. Except as expressly otherwise provided in this Indenture, the Collateral Agent shall have and may use its sole discretion with respect to exercising or refraining from exercising any discretionary rights or taking or refraining from taking any actions which the Collateral Agent is expressly entitled to take or assert under this Indenture, and the Notes Security Documents, including the exercise of remedies pursuant to Article 6, and any action so taken or not taken shall be deemed consented to by the Trustee and the Holders.
(b) None of the Collateral Agent or any of its respective Affiliates shall (i) be liable for any action taken or omitted to be taken by any of them under or in connection with this Indenture or the transactions contemplated hereby expressly authorize the Administrative Agent on its behalf and/or in (except for its own name gross negligence or willful misconduct as finally adjudicated by a court of competent jurisdiction) or under or in connection with any Notes Security Document or the transactions contemplated thereby (except for its own gross negligence or willful misconduct), or (ii) be responsible in any manner to any of the Trustee or any Holder for any recital, statement, representation, warranty, covenant or agreement made by the Company or any Grantor or Affiliate of any Grantor, or any officer or Affiliate thereof, contained in this or any Indenture, any Notes Security Document 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 or any other Indenture or the Notes Security Documents, or the validity, effectiveness, genuineness, enforceability or sufficiency of this or any other Indenture or the Notes Security Documents, or for any failure of any Grantor or any other party to this Indenture or the Notes Security Documents to perform its obligations hereunder or thereunder. None of the Collateral Agent or any of its respective Affiliates shall be under any obligation to the Trustee or any Holder to ascertain or to inquire as to the observance or performance of any of the agreements contained in, or conditions of, this or any other Indenture or the Notes Security Documents or to inspect the properties, books, or records of any Grantor or any Grantor’s Affiliates.
(c) The Collateral Agent and its Affiliates may make loans to, issue letters of credit for the account of, accept deposits from, acquire equity interests in and generally engage in any kind of banking, trust, financial advisory, underwriting, or other business with the Company, any Subsidiary Guarantor and their Affiliates as though it was not the Collateral Agent hereunder and without notice to or consent of the Trustee. The Trustee and the Holders acknowledge that, pursuant to such activities, the Collateral Agent or its Affiliates may receive information regarding any Grantor or its respective Affiliates (including information that may be subject to confidentiality obligations in favor of, any such Grantor or such Affiliate) and acknowledge that the Collateral Agent shall not be under any parallel debtobligation to provide such information to the Trustee or the Holders. Nothing herein shall impose or imply any obligation on the part of the Collateral Agent to advance funds.
(d) The Collateral Agent is authorized and directed to execute (i) enter into the Notes Security Documents, (ii) bind the Holders on the terms as set forth in the Notes Security Documents and (iii) perform and observe its obligations under the Notes Security Documents.
(e) The Trustee agrees that it shall not (and shall not be obligated to), and shall not instruct the Collateral Agent to, unless specifically requested to do so by a majority of the Holders, take or cause to be taken any and all documents action to enforce its rights under this Indenture or against any Grantor, including the commencement of any legal or equitable proceedings, to foreclose any Lien on, or otherwise enforce any security interest in, any of the Collateral. If at any time or times the Trustee shall receive (including releasesi) by payment, foreclosure, set-off or otherwise, any proceeds of Collateral or any payments with respect to the Obligations arising under, or relating to, this Indenture, except for any such proceeds or payments received by the Trustee from the Collateral Agent pursuant to the terms of this Indenture, or (ii) payments from the Collateral Agent in excess of the amount required to be paid to the Trustee pursuant to Article 6, the Trustee shall promptly turn the same over to the Collateral Agent, in kind, and with such endorsements as may be required to negotiate the same to the Collateral Agent.
(f) The Collateral Agent is each Holder’s agent for the purpose of perfecting the Holders’ security interest in assets which, in accordance with Article 9 of the Uniform Commercial Code can be perfected only by possession. Should the Trustee obtain possession of any such Collateral, upon request from the Company, the Trustee shall notify the Collateral Agent thereof, and, promptly upon the Collateral Agent’s request therefor shall deliver such Collateral to the Collateral Agent or otherwise deal with such Collateral in accordance with the Collateral Agent’s instructions. If required for the purpose of meeting the legal requirements of any jurisdiction in which any of the Collateral may at the time be located, subject to the terms of the Notes Security Documents, the Company, the Trustee and the Collateral Agent shall have the power to appoint, and shall take all reasonable action to appoint, one or more Persons approved by the Company to act as co-collateral agent with respect to any such Collateral, with such rights and powers limited to those deemed necessary for the Company, the Trustee or the Collateral Agent to comply with any such legal requirements with respect to such Collateral, and which rights and powers shall not be inconsistent with the provisions of this Indenture.
(g) The Collateral Agent shall have no obligation whatsoever to the Trustee or any of the Holders to assure that the Collateral exists or is owned by any Grantor or is cared for, protected, or insured or has been encumbered, or that the Collateral Agent’s Liens have been properly or sufficiently or lawfully created, perfected, protected, maintained or enforced or are entitled to any particular priority, or to determine whether all or the Company or any Subsidiary Guarantor’s property constituting collateral intended to be subject to the Lien and security interest of the Notes Security Documents has been properly and completely listed or delivered, as the case may be, or the genuineness, validity, marketability or sufficiency thereof or title thereto, 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 powers granted or available to the Collateral Agent pursuant to this Indenture or any Notes Security Document, it being understood and agreed that in respect of the Collateral, or any act, omission, or event related thereto, the Collateral Agent may act in any manner it may deem appropriate, in its sole discretion given the Collateral Agent’s own interest in the Collateral and that the rights Collateral Agent shall have no other duty or liability whatsoever to the Trustee or any Holder as to any of the Secured Parties foregoing.
(h) No provision of this Indenture or any Notes Security Document shall require the Collateral Agent (or the Trustee) to expend or risk its own funds or otherwise incur any financial liability in the performance of any of its duties hereunder or thereunder or to take or omit to take any action hereunder or thereunder or take any action at the request or direction of Holders (or the Trustee in the case of the Collateral Agent) if it shall have reasonable grounds for believing that repayment of such funds is not assured to it.
(i) The Collateral Agent (i) shall not be liable for any action it takes or omits to take in good faith which it reasonably believes to be authorized or within its rights or powers, or for any error of judgment made in good faith by a Responsible Officer, unless it is proved that the Collateral Agent was grossly negligent in ascertaining the pertinent facts, (ii) shall not be liable for interest on any money received by it except as the Collateral Agent may agree in writing with the Company (and money held in trust by the Collateral Agent need not be segregated from other funds except to the extent required by law) and (iii) may consult with counsel of its selection and the advice or opinion of such counsel as to matters of law shall be full and complete authorization and protection from liability in respect theretoof any action taken, as contemplated omitted or suffered by it in good faith and in accordance with the provisions advice or opinion of this Agreement and such counsel. The grant of permissive rights or powers to the Security Documents and acknowledge and agree that any such action by any Collateral Agent shall bind not be construed to impose duties to act.
(j) Neither the LendersCollateral Agent nor the Trustee shall be liable for delays or failures in performance resulting from acts beyond its control. Each Lender agrees that it Such acts shall include but not take be limited to acts of God, strikes, lockouts, riots, acts of war, epidemics, governmental regulations superimposed after the fact, fire, communication line failures, computer viruses, power failures, earthquakes or institute any actions or proceedings, judicial or otherwise, other disasters. Neither the Collateral Agent nor the Trustee shall be liable for any right indirect, special or remedy with respect consequential damages (included but not limited to any Collateral against any Borrower or any other Loan Party or any other obligor under any lost profits) whatsoever, even if it has been informed of the Loan Documents, Specified Swap Agreements or any Specified Cash Management Agreement (including, in each case, the exercise of any right of setoff, rights on account of any banker’s lien or similar claim or other rights of self-help), or institute any actions or proceedings, or otherwise commence any remedial procedures, with respect to any Collateral of any Borrower or any other Loan Party, without the prior written consent likelihood thereof and regardless of the Administrative Agent. In the event form of a foreclosure by the Administrative Agent on any of the Collateral pursuant to a public or private sale or a sale of any of the Collateral pursuant to Section 363 of the Bankruptcy Code (or an equivalent process in any foreign jurisdiction), the Administrative Agent or any Lender may be the purchaser of any or all of such Collateral at any such sale and the Administrative Agent, as agent for and representative of the Lenders (but not any Lender or Lenders in its or their respective individual capacities unless the Required Lenders shall otherwise agree in writing) shall be entitled, with the consent or at the direction of the Required Lenders, for the purpose of bidding and making settlement or payment of the purchase price for all or any portion of the Collateral sold at any such sale, to use and apply any of the Obligations as a credit on account of the purchase price for any Collateral payable by the Administrative Agent at such saleaction.
Appears in 1 contract
Sources: Indenture (LSC Communications, Inc.)
Collateral Agent. The Administrative Agent shall also (a) Each Investor irrevocably appoints and authorizes ___________ to act as collateral agent for and on behalf of such Investor (in such capacity, together with any successor thereto, the “Collateral Agent”) to the extent provided herein and in any Security Documents. The Collateral Agent agrees to act as collateral agent” agent for each Investor upon the express conditions contained herein and therein, but in no event shall the Collateral Agent constitute a fiduciary of any Investor, nor shall the Collateral Agent have any fiduciary responsibilities in respect of any Investor. In furtherance of the foregoing, and not in limitation thereof, each Investor irrevocably (a) authorizes the Collateral Agent to execute and deliver and perform those obligations under the Loan Documents, this Agreement and each of the Lenders (including in its capacities Security Documents to which the Collateral Agent is a party as a potential Qualified Counterparty and a potential Cash Management Provider) and are specifically delegated to the Issuing Lenders hereby irrevocably appoints and authorizes the Administrative Agent to act as the agent of such Lender and the Issuing Lenders (with the full power to appoint Collateral Agent, and to substitute exercise all rights, powers and to delegateremedies as may be specifically delegated hereunder or thereunder, together with such additional powers as may be reasonably incidental thereto, (b) on its behalfappoints the Collateral Agent as nominal beneficiary or nominal secured party, or in its own name as joint and several creditor or creditor of a parallel debt (as the case may be, under this Agreement and each of the Security Documents and all related UCC financing statements, and (c) authorizes the Collateral Agent to act as collateral agent of and for such Investor for purposes of acquiringholding, holding perfecting and enforcing disposing of Collateral under this Agreement and the Security Documents. As to any matters not expressly provided for hereunder or under any Security Document, the Collateral Agent shall not be required to exercise any discretion or take any action, but shall be permitted to act or to refrain from acting (and shall be fully protected in so acting or refraining from acting) upon the instructions of the Required Investors; provided, however, that except for action expressly required of the Collateral Agent hereunder or thereunder, the Collateral Agent shall in all cases be fully justified in failing or refusing to act hereunder or thereunder unless it shall be indemnified to its satisfaction by the Investors against any and all Liens on liability and expense which may be incurred by it by reason of taking or continuing to take any such action, and the Collateral granted by Agent shall not in any event be required to take any action which is contrary to this Agreement or the Security Documents or applicable law.
(b) The Collateral Agent may execute any of the Loan Parties to secure any of the Obligations, together with such powers and discretion as are reasonably incidental thereto. In this connection, the Administrative Agent, as “collateral agent” and any co-agents, sub-agents and attorneys-in-fact appointed by the Administrative Agent pursuant to Section 10.5 for purposes of holding or enforcing any Lien on the Collateral (or any portion thereof) granted its duties under the Security Documents, or for exercising any rights and remedies thereunder at the direction of the Administrative Agent, shall be entitled to the benefits of all provisions of this Section 10 and Section 11, as though such co-agents, sub-agents and attorneys-in-fact were the “collateral agent” under the Loan Documents as if set forth in full herein with respect thereto. Without limiting the generality of the foregoing, the Lenders hereby expressly authorize the Administrative Agent on its behalf and/or in its own name (including under any parallel debt) to execute any and all documents (including releases) with respect to the Collateral and the rights of the Secured Parties with respect thereto, as contemplated by and in accordance with the provisions of this Agreement and the Security Documents by or through agents or attorneys-in-fact and acknowledge and agree that any shall be entitled to advice of counsel concerning all matters pertaining to such action by any duties. The Collateral Agent shall bind not be responsible for the Lenders. Each Lender agrees that negligence or misconduct of any agents or attorneys in-fact selected by it with reasonable care.
(c) Neither the Collateral Agent nor any of its officers, directors, employees, agents, attorneys-in-fact or affiliates shall not take or institute any actions or proceedings, judicial or otherwise, be (i) liable for any right action lawfully taken or remedy omitted to be taken by it or such other person under or in connection with respect to any Collateral against any Borrower this Agreement or any other Loan Party or any other obligor under Security Document (except to the extent that any of the Loan Documentsforegoing have resulted from its or such other person’s own gross negligence or willful misconduct) or (ii) responsible in any manner to any of the Investors for any recitals, Specified Swap Agreements statements, representations or warranties made by the Company or any Specified Cash Management of its affiliates or any officer thereof contained in this Agreement (includingor any Security Document or in any certificate, report, statement or other document referred to or provided for in, or received by the Collateral Agent under or in each caseconnection herewith or therewith or for the value, validity, effectiveness, genuineness, enforceability or sufficiency of this Agreement or any Security Document or for any failure of the exercise Company or any affiliate thereof to perform its obligations hereunder or thereunder. The Collateral Agent shall not be under any obligation to any Investor to ascertain or to inquire as to the observance or performance of any right of setoffthe agreements contained in, or conditions of, this Agreement or any Security Document, or to inspect the properties, books or records of the Company or any of its affiliates. The designation of ______________ (or any successor thereto) as Collateral Agent shall in no way impair or affect any of the rights on account and powers of, or impose any duties or obligations upon, ________________ (or any such successor) in its individual capacity as an Investor.
(d) All payments, collections and proceeds received or effected by the Collateral Agent may be applied first to pay or reimburse the Collateral Agent for all reasonable costs and expenses at any time incurred by or imposed upon the Collateral Agent in connection with this Agreement or any Security Document (including but not limited to all reasonable attorney’s fees (including allocated costs of in-house counsel), foreclosure expenses and advances made to protect the security of any banker’s lien collateral, but excluding any costs, expenses, damages or similar claim liabilities arising from the gross negligence or willful misconduct of the Collateral Agent). If the Collateral Agent does not receive payments, collections or proceeds sufficient to cover any such costs and expenses within 5 days after their incurrence or imposition, each Investor shall, upon demand and provision of reasonably timely invoices and other rights of self-help), or institute any actions or proceedings, or otherwise commence any remedial procedures, with respect to any Collateral evidence of any Borrower or any other Loan Partysuch amounts, without remit to the prior written consent Collateral Agent such Investor’s pro rata share of the Administrative Agentdifference between (i) such costs and expenses and (ii) such payments, collections and proceeds, together with interest on such amount for each day following the thirtieth day after demand therefor until so remitted at a rate equal to 8% per annum for each such day.
(e) The Collateral Agent shall have no duty to inquire into any performance or failure to perform by the Company or its affiliates and shall not be deemed to have knowledge of the occurrence of a default or an Event of Default hereunder or under any Security Document unless the Collateral Agent has received notice from an Investor or the Company specifying the occurrence of such default or Event of Default. In the event of a foreclosure any such default or an Event of Default, the Collateral Agent (subject to subparagraph (a) above) shall take such actions with respect to such default or Event of Default as shall be directed by the Administrative Agent on any of Required Investors; provided that (i) the Collateral pursuant to a public or private sale or a sale of any of the Collateral pursuant to Section 363 of the Bankruptcy Code (or an equivalent process in any foreign jurisdiction), the Administrative Agent or any Lender may be the purchaser of any or all of such Collateral at any such sale and the Administrative Agent, as agent for and representative of the Lenders (but shall not any Lender or Lenders in its or their respective individual capacities unless the Required Lenders shall otherwise agree in writing) shall be entitled, with need the consent or at the direction of the Required LendersInvestors to provide any notices that may be required as a prerequisite to a default becoming an Event of Default and (ii) unless and until the Collateral Agent shall have received directions as contemplated herein, the Collateral Agent may take any action, or refrain from taking any action, with respect to such default of Event of Default as it shall deem advisable.
(f) The Collateral Agent may resign as Collateral Agent upon 30 days’ notice to the Investors and the Company. If the Collateral Agent shall resign as Collateral Agent under this Agreement and the Security Documents, then the Required Investors shall appoint a successor agent for the purpose of bidding Investors, whereupon such successor collateral agent shall succeed to the rights, powers and making settlement or payment of the purchase price for all or any portion duties of the Collateral sold at Agent, the term “Collateral Agent” shall mean such successor collateral agent effective upon such appointment and approval, and the former Collateral Agent’s rights, powers and duties as Collateral Agent shall be terminated, without any other or further act or deed on the part of such sale, to use and apply former Collateral Agent or any of the Obligations parties to this Agreement or the Security Documents. If no successor collateral agent has accepted appointment as Collateral Agent by the date that is 30 days following a credit on account retiring Collateral Agent’s notice of resignation, the retiring Collateral Agent’s resignation shall nevertheless thereupon become effective and the Required Investors shall assume and perform all of the purchase price duties of the Collateral Agent hereunder until such time, if any, as the Required Investors appoint a successor collateral agent as provided for above. After any retiring Collateral payable Agent’s resignation 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 Collateral Agent under this Agreement and the Administrative Agent at such saleSecurity Documents.
Appears in 1 contract
Sources: Securities Purchase Agreement (China Housing & Land Development, Inc.)
Collateral Agent. The Administrative Collateral Agent shall also act as the “collateral agent” under the Loan Documents, and each of the Lenders (including in its capacities as a potential Qualified Counterparty and a potential Cash Management Provider) and the Issuing Lenders hereby irrevocably appoints and authorizes the Administrative Agent has been appointed to act as the agent Collateral Agent hereunder by Lenders and, by their acceptance of such Lender the benefits hereof, the other Secured Parties. The Collateral Agent shall be obligated, and shall have the right hereunder, to make demands, to give notices, to exercise or refrain from exercising any rights, and to take or refrain from taking any action (including, without limitation, the release or substitution of Collateral), solely in accordance with this Agreement and the Issuing Lenders (Credit Agreement; provided, the Collateral Agent shall, after payment in full of all Obligations under the Credit Agreement and the other Credit Documents, exercise, or refrain from exercising, any remedies provided for herein in accordance with the full power to appoint and to substitute and to delegate) on its behalf, or in its own name as joint and several creditor or creditor instructions of the holders of a parallel debt majority of the aggregate notional amount (as or, with respect to any Secured Hedge Agreement that has been terminated in accordance with its terms, the case may beamount then due and payable (exclusive of expenses and similar payments but including any early termination payments then due) for purposes under such Secured Hedge Agreement) under all Secured Hedge Agreements. In furtherance of acquiringthe foregoing provisions of this Section, holding and enforcing any and all Liens on Collateral granted each Secured Party, by its acceptance of the benefits hereof, agrees that it shall have no right individually to realize upon any of the Loan Collateral hereunder, it being understood and agreed by such Secured Party that all rights and remedies hereunder may be exercised solely by the Collateral Agent for the benefit of Secured Parties in accordance with the terms of this Section. The Collateral Agent may resign at any time by giving thirty (30) days’ prior written notice thereof to secure Lenders and the Grantors, and the Collateral Agent may be removed at any time with or without cause by an instrument or concurrent instruments in writing delivered to the Grantors and the Collateral Agent signed by the Requisite Lenders holding more than 50% of the Obligationsoutstanding Commitments under the Credit Agreement. Upon any such notice of resignation or any such removal, Requisite Lenders shall have the right, upon five (5) Business Days’ notice to the Collateral Agent, following receipt of the Grantors’ consent (which shall not be unreasonably withheld or delayed and which shall not be required while an Event of Default exists), to appoint a successor Collateral Agent. Upon the acceptance of any appointment as Collateral Agent hereunder by a successor Collateral Agent, that 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 under this Agreement, and the retiring or removed Collateral Agent under this Agreement shall promptly (i) transfer to such successor Collateral Agent all sums, Securities and other items of Collateral held hereunder, together with all records and other documents necessary or appropriate in connection with the performance of the duties of the successor Collateral Agent under this Agreement, and (ii) execute and deliver to such powers successor Collateral Agent or otherwise authorize the filing of such amendments to financing statements, and discretion take such other actions, as are reasonably incidental theretomay be necessary or appropriate in connection with the assignment to such successor Collateral Agent of the security interests created hereunder, whereupon such retiring or removed Collateral Agent shall be discharged from its duties and obligations under this Agreement. In this connection, After any retiring or removed Collateral Agent’s resignation or removal hereunder as the Administrative Collateral Agent, as “collateral agent” and any co-agents, sub-agents and attorneys-in-fact appointed by the Administrative Agent pursuant to Section 10.5 for purposes of holding or enforcing any Lien on the Collateral (or any portion thereof) granted under the Security Documents, or for exercising any rights and remedies thereunder at the direction of the Administrative Agent, shall be entitled to the benefits of all provisions of this Section 10 and Section 11, as though such co-agents, sub-agents and attorneys-in-fact were the “collateral agent” under the Loan Documents as if set forth in full herein with respect thereto. Without limiting the generality of the foregoing, the Lenders hereby expressly authorize the Administrative Agent on its behalf and/or in its own name (including under any parallel debt) to execute any and all documents (including releases) with respect to the Collateral and the rights of the Secured Parties with respect thereto, as contemplated by and in accordance with the provisions of this Agreement and the Security Documents and acknowledge and agree that any such action by any Agent shall bind the Lenders. Each Lender agrees that it shall not take or institute inure to its benefit as to any actions taken or proceedings, judicial or otherwise, for any right or remedy with respect omitted to any Collateral against any Borrower or any other Loan Party or any other obligor be taken by it under any of the Loan Documents, Specified Swap Agreements or any Specified Cash Management this Agreement (including, in each case, the exercise of any right of setoff, rights on account of any banker’s lien or similar claim or other rights of self-help), or institute any actions or proceedings, or otherwise commence any remedial procedures, with respect to any Collateral of any Borrower or any other Loan Party, without the prior written consent of the Administrative Agent. In the event of a foreclosure by the Administrative Agent on any of while it was the Collateral pursuant to a public or private sale or a sale of any of the Collateral pursuant to Section 363 of the Bankruptcy Code (or an equivalent process in any foreign jurisdiction), the Administrative Agent or any Lender may be the purchaser of any or all of such Collateral at any such sale and the Administrative Agent, as agent for and representative of the Lenders (but not any Lender or Lenders in its or their respective individual capacities unless the Required Lenders shall otherwise agree in writing) shall be entitled, with the consent or at the direction of the Required Lenders, for the purpose of bidding and making settlement or payment of the purchase price for all or any portion of the Collateral sold at any such sale, to use and apply any of the Obligations as a credit on account of the purchase price for any Collateral payable by the Administrative Agent at such salehereunder.
Appears in 1 contract
Sources: Pledge and Security Agreement (Easton-Bell Sports, Inc.)
Collateral Agent. The Administrative (1) Each Noteholder, by its acceptance of the Indenture, and each Authorized Representative of any Additional Secured Creditors on behalf of itself and the Additional Secured Creditors that it represents, by its execution of an Additional Secured Creditor Joinder, has appointed, and each other Secured Creditor, by accepting the benefits hereof, hereby appoints, BNY Trust Company of Canada to serve as Collateral Agent shall also act as and representative of itself and any other Secured Creditors that it represents under each of the “collateral agent” under the Loan Security Documents, and each of the Lenders (including in its capacities as a potential Qualified Counterparty and a potential Cash Management Provider) and the Issuing Lenders hereby irrevocably appoints and authorizes the Administrative Collateral Agent to act as agent for itself and such Secured Creditors for the agent purpose of executing and delivering, on behalf of itself and such Lender and the Issuing Lenders (with the full power to appoint and to substitute and to delegate) on its behalfSecured Creditors, or in its own name as joint and several creditor or creditor of a parallel debt (as the case may be) for purposes of acquiring, holding and enforcing any and all Liens on Collateral granted by any each of the Loan Parties to secure Security Documents and any of other documents or instruments related thereto or necessary or, as determined by the Obligations, together with such powers and discretion as are reasonably incidental thereto. In this connection, the Administrative Collateral Agent, as “collateral agent” and any co-agentsdesirable to perfect the Liens granted to the Collateral Agent thereunder, sub-agents and attorneys-in-fact appointed by for the Administrative Agent pursuant to Section 10.5 for purposes purpose of holding or enforcing any Lien the Liens on the Collateral (or any portion thereof) granted pursuant to the Security Documents, and, subject to the provisions of this Agreement, for the purpose of enforcing its and such Secured Creditors’ rights in respect of the Collateral and the obligations of the Obligors under the Security Documents, and for the purpose of, or for in connection with, releasing the obligations of the Obligors under the Security Documents. The Collateral Agent hereby agrees that it shall so act as Collateral Agent and representative of the Secured Creditors subject to, in respect of any Additional Secured Creditors, compliance by the Authorized Representative on behalf of such Additional Secured Creditors with Section 5.16. The Collateral Agent shall have the sole authority to exercise remedies under the Security Documents. The Collateral Agent shall have the right hereunder to make demands, to give notices, to exercise or refrain from exercising any rights rights, and remedies thereunder at to take or refrain from taking action (including the direction release or substitution of the Administrative AgentCollateral), in accordance with the Secured Agreements. The Collateral Agent may resign, may be removed and a successor Collateral Agent may be appointed in the manner provided under Section 5.20.
(2) The Collateral Agent shall be deemed to have exercised reasonable care in the custody and preservation of the Collateral in its possession if such Collateral is accorded treatment substantially equivalent to that which a reasonable person accords his own property consisting of similar property, instruments or interests, it being understood that neither the Collateral Agent nor any of the Secured Creditors shall have responsibility for (i) ascertaining or taking action with respect to calls, conversions, exchanges, maturities, tenders or other matters relating to any Securities Collateral, whether or not the Collateral Agent or any other Secured Creditor has or is deemed to have knowledge of such matters or (ii) taking any necessary steps to preserve rights against any person with respect to any Collateral.
(3) The Collateral Agent shall be entitled to rely upon any written notice, statement, certificate, order or other document or any telephone message believed by it to be genuine and correct and to have been signed, sent or made by the benefits of all provisions of this Section 10 and Section 11proper person, as though such co-agentsand, sub-agents and attorneys-in-fact were the “collateral agent” under the Loan Documents as if set forth in full herein with respect thereto. Without limiting the generality of the foregoing, the Lenders hereby expressly authorize the Administrative Agent on its behalf and/or in its own name (including under any parallel debt) to execute any and all documents (including releases) with respect to all matters pertaining to the Secured Agreements and its duties thereunder, upon advice of counsel selected by it (who may be counsel to one or more of the Obligors). The Collateral Agent shall not be deemed to have actual, constructive, direct or indirect knowledge or notice of the occurrence of any Default or Event of Default unless and until the Collateral Agent has received written notice from a Secured Creditor, the Issuers or an Obligor referring to the applicable Secured Agreement, describing such Default or Event of Default and stating that it is a “notice of default” or a “notice of event of default”, setting forth in reasonable detail the facts and circumstances thereof and stating that the Collateral Agent may rely on such notice without further inquiry. The Collateral Agent shall have no obligation or duty prior to or after receiving any such notice to inquire whether a Default or Event of Default has in fact occurred and shall be entitled to conclusively rely, and shall be fully protected in so relying, on any such notice furnished to it.
(4) If any item of Collateral also constitutes collateral granted to the Collateral Agent under any other deed of trust, mortgage, security agreement, pledge or instrument of any type, in the event of any conflict between the provisions hereof and the rights provisions of such other deed of trust, mortgage, security agreement, pledge or instrument of any type in respect of such collateral, the terms of this Agreement shall apply.
(5) Notwithstanding anything to the contrary contained herein, the Collateral Agent is authorized, but not obligated, (i) to take any action reasonably required to perfect or continue the perfection of the liens on the Collateral for the benefit of the Secured Parties with respect Creditors and (ii) when instructions from the Authorized Representatives on behalf of the applicable Secured Creditors have been requested by the Collateral Agent but have not yet been received, to take any action which the Collateral Agent, in good faith, believes to be reasonably required to promote and protect the interests of the Secured Creditors in the Collateral; provided that once instructions have been received, the actions of the Collateral Agent shall be governed thereby and the Collateral Agent shall not take any further action which would be contrary thereto.
(6) Notwithstanding anything to the contrary contained herein or in any Security Document, as contemplated by the Collateral Agent shall not be required to take or refrain from taking, and shall have no liability to any Secured Creditor for taking or refraining from taking, any action that exposes or, in the good faith judgment of the Collateral Agent may expose, the Collateral Agent or its officers, directors, agents or employees to personal liability, unless the Collateral Agent shall be adequately indemnified, or that is, or in the good faith judgment of the Collateral Agent may be, contrary to any Security Document, any other Secured Agreement or applicable law. Upon receipt of such indemnity, however, the Collateral Agent shall act upon the specific instructions of the Authorized Representatives provided in accordance with the provisions of this Agreement, except for any instructions that in the good faith judgment of the Collateral Agent may be contrary to any Security Document, any other Secured Agreement or applicable law.
(7) For purposes of this Agreement and other Security Documents, each Secured Creditor shall appoint a Person as its Authorized Representative for the purpose of giving or delivering any notices or instructions hereunder and thereunder. Any instructions given by the Authorized Representatives (other than the Trustee) on behalf of the applicable Secured Creditors to the Collateral Agent pursuant to the Security Documents shall be in writing signed by the Authorized Representative(s) of the applicable Secured Creditors with respect to such instructions and acknowledge such instructions shall certify to and agree for the benefit of the Collateral Agent the outstanding aggregate principal amount (or, in the case of discount notes, accreted value) of all Secured Obligations that the Secured Creditors authorizing such instructions hold. In determining whether the applicable Secured Creditors have consented to any action under the Security Documents, the Collateral Agent may conclusively rely on each Authorized Representative as to the amount of Secured Obligations held by holders represented by such action by any Authorized Representative. The Collateral Agent shall bind be entitled to conclusively and absolutely rely on such instructions and certification as to the Lenders. Each Lender agrees that it identity of the applicable Secured Creditors with respect to such instructions, and the Collateral Agent shall not be required to take any action, and shall not be liable to any Secured Creditor for failing or institute refusing to act, pursuant to any actions instructions which are not given or proceedingsdelivered by the Authorized Representatives of various Secured Creditors comprising the applicable Secured Creditors as required by Section 3.11.
(8) Each Obligor acknowledges that the rights and responsibilities of the Collateral Agent under this Agreement with respect to any action taken by the Collateral Agent or the exercise or nonexercise by the Collateral Agent of any option, judicial voting right, request, judgment or otherwise, for any other right or remedy provided for herein or resulting or arising out of this Agreement shall, as between the Collateral Agent and the other Secured Creditors, be governed by the provisions of this Agreement and by such other agreements with respect thereto as may exist from time to time among them, but, as between the Collateral Agent and the Obligors, the Collateral Agent shall be conclusively presumed to be acting as agent for the Collateral Agent and the other Secured Creditors with full and valid authority so to act or refrain from acting, and no Obligor shall be under any obligation, or entitlement, to make any inquiry respecting such authority.
(9) Subject to Section 5.18(6), neither the Collateral Agent nor any of its 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 Obligor or 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 interests of the Collateral Agent in the Collateral and, subject to Section 5.18(6), shall not impose any duty upon the Collateral Agent to exercise any such powers. The Collateral Agent shall be accountable only for amounts that it actually receives as a result of the exercise of such powers, and neither it nor any of its officers, directors, employees or agents shall have any duty or liability or be responsible to any Obligor for any act or failure to act hereunder, except for its own gross negligence or willful misconduct. The Collateral Agent shall have no duty or liability as to the taking of any necessary steps to preserve or protect the Collateral or to preserve rights against prior parties. Nothing contained in this Agreement shall be construed as requiring or obligating the Collateral Agent, and the Collateral Agent shall not be required or obligated, to (i) present or file any claim or notice or take any action with respect to any Collateral against or in connection therewith or (ii) notify any Borrower Obligor of any decline in the value of any Collateral. The Collateral Agent shall have no duty as to the collection of any Collateral in its possession or control or in the possession or control of any agent or nominee of the Collateral Agent, or any income thereon or any other Loan Party or any other obligor under any rights pertaining thereto.
(10) No provision of the Loan DocumentsSecured Agreements shall be deemed to impose any duty or obligation on the Collateral Agent to perform any act or acts, Specified Swap Agreements receive or obtain any Specified Cash Management Agreement interest in property or exercise any interest in property, or exercise any right, power, duty or obligation conferred or imposed on it in any jurisdiction in which it shall be illegal, or in which the Collateral Agent shall be unqualified or incompetent in accordance with applicable law, to perform any such act or acts, to receive or obtain any such interest in property or to exercise any such right, power, duty or obligation; and no permissive or discretionary power or authority available to the Collateral Agent shall be construed to be a duty.
(including11) The Collateral Agent shall have the right hereunder to make demands, to give notices, to exercise or refrain from exercising any rights, and to take or refrain from taking action (including the release or substitution of Collateral), in each casecase in accordance with the Secured Agreements.
(12) Upon resignation of the Collateral Agent in accordance with the terms of Section 5.20, the Collateral Agent shall thereupon be discharged from its duties and obligations under the Secured Agreements. Following the resignation of the Collateral Agent, the provisions of the Secured Agreements shall inure to its benefit as to any actions taken or omitted to be taken by it under the Secured Agreements while it was the Collateral Agent.
(13) The Collateral Agent shall not have any liability hereunder except for its own gross negligence or willful misconduct, or material breach and under no circumstances shall the Collateral Agent be liable for any special, punitive, exemplary or consequential damages.
(14) The Collateral Agent shall be vested with all of the rights, powers, benefits, privileges and protections of the Collateral Agent set forth in the Indenture, all of which are incorporated herein and shall apply to all of the Security Documents.
(15) The Collateral Agent may perform any and all of its duties and exercise its rights and powers hereunder or under any other Indenture Document by or through, or delegate any and all such rights and powers to, any one or more sub-agents appointed by such Agent, including a sub-agent which is a non-U.S. affiliate of the Collateral Agent. Except as otherwise provided in this Section 5.18, neither the Collateral Agent nor any of its respective officers, directors, employees, attorney or agents will be responsible or liable for the existence, genuineness, value or protection of any Collateral, for the legality, enforceability, effectiveness or sufficiency of the Security Documents, for the creation, perfection, priority, sufficiency or protection of any Lien securing the First Lien Obligations, or for any defect or deficiency as to any such matters, or for any failure to demand, collect, foreclose or realize upon or otherwise enforce any such Liens or Security Documents or any delay in doing so provided that if instructed by the Required Secured Creditors in accordance with the provisions of the Security Documents, the Collateral Agent (subject to receipt of an indemnity requested by it and acceptable to it and any other applicable provisions of the Security Documents) shall comply with instructions from such Required Secured Creditors. 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 provisions of this Section 5.18 shall apply to any agent, attorneys-in-fact or sub-agent and to the Affiliates of the Collateral Agent and any such agent, attorneys-in-fact or sub-agent, and shall apply to their respective activities in connection with the exercise of any right of setoff, the rights on account of any banker’s lien or similar claim or other rights of self-help), or institute any actions or proceedings, or otherwise commence any remedial procedures, with respect to any Collateral of any Borrower or any other Loan Party, without the prior written consent of the Administrative Agent. In the event of a foreclosure by the Administrative Agent on any and remedies of the Collateral pursuant to a public or private sale or a sale of any of the Collateral pursuant to Section 363 of the Bankruptcy Code (or an equivalent process in any foreign jurisdiction), the Administrative Agent or any Lender may be the purchaser of any or all of such Collateral at any such sale and the Administrative Agentprovided for hereunder, as agent for and representative of the Lenders (but not any Lender or Lenders in its or their respective individual capacities unless the Required Lenders shall otherwise agree in writing) shall be entitled, with the consent or at the direction of the Required Lenders, for the purpose of bidding and making settlement or payment of the purchase price for well as all or any portion of the other activities as Collateral sold at any such sale, to use and apply any of the Obligations as a credit on account of the purchase price for any Collateral payable by the Administrative Agent at such saleAgent.
Appears in 1 contract
Collateral Agent. The May File Proofs of Claim TC " SECTION 9. Administrative Agent shall also act as the “collateral agent” under the Loan Documents, and each May File Proofs of Claim " \f C \l " 2 " . In case of the Lenders (including in its capacities as a potential Qualified Counterparty and a potential Cash Management Provider) and the Issuing Lenders hereby irrevocably appoints and authorizes the Administrative Agent pendency of any proceeding under any Debtor Relief Law or any other judicial proceeding relative to act as the agent of such Lender and the Issuing Lenders (with the full power to appoint and to substitute and to delegate) on its behalf, or in its own name as joint and several creditor or creditor of a parallel debt (as the case may be) for purposes of acquiring, holding and enforcing any and all Liens on Collateral granted by any of the Loan Parties to secure any of the Obligations, together with such powers and discretion as are reasonably incidental thereto. In this connectionParty, the Administrative Agent, Collateral Agent (irrespective of whether the principal of any Loan or Letter of Credit Obligation shall then be due and payable as “collateral agent” herein expressed or by declaration or otherwise and irrespective of whether any co-agents, sub-agents and attorneys-in-fact appointed by the Administrative Agent pursuant to Section 10.5 for purposes of holding or enforcing shall have made any Lien demand on the Collateral (or any portion thereofBorrowers) granted under the Security Documents, or for exercising any rights and remedies thereunder at the direction of the Administrative Agent, shall be entitled and empowered (but not obligated) by intervention in such proceeding or otherwise:
(a) to file and prove a claim for the benefits of all provisions of this Section 10 and Section 11, as though such co-agents, sub-agents and attorneys-in-fact were the “collateral agent” under the Loan Documents as if set forth in full herein with respect thereto. Without limiting the generality whole amount of the foregoingprincipal and interest owing and unpaid in respect of the Loans, the Lenders hereby expressly authorize the Administrative Agent on its behalf and/or in its own name (including under any parallel debt) to execute any Letter of Credit Obligations and all other Obligations that are owing and unpaid and to file such other documents (including releases) with respect as may be necessary or advisable in order to have the Collateral and the rights claims of the Secured Parties with respect thereto(including any claim for the compensation, as contemplated by expenses, disbursements and advances of the Secured Parties and their respective agents and counsel and all other amounts due the Secured Parties hereunder and under the other Loan Documents) allowed in accordance with the provisions of this Agreement such judicial proceeding; and
(b) to collect and the Security Documents and acknowledge and agree that receive any monies or other property payable or deliverable on any such action claims and to distribute the same; and any receiver, receiver and manager, custodian, conservator, trustee, administrator, liquidator, monitor, assignee for the benefit of creditors, sequestrator or other similar official in any such judicial proceeding is hereby authorized by any each Secured Party to make such payments to the Collateral Agent and, in the event that the Collateral Agent shall bind consent to the Lenders. Each Lender agrees that it shall not take or institute making of such payments directly to the Secured Parties, to pay to the Collateral Agent any actions or proceedingsamount due for the reasonable compensation, judicial or otherwiseexpenses, for any right or remedy with respect to any Collateral against any Borrower or any other Loan Party or any other obligor under any of the Loan Documents, Specified Swap Agreements or any Specified Cash Management Agreement (including, in each case, the exercise of any right of setoff, rights on account of any banker’s lien or similar claim or other rights of self-help), or institute any actions or proceedings, or otherwise commence any remedial procedures, with respect to any Collateral of any Borrower or any other Loan Party, without the prior written consent of the Administrative Agent. In the event of a foreclosure by the Administrative Agent on any disbursements and advances of the Collateral pursuant to a public or private sale or a sale of Agent and its agents and counsel, and any of other amounts due the Collateral pursuant to Section 363 of Agent hereunder and under the Bankruptcy Code (or an equivalent process in any foreign jurisdiction), the Administrative Agent or any Lender may be the purchaser of any or all of such Collateral at any such sale and the Administrative Agent, as agent for and representative of the Lenders (but not any Lender or Lenders in its or their respective individual capacities unless the Required Lenders shall otherwise agree in writing) shall be entitled, with the consent or at the direction of the Required Lenders, for the purpose of bidding and making settlement or payment of the purchase price for all or any portion of the Collateral sold at any such sale, to use and apply any of the Obligations as a credit on account of the purchase price for any Collateral payable by the Administrative Agent at such saleother Loan Documents.
Appears in 1 contract
Collateral Agent. The (a) Representative (on behalf of Holders), Administrative Agent shall also (on behalf of Lenders), and RHINOS Holders appoint Bank of America, N.A. as Collateral Agent to serve as nominee and agent for Holders, Lenders, and RHINOS Holders and to act in their names and on their behalf in and under this Charge and with respect to the Security Assets in accordance with this Clause 25. Collateral Agent accepts such appointment. Collateral Agent is hereby specifically authorized by Holders, Lenders, and RHINOS Holders:
(i) to enter into this Charge on behalf of Holders, Lenders, and RHINOS Holders and to act as Holders', Lenders', and RHINOS Holders' nominee and on Holders', Lenders', and RHINOS Holders' behalf in and under this Charge;
(ii) to hold the “collateral agent” under Security Assets and proceeds therefrom ever delivered to, or received by, Collateral Agent to secure the Loan DocumentsSecured Obligations, as agent and bailee for each Holder, each Lender, and each RHINOS Holder for all purposes;
(iii) to take such action with respect this Charge and the Security Assets (including, without limitation, the exercise of any remedies hereunder or the release of all or any part of the Lenders (including in its capacities Security Assets), as a potential Qualified Counterparty and a potential Cash Management Provider) and the Issuing Lenders hereby irrevocably appoints and authorizes directed by the Administrative Agent without the consent or approval of any Holder or any RHINOS Holder;
(iv) to act as receive all documents and items to be furnished to Holders, Lenders, and RHINOS Holders under this Charge;
(v) to be the agent secured party, mortgagee, beneficiary, recipient, chargee, and similar party in respect of such Lender the Security Assets for the benefit of Holders, Lenders, and the Issuing Lenders RHINOS Holders;
(vi) to promptly distribute to Representative and Administrative Agent all material information, requests, documents, and items received from Chargor under this Charge;
(vii) to promptly distribute (in accordance with the full power application of payment provided in this Charge) to appoint and Representative (for the benefit of Holders), to substitute and to delegate) on its behalfAdministrative Agent (for the benefit of Lenders), or in its own name as joint and several creditor or creditor of a parallel debt (to RHINOS Holders, as the case may be) for purposes of acquiring, holding and enforcing any and all Liens on Collateral granted by any proceeds of the Loan Parties Security Assets;
(viii) to secure take any action that may be necessary to perfect and maintain the perfection and priority of the ObligationsHolders', together with Lenders', and RHINOS Holders' liens in and to the Security Assets; and
(ix) to exercise such additional powers and discretion as are reasonably incidental theretoto the performance of the foregoing. In However, Collateral Agent may not be required to take any action that exposes it to personal liability or that is contrary to any agreement or applicable law.
(b) Collateral Agent may perform any of its duties or exercise any of its rights hereunder by or through its affiliates and representatives. Collateral Agent (and its representatives)
(a) is entitled to rely upon (and shall be protected in relying upon) any written or oral statement believed by it or them to be genuine and correct and to have been signed or made by the proper Person and, with respect to legal matters, upon opinion of counsel it has selected, (b) is not deemed to have notice of the occurrence of an Event of Default unless a responsible officer of Collateral Agent who handles matters associated with the Loan Documents and transactions thereunder, has actual knowledge or has been notified by Representative or Administrative Agent, and (d) is entitled to consult with legal counsel (including counsel for MRM), independent accountants, and other experts it has selected and is not liable for any action taken or not taken in good faith by it in accordance with the advice of counsel, accountants, or experts.
(c) Neither Collateral Agent nor any of its affiliates or representatives will be liable for any action taken or omitted to be taken by it or them under this connectionCharge in good faith and believed by it or them to be within the discretion or power conferred upon it or them by this Charge or be responsible for the consequences of any error of judgment (except for fraud, gross negligence, or willful misconduct), and neither Collateral Agent nor any of its affiliates or representatives has a fiduciary relationship with any Holder, any Lender, or any RHINOS Holder by virtue of this Charge. Except as otherwise expressly set forth in this Clause 25, Collateral Agent shall not be responsible in any manner to any Holder, any Lender, or any RHINOS Holder for the effectiveness, enforceability, genuineness, validity, or the due execution of this Charge or for any representation, warranty, document, certificate, report, or statement made therein or furnished under or in connection therewith, or be under any obligation to any Holder, any Lender, or any RHINOS Holder to ascertain or to inquire as to the performance or observation of any of the terms, covenants, or conditions of this Charge on the part of any party hereto other than Collateral Agent.
(d) Unless indemnified to its satisfaction against loss, cost, liability, and expense, Collateral Agent may not be compelled to do any act under this Charge or to take any action toward the execution or enforcement of the powers hereby created or to prosecute or defend any suit in respect of this Charge. If Collateral Agent requests instructions from Representative or Administrative Agent, as “collateral agent” the case may be, with respect to any act or action in connection with this Charge, Collateral Agent is entitled to refrain (without incurring any liability to any Person by so refraining) from that act or action unless and any co-agentsuntil it has received instructions. In no event, sub-agents and attorneys-in-fact appointed by the Administrative however, may Collateral Agent pursuant to Section 10.5 for purposes of holding or enforcing any Lien on the Collateral (or any portion thereof) granted under the Security Documents, of its representatives be required to take any action that it or they determine could incur for exercising any rights and remedies thereunder at the direction of the Administrative Agent, shall be entitled to the benefits of all provisions of this Section 10 and Section 11, as though such co-agents, sub-agents and attorneys-in-fact were the “collateral agent” under the Loan Documents as if set forth in full herein with respect theretoit or them criminal or onerous civil liability. Without limiting the generality of the foregoing, the Lenders hereby expressly authorize the Administrative no Holder, Lender, or RHINOS Holder has any right of action against Collateral Agent on its behalf and/or in its own name (including as a result of Collateral Agent's acting or refraining from acting under any parallel debt) to execute any and all documents (including releases) with respect to the Collateral and the rights of the Secured Parties with respect thereto, as contemplated by and this Clause 25 in accordance with the provisions instructions of this Agreement and the Security Documents and acknowledge and agree that any such action by any Agent shall bind the Lenders. Each Lender agrees that it shall not take Representative or institute any actions or proceedings, judicial or otherwise, for any right or remedy with respect to any Collateral against any Borrower or any other Loan Party or any other obligor under any of the Loan Documents, Specified Swap Agreements or any Specified Cash Management Agreement (including, in each case, the exercise of any right of setoff, rights on account of any banker’s lien or similar claim or other rights of self-help), or institute any actions or proceedings, or otherwise commence any remedial procedures, with respect to any Collateral of any Borrower or any other Loan Party, without the prior written consent of the Administrative Agent. In the event of a foreclosure by the Administrative Agent on any of the Collateral pursuant to a public or private sale or a sale of any of the Collateral pursuant to Section 363 of the Bankruptcy Code (or an equivalent process in any foreign jurisdiction), the Administrative Agent or any Lender may be the purchaser of any or all of such Collateral at any such sale and the Administrative Agent, as agent for the case may be.
(e) Each Holder, each Lender, and representative each RHINOS Holder agrees to indemnify Collateral Agent and its Affiliates and Representatives and hold them harmless from and against (but limited to such Holder's, Lender's, and RHINOS Holder's Proportionate Part thereof) any and all liabilities, obligations, losses, damages, penalties, actions, judgments, suits, costs, reasonable expenses, and reasonable disbursements of any kind or nature whatsoever that may be imposed on, asserted against, or incurred by them in any way relating to or arising out of this Charge, or any action taken or omitted by them under this Charge (including any of the Lenders (but foregoing arising from the negligence of Collateral Agent, its Affiliates or representatives) if Collateral Agent and its Representatives are not any Lender or Lenders in reimbursed for such amounts by Chargor; provided that, Collateral Agent, its Affiliates, and representatives shall not have the right to be indemnified for its or their respective individual capacities unless the Required Lenders shall otherwise agree in writing) shall be entitledown fraud, with the consent gross negligence, or at the direction of the Required Lenders, for the purpose of bidding and making settlement or payment of the purchase price for all or any portion of the Collateral sold at any such sale, to use and apply any of the Obligations as a credit on account of the purchase price for any Collateral payable by the Administrative Agent at such salewillful misconduct.
Appears in 1 contract
Collateral Agent. The Administrative (a) Each Holder hereby irrevocably designates and appoints the Collateral Agent shall also act as the “collateral agent” agent under this Agreement and the Loan other Note Documents, and each such Holder irrevocably authorizes the Collateral Agent, in such capacity, to take such action on its behalf under the provisions of this Agreement and the other Note Documents and to exercise such powers and perform such duties as are expressly delegated to the Collateral Agent by the terms of this Agreement and the other Note Documents, together with such other powers as are reasonably incidental thereto. Notwithstanding any provision to the contrary elsewhere in this Agreement, the Collateral Agent shall not have any duties or responsibilities, except those expressly set forth herein or in the other Note Documents, or any fiduciary relationship with any Holder, and no implied covenants, functions, responsibilities, duties, obligations or liabilities shall be read into this Agreement or the other Note Documents or otherwise exist against the Collateral Agent.
(b) In furtherance of the Lenders (including in its capacities as a potential Qualified Counterparty and a potential Cash Management Provider) and the Issuing Lenders foregoing, each Holder hereby irrevocably appoints and authorizes the Administrative Collateral Agent to act as the agent of such Lender and the Issuing Lenders (with the full power to appoint and to substitute and to delegate) on its behalf, or in its own name as joint and several creditor or creditor of a parallel debt (as the case may be) Holder for purposes of acquiring, holding and enforcing any and all Liens on Collateral granted by any of the Loan Parties Grantors to secure any of the Obligationsobligations owing under this Agreement or the other Note Documents, together with such powers and discretion as are reasonably incidental thereto. In this connection, the Administrative Agent, as “collateral agent” Collateral Agent shall be entitled to the benefits of this Section 10.3.
(c) The Collateral Agent may execute any of its duties under this Agreement and any co-agents, sub-agents and attorneys-in-fact appointed by the Administrative Agent pursuant to Section 10.5 other Note Documents (including for purposes of holding or enforcing any Lien on the Collateral (or any portion thereof)) granted under by or through agents, employees or attorneys-in-fact and shall be entitled to advice of counsel and other consultants or experts concerning all matters pertaining to such duties. The Collateral Agent shall not be responsible for the Security Documentsnegligence or misconduct of any agents or attorneys-in-fact selected by it with reasonable care. The Collateral Agent may also from time to time, when it deems it to be necessary or for exercising desirable, appoint one or more trustees, co-trustees, collateral co-agents, collateral subagents or attorneys-in-fact (each, a "Subagent") with respect to all or any rights and remedies thereunder at the direction part of the Administrative Agent, Collateral and each Subagent shall be entitled to the benefits of all provisions of this Section 10 and Section 11, 10.3 as though such coSubagent was the Collateral Agent; provided, that no such Subagent shall be authorized to take any action with respect to any Collateral unless and except to the extent expressly authorized in writing by the Collateral Agent. Should any instrument in writing from the Issuer or any Subsidiary be required by any Subagent so appointed by the Collateral Agent to more fully or certainly vest in and confirm to such Subagent such rights, powers, privileges and duties, the Issuer shall, or shall cause such Subsidiary to, execute, acknowledge and deliver any and all such instruments promptly upon request by the Collateral Agent. If any Subagent, or successor thereto, shall become incapable of acting, resign or be removed, all rights, powers, privileges and duties of such Subagent, to the extent permitted by law, shall automatically vest in and be exercised by the Collateral Agent until the appointment of a new Subagent.
(d) The Collateral Agent shall not be responsible for the negligence or misconduct of any agent, attorney-in-fact or Subagent that it selects with reasonable care. The Collateral Agent shall not, and neither shall any of its Affiliates or any of their respective officers, directors, employees, agents, sub-agents and attorneys-in-fact were or affiliates be (i) liable for any action lawfully taken or omitted to be taken by it or such person under or in connection with this Agreement or any other Note Document (except to the “collateral agent” extent that any of the foregoing are found by a final and nonappealable decision of a court of competent jurisdiction to have resulted from its or such person's own gross negligence, willful misconduct or bad faith) or (ii) responsible in any manner to any holder of the Notes for any recitals, statements, representations or warranties made by the Issuer or any Subsidiary or any officer thereof contained in this Agreement or any other Note Document 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 other Note Document or for the Loan Documents value, validity, effectiveness, genuineness, enforceability or sufficiency of this Agreement or any other Note Document or for any failure of the Issuer or any Subsidiary a party thereto to perform its obligations hereunder or thereunder. The Collateral Agent shall not be under any obligation to any Holder to ascertain or to inquire as if to the observance or performance of any of the agreements contained in, or conditions of, this Agreement or any other Note Document, or to inspect the properties, books or records of the Issuer or any Subsidiary. The Collateral Agent shall not have any duties or obligations except those expressly set forth herein and in full herein with respect theretothe other Note Documents. Without limiting the generality of the foregoing, (i) the Lenders Collateral Agent shall not be subject to any fiduciary or other implied duties, regardless of whether a Default or Event of Default has occurred and is continuing, and (ii) the Collateral Agent shall not, except as expressly set forth herein and in the other Note 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 Collateral Agent or any of its Affiliates in any capacity. Without limiting the generality of clause (i) of the previous sentence, the use of the term "agent" herein and in the other Note Documents with reference to Collateral Agent is not intended to connote any fiduciary or other implied (or express) obligations arising under agency doctrine of any Applicable Law and 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 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 expressly authorize or by the Administrative other Note Documents that the Collateral Agent on its behalf and/or is required to exercise as directed in writing by the Majority Holders; provided that the Collateral Agent shall not be required to take any action that, in its own name opinion or the opinion of its counsel, may expose the Collateral Agent to liability or that is contrary to any Note Document or Applicable Law. The Collateral Agent shall not be responsible for or have any duty to ascertain or inquire into (including under i) any parallel debtstatement, warranty or representation made in or in connection with this Agreement or any other Note Document, (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 the occurrence of any Default or Event of Default, (iv) the validity, enforceability, effectiveness or genuineness of this Agreement, any other Note Document or any other agreement, instrument or document, or the creation, perfection or priority of any Lien purported to execute be created by the Note Documents, (v) the value or the sufficiency of any and all documents Collateral, (including releasesvi) the satisfaction of any condition set forth in Article 5 or elsewhere herein, other than to confirm receipt of items expressly required to be delivered to the Collateral Agent, (vii) the financial condition or business affairs of the Issuer, any Guarantor or any other Person liable for the payment of any Obligations, or (viii) the use of the proceeds of the Notes. The Collateral Agent shall not be responsible for or have any duty to (i) inspect the properties, books or records of the Issuer or any Guarantor or any of their respective Affiliates, (ii) file any financing statements or any continuation and/or amendment of any financing statements, in each case to perfect or continue the perfection of the Liens in the Collateral; or (iii) make any disclosures with respect to the foregoing or otherwise relating to the Issuer or any Guarantor unless expressly required herein.
(e) The Collateral Agent shall be entitled to rely upon, and shall not incur any liability for relying upon, any notice, request, certificate, consent, statement, instrument, document or other writing (including any electronic message, Internet or intranet website posting or other distribution) or conversation believed by it to be genuine and to have been signed, sent or otherwise authenticated by the rights of proper person. The Collateral Agent also may rely upon any statement made to it orally or by telephone and believed by it to have been made by the Secured Parties proper person, and shall not incur any liability for relying thereon. The Collateral Agent may consult with respect theretolegal counsel (including counsel to the Issuer), as contemplated independent accountants and other experts selected by it, and shall not be liable for any action taken or not taken by it in accordance with the provisions advice of any such counsel, accountants or experts. The Collateral Agent may request (i) instructions from the Majority Holders prior to taking any action or entering into any amendment, modification or supplement, making any determination, making any calculation, sending any notice, revoking any notice, making a selection, request, election or appointment (including failing to make a selection, request, election or appointment), exercising any voting rights or powers (including failing to exercise any voting rights or powers), exercising any rights or remedies (and all actions incidental or related thereto), releasing, subordinating and/or terminating any Lien, exercising any powers as the attorney-in-fact for the Issuer or any Guarantor, providing any consent, approval, instruction or direction (including failing to provide any consent, approval, instruction or direction) or making (or failing to make) any filing or recording in connection with this Agreement or any of the other Note Documents, and may refrain (and shall incur no liability from so refraining) from taking or omitting to take any act or making any such determination, calculation, selection request, exercising such voting rights or powers or providing such notice, approval or consent or entering into any amendments, modification or supplements until it receives such instruction (or calculation, as applicable) from the Majority Holders and (ii) such indemnity from the Holders, in each case, as it deems appropriate (and until such instructions and indemnity, as applicable, are received, the Collateral Agent shall act, or refrain from acting, as it deems advisable in its sole discretion) and the Collateral Agent shall not incur liability to any Holders, the Issuer or any Guarantor by reason of so refraining. The Collateral Agent shall be fully justified in acting or in failing or refusing to take any action under this Agreement or any other Note Document unless it shall first (a) receive such written instruction of the Majority Holders as it deems appropriate and (b) if so determined by the Collateral Agent in its sole discretion, be indemnified to its satisfaction by the Holders against any and all liability and expense that may be incurred by it by reason of taking or continuing to take any such action. The Collateral Agent shall in all cases be fully protected in acting, or in refraining from acting, under this Agreement and the other Note Documents in accordance with a written instruction of the Majority Holders (or, if so specified by this Agreement, all affected Holders), and such request and any action taken or failure to act pursuant thereto shall be binding upon all of the Holders.
(f) The Collateral Agent shall not be deemed to have knowledge or notice of the occurrence of any Default or Event of Default unless the Collateral Agent has received written notice from a Holder or the Issuer referring to this Agreement, describing such Default or Event of Default and stating that such notice is a "notice of default." In the event that the Collateral Agent receives such a notice, the Collateral Agent shall give notice thereof to the Holders. The Collateral Agent shall take such action with respect to such Default or Event of Default as shall be reasonably directed by the Majority Holders in writing; provided, that unless and until the Collateral Agent shall have received such directions, the Collateral Agent may (but shall not be obligated to) take such action, or refrain from taking such action, with respect to such Default or Event of Default as it shall deem advisable in the best interests of the Holders.
(g) Each Holder expressly acknowledges that neither the Collateral Agent nor any of its officers, directors, employees, agents, attorneys-in-fact or affiliates have made any representations or warranties to it and that no act by the Collateral Agent hereafter taken, including any review of the affairs of the Issuer or any Affiliate of the Issuer, shall be deemed to constitute any representation or warranty by the Collateral Agent to any Holder. Each Holder of a Note represents to the Collateral Agent that it has, independently and without reliance upon the Collateral Agent or any other Holder, and based on such documents and information as it has deemed appropriate, made its own appraisal of, and investigation into the business, operations, property, financial and other condition and creditworthiness of, the Issuer and its affiliates and made its own decision to purchase the Notes hereunder and enter into this Agreement. Each holder of a Note also represents that it will, independently and without reliance upon the Collateral Agent or any Holder, and based on such documents and information as it shall deem appropriate at the time, continue to make its own credit analysis, appraisals and decisions in taking or not taking action under this Agreement and the other Note Documents, and to make such investigation as it deems necessary to inform itself as to the business, operations, property, financial and other condition and creditworthiness of the Issuer and its Affiliates. Except for notices, reports and other documents expressly required to be furnished to the Holders by the Collateral Agent hereunder, the Collateral Agent shall not have any duty or responsibility to provide any Holder with any credit or other information concerning the business, operations, property, condition (financial or otherwise), prospects or creditworthiness of the Issuer or any Affiliate thereof that may come into the possession of the Collateral Agent or any of its officers, directors, employees, agents, attorneys-in-fact or affiliates.
(h) The Issuer agrees to pay or reimburse the Collateral Agent for all reasonable and documented out-of-pocket costs and expenses of the Collateral Agent (promptly following a written demand therefor, together with backup documentation supporting such reimbursement request) incurred in connection with the preparation, negotiation, execution, delivery and administration of this Agreement and the Security other Note Documents and acknowledge and agree that any such action by any Agent shall bind the Lenders. Each Lender agrees that it shall not take amendment, waiver, consent, forbearance, modification or institute any actions or proceedingsenforcement (whether through negotiations, judicial legal proceedings or otherwise, for any right or remedy with respect to any Collateral against any Borrower or any other Loan Party or any other obligor under any ) of the Loan Documentsprovisions hereof and thereof (whether or not the transactions contemplated thereby are consummated), Specified Swap Agreements or any Specified Cash Management Agreement (includingand the consummation and administration of the transactions contemplated hereby and thereby, including all reasonable and documented attorneys' fees, costs and expenses and, if necessary, a single local counsel in each caserelevant jurisdiction, and upon presentation of a summary statement, together with any supporting documentation reasonably requested by the exercise Issuer, to pay or reimburse the Collateral Agent, promptly following a written demand therefor for all reasonable and documented out-of-pocket costs and expenses incurred in connection with the enforcement of any right of setoff, rights on account of any banker’s lien or similar claim or other rights of self-help), or institute any actions or proceedings, or otherwise commence any remedial procedures, with respect to any Collateral of any Borrower or any other Loan Party, without the prior written consent of the Administrative Agent. In the event of a foreclosure by the Administrative Agent on any of the Collateral pursuant to a public or private sale or a sale of any of the Collateral pursuant to Section 363 of the Bankruptcy Code (or an equivalent process in any foreign jurisdiction), the Administrative Agent or any Lender may be the purchaser of any or all of such Collateral at any such sale and the Administrative Agent, as agent for and representative of the Lenders (but not any Lender or Lenders in its or their respective individual capacities unless the Required Lenders shall otherwise agree in writing) shall be entitled, with the consent or at the direction of the Required Lenders, for the purpose of bidding and making settlement or payment of the purchase price for all or any portion of the Collateral sold at any such sale, to use and apply any of the Obligations as a credit on account of the purchase price for any Collateral payable by the Administrative Agent at such sale.remedi
Appears in 1 contract
Sources: Note Purchase Agreement (Bioceres Crop Solutions Corp.)
Collateral Agent. The Administrative Agent shall also act (a) Pursuant to that certain Co-Origination Agreement dated January 28, 2008 by and among, inter alia, JPM and the other Initial Lenders, German American Capital Corporation or their predecessors (as amended from time to time, the “Co-Origination Agreement”), JPM and the other parties thereto agreed amongst themselves to extend the Original Loan to Borrower and accordingly, JPM, on behalf of itself and the Lenders or their predecessors party to the Co-Origination Agreement, entered into the Original Loan Agreement and the various loan documents contemplated thereby and has acted as the “collateral agent” under the Loan Documents, and each secured party of the Lenders (including in its capacities as a potential Qualified Counterparty and a potential Cash Management Provider) and the Issuing Lenders hereby irrevocably appoints and authorizes the Administrative Agent to act as the agent of such Lender and the Issuing Lenders (with the full power to appoint and to substitute and to delegate) on its behalf, or in its own name as joint and several creditor or creditor of a parallel debt (as the case may be) record for purposes of acquiringthe grants of security and collateral contained in the various Loan Documents.
(b) Each Lender hereby irrevocably (i) designates and appoints Bank of America, holding and enforcing any and all Liens on Collateral granted by any of the Loan Parties to secure any of the Obligations, together with such powers and discretion N.A. as are reasonably incidental thereto. In this connection, the Administrative Agent, as “collateral agent” and any co-agents, sub-agents and attorneys-in-fact appointed by the Administrative Agent pursuant to Section 10.5 for purposes of holding or enforcing any Lien on the Collateral (or any portion thereof) granted under the Security Documents, or for exercising any rights and remedies thereunder at the direction of the Administrative Agent, shall be entitled to the benefits of all provisions of this Section 10 and Section 11, as though such co-agents, sub-agents and attorneys-in-fact were the “collateral agent” under the Loan Documents as if set forth in full herein with respect thereto. Without limiting the generality of the foregoing, the Lenders hereby expressly authorize the Administrative Agent on its behalf and/or in its own name (including under any parallel debt) to execute any and all documents (including releases) with respect to the agreements and other documents listed on Schedule XXXIII (collectively, the “Collateral Loan Documents”), to act as secured party or other applicable named party (including, without limitation, as named insured and the rights loss payee) on behalf of the Secured Parties with respect theretoLenders, (ii) names the Collateral Agent as contemplated by a replacement secured party of record, and (iii) authorizes the Collateral Agent, in accordance with such capacity, to take such action on its behalf under the provisions of this Agreement and the Security other Loan Documents and acknowledge to exercise such powers and agree perform such duties (A) as are expressly delegated to the Collateral Agent by the terms of this Agreement and the other Loan Documents and (B) as are necessary to comply with any direction given to the Collateral Agent by the Servicer, together with such other powers as are reasonably incidental thereto, with respect to the Collateral Loan Documents. Collateral Agent hereby (1) accepts such designation and appointment, (2) agrees to act as a replacement secured party of record, (3) agrees to reasonably cooperate with the Servicer in the performance of its obligations and in acting upon the direction of the Servicer, and (4) agrees to take such actions on behalf of Lender and exercise such powers and perform such duties (i) as are expressly delegated to it by the terms of this Agreement and the other Loan Documents and (ii) as are necessary or advisable to comply with any direction given to the Collateral Agent by the Servicer, together with such other powers as are reasonably incidental thereto, with respect to the Collateral Loan Documents. Notwithstanding any provision to the contrary elsewhere in this Agreement, the Collateral Agent shall not have any duties or responsibilities except those expressly set forth herein or in the Collateral Loan Documents, or any fiduciary relationship with any Lender, and no implied covenants, functions, responsibilities, duties, obligations or liabilities shall be read into this Agreement or any other Loan Document or otherwise exist against the Collateral Agent. Collateral Agent may execute any of its duties under this Agreement and the other Loan Documents by or through agents or attorneys-in-fact and shall be entitled to advice of counsel concerning all matters pertaining to such duties. Collateral Agent shall not be responsible for the negligence or misconduct of any agents or attorneys-in-fact selected by it with reasonable care. Neither Collateral Agent nor any of its officers, directors, employees, agents or attorneys-in-fact shall be (a) liable for any action lawfully taken or omitted to be taken by it or such person under or in connection with this Agreement or any other Loan Document (except for its or such person’s own gross negligence or willful misconduct) or (b) responsible in any manner to any Lender for any recitals, statements, representations or warranties made by any Borrower herein or in any report, statement or other document referred to or provided for in, or received by such Collateral Agent under or in connection with, this Agreement or any other Loan Document or for the value, validity, effectiveness, genuineness, enforceability or sufficiency of this Agreement or any other Loan Document or for any failure of any Borrower to perform its obligations hereunder or thereunder. Collateral Agent shall be under no obligation to any Lender to ascertain or to inquire as to the observance or performance of any of the agreements contained in, or conditions of, this Agreement or any other Loan Document, or to inspect the properties, books or records of Borrower. Collateral Agent shall not be deemed to have knowledge or notice of the occurrence of any Default or Event of Default hereunder unless it shall have received notice from a Lender, Servicer or the Borrower referring to this Agreement, describing such Default or Event of Default and stating that such notice is a “notice of default.”
(c) Collateral Agent agrees that it will confirm receipt (in writing to each Lender) of any Collateral Loan Document that it receives (including following the recordation of any such action by any Collateral Loan Documents, from time to time) within ten (10) Business Days of the receipt of each such Collateral Loan Document (in each case). Collection Agent shall bind (or shall cause its designee to) review the LendersLoan Documents constituting the custodial file (as set forth on the closing checklist of Loan Documents to be delivered in connection with the origination of the amended and restated Loan on the Closing Date) and, within ten (10) Business Days of receipt thereof, deliver to the Lender a trust receipt, in compliance with that certain custodial arrangement between the Lender and Bank of America, N.A., as custodian, evidencing receipt of such Loan Documents, together with a schedule of exceptions to such receipt. The Collateral Agent (or its designee) shall continue to act as the custodian of the Loan Documents on behalf of Lender and shall comply with the terms and provisions of any existing custodial arrangement with the Lender with respect thereto.
(d) Collateral Agent, in its capacity as such, is a “representative” of each Lender within the meaning of the term “secured party” as defined in the New York Uniform Commercial Code. Each Lender authorizes the Collateral Agent to enter into each of the Collateral Loan Documents to which it is a party and to take all action contemplated in this Agreement and in such documents to be taken by the Collateral Agent. Each Lender agrees that it no Lender (other than the Collateral Agent, in its capacity as the Collateral Agent) shall not take or institute any actions or proceedings, judicial or otherwise, for any have the right or remedy with respect individually to seek to realize upon the security granted by any Collateral against any Borrower or any other Loan Party or any other obligor under any of the Loan DocumentsDocument, Specified Swap Agreements or any Specified Cash Management Agreement (including, in each case, the exercise of any right of setoff, it being understood and agreed that such rights on account of any banker’s lien or similar claim or other rights of self-help), or institute any actions or proceedings, or otherwise commence any remedial procedures, with respect to any Collateral of any Borrower or any other Loan Party, without the prior written consent of the Administrative Agent. In the event of a foreclosure and remedies may be exercised solely by the Administrative Collateral Agent on any (for the benefit of the Collateral pursuant to a public or private sale or a sale of any of the Collateral pursuant to Section 363 of the Bankruptcy Code (or an equivalent process in any foreign jurisdiction), the Administrative Agent or any Lender may be the purchaser of any or all of such Collateral at any such sale and the Administrative Agent, as agent for and representative of the Lenders (but not any Lender or Lenders in its or their respective individual capacities unless the Required Lenders shall otherwise agree in writingeach Lender) shall be entitled, with the consent or at the direction of the Required LendersServicer in accordance with the Collateral Loan Documents, any applicable Co-Lender Agreement and any applicable intercreditor or servicing agreements. In the event that any collateral is hereafter pledged by any person as collateral security for the purpose Debt, the Collateral Agent is hereby authorized, and hereby granted a power of bidding attorney, to execute and making settlement deliver on behalf of each Lender any Loan Documents necessary or payment of the purchase price for all or any portion appropriate to grant and perfect a first priority lien on such collateral in favor of the Collateral sold Agent for the benefit of Lender. Each Lender hereby authorizes the Collateral Agent to release any lien granted to or held by the Collateral Agent upon any collateral as permitted by, but only in accordance with, the direction of the Servicer and the express terms of this Agreement, the applicable Loan Document and the applicable provisions of the Co-Lender Agreement, if any. Upon request by the Collateral Agent at any such time, and in each case subject to the requirements and approvals required in the Co-Lender Agreement, if any, each Lender shall confirm in writing the Collateral Agent’s authority to release particular types or items of collateral pursuant to the provisions of this Agreement. Upon any sale, lease, transfer or other disposition of assets constituting collateral which is permitted pursuant to use the terms of any Loan Document or consented to in writing by the Lenders in accordance with the provisions of the Co-Lender Agreement, as applicable, and apply upon at least five (5) Business Days’ prior written request by the Borrower to the Collateral Agent, the Collateral Agent shall (and is hereby irrevocably authorized by each Lender to) execute such documents as may be necessary to evidence the release of the liens granted to the Collateral Agent for the benefit of Lender herein or pursuant hereto with respect to the collateral that was so sold or transferred; provided, however, that (i) the Collateral Agent shall not be required to execute any such document on terms which, in the Collateral Agent’s reasonable opinion, would expose the Collateral Agent to liability or create any obligation or entail any consequence other than the release of such liens without recourse or warranty, and (ii) such release shall not in any manner discharge, affect or impair the Debt or the secured obligations or any liens upon (or obligations of any Borrower in respect of) all interests retained by any Borrower, including (without limitation) the proceeds of the sale, all of which shall continue to constitute part of the collateral. Notwithstanding anything to the contrary contained herein or in any other Loan Document, the failure of Collateral Agent to take any action hereunder or under any other Loan Document shall not (a) be deemed to be a waiver of any term or condition of this Agreement or any of the Obligations as a credit on account other Loan Documents, or (b) adversely affect any rights of Lender hereunder or under any other Loan Document.
(e) The Collateral Agent (i) may resign at any time upon notice to each Lender, and (ii) may be removed at any time upon the decision of Lender made in accordance with the applicable provisions of the purchase price Co-Lender Agreement, if any. If the Collateral Agent shall resign or be removed, Lender shall have the right to select a replacement collateral agent in accordance with the Co-Lender Agreement, if any. Upon the replacement of the Collateral Agent, the Collateral Agent shall assign all of the liens upon and security interests in all collateral under the Collateral Loan Documents, and all right, title and interest of the Collateral Agent under all the Collateral Loan Documents, to the replacement Collateral Agent, without recourse to the Collateral Agent or any Lender and at the expense of Borrower. No resignation or removal of the Collateral Agent shall become effective until a replacement Collateral Agent shall have been selected as provided in this Agreement and the Co-Lender Agreement, if any, and shall have assumed in writing the obligations of the Collateral Agent under this Agreement and under the Collateral Loan Documents. In the event that a replacement Collateral Agent shall not have been selected as provided in this Agreement or shall not have assumed such obligations within ninety (90) days after the resignation or removal of the Collateral Agent, then the Collateral Agent may apply to a court of competent jurisdiction for the appointment of a replacement Collateral Agent. Lender shall notify Borrower in writing of any change to the identity of the Collateral Agent that may be appointed by Lender pursuant to the terms of the Co-Lender Agreement, if any.
(f) The parties hereto acknowledge that in the event that Bank of America, N.A. is replaced as Collateral Agent with respect to the Mortgage Loan but remains as Collateral Agent with respect to the Loan, Borrower shall be responsible for the annual fee payable by to the Administrative Collateral Agent at in the amount and pursuant to the terms set forth in the Mortgage Loan Agreement. The payment of such salefee shall not be duplicative of any such fee under any Other Mezzanine Loan (i.e. such fee is not payable under more than one of the Loan or any Other Mezzanine Loan).
Appears in 1 contract
Sources: Fifth Mezzanine Loan Agreement (Harrahs Entertainment Inc)
Collateral Agent. The Administrative (a) UMB Bank, National Association, is hereby appointed as Collateral Agent and shall also act be authorized to appoint co-Collateral Agents as the “collateral agent” under the Loan Documents, and each of the Lenders (including necessary in its capacities as a potential Qualified Counterparty and a potential Cash Management Provider) and sole discretion. Each Holder agrees that any action taken by the Issuing Lenders hereby irrevocably appoints and authorizes the Administrative Collateral Agent to act as the agent of such Lender and the Issuing Lenders (in accordance with the full power to appoint provisions of this Indenture and to substitute and to delegate) on its behalf, or in its own name as joint and several creditor or creditor of a parallel debt (as the case may be) for purposes of acquiring, holding and enforcing any and all Liens on Collateral granted by any of the Loan Parties to secure any of the Obligations, together with such powers and discretion as are reasonably incidental thereto. In this connection, the Administrative Agent, as “collateral agent” and any co-agents, sub-agents and attorneys-in-fact appointed by the Administrative Agent pursuant to Section 10.5 for purposes of holding or enforcing any Lien on the Collateral (or any portion thereof) granted under the Security Documents, or for exercising and the exercise by the Collateral Agent of any rights or remedies set forth herein and remedies thereunder at therein shall be authorized and binding upon all Holders. Notwithstanding any provision to the direction contrary contained elsewhere in this Indenture and the Security Documents, the duties of the Administrative Agent, Collateral Agent shall be entitled to ministerial and administrative in nature, and the benefits of all provisions of this Section 10 and Section 11Collateral Agent shall not have any duties or responsibilities, as though such co-agents, sub-agents and attorneys-in-fact were the “collateral agent” under the Loan Documents as if except those expressly set forth herein and in full herein the other documents to which the Collateral Agent is a party, nor shall the Collateral Agent have or be deemed to have any trust or other fiduciary relationship with respect theretothe Trustee, any Holder, the Company or any Guarantor, and no implied covenants, functions, responsibilities, duties, obligations or liabilities shall be read into this Indenture and the Security Documents or otherwise exist against the Collateral Agent. Without limiting the generality of the foregoingforegoing sentence, the Lenders hereby expressly authorize use of the Administrative Agent on its behalf and/or term “agent” in its own name (including under any parallel debt) to execute any and all documents (including releases) this Indenture with respect 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. 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.
(b) The Collateral Agent makes no representations as to, and shall not be responsible for the existence, genuineness, value, sufficiency or condition of any of the Collateral or as to the security afforded or intended to be afforded thereby, hereby or by any Security Document, or for the validity, perfection, priority or enforceability of the Liens or security interests in any of the Collateral created or intended to be created by any of the Security Documents, whether impaired by operation of law or by reason of any action or omission to act on its part hereunder, for the validity or sufficiency of the Collateral, any Security Documents or any agreement or assignment thereof contained in any provision thereof, for the validity of the title of the Company or any Guarantor 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, all such responsibilities and obligations being responsibilities and obligations of the Company and the rights Guarantors. The Collateral Agent shall not have any responsibility for recording, registering, filing, re-recording, re-registering or refiling any supplemental indenture, financing statement, continuation statement, document, instrument or other notice in any public office at any time or times or to otherwise take any action to perfect or maintain the perfection of any security interest granted to it under the Security Documents or otherwise (except for the safe custody of any Collateral in its possession and the accounting for moneys actually received by it hereunder or under any Security Document) and such responsibility shall be solely that of the Secured Parties Company.
(c) The Collateral Agent shall be entitled to rely, and shall be fully protected in relying, upon any writing, resolution, notice, consent, certificate, affidavit, letter, telegram, facsimile, certification, telephone message, statement, or other communication, document or conversation (including those by telephone or e- mail) believed by it to be genuine and correct and to have been signed, sent, or made by the proper Person or Persons, and upon advice and statements of legal counsel (including, without limitation, counsel to the Company or any Guarantor), independent accountants and other experts and advisors selected by the Collateral Agent. The Collateral Agent shall not be bound to make any investigation into the facts or matters stated in any resolution, certificate, statement, instrument, opinion, report, notice, request, direction, consent, order, bond, debenture, or other paper or document. The Collateral Agent shall in all cases be fully protected in acting, or in refraining from acting, under this Indenture or the Security Documents in accordance with respect theretoa request, direction, instruction or consent of the Company, the Trustee or the Holders of a requisite percentage in aggregate principal amount of the then outstanding Notes. This Article 10 and the provisions of each other Security Document are subject to the terms, conditions and benefits set forth in the Intercreditor Agreement. The Company and each Guarantor consents to, and agrees to be bound by, the terms of the Intercreditor Agreement, as contemplated by the same may be in effect from time to time, and to perform its obligations thereunder in accordance with the terms thereof. Each Holder of Notes, by its acceptance of the Notes (a) consents to the terms provided for in the Intercreditor Agreement, (b) agrees that it will be bound by, and will take no actions contrary to, the provisions of the Intercreditor Agreement and (c) authorizes and instructs the Trustee and the Collateral Agent, in each case, on behalf of each Holder of Notes to enter into the Intercreditor Agreement as Second Lien Representative and as Second Lien Collateral Agent (as such terms are defined in the Intercreditor Agreement), in each case, on behalf of such Holders of Notes. In addition, each Holder of Notes authorizes and instructs the Trustee and the Collateral Agent to enter into any amendments or joinders to the Intercreditor Agreement, without the consent of any Holder, to add additional Indebtedness as Second Lien Debt and add other parties (or any authorized agent or trustee therefor) holding such Indebtedness thereto and to establish that the Lien on any Collateral securing such Indebtedness ranks equally with the Liens on such Collateral securing the other Second Lien Debt then outstanding. The foregoing provisions are intended as an inducement to the lenders under the Credit Agreement to extend credit to the Company and certain of its Subsidiaries, and such lenders are intended third party beneficiaries of such provisions and the provisions of the Intercreditor Agreement.
(d) In addition, to the extent required under the laws of any jurisdiction other than within the United States and for Mexican law purposes, each Holder hereby grants to the Collateral Agent a comisión mercantil con representación in accordance with Articles 273, 274 and any other applicable Articles of the Commerce Code of Mexico (Código de Comercio) to act on its behalf as its agent in connection with this Agreement and the Security Documents, and authorizes the Collateral Agent to enter into the Security Documents governed by the laws of Mexico and acknowledge to hold the Liens granted to it under such documents acting on behalf of itself and agree that any such action by any for the benefit of the Second Lien Secured Parties under this Agreement to secure the Second Lien Obligations; furthermore, each Holder hereby authorizes the Collateral Agent shall bind to delegate the Lenders. Each Lender agrees that it shall not take or institute any actions or proceedings, judicial or otherwise, for any right or remedy with respect above mentioned comisión mercantil con representación pursuant to any Collateral against any Borrower or Article 280 and any other Loan Party or any other obligor under any applicable Articles of the Loan Commerce Code of Mexico (Código de Comercio) to the extent permitted by and under the Secured Debt Documents. Without limiting the foregoing, each Holder hereby authorizes the Collateral Agent to execute and deliver, and to perform its obligations under, each of the Security Documents to which the Collateral Agent is a party, and to exercise all rights, powers and remedies that the Collateral Agent may have under such Security Documents, Specified Swap Agreements or any Specified Cash Management Agreement (includingprovided, in each casehowever, the exercise Collateral Agent does not have an obligation to undertake any action unless directed in writing by a majority of any right of setoff, rights on account of any banker’s lien or similar claim or other rights of self-help), or institute any actions or proceedings, or otherwise commence any remedial procedures, with respect to any Collateral of any Borrower or any other Loan Party, without the prior written consent of the Administrative Agent. In the event of a foreclosure by the Administrative Agent on any of the Collateral pursuant to a public or private sale or a sale of any of the Collateral pursuant to Section 363 of the Bankruptcy Code Holders (or an equivalent process in any foreign jurisdiction), the Administrative Agent or any Lender may be the purchaser of any or all of such Collateral at any such sale and the Administrative Agent, as agent for and representative of the Lenders (but not any Lender or Lenders in its or their respective individual capacities unless the Required Lenders shall otherwise agree in writing) shall be entitled, with the consent or at the Trustee acting upon direction of the Required Lenders, for the purpose of bidding same) and making settlement it has been provided indemnity and or payment of the purchase price for all or any portion of the Collateral sold at any such sale, security satisfactory to use and apply any of the Obligations as a credit on account of the purchase price for any Collateral payable by the Administrative Agent at such saleit.
Appears in 1 contract
Sources: Indenture (Ion Geophysical Corp)
Collateral Agent. The Administrative Agent shall also act (a) Each Purchaser hereby (a) irrevocably appoints the Lead Investor as the “collateral agent” agent hereunder and under the Loan DocumentsSecurity and Pledge Agreement (in such capacity, the “Collateral Agent”), and each of (b) authorizes and empowers the Lenders (including Collateral Agent to perform its duties as Collateral Agent as set forth in its capacities as a potential Qualified Counterparty and a potential Cash Management Provider) this Agreement and the Issuing Lenders hereby irrevocably appoints Security and authorizes the Administrative Agent Pledge Agreement, together with such actions and powers as are reasonably incidental thereto and to act as the agent of such Lender with respect to all Collateral under this Agreement and the Issuing Lenders (with the full power to appoint Security and to substitute and to delegate) on its behalfPledge Agreement, or in its own name as joint and several creditor or creditor of a parallel debt (as the case may be) including for purposes of acquiring, holding and enforcing any and all Liens liens on Collateral granted by any of the Loan Parties Company to secure any of the Obligationsall present and future indebtedness, together obligations, and liabilities of the Company and its Subsidiaries to the Collateral Agent and the Purchasers arising under or in connection with such powers and discretion as are reasonably incidental thereto. In this connectionAgreement, the Administrative AgentNotes or any other Transaction Document (as defined in the Notes), as whether or not the right of payment in respect of such claim is reduced to judgment, liquidated, unliquidated, fixed, contingent, matured, disputed, undisputed, legal, equitable, secured, unsecured (the “collateral agent” Obligations”). The Collateral Agent shall not have, by reason hereof or pursuant to any Security and Pledge Agreement, a fiduciary relationship in respect of any co-Purchaser. Neither the Collateral Agent nor any of its Affiliates nor its or its Affiliates’ direct and indirect equity holders, partners, officers, directors, employees and agents, subconsultants, trustees, administrators, managers, advisors and representatives (collectively, “Related Parties”) shall have any liability to any Purchaser for any action taken or omitted to be taken in connection hereof or the Security and Pledge Agreement except to the extent caused by its own gross negligence or willful misconduct as determined by a final non-agents appealable judgment of a court of competent jurisdiction, and each Purchaser agrees to defend, protect, indemnify and hold harmless the Collateral Agent and all of its Related Parties (collectively, the “Collateral Agent Indemnitees”) from and against any losses, damages, liabilities, obligations, penalties, actions, judgments, suits, fees, costs and expenses (including, without limitation, reasonable attorneys-in-fact appointed ’ fees, costs and expenses) incurred by such Collateral Agent Indemnitee, whether direct, indirect or consequential, arising from or in connection with the Administrative performance by such Collateral Agent Indemnitee of the duties and obligations of Collateral Agent pursuant to Section 10.5 for purposes of holding or enforcing any Lien on the Collateral (hereto or any portion thereof) granted under of the Security Documents, or for exercising any rights and remedies thereunder at the direction of the Administrative Agent, Pledge Agreement.
(b) The Collateral Agent shall be entitled to rely upon any written notices, statements, certificates, orders or other documents or any telephone message believed by it in good faith to be genuine and correct and to have been signed, sent or made by the benefits proper Person, and with respect to all matters pertaining to this Agreement, the Notes, or any of the other documents executed in connection therewith (the “Transaction Documents”) and its duties hereunder or thereunder, upon advice of counsel selected by it.
(c) The Collateral Agent may resign from the performance of all its functions and duties hereunder and under the Notes and the Security and Pledge Agreement at any time by giving at least ten (10) Business Days prior written notice to the Company and each holder of the Notes. Such resignation shall take effect upon the acceptance by a successor Collateral Agent of appointment as provided below. Upon any such notice of resignation, the Required Holders (defined below) shall appoint a successor Collateral Agent. Upon the acceptance of the appointment as 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 under this Agreement, the Notes, the Security Agreement and the other Security and Pledge Agreement. After any Collateral Agent’s resignation hereunder, the provisions of this Section 10 and Section 115.20 shall inure to its benefit. If a successor Collateral Agent shall not have been so appointed within said ten (10) Business Day period, the retiring Collateral Agent shall then appoint a successor Collateral Agent who shall serve until such time, if any, as though such co-agentsthe Required Holders appoints a successor Collateral Agent as provided above. For purposes of this Agreement, sub-agents and attorneys-in-fact were the term “collateral agentRequired Holders” under shall mean (i) prior to the Loan Documents as if set forth in full herein with respect thereto. Without limiting the generality Closing Date, each of the foregoingPurchasers and (ii) on or after the Closing Date, the Lenders hereby expressly authorize the Administrative Agent on its behalf and/or in its own name (including under any parallel debt) to execute any and all documents (including releases) with respect to the Collateral and the rights holders of at least a majority of the Secured Parties aggregate Principal Amount of Notes issued and shall include the Lead Investor so long as the Lead Investor, together with respect thereto, as contemplated by and in accordance with the provisions of this Agreement and the Security Documents and acknowledge and agree that any such action by any Agent shall bind the Lenders. Each Lender agrees that it shall not take or institute any actions or proceedings, judicial or otherwise, for any right or remedy with respect to any Collateral against any Borrower or any other Loan Party or any other obligor under any of the Loan Documents, Specified Swap Agreements or any Specified Cash Management Agreement (including, in each case, the exercise of any right of setoff, rights on account of any banker’s lien or similar claim or other rights of self-help), or institute any actions or proceedings, or otherwise commence any remedial procedures, with respect to any Collateral of any Borrower or any other Loan Party, without the prior written consent of the Administrative Agent. In the event of a foreclosure by the Administrative Agent on any of the Collateral pursuant to a public or private sale or a sale of any of the Collateral pursuant to Section 363 of the Bankruptcy Code (or an equivalent process in any foreign jurisdiction), the Administrative Agent or any Lender may be the purchaser of any or all of such Collateral at any such sale and the Administrative Agentits Affiliates, as agent for and representative of the Lenders (but not any Lender or Lenders in its or their respective individual capacities unless the Required Lenders shall otherwise agree in writing) shall be entitled, holds Notes with the consent or at the direction of the Required Lenders, for the purpose of bidding and making settlement or payment of the purchase price for all or any portion of the Collateral sold at any such sale, to use and apply any of the Obligations as a credit on account of the purchase price for any Collateral payable by the Administrative Agent at such salebalance still outstanding.
Appears in 1 contract
Sources: Securities Purchase Agreement (La Rosa Holdings Corp.)
Collateral Agent. The Administrative (a) Wilmington Savings Fund Society, FSB is hereby appointed as Collateral Agent and shall also act be authorized to appoint co-Collateral Agents as necessary in its sole discretion. Each Holder agrees that any action taken by the “collateral agent” under Collateral Agent in accordance with the Loan Documentsprovisions of this Indenture and the Security Document, and each of the Lenders (including in its capacities as a potential Qualified Counterparty and a potential Cash Management Provider) and the Issuing Lenders hereby irrevocably appoints and authorizes the Administrative Agent to act as the agent of such Lender and the Issuing Lenders (with the full power to appoint and to substitute and to delegate) on its behalf, or in its own name as joint and several creditor or creditor of a parallel debt (as the case may be) for purposes of acquiring, holding and enforcing any and all Liens on Collateral granted by any of the Loan Parties to secure any of the Obligations, together with such powers and discretion as are reasonably incidental thereto. In this connection, the Administrative Agent, as “collateral agent” and any co-agents, sub-agents and attorneys-in-fact appointed exercise by the Administrative Collateral Agent pursuant of any rights or remedies set forth herein and therein shall be authorized and binding upon all Holders. Notwithstanding any provision to Section 10.5 for purposes of holding or enforcing any Lien on the Collateral (or any portion thereof) granted under contrary contained elsewhere in this Indenture and the Security Documents, or for exercising any rights and remedies thereunder at the direction duties of the Administrative Agent, Collateral Agent shall be entitled to ministerial and administrative in nature, and the benefits of all provisions of this Section 10 and Section 11Collateral Agent shall not have any duties or responsibilities, as though such co-agents, sub-agents and attorneys-in-fact were the “collateral agent” under the Loan Documents as if except those expressly set forth herein and in full herein the other documents to which the Collateral Agent is a party, nor shall the Collateral Agent have or be deemed to have any trust or other fiduciary relationship with respect theretothe Trustee, any Holder, the Company or any Guarantor, and no implied covenants, functions, responsibilities, duties, obligations or liabilities shall be read into this Indenture and the Security Documents or otherwise exist against the Collateral Agent. Without limiting the generality of the foregoingforegoing sentence, the Lenders hereby expressly authorize use of the Administrative Agent on its behalf and/or term “agent” in its own name (including under any parallel debt) to execute any and all documents (including releases) this Indenture with respect 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. Instead, such term is used merely as a matter of market custom, and the rights of the Secured Parties with respect theretois intended to create or reflect only an administrative relationship between independent contracting parties.
(b) The Collateral Agent makes no representations as to, as contemplated by and in accordance with the provisions of this Agreement and the Security Documents and acknowledge and agree that any such action by any Agent shall bind the Lenders. Each Lender agrees that it shall not take be responsible for the existence, genuineness, value, sufficiency or institute any actions or proceedings, judicial or otherwise, for any right or remedy with respect to any Collateral against any Borrower or any other Loan Party or any other obligor under any of the Loan Documents, Specified Swap Agreements or any Specified Cash Management Agreement (including, in each case, the exercise of any right of setoff, rights on account of any banker’s lien or similar claim or other rights of self-help), or institute any actions or proceedings, or otherwise commence any remedial procedures, with respect to any Collateral of any Borrower or any other Loan Party, without the prior written consent of the Administrative Agent. In the event of a foreclosure by the Administrative Agent on any of the Collateral pursuant to a public or private sale or a sale condition of any of the Collateral pursuant or as to Section 363 the security afforded or intended to be afforded thereby, hereby or by any Security Document, or for the validity, perfection, priority or enforceability of the Bankruptcy Code (Liens or an equivalent process security interests in any foreign jurisdiction)of the Collateral created or intended to be created by any of the Security Documents, the Administrative Agent whether impaired by operation of law or any Lender may be the purchaser by reason of any action or all of omission to act on its part hereunder, except to the extent such Collateral at any such sale and action or omission constitutes gross negligence or willful misconduct on the Administrative Agent, as agent for and representative part of the Lenders (but not any Lender or Lenders Collateral Agent as determined by a court of competent jurisdiction in its or their respective individual capacities unless the Required Lenders shall otherwise agree in writing) shall be entitled, with the consent or at the direction of the Required Lendersa final and non- appealable decision, for the purpose validity or sufficiency of bidding and making settlement the Collateral, any Security Documents or any agreement or assignment thereof contained in any provision thereof, for the validity of the title of the Company or any Guarantor to the Collateral, for insuring the Collateral or for the payment of taxes, charges, assessments or Liens upon the purchase price Collateral or otherwise as to the maintenance of the Collateral, all such responsibilities and obligations being responsibilities and obligations of the Company and the Guarantors. The Collateral Agent shall not have any responsibility for all recording, registering, filing, re-recording, re-registering or refiling any supplemental indenture, financing statement, continuation statement, document, instrument or other notice in any public office at any time or times or to otherwise take any action to perfect or maintain the perfection of any security interest granted to it under the Security Documents or otherwise (except for the safe custody of any Collateral in its possession and the accounting for moneys actually received by it hereunder or under any Security Document) and such responsibility shall be solely that of the Company.
(c) The Collateral Agent shall be entitled to rely, and shall be fully protected in relying, upon any writing, resolution, notice, consent, certificate, affidavit, letter, telegram, facsimile, certification, telephone message, statement, or other communication, document or conversation (including those by telephone or e-mail) believed by it to be genuine and correct and to have been signed, sent, or made by the proper Person or Persons, and upon advice and statements of legal counsel (including, without limitation, counsel to the Company or any portion Guarantor), independent accountants and other experts and advisors selected by the Collateral Agent. The Collateral Agent shall not be bound to make any investigation into the facts or matters stated in any resolution, certificate, statement, instrument, opinion, report, notice, request, direction, consent, order, bond, debenture, or other paper or document. The Collateral Agent shall in all cases be fully protected in acting, or in refraining from acting, under this Indenture or the Security Documents in accordance with a request, direction, instruction or consent of the Collateral sold at any such sale, to use and apply any Trustee or the Holders of a majority in aggregate principal amount of the Obligations as a credit on account of the purchase price for any Collateral payable by the Administrative Agent at such salethen outstanding Notes.
Appears in 1 contract
Collateral Agent. The Administrative CSC TRUST COMPANY OF DELAWARE, as Collateral Agent shall also act By: Name: Title: THIS PLEDGE AMENDMENT, dated as of , 20 , is delivered by [NAME OF ▇▇▇▇▇▇▇] (the “collateral agent” under the Loan Documents, and each of the Lenders (including in its capacities as a potential Qualified Counterparty and a potential Cash Management ProviderPledgor”) and the Issuing Lenders hereby irrevocably appoints and authorizes the Administrative Agent to act as the agent of such Lender and the Issuing Lenders (with the full power to appoint and to substitute and to delegate) on its behalf, or in its own name as joint and several creditor or creditor of a parallel debt (as the case may be) for purposes of acquiring, holding and enforcing any and all Liens on Collateral granted by any of the Loan Parties to secure any of the Obligations, together with such powers and discretion as are reasonably incidental thereto. In this connection, the Administrative Agent, as “collateral agent” and any co-agents, sub-agents and attorneys-in-fact appointed by the Administrative Agent pursuant to Section 10.5 5.1 of the Security Agreement referred to herein below. The Pledgor hereby agrees that this Pledge Amendment may be attached to the Pledge and Security Agreement, dated as of [ ], 2014 (as amended, modified, restated or supplemented from time to time, the “Security Agreement,” capitalized terms defined therein being used herein as therein defined) made by the Pledgor in favor of , as trustee and collateral agent for purposes the Holders under the Indenture referred to below (in its capacity as trustee and together with its successors and assigns in such capacity, the “Trustee” and in its capacity as collateral agent and together with its successors and assigns in such capacity, the “Collateral Agent”), and that the Equity Interests listed on Annex A to this Pledge Amendment shall be deemed to be part of holding or enforcing any Lien on the Equity Interests within the meaning of the Security Agreement and shall become part of the Collateral (or any portion thereof) granted under and shall secure all of the Secured Obligations as provided in the Security Documents, or for exercising any rights Agreement. The Pledgor hereby confirms that all representations and remedies thereunder at the direction of the Administrative Agent, shall be entitled to the benefits of all provisions of this Section 10 and Section 11, as though such co-agents, sub-agents and attorneys-in-fact were the “collateral agent” under the Loan Documents as if warranties set forth in full herein with respect thereto. Without limiting the generality Sections 3.1, 3.2, 3.4, 3.5 and 3.7 of the foregoing, the Lenders hereby expressly authorize the Administrative Agent on its behalf and/or in its own name (including under any parallel debt) to execute any Security Agreement are true and all documents (including releases) correct with respect to the Collateral Equity Interests listed on Annex A to this Pledge Amendment. This Pledge Amendment and its attachments are hereby incorporated into the rights of the Secured Parties with respect thereto, as contemplated by and in accordance with the provisions of this Security Agreement and the Security Documents and acknowledge and agree that any such action by any Agent shall bind the Lendersmade a part thereof. Each Lender agrees that it shall not take or institute any actions or proceedings, judicial or otherwise, for any right or remedy with respect to any Collateral against any Borrower or any other Loan Party or any other obligor under any By: Title: Name of the Loan Documents, Specified Swap Agreements or any Specified Cash Management Agreement Issuer Type of Interests Certificate No. (including, if applicable) No. of Shares/Units (if applicable) Percentage of Outstanding Interests in each case, the exercise of any right of setoff, rights on account of any banker’s lien or similar claim or other rights of self-help), or institute any actions or proceedings, or otherwise commence any remedial procedures, with respect to any Collateral of any Borrower or any other Loan Party, without the prior written consent of the Administrative Agent. In the event of a foreclosure by the Administrative Agent on any of the Collateral pursuant to a public or private sale or a sale of any of the Collateral pursuant to Section 363 of the Bankruptcy Code (or an equivalent process in any foreign jurisdiction), the Administrative Agent or any Lender may be the purchaser of any or all of such Collateral at any such sale and the Administrative Agent, as agent for and representative of the Lenders (but not any Lender or Lenders in its or their respective individual capacities unless the Required Lenders shall otherwise agree in writing) shall be entitled, with the consent or at the direction of the Required Lenders, for the purpose of bidding and making settlement or payment of the purchase price for all or any portion of the Collateral sold at any such sale, to use and apply any of the Obligations as a credit on account of the purchase price for any Collateral payable by the Administrative Agent at such sale.Issuer
Appears in 1 contract
Sources: Indenture Agreement (United States Enrichment Corp)
Collateral Agent. The Administrative Agent shall also act as the “collateral agent” under the Loan Documents, and each of the Lenders (including in its capacities as a potential Qualified Counterparty and a potential Cash Management Provider) and the Issuing Lenders hereby irrevocably appoints and authorizes the Administrative Agent to act as the agent of such Lender and the Issuing Lenders (with the full power to appoint and to substitute and to delegate) on its behalf, or in its own name as joint and several creditor or creditor of a parallel debt (as the case may be) for purposes of acquiring, holding and enforcing any and all Liens on Collateral granted by any of the Loan Parties to secure any of the Obligations, together with such powers and discretion as are reasonably incidental thereto. In this connection, the Administrative Agent, as “collateral agent” and any co-agents, sub-agents and attorneys-in-fact appointed by the Administrative Agent pursuant to Section 10.5 9.05 for purposes of holding or enforcing any Lien on the Collateral (or any portion thereof) granted under the Security Collateral Documents, or for exercising any rights and remedies thereunder at the direction of the Administrative Agent, shall be entitled to the benefits of all provisions of this Article IX and Article XI (including Section 10 and Section 1111.04(c), as though such co-agents, sub-agents and attorneys-in-fact were the “collateral agent” under the Loan Documents Documents) as if set forth in full herein with respect thereto. Without limiting the generality of the foregoing, the Lenders hereby expressly authorize the Administrative Agent on its behalf and/or in its own name to (including under any parallel debti) to execute any and all documents (including releases) with respect to the Collateral (including any intercreditor agreement and any amendment, supplement, modification or joinder with respect thereto) and the rights of the Secured Parties with respect thereto, as contemplated by and in accordance with the provisions of this Agreement and the Security Collateral Documents and acknowledge and agree that any such action by any the Administrative Agent shall bind the Lenders. Each Lender agrees that it shall not take Lenders and (ii) negotiate, enforce or institute settle any actions claim, action or proceedings, judicial or otherwise, for any right or remedy with respect to any Collateral against any Borrower or any other Loan Party or any other obligor under any of the Loan Documents, Specified Swap Agreements or any Specified Cash Management Agreement (including, in each case, the exercise of any right of setoff, rights on account of any banker’s lien or similar claim or other rights of self-help), or institute any actions or proceedings, or otherwise commence any remedial procedures, with respect to any Collateral of any Borrower or any other Loan Party, without the prior written consent of the Administrative Agent. In the event of a foreclosure by the Administrative Agent on any of the Collateral pursuant to a public or private sale or a sale of any of the Collateral pursuant to Section 363 of the Bankruptcy Code (or an equivalent process in any foreign jurisdiction), the Administrative Agent or any Lender may be the purchaser of any or all of such Collateral at any such sale and the Administrative Agent, as agent for and representative of proceeding affecting the Lenders (but not any Lender or Lenders in its or their respective individual capacities unless the Required Lenders shall otherwise agree in writing) shall be entitledcapacity as such, with the consent or at the direction of the Required Lenders, for the purpose of bidding and making which negotiation, enforcement or settlement or payment of the purchase price for all or any portion of the Collateral sold at any such sale, to use and apply any of the Obligations as a credit on account of the purchase price for any Collateral payable by the Administrative Agent at such salewill be binding upon each Lender.
Appears in 1 contract
Collateral Agent. The Administrative Collateral Agent shall also act as the “collateral agent” under the Loan Documents, and each of the Lenders (including in its capacities as a potential Qualified Counterparty and a potential Cash Management Provider) and the Issuing Lenders hereby irrevocably appoints and authorizes the Administrative Agent has been appointed to act as Collateral Agent hereunder by Lenders and, by their acceptance of the agent benefits hereof, the other Secured Parties. The Collateral Agent shall be obligated, and shall have the right hereunder, to make demands, to give notices, to exercise or refrain from exercising any rights, and to take or refrain from taking any action (including, without limitation, the release or substitution of such Lender Collateral), solely in accordance with this Agreement, the Term Loan Credit Agreement and the Issuing Lenders Intercreditor Agreement; provided, the Collateral Agent shall, after payment in full of all Obligations (with excluding contingent obligations in respect of customary indemnification liabilities that survive termination of the full power to appoint Credit Documents or such Person's release or discharge therefrom) under the Term Loan Credit Agreement and to substitute and to delegate) on its behalfthe other Credit Documents, exercise, or in its own name as joint and several creditor or creditor of a parallel debt (as the case may be) refrain from exercising, any remedies provided for purposes of acquiring, holding and enforcing any and all Liens on Collateral granted by any of the Loan Parties to secure any of the Obligations, together with such powers and discretion as are reasonably incidental thereto. In this connection, the Administrative Agent, as “collateral agent” and any co-agents, sub-agents and attorneys-in-fact appointed by the Administrative Agent pursuant to Section 10.5 for purposes of holding or enforcing any Lien on the Collateral (or any portion thereof) granted under the Security Documents, or for exercising any rights and remedies thereunder at the direction of the Administrative Agent, shall be entitled to the benefits of all provisions of this Section 10 and Section 11, as though such co-agents, sub-agents and attorneys-in-fact were the “collateral agent” under the Loan Documents as if set forth in full herein with respect thereto. Without limiting the generality of the foregoing, the Lenders hereby expressly authorize the Administrative Agent on its behalf and/or in its own name (including under any parallel debt) to execute any and all documents (including releases) with respect to the Collateral and the rights of the Secured Parties with respect thereto, as contemplated by and in accordance with the provisions of this Agreement and the Security Documents and acknowledge and agree that any such action by any Agent shall bind the Lenders. Each Lender agrees that it shall not take or institute any actions or proceedings, judicial or otherwise, for any right or remedy with respect to any Collateral against any Borrower or any other Loan Party or any other obligor under any instructions of the Loan Documents, Specified Swap Agreements or any Specified Cash Management Agreement holders of a majority of the aggregate notional amount (including, in each case, the exercise of any right of setoff, rights on account of any banker’s lien or similar claim or other rights of self-help), or institute any actions or proceedings, or otherwise commence any remedial proceduresor, with respect to any Collateral Hedge Agreement that has been terminated in accordance with its terms, the amount then due and payable (exclusive of expenses and similar payments but including any Borrower or any other Loan early termination payments then due) under such Hedge Agreement) under all Hedge Agreements. In furtherance of the foregoing provisions of this Section, each Secured Party, without the prior written consent by its acceptance of the Administrative Agent. In the event of a foreclosure by the Administrative Agent on benefits hereof, agrees that it shall have no right individually to realize upon any of the Collateral pursuant to hereunder, it being understood and agreed by such Secured Party that all rights and remedies hereunder may be exercised solely by the Collateral Agent for the benefit of Lenders/Secured Parties in accordance with the terms of this Section. Collateral Agent may resign or be removed and a public or private sale or a sale of any successor Collateral Agent may be appointed, all in accordance with Section 9.7 of the Collateral pursuant to Section 363 of the Bankruptcy Code (or an equivalent process in any foreign jurisdiction), the Administrative Agent or any Lender may be the purchaser of any or all of such Collateral at any such sale and the Administrative Agent, as agent for and representative of the Lenders (but not any Lender or Lenders in its or their respective individual capacities unless the Required Lenders shall otherwise agree in writing) shall be entitled, with the consent or at the direction of the Required Lenders, for the purpose of bidding and making settlement or payment of the purchase price for all or any portion of the Collateral sold at any such sale, to use and apply any of the Obligations as a credit on account of the purchase price for any Collateral payable by the Administrative Agent at such saleTerm Loan Credit Agreement.
Appears in 1 contract
Sources: Credit and Guaranty Agreement (Carmike Cinemas Inc)
Collateral Agent. The Administrative (1) Each Noteholder, by its acceptance of the Indenture, and each Authorized Representative of any Additional Secured Creditors on behalf of itself and the Additional Secured Creditors that it represents, by its execution of an Additional Secured Creditor Joinder, has appointed, and each other Secured Creditor, by accepting the benefits hereof, hereby appoints, BNY Trust Company of Canada to serve as Collateral Agent shall also act as and representative of itself and any other Secured Creditors that it represents under each of the “collateral agent” under the Loan Security Documents, and each of the Lenders (including in its capacities as a potential Qualified Counterparty and a potential Cash Management Provider) and the Issuing Lenders hereby irrevocably appoints and authorizes the Administrative Collateral Agent to act as agent for itself and such Secured Creditors for the agent purpose of executing and delivering, on behalf of itself and such Lender and the Issuing Lenders (with the full power to appoint and to substitute and to delegate) on its behalfSecured Creditors, or in its own name as joint and several creditor or creditor of a parallel debt (as the case may be) for purposes of acquiring, holding and enforcing any and all Liens on Collateral granted by any each of the Loan Parties to secure Security Documents and any of other documents or instruments related thereto or necessary or, as determined by the Obligations, together with such powers and discretion as are reasonably incidental thereto. In this connection, the Administrative Collateral Agent, as “collateral agent” and any co-agentsdesirable to perfect the Liens granted to the Collateral Agent thereunder, sub-agents and attorneys-in-fact appointed by for the Administrative Agent pursuant to Section 10.5 for purposes purpose of holding or enforcing any Lien the Liens on the Collateral (or any portion thereof) granted pursuant to the Security Documents, and, subject to the provisions of this Debenture, for the purpose of enforcing its and such Secured Creditors’ rights in respect of the Collateral and the obligations of the Obligors under the Security Documents, and for the purpose of, or for in connection with, releasing the obligations of the Obligors under the Security Documents. The Collateral Agent hereby agrees that it shall so act as Collateral Agent and representative of the Secured Creditors subject to, in respect of any Additional Secured Creditors, compliance by the Authorized Representative on behalf of such Additional Secured Creditors with Section 5.22. The Collateral Agent shall have the sole authority to exercise remedies under the Security Documents. The Collateral Agent shall have the right hereunder to make demands, to give notices, to exercise or refrain from exercising any rights rights, and remedies thereunder at to take or refrain from taking action (including the direction release or substitution of the Administrative AgentCollateral), in accordance with the Secured Agreements. The Collateral Agent may resign, may be removed and a successor Collateral Agent may be appointed in the manner provided under Section 5.24.
(2) The Collateral Agent shall be deemed to have exercised reasonable care in the custody and preservation of the Charged Property in its possession if such Charged Property is accorded treatment substantially equivalent to that which a reasonable person accords his own property consisting of similar property, instruments or interests, it being understood that neither the Collateral Agent nor any of the Secured Creditors shall have responsibility for taking any necessary steps to preserve rights against any Person with respect to any Charged Property.
(3) The Collateral Agent shall be entitled to rely upon any written notice, statement, certificate, order or other document or any telephone message believed by it to be genuine and correct and to have been signed, sent or made by the benefits of all provisions of this Section 10 and Section 11proper Person, as though such co-agentsand, sub-agents and attorneys-in-fact were the “collateral agent” under the Loan Documents as if set forth in full herein with respect thereto. Without limiting the generality of the foregoing, the Lenders hereby expressly authorize the Administrative Agent on its behalf and/or in its own name (including under any parallel debt) to execute any and all documents (including releases) with respect to all matters pertaining to the Secured Agreements and its duties thereunder, upon advice of counsel selected by it (who may be counsel to one or more of the Obligors). The Collateral Agent shall not be deemed to have actual, constructive, direct or indirect knowledge or notice of the occurrence of any Default or Event of Default unless and until the Collateral Agent has received written notice from a Secured Creditor, the Issuers or an Obligor referring to the applicable Secured Agreement, describing such Default or Event of Default and stating that it is a “notice of default” or a “notice of event of default”, setting forth in reasonable detail the facts and circumstances thereof and stating that the Collateral Agent may rely on such notice without further inquiry. The Collateral Agent shall have no obligation or duty prior to or after receiving any such notice to inquire whether a Default or Event of Default has in fact occurred and shall be entitled to conclusively rely, and shall be fully protected in so relying, on any such notice furnished to it.
(4) If any item of Charged Property also constitutes collateral granted to the Collateral Agent under any other deed of trust, mortgage, security agreement, pledge or instrument of any type, in the event of any conflict between the provisions hereof and the rights provisions of such other deed of trust, mortgage, security agreement, pledge or instrument of any type in respect of such collateral, the terms of this Debenture shall apply.
(5) Notwithstanding anything to the contrary contained herein, the Collateral Agent is authorized, but not obligated, (i) to take any action reasonably required to perfect or continue the perfection of the liens on the Charged Property for the benefit of the Secured Parties with respect Creditors and (ii) when instructions from the Authorized Representatives on behalf of the applicable Secured Creditors have been requested by the Collateral Agent but have not yet been received, to take any action which the Collateral Agent, in good faith, believes to be reasonably required to promote and protect the interests of the Secured Creditors in the Charged Property; provided that once instructions have been received, the actions of the Collateral Agent shall be governed thereby and the Collateral Agent shall not take any further action which would be contrary thereto.
(6) Notwithstanding anything to the contrary contained herein or in any Security Document, as contemplated by the Collateral Agent shall not be required to take or refrain from taking, and shall have no liability to any Secured Creditor for taking or refraining from taking, any action that exposes or, in the good faith judgment of the Collateral Agent may expose, the Collateral Agent or its officers, directors, agents or employees to personal liability, unless the Collateral Agent shall be adequately indemnified, or that is, or in the good faith judgment of the Collateral Agent may be, contrary to any Security Document, any other Secured Agreement or applicable law. Upon receipt of such indemnity, however, the Collateral Agent shall act upon the specific instructions of the Authorized Representatives provided in accordance with the provisions of this Debenture, except for any instructions that in the good faith judgment of the Collateral Agent may be contrary to any Security Document, any other Secured Agreement or applicable law.
(7) For purposes of this Debenture and other Security Documents, each Secured Creditor shall appoint a Person as its Authorized Representative for the purpose of giving or delivering any notices or instructions hereunder and thereunder. Any instructions given by the Authorized Representatives (other than the Trustee) on behalf of the applicable Secured Creditors to the Collateral Agent pursuant to the Security Documents shall be in writing signed by the Authorized Representative(s) of the applicable Secured Creditors with respect to such instructions and acknowledge such instructions shall certify to and agree for the benefit of the Collateral Agent the outstanding aggregate principal amount (or, in the case of discount notes, accreted value) of all Secured Obligations that the Secured Creditors authorizing such instructions hold. In determining whether the applicable Secured Creditors have consented to any action under the Security Documents, the Collateral Agent may conclusively rely on each Authorized Representative as to the amount of Secured Obligations held by holders represented by such action by any Authorized Representative. The Collateral Agent shall bind be entitled to conclusively and absolutely rely on such instructions and certification as to the Lenders. Each Lender agrees that it identity of the applicable Secured Creditors with respect to such instructions, and the Collateral Agent shall not be required to take any action, and shall not be liable to any Secured Creditor for failing or institute refusing to act, pursuant to any actions instructions which are not given or proceedings, judicial or otherwise, for any right or remedy delivered by the Authorized Representatives of various Secured Creditors comprising the applicable Secured Creditors as required by Section 3.11 of the Security Agreements.
(8) Each Obligor acknowledges that the rights and responsibilities of the Collateral Agent under this Debenture with respect to any action taken by the Collateral against Agent or the exercise or nonexercise by the Collateral Agent of any Borrower option, voting right, request, judgment or other right or remedy provided for herein or resulting or arising out of this Debenture shall, as between the Collateral Agent and the other Secured Creditors, be governed by the provisions of this Debenture and by such other agreements with respect thereto as may exist from time to time among them, but, as between the Collateral Agent and the Obligors, the Collateral Agent shall be conclusively presumed to be acting as agent for the Collateral Agent and the other Secured Creditors with full and valid authority so to act or refrain from acting, and no Obligor shall be under any obligation, or entitlement, to make any inquiry respecting such authority.
(9) Subject to clause (6) of this Section 5.23, neither the Collateral Agent nor any of its officers, directors, employees or agents shall be liable for failure to demand, collect or realize upon any of the Charged Property or for any delay in doing so or shall be under any obligation to sell or otherwise dispose of any Charged Property upon the request of any Obligor or any other Loan Party Person or to take any other action whatsoever with regard to the Charged Property or any other obligor under any part thereof. The powers conferred on the Collateral Agent hereunder are solely to protect the interests of the Loan DocumentsCollateral Agent in the Charged Property and, Specified Swap Agreements or subject to clause (6) of this Section 5.23, shall not impose any Specified Cash Management Agreement (including, in each case, duty upon the Collateral Agent to exercise any such powers. The Collateral Agent shall be accountable only for amounts that it actually receives as a result of the exercise of such powers, and neither it nor any right of setoffits officers, rights on account directors, employees or agents shall have any duty or liability or be responsible to any Obligor for any act or failure to act hereunder, except for its own gross negligence or wilful misconduct. The Collateral Agent shall have no duty or liability as to the taking of any banker’s lien necessary steps to preserve or similar protect the Charged Property or to preserve rights against prior parties. Nothing contained in this Debenture shall be construed as requiring or obligating the Collateral Agent, and the Collateral Agent shall not be required or obligated, to (i) present or file any claim or other rights of self-help), notice or institute take any actions or proceedings, or otherwise commence any remedial procedures, action with respect to any Collateral Charged Property or in connection therewith or (ii) notify any Obligor of any Borrower decline in the value of any Charged Property. The Collateral Agent shall have no duty as to the collection of any Charged Property in its possession or control or in the possession or control of any agent or nominee of the Collateral Agent, or any income thereon or any other Loan Party, without the prior written consent rights pertaining thereto.
(10) No provision of the Administrative Agent. In Secured Agreements shall be deemed to impose any duty or obligation on the event Collateral Agent to perform any act or acts, receive or obtain any interest in property or exercise any interest in property, or exercise any right, power, duty or obligation conferred or imposed on it in any jurisdiction in which it shall be illegal, or in which the Collateral Agent shall be unqualified or incompetent in accordance with applicable law, to perform any such act or acts, to receive or obtain any such interest in property or to exercise any such right, power, duty or obligation; and no permissive or discretionary power or authority available to the Collateral Agent shall be construed to be a duty.
(11) The Collateral Agent shall have the right hereunder to make demands, to give notices, to exercise or refrain from exercising any rights, and to take or refrain from taking action (including the release or substitution of a foreclosure by Charged Property), in each case in accordance with the Administrative Agent on any Secured Agreements.
(12) Upon resignation of the Collateral pursuant to a public or private sale or a sale Agent in accordance with the terms of any Section 5.24, the Collateral Agent shall thereupon be discharged from its duties and obligations under the Secured Agreements. Following the resignation of the Collateral pursuant to Section 363 Agent, the provisions of the Bankruptcy Code Secured Agreements shall inure to its benefit as to any actions taken or omitted to be taken by it under the Secured Agreements while it was the Collateral Agent.
(13) The Collateral Agent shall not have any liability hereunder except for its own gross negligence or an equivalent process wilful misconduct, or material breach and under no circumstances shall the Collateral Agent be liable for any special, punitive, exemplary or consequential damages.
(14) The Collateral Agent shall be vested with all of the rights, powers, benefits, privileges and protections of the Collateral Agent set forth in the Indenture, all of which are incorporated herein and shall apply to all of the Security Documents.
(15) The Collateral Agent may perform any foreign jurisdiction)and all of its duties and exercise its rights and powers hereunder or under any other Indenture Document by or through, or delegate any and all such rights and powers to, any one or more sub-agents appointed by such Agent, including a sub-agent which is a non-U.S. affiliate of the Administrative Collateral Agent. Except as otherwise provided in this Section 5.23, neither the Collateral Agent nor any of its respective officers, directors, employees, attorney or any Lender may agents will be responsible or liable for the purchaser existence, genuineness, value or protection of any or all of such Collateral at any such sale and the Administrative Agent, as agent for and representative of the Lenders (but not any Lender or Lenders in its or their respective individual capacities unless the Required Lenders shall otherwise agree in writing) shall be entitled, with the consent or at the direction of the Required LendersCollateral, for the purpose of bidding and making settlement legality, enforceability, effectiveness or payment sufficiency of the purchase price Security Documents, for all the creation, perfection, priority, sufficiency or protection of any Lien securing the First Lien Obligations, or for any defect or deficiency as to any such matters, or for any failure to demand, collect, foreclose or realize upon or otherwise enforce any such Liens or Security Documents or any portion delay in doing so provided that if instructed by the Required Secured Creditors in accordance with the provisions of the Security Documents, the Collateral Agent (subject to receipt of an indemnity requested by it and acceptable to it and any other applicable provisions of the Security Documents) shall comply with instructions from such Required Secured Creditors. 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 provisions of this Section 5.23 shall apply to any agent, attorneys-in-fact or sub-agent and to the Affiliates of the Collateral sold at Agent and any such saleagent, attorneys-in-fact or sub-agent, and shall apply to use and apply any their respective activities in connection with the exercise of the Obligations as a credit on account rights and remedies of the purchase price Collateral Agent provided for any hereunder, as well as all other activities as Collateral payable by the Administrative Agent at such saleAgent.
Appears in 1 contract
Collateral Agent. The Administrative Agent (on behalf of the Lenders) and Tenant agree that upon the conveyance of the Property by reason of the foreclosure of the Mortgage or the acceptance of a deed or assignment in lieu of foreclosure or otherwise, the Lease shall also act as not be terminated or affected thereby (at the option of the transferee of the Property (the “collateral agent” under Transferee”) if the Loan Documents, and each of the Lenders (including in its capacities as a potential Qualified Counterparty and a potential Cash Management Provider) and the Issuing Lenders hereby irrevocably appoints and authorizes the Administrative Agent to act as the agent of such Lender and the Issuing Lenders (with the full power to appoint and to substitute and to delegate) on its behalf, or in its own name as joint and several creditor or creditor of a parallel debt (as the case may be) for purposes of acquiring, holding and enforcing any and all Liens on Collateral granted by any of the Loan Parties to secure any of the Obligations, together with such powers and discretion as are reasonably incidental thereto. In this connection, the Administrative Agent, as “collateral agent” and any co-agents, sub-agents and attorneys-in-fact appointed by the Administrative Agent pursuant to Section 10.5 for purposes of holding or enforcing any Lien on the Collateral (or any portion thereof) granted under the Security Documents, or for exercising any rights and remedies thereunder at the direction of the Administrative Agent, shall be entitled to the benefits of all provisions of this Section 10 and Section 11, as though such co-agents, sub-agents and attorneys-in-fact were the “collateral agent” under the Loan Documents as if conditions set forth in Section 2 above have not been met at the time of such transfer) but shall continue in full herein with respect thereto. Without limiting force and effect as a direct lease between the generality Transferee and Tenant upon all of the foregoingterms, covenants and conditions set forth in the Lenders hereby expressly authorize the Administrative Agent on its behalf and/or Lease and in its own name (including under any parallel debt) that event, Tenant agrees to execute any and all documents (including releases) with respect attorn to the Collateral Transferee and the rights Transferee shall accept such attornment, and the Transferee shall not be (a) obligated to complete any construction work required to be done by Landlord pursuant to the provisions of the Secured Parties with respect theretoLease or to reimburse Tenant for any construction work done by Tenant, in each case prior to Transferee’s ownership of the Property, (b) liable (i) for Landlord’s failure to perform any of its obligations under the Lease which have accrued prior to the date on which the Transferee shall become the owner of the Property, or (ii) for any act or omission of Landlord, whether prior to or after such foreclosure or sale, (c) required to make any repairs to the Property or to the premises demised under the Lease required as contemplated a result of fire, or other casualty or by reason of condemnation unless the Transferee shall be obligated under the Lease to make such repairs and shall have received sufficient casualty insurance proceeds or condemnation awards to finance the completion of such repairs, (d) required to make any capital improvements to the Property or to the premises demised under the Lease which Landlord may have agreed to make, but had not completed, or to perform or provide any services not related to possession or quiet enjoyment of the premises demised under the Lease, (e) subject to any offsets, defenses, abatements or counterclaims which shall have accrued to Tenant against Landlord prior to the date upon which the Transferee shall become the owner of the Property, (f) liable for the return of rental security deposits, if any, paid by Tenant to Landlord in accordance with the provisions of this Agreement and Lease unless such sums are actually received by the Security Documents and acknowledge and agree that any such action Transferee, (g) bound by any Agent payment of rents, additional rents or other sums which Tenant may have paid more than one (1) month in advance to any prior Landlord unless (i) such sums are actually received by the Transferee or (ii) such prepayment shall bind have been expressly approved of by the Lenders. Each Lender agrees that it shall not take or institute Transferee, (h) bound to make any actions or proceedingspayment to Tenant which was required under the Lease, judicial or otherwise, for to be made prior to the time the Transferee succeeded to Landlord’s interest, (i) bound by any right agreement amending, modifying or remedy with respect to any Collateral against any Borrower or any other Loan Party or any other obligor under any of terminating the Loan Documents, Specified Swap Agreements or any Specified Cash Management Agreement (including, in each case, the exercise of any right of setoff, rights on account of any banker’s lien or similar claim or other rights of self-help), or institute any actions or proceedings, or otherwise commence any remedial procedures, with respect to any Collateral of any Borrower or any other Loan Party, Lease made without the prior written consent of the Administrative Agent. In Lenders prior to the event of a foreclosure time the Transferee succeeded to Landlord’s interest or (j) bound by the Administrative Agent on any assignment of the Collateral pursuant to a public Lease or private sale or a sale of any sublease of the Collateral pursuant to Section 363 of the Bankruptcy Code (or an equivalent process in any foreign jurisdiction)Property, the Administrative Agent or any Lender may be the purchaser of any or all of such Collateral at any such sale and the Administrative Agent, as agent for and representative of the Lenders (but not any Lender or Lenders in its or their respective individual capacities unless the Required Lenders shall otherwise agree in writing) shall be entitled, with the consent or at the direction of the Required Lenders, for the purpose of bidding and making settlement or payment of the purchase price for all or any portion thereof, made prior to the time the Transferee succeeded to Landlord’s interest other than if pursuant to the provisions of the Collateral sold at any such sale, to use and apply any of the Obligations as a credit on account of the purchase price for any Collateral payable by the Administrative Agent at such saleLease.
Appears in 1 contract
Collateral Agent. (a) The Administrative Agent shall also act as the “collateral agent” under the Loan Documents, Issuer and each of the Lenders Holders by acceptance of the Notes hereby designates and appoints the Collateral Agent as its agent under this Indenture and the Security Documents, and the Issuer and each of the Holders by acceptance of the Notes hereby (i) irrevocably authorizes the Collateral Agent to take such action on its behalf under the provisions of this Indenture and the Security Documents, and to exercise such powers and perform such duties as are expressly delegated to the Collateral Agent by the terms of this Indenture and the Security Documents, and consents and agrees to the terms of each Security Document, as the same may be in effect or may be amended, restated, supplemented or otherwise modified from time to time in accordance with their respective terms and (ii) irrevocably authorizes and directs the Trustee to execute the Additional Pari Passu Joinders and any intercreditor agreement or joinder to any Security Document in connection with Indebtedness or other obligations not prohibited by this Indenture (including in its capacities obligations with respect to future Pari Passu Indebtedness). In addition, by acceptance of the Notes, each Holder will be deemed to have, (1) irrevocably appointed Wilmington Trust, National Association, as a potential Qualified Counterparty and a potential Cash Management Provider) and the Issuing Lenders hereby irrevocably appoints and authorizes the Administrative Collateral Agent to act as its collateral agent under the agent of such Lender Security Documents and any other relevant documents to which the Issuing Lenders Collateral Agent is a party, and (2) irrevocably authorized the Collateral Agent to (i) perform the duties and exercise the rights, powers, and discretions that are specifically given to it under the Security Documents or other documents to which the Collateral Agent is a party, together with the full any other incidental rights, power and discretions and (ii) execute each document expressed to appoint and to substitute and to delegate) be executed by ▇▇▇▇▇▇▇▇▇▇ Agent on its behalf, or . The Collateral Agent agrees to act as such on the express conditions contained in its own name as joint and several creditor or creditor of a parallel debt (as the case may be) for purposes of acquiring, holding and enforcing this Section 12.7. Each Holder agrees that any and all Liens on Collateral granted by any of the Loan Parties to secure any of the Obligations, together with such powers and discretion as are reasonably incidental thereto. In this connection, the Administrative Agent, as “collateral agent” and any co-agents, sub-agents and attorneys-in-fact appointed action taken by the Administrative Collateral Agent pursuant to Section 10.5 for purposes in accordance with the provisions of holding or enforcing any Lien on the Collateral (or any portion thereof) granted under this Indenture and the Security Documents, or for exercising and the exercise by the Collateral Agent of any rights or remedies set forth herein and remedies thereunder at therein shall be authorized and binding upon all Holders. Notwithstanding any provision to the direction contrary contained elsewhere in this Indenture and the Security Documents, the duties of the Administrative Agent, Collateral Agent shall be entitled to ministerial and administrative in nature, and the benefits of all provisions of this Section 10 and Section 11Collateral Agent shall not have any duties or responsibilities, as though such co-agents, sub-agents and attorneys-in-fact were the “collateral agent” under the Loan Documents as if except those expressly set forth herein and in full herein the Security Documents to which the Collateral Agent is a party, nor shall the Collateral Agent have or be deemed to have any trust or other fiduciary relationship with respect theretothe Trustee, any Holder or any Grantor, and no implied covenants, functions, responsibilities, duties, obligations or liabilities shall be read into this Indenture, the Security Documents or otherwise exist against the Collateral Agent. Without limiting the generality of the foregoingforegoing sentence, the Lenders hereby expressly authorize use of the Administrative term “agent” in this Indenture with reference to the Collateral Agent on is not intended to connote any fiduciary or other implied (or express) obligations arising under agency doctrine of any applicable law. Instead, such term is used merely as a matter of market custom, and is intended to create or reflect only an administrative relationship between independent contracting parties.
(b) The Collateral Agent may perform any of its behalf and/or duties under this Indenture or the Security Documents by or through receivers, agents, employees, attorneys-in-fact or with respect to any specified Person, such Person’s Affiliates, and the respective officers, directors, employees, agents, advisors and attorneys-in-fact of such Person and its Affiliates (a “Related Person”), and shall be entitled to advice of counsel concerning all matters pertaining to such duties, and shall be entitled to act upon, and shall be fully protected in its own name taking action in reliance upon any advice or opinion given by legal counsel. The Collateral Agent shall not be responsible for the negligence or misconduct of any receiver, agent, employee, attorney-in-fact or Related Person that it selects as long as such selection was made in good faith and with due care.
(c) The Collateral Agent shall be entitled to rely, and shall be fully protected in relying, upon any writing, resolution, notice, consent, certificate, affidavit, letter, telegram, facsimile, certification, telephone message, statement, or other communication, document or conversation (including those by telephone or e-mail) believed by it to be genuine and correct and to have been signed, sent, or made by the proper Person or Persons, and upon advice and statements of legal counsel (including, without limitation, counsel to the Issuer or any other Grantor), independent accountants and other experts and advisors selected by the Collateral Agent. The Collateral Agent shall not be bound to make any investigation into the facts or matters stated in any resolution, certificate, statement, instrument, opinion, report, notice, request, direction, consent, order, bond, debenture, or other paper or document. The Collateral Agent shall be fully justified in failing or refusing to take any action under any parallel debt) this Indenture or the Security Documents, unless it shall first receive such advice or concurrence of the Trustee or the Holders of a majority in aggregate principal amount of the Notes as it determines and, if it so requests, it shall first be indemnified to execute its satisfaction by the Holders against any and all documents (including releases) with respect liability and expense which may be incurred by it by reason of taking or continuing to take any such action. The Collateral Agent shall in all cases be fully protected in acting, or in refraining from acting, under this Indenture or the Collateral and the rights of the Secured Parties with respect theretoSecurity Documents, as contemplated by and in accordance with a request, direction, instruction or consent of the provisions Trustee or the Holders of a majority in aggregate principal amount of the then outstanding Notes and such request and any action taken or failure to act pursuant thereto shall be binding upon all of the Holders.
(d) The Company shall furnish to the Trustee, at such time as required by the TIA, such Opinions of Counsel and certificates or opinions of engineers, appraisers or other experts as may be required by Section 314(b) or 314(d) of the TIA and shall take such other action as may be necessary to cause TIA Section 314(d) relating to the release of Collateral from the security interests created by this Agreement Indenture and the Security Documents to be complied with. Any certificate or opinion required by TIA Section 314(d) may be made by an Officer of the Company, except in cases where TIA Section 314(d) requires that such certificate or opinion be made by an independent Person, which Person shall be an independent engineer, appraiser or other expert selected or approved by the Trustee in the exercise of reasonable care. A Person is “independent” if such Person (a) is in fact independent, (b) does not have any direct financial interest or any material indirect financial interest in the Company or in any Affiliate of the Company and acknowledge (c) is not an officer, employee, promoter, underwriter, trustee, partner or director or person performing similar functions to any of the foregoing for the Company. The Trustee and agree that the Collateral Agent shall be entitled to receive and rely upon a certificate provided by any such action by any Person confirming that such Person is independent within the foregoing definition.
(e) The Collateral Agent shall bind not be deemed to have knowledge or notice of the Lenders. Each Lender agrees occurrence of any Default or Event of Default, unless a Trust Officer of the Collateral Agent shall have received written notice from the Trustee or the Issuer referring to this Indenture, describing such Default or Event of Default and stating that it such notice is a “notice of default.” The Collateral Agent shall not take or institute any actions or proceedings, judicial or otherwise, for any right or remedy such action with respect to any Collateral against any Borrower such Default or any other Loan Party Event of Default as may be requested by the Trustee in accordance with Article VI or any other obligor under any the Holders of a majority in aggregate principal amount of the Loan Documents, Specified Swap Agreements or any Specified Cash Management Agreement Notes (including, in each case, the exercise of any right of setoff, rights on account of any banker’s lien or similar claim or other rights of self-helpsubject to this Section 12.7), or institute any actions or proceedings, or otherwise commence any remedial procedures, with respect to any Collateral of any Borrower or any other Loan Party, without the prior written consent of the Administrative Agent. In the event of a foreclosure by the Administrative Agent on any of the Collateral pursuant to a public or private sale or a sale of any of the Collateral pursuant to Section 363 of the Bankruptcy Code (or an equivalent process in any foreign jurisdiction), the Administrative Agent or any Lender may be the purchaser of any or all of such Collateral at any such sale and the Administrative Agent, as agent for and representative of the Lenders (but not any Lender or Lenders in its or their respective individual capacities unless the Required Lenders shall otherwise agree in writing) shall be entitled, with the consent or at the direction of the Required Lenders, for the purpose of bidding and making settlement or payment of the purchase price for all or any portion of the Collateral sold at any such sale, to use and apply any of the Obligations as a credit on account of the purchase price for any Collateral payable by the Administrative Agent at such sale.
Appears in 1 contract
Collateral Agent. The Administrative Collateral Agent has been appointed to act as Collateral Agent hereunder by the Lenders and, by their acceptance of the benefits hereof, the other Secured Parties. The Collateral Agent shall also act as be obligated, and shall have the “collateral agent” right hereunder, to make demands, to give notices, to exercise or refrain from exercising any rights, and to take or refrain from taking any action (including, without limitation, the release or substitution of Collateral), solely in accordance with this Agreement and the Credit Agreement; provided, the Collateral Agent shall, after payment in full of all Obligations under the Credit Agreement and the other Loan Documents, and each of the Lenders (including in its capacities as a potential Qualified Counterparty and a potential Cash Management Provider) and the Issuing Lenders hereby irrevocably appoints and authorizes the Administrative Agent to act as the agent of such Lender and the Issuing Lenders (with the full power to appoint and to substitute and to delegate) on its behalfexercise, or in its own name as joint and several creditor or creditor of a parallel debt (as the case may be) refrain from exercising, any remedies provided for purposes of acquiring, holding and enforcing any and all Liens on Collateral granted by any of the Loan Parties to secure any of the Obligations, together with such powers and discretion as are reasonably incidental thereto. In this connection, the Administrative Agent, as “collateral agent” and any co-agents, sub-agents and attorneys-in-fact appointed by the Administrative Agent pursuant to Section 10.5 for purposes of holding or enforcing any Lien on the Collateral (or any portion thereof) granted under the Security Documents, or for exercising any rights and remedies thereunder at the direction of the Administrative Agent, shall be entitled to the benefits of all provisions of this Section 10 and Section 11, as though such co-agents, sub-agents and attorneys-in-fact were the “collateral agent” under the Loan Documents as if set forth in full herein with respect thereto. Without limiting the generality of the foregoing, the Lenders hereby expressly authorize the Administrative Agent on its behalf and/or in its own name (including under any parallel debt) to execute any and all documents (including releases) with respect to the Collateral and the rights of the Secured Parties with respect thereto, as contemplated by and in accordance with the provisions of this Agreement and the Security Documents and acknowledge and agree that any such action by any Agent shall bind the Lenders. Each Lender agrees that it shall not take or institute any actions or proceedings, judicial or otherwise, for any right or remedy with respect to any Collateral against any Borrower or any other Loan Party or any other obligor under any instructions of the Loan Documents, Specified Swap holders (the “Majority Holders”) of a majority of the aggregate “settlement amount” as defined in the Hedge Agreements or any Specified Cash Management Agreement (including, in each case, the exercise of any right of setoff, rights on account of any banker’s lien or similar claim or other rights of self-help), or institute any actions or proceedings, or otherwise commence any remedial proceduresor, with respect to any Hedge Agreement that has been terminated in accordance with its terms, the amount then due and payable (exclusive of expenses and similar payments but including any early termination payments then due) under such Hedge Agreement) under all Hedge Agreements. For purposes of the foregoing sentence, the “settlement amount” for any Hedge Agreement that has not been terminated shall be the settlement amount as of the last Business Day of the month preceding any date of determination and shall be calculated by the appropriate swap counterparties and reported to the Collateral Agent upon request; provided any Hedge Agreement with a settlement amount that is a negative number shall be disregarded for purposes of any Borrower or any other Loan determining the Majority Holders. In furtherance of the foregoing provisions of this Section, each Secured Party, without the prior written consent by its acceptance of the Administrative Agent. In the event of a foreclosure by the Administrative Agent on benefits hereof, agrees that it shall have no right individually to realize upon any of the Collateral pursuant hereunder, it being understood and agreed by such Secured Party that all rights and remedies hereunder may be exercised solely by the Collateral Agent for the benefit of Secured Parties in accordance with the terms of this Section. The provisions of the Credit Agreement relating to a public the Collateral Agent including, without limitation, the provisions relating to resignation or private sale or a sale of any removal of the Collateral pursuant to Section 363 of the Bankruptcy Code (or an equivalent process in any foreign jurisdiction), the Administrative Agent or any Lender may be the purchaser of any or all of such Collateral at any such sale and the Administrative Agent, as agent for powers and representative of the Lenders (but not any Lender or Lenders in its or their respective individual capacities unless the Required Lenders shall otherwise agree in writing) shall be entitled, with the consent or at the direction of the Required Lenders, for the purpose of bidding duties and making settlement or payment of the purchase price for all or any portion immunities of the Collateral sold at Agent are incorporated herein by this reference and shall survive any such sale, to use and apply any termination of the Obligations as a credit on account of the purchase price for any Collateral payable by the Administrative Agent at such saleCredit Agreement.
Appears in 1 contract
Sources: Pledge and Security Agreement (Ocwen Financial Corp)
Collateral Agent. (a) The Administrative Agent shall also act as the “collateral agent” under the Loan Documents, Trustee and each of the Lenders (including in Holders by acceptance of the Notes hereby designates and appoints the Collateral Agent as its capacities as a potential Qualified Counterparty and a potential Cash Management Provider) agent under this Indenture and the Issuing Lenders Collateral Documents and the Trustee and each of the Holders by acceptance of the Notes hereby irrevocably appoints and authorizes the Administrative Collateral Agent to act as take such action on its behalf under the agent provisions of such Lender this Indenture and the Issuing Lenders (with the full power to appoint Collateral Documents and to substitute exercise such powers and perform such duties as are expressly delegated to delegate) on its behalf, or in its own name as joint the Collateral Agent by the terms of this Indenture and several creditor or creditor of a parallel debt (as the case may be) for purposes of acquiring, holding and enforcing any and all Liens on Collateral granted by any of the Loan Parties to secure any of the ObligationsDocuments, together with such powers and discretion as are reasonably incidental thereto. In this connection, the Administrative Agent, as “collateral agent” and any co-agents, sub-agents and attorneys-in-fact appointed by the Administrative Agent pursuant to Section 10.5 for purposes of holding or enforcing any Lien on the Collateral (or any portion thereof) granted under the Security Documents, or for exercising any rights and remedies thereunder at the direction of the Administrative Agent, shall be entitled to the benefits of all The provisions of this Section 10 11.11 are solely for the benefit of the Collateral Agent and none of the Trustee, any of the Holders nor any of the Grantors shall have any rights as a third party beneficiary of any of the provisions contained herein other than as expressly provided in Section 1111.03. Notwithstanding any provision to the contrary contained elsewhere in this Indenture and the Collateral Documents, as though such co-agentsthe Collateral Agent shall not have any duties or responsibilities hereunder nor shall the Collateral Agent have or be deemed to have any fiduciary relationship with the Trustee, sub-agents any Holder or any Grantor, and attorneys-in-fact were no implied covenants, functions, responsibilities, duties, obligations or liabilities shall be read into this Indenture and the “collateral agent” under Collateral Documents or otherwise exist against the Loan Documents as if set forth in full herein with respect theretoCollateral Agent. Without limiting the generality of the foregoingforegoing sentence, the Lenders use of the term “agent” in this Indenture 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. 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. Except as expressly otherwise provided in this Indenture, the Collateral Agent shall have and may use its sole discretion with respect to exercising or refraining from exercising any discretionary rights or taking or refraining from taking any actions which the Collateral Agent is expressly entitled to take or assert under this Indenture, and the Collateral Documents, including the exercise of remedies pursuant to Article 6, and any action so taken or not taken shall be deemed consented to by the Trustee and the Holders.
(b) None of the Collateral Agent or any of its respective Affiliates shall (i) be liable for any action taken or omitted to be taken by any of them under or in connection with this Indenture or the transactions contemplated hereby expressly authorize the Administrative Agent on its behalf and/or in (except for its own name gross negligence or willful misconduct) or under or in connection with any Collateral Document or the transactions contemplated thereby (except for its own gross negligence or willful misconduct), or (ii) be responsible in any manner to any of the Trustee or any Holder for any recital, statement, representation, warranty, covenant or agreement made by the Issuer or any Grantor or Affiliate of any Grantor, or any officer or Affiliate thereof, contained in this or any Indenture, any Collateral Document 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 or any other Indenture or the Collateral Documents, or the validity, effectiveness, genuineness, enforceability or sufficiency of this or any other Indenture or the Collateral Documents, or for any failure of any Grantor or any other party to this Indenture or the Collateral Documents to perform its obligations hereunder or thereunder. None of the Collateral Agent or any of its respective Affiliates shall be under any obligation to the Trustee or any Holder to ascertain or to inquire as to the observance or performance of any of the agreements contained in, or conditions of, this or any other Indenture or the Collateral Documents or to inspect the properties, books, or records of any Grantor or any Grantor’s Affiliates.
(c) The Collateral Agent and its Affiliates may make loans to, issue letters of credit for the account of, accept deposits from, acquire equity interests in and generally engage in any kind of banking, trust, financial advisory, underwriting, or other business with the Issuer, any Guarantor and their Affiliates as though it was not the Collateral Agent hereunder and without notice to or consent of the Trustee. The Trustee and the Holders acknowledge that, pursuant to such activities, the Collateral Agent or its Affiliates may receive information regarding any Grantor or its respective Affiliates (including information that may be subject to confidentiality obligations in favor of, any such Grantor or such Affiliate) and acknowledge that the Collateral Agent shall not be under any parallel debtobligation to provide such information to the Trustee or the Holders. Nothing herein shall impose or imply any obligation on the part of the Collateral Agent to advance funds.
(d) The Collateral Agent is authorized and directed to execute (i) enter into the Collateral Documents, (ii) bind the Holders on the terms as set forth in the Collateral Documents and (iii) perform and observe its obligations under the Collateral Documents.
(e) The Trustee agrees that it shall not (and shall not be obligated to), and shall not instruct the Collateral Agent to, unless specifically requested to do so by a majority of the Holders, take or cause to be taken any and all documents action to enforce its rights under this Indenture or against any Grantor, including the commencement of any legal or equitable proceedings, to foreclose any Lien on, or otherwise enforce any security interest in, any of the Collateral. If at any time or times the Trustee shall receive (including releasesi) by payment, foreclosure, set-off or otherwise, any proceeds of Collateral or any payments with respect to the Obligations arising under, or relating to, this Indenture, except for any such proceeds or payments received by the Trustee from the Collateral Agent pursuant to the terms of this Indenture, or (ii) payments from the Collateral Agent in excess of the amount required to be paid to the Trustee pursuant to Article 6, the Trustee shall promptly turn the same over to the Collateral Agent, in kind, and with such endorsements as may be required to negotiate the same to the Collateral Agent.
(f) The Collateral Agent is each Holder’s agent for the purpose of perfecting the Holders’ security interest in assets which, in accordance with Article 9 of the Uniform Commercial Code can be perfected only by possession. Should the Trustee obtain possession of any such Collateral, upon request from the Issuer, the Trustee shall notify the Collateral Agent thereof, and, promptly upon the Collateral Agent’s request therefor shall deliver such Collateral to the Collateral Agent or otherwise deal with such Collateral in accordance with the Collateral Agent’s instructions.
(g) The Collateral Agent shall have no obligation whatsoever to the Trustee or any of the Holders to assure that the Collateral exists or is owned by any Grantor or is cared for, protected, or insured or has been encumbered, or that the Collateral Agent’s Liens have been properly or sufficiently or lawfully created, perfected, protected, maintained or enforced or are entitled to any particular priority, or to determine whether all or the Issuer or any Guarantor’s property constituting collateral intended to be subject to the Lien and security interest of the Collateral Documents has been properly and completely listed or delivered, as the case may be, or the genuineness, validity, marketability or sufficiency thereof or title thereto, 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 powers granted or available to the Collateral Agent pursuant to this Indenture or any Collateral Document, it being understood and agreed that in respect of the Collateral, or any act, omission, or event related thereto, the Collateral Agent may act in any manner it may deem appropriate, in its sole discretion given the Collateral Agent’s own interest in the Collateral and that the rights Collateral Agent shall have no other duty or liability whatsoever to the Trustee or any Holder as to any of the Secured Parties foregoing.
(h) No provision of this Indenture or any Collateral Document shall require the Collateral Agent (or the Trustee) to expend or risk its own funds or otherwise incur any financial liability in the performance of any of its duties hereunder or thereunder or to take or omit to take any action hereunder or thereunder or take any action at the request or direction of Holders (or the Trustee in the case of the Collateral Agent) if it shall have reasonable grounds for believing that repayment of such funds is not assured to it.
(i) The Collateral Agent (i) shall not be liable for any action it takes or omits to take in good faith which it reasonably believes to be authorized or within its rights or powers, or for any error of judgment made in good faith by a Responsible Officer, unless it is proved that the Collateral Agent was grossly negligent in ascertaining the pertinent facts, (ii) shall not be liable for interest on any money received by it except as the Collateral Agent may agree in writing with the Issuer (and money held in trust by the Collateral Agent need not be segregated from other funds except to the extent required by law), (iii) the Collateral Agent may consult with counsel of its selection and the advice or opinion of such counsel as to matters of law shall be full and complete authorization and protection from liability in respect theretoof any action taken, as contemplated omitted or suffered by it in good faith and in accordance with the provisions advice or opinion of this Agreement and such counsel. The grant of permissive rights or powers to the Security Documents and acknowledge and agree that any such action by any Collateral Agent shall bind not be construed to impose duties to act.
(j) Neither the LendersCollateral Agent nor the Trustee shall be liable for delays or failures in performance resulting from acts beyond its control. Each Lender agrees that it Such acts shall include but not take be limited to acts of God, strikes, lockouts, riots, acts of war, epidemics, governmental regulations superimposed after the fact, fire, communication line failures, computer viruses, power failures, earthquakes or institute any actions or proceedings, judicial or otherwise, other disasters. Neither the Collateral Agent nor the Trustee shall be liable for any right indirect, special or remedy with respect consequential damages (included but not limited to any Collateral against any Borrower or any other Loan Party or any other obligor under any lost profits) whatsoever, even if it has been informed of the Loan Documents, Specified Swap Agreements or any Specified Cash Management Agreement (including, in each case, the exercise of any right of setoff, rights on account of any banker’s lien or similar claim or other rights of self-help), or institute any actions or proceedings, or otherwise commence any remedial procedures, with respect to any Collateral of any Borrower or any other Loan Party, without the prior written consent likelihood thereof and regardless of the Administrative Agent. In the event form of a foreclosure by the Administrative Agent on any of the Collateral pursuant to a public or private sale or a sale of any of the Collateral pursuant to Section 363 of the Bankruptcy Code (or an equivalent process in any foreign jurisdiction), the Administrative Agent or any Lender may be the purchaser of any or all of such Collateral at any such sale and the Administrative Agent, as agent for and representative of the Lenders (but not any Lender or Lenders in its or their respective individual capacities unless the Required Lenders shall otherwise agree in writing) shall be entitled, with the consent or at the direction of the Required Lenders, for the purpose of bidding and making settlement or payment of the purchase price for all or any portion of the Collateral sold at any such sale, to use and apply any of the Obligations as a credit on account of the purchase price for any Collateral payable by the Administrative Agent at such saleaction.
Appears in 1 contract
Sources: Indenture (APX Group Holdings, Inc.)
Collateral Agent. The Administrative (a) Each of the Holders by acceptance of the Notes hereby designates and appoints the Collateral Agent shall also act as its collateral agent under this Indenture and the “collateral agent” under the Loan Documents, Security Documents and each of the Lenders (including in Holders by acceptance of the Notes hereby authorizes the Collateral Agent to take such action on its capacities as a potential Qualified Counterparty and a potential Cash Management Provider) behalf under the provisions of this Indenture and the Issuing Lenders hereby irrevocably appoints Security Documents and authorizes to exercise such powers and perform such duties as are expressly required, permitted or delegated to the Administrative Collateral Agent to act as by the agent terms of such Lender this Indenture and the Issuing Lenders (with the full power to appoint and to substitute and to delegate) on its behalf, or in its own name as joint and several creditor or creditor of a parallel debt (as the case may be) for purposes of acquiring, holding and enforcing any and all Liens on Collateral granted by any of the Loan Parties to secure any of the ObligationsSecurity Documents, together with such powers and discretion as are reasonably incidental thereto. In this connection, the Administrative Agent, The Collateral Agent agrees to act as “collateral agent” and any co-agents, sub-agents and attorneys-in-fact appointed by the Administrative Agent pursuant to Section 10.5 for purposes of holding or enforcing any Lien such on the express conditions contained in this Section 11.07. The provisions of this Section 11.07 are solely for the benefit of the Collateral (Agent and none of the Trustee, any of the Holders nor the Company or any portion thereof) granted under Guarantors shall have any rights as a third party beneficiary of any of the provisions contained herein other than as expressly provided in Section 11.03. Not- withstanding any provision to the contrary contained elsewhere in this Indenture and the Security Documents, the Collateral Agent shall not have any duties or for exercising responsibilities, except those expressly set forth herein, nor shall the Collateral Agent have or be deemed to have any rights fiduciary relationship with the Trustee, any Holder or the Company or any Guarantor, and remedies thereunder at the direction of the Administrative Agentno implied covenants, functions, responsibilities, duties, obligations or liabilities shall be entitled to read into this Indenture and the benefits of all provisions of this Section 10 and Section 11, as though such co-agents, sub-agents and attorneys-in-fact were Security Documents or otherwise exist against the “collateral agent” under the Loan Documents as if set forth in full herein with respect theretoCollateral Agent. Without limiting the generality of the foregoingforegoing sentence, the Lenders use of the term “agent” in this Indenture with reference to the Collateral Agent shall not be construed to connote any fiduciary or other implied (or express) obligations arising under agency doctrine of any applicable law. Instead, such term is used merely as a matter of market custom, and is intended to create or reflect only an administrative relationship between independent contracting parties. The Collateral Agent may and, upon direction from the Trustee or the requisite Holders as provided hereunder or under a Security Document, shall exercise or refrain from exercising such discretionary rights, or take or refrain from taking such actions which the Collateral Agent is expressly entitled to take or assert under this Indenture and the Security Documents, including the exercise of remedies pursuant to Article Six, and any action so taken or not taken shall be deemed consented to by the Trustee and the Holders.
(b) The Collateral Agent may execute any of its duties under this Indenture and the Security Documents by or through agents, employees or attorneys-in-fact and shall be entitled to advice of counsel concerning all matters pertaining to such duties. The Collateral Agent shall not be responsible for the bad faith, negligence or misconduct of any agent, employee or attorney-in-fact that it selects as long as such selection was made with due care.
(c) None of the Collateral Agent or any of its agents or employees shall (i) be liable for any action taken or omitted to be taken by any of them under or in connection with this Indenture or the transactions contemplated hereby expressly authorize the Administrative Agent on its behalf and/or in (except for its own name bad faith, gross negligence or willful misconduct) or under or in connection with any Security Document or the transactions contemplated thereby (including except for its own bad faith, gross negligence or willful misconduct), or (ii) be responsible in any manner to the Trustee or any Holder for any recital, statement, representation, warranty, covenant or agreement made by the Company or any Guarantor, contained in this Indenture or any indenture, 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 Indenture or any other indenture, the Security Documents, or the validity, effectiveness, genuineness, enforceability or sufficiency of this Indenture or any other indenture or the Security Documents, or for any failure of the Company or any Guarantor or any other party to this Indenture or the Security Documents to perform its obligations hereunder or thereunder. None of the Collateral Agent or any of its agents or employees shall be under any parallel debtobligation to the Trustee or any Holder to ascertain or to inquire as to the observance or performance of any of the agreements contained in, or conditions of, this Indenture or any other indenture or the Security Documents or to inspect the properties, books or records of the Company or any Guarantor.
(d) The Collateral Agent shall not be deemed to execute have knowledge or notice of the occurrence of any Default or Event of Default, unless the Collateral Agent (i) shall have received written notice from the Trustee or the Company referring to this Indenture, describing such Default or Event of Default and all documents stating that such notice is a “notice of default” or (including releasesii) a Responsible Officer has actual knowledge of the occurrence of such Default or Event of Default. The Collateral Agent shall take such action with respect to such Default or Event of Default as may be requested by the Trustee in accordance with Article Six (subject to this Section 11.07) or the Holders as provided in the Security Documents; provided, however, that unless and until the Collateral Agent has received any such request, the Collateral Agent may (but shall not be obligated to) take such action, or refrain from taking such action, with respect to such Default or Event of Default as it shall deem advisable.
(e) A resignation or removal of the Collateral Agent and appointment of a successor Collateral Agent shall become effective only upon the successor Collateral Agent’s acceptance of appointment as provided in this Section 11.07(e). The Collateral Agent may resign in writing at any time by so notifying the Company, the Trustee and each trustee, agent or representative of holders of Permitted Additional Pari Passu Obligations at least 30 days prior to the proposed date of resignation. The Company may remove the Collateral Agent if: (i) the Collateral Agent is removed as Trustee under this Indenture; (ii) the Collateral Agent (x) fails to meet the requirements for being a Trustee under Section 7.10 (prior to the discharge or defeasance of this Indenture) and (y) following the discharge or defeasance of this Indenture, fails to meet the requirements for being the trustee, agent or representative of holders of any extant Permitted Additional Pari Passu Obligations; (iii) the Collateral Agent is adjudged a bankrupt or an insolvent or an order for relief is entered with respect to the Collateral Agent under any Bankruptcy Law; (iv) a custodian or public officer takes charge of the Collateral Agent or its property; or (v) the Collateral Agent becomes incapable of acting. If the Collateral Agent resigns or is removed or if a vacancy exists in the office of Collateral Agent for any reason, the Company shall promptly appoint a successor Collateral Agent which complies with the eligibility requirements contained in this Indenture and each indenture, credit agreement or other agreements which any Permitted Additional Pari Passu Obligations (other than Additional Notes) are incurred. If a successor Collateral Agent does not take office within 10 days after the retiring Collateral Agent resigns or is removed, the retiring Collateral Agent, the Company or the holders of at least 10% in principal amount of the then outstanding principal amount of (x) the Notes (other than any Additional Notes except to the extent constituting Permitted Additional Pari Passu Obligations) and (y) Permitted Additional Pari Passu Obligations (to the extent the trustee, agent or representative of holders of such Permitted Additional Pari Passu Obligations executed a joinder to the Security Agreement) may petition any court of competent jurisdiction for the appointment of a successor Collateral Agent. A successor Collateral Agent shall deliver a written acceptance of its appointment to the retiring Collateral Agent and to the Company. Thereupon, the resignation or removal of the retiring Collateral Agent shall become effective, and the rights successor Collateral Agent shall have all the rights, powers and the duties of the Secured Parties with respect thereto, as contemplated by and in accordance with the provisions of Collateral Agent under this Agreement Indenture and the Security Documents and acknowledge and agree that any such action by any Documents. The successor Collateral Agent shall bind mail a notice of its succession to the LendersTrustee and each trustee, agent or representative of holders of Permitted Additional Pari Passu Obligations. Each Lender agrees The retiring Collateral Agent shall promptly transfer all property held by it as Collateral Agent to the successor Collateral Agent, provided that it all sums owing to the Collateral Agent hereunder have been paid. Notwithstanding replacement of the Collateral Agent pursuant to this Section 11.07(e), the Company’s obligations under this Section 11.07 and Section 11.12 shall continue for the benefit of the retiring Collateral Agent. If the Collateral Agent resigns or is removed, such resignation or removal will not take constitute a resignation or institute any actions removal of the Trustee hereunder (unless the Trustee resigns or proceedingsis otherwise removed pursuant to Section 7.08).
(f) The Trustee shall initially act as Collateral Agent and shall be authorized to appoint co-Collateral Agents as necessary in its sole discretion. Except as otherwise explicitly provided herein or in the Security Documents, judicial or otherwise, for any right or remedy with respect to any neither the Collateral against any Borrower or any other Loan Party or any other obligor under Agent nor any of the Loan Documentsits officers, Specified Swap Agreements directors, employees or any Specified Cash Management Agreement (includingagents shall be liable for failure to demand, in each case, the exercise of any right of setoff, rights on account of any banker’s lien collect or similar claim or other rights of self-help), or institute any actions or proceedings, or otherwise commence any remedial procedures, with respect to any Collateral of any Borrower or any other Loan Party, without the prior written consent of the Administrative Agent. In the event of a foreclosure by the Administrative Agent on realize upon any of the Collateral pursuant or for any delay in doing so or shall be under any obligation to a public sell or private sale or a sale 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 Collateral Agent shall be accountable only for amounts that it actually receives as a result of the Collateral pursuant to Section 363 of the Bankruptcy Code (or an equivalent process in any foreign jurisdiction), the Administrative Agent or any Lender may be the purchaser of any or all exercise of such powers, and neither the Collateral at Agent nor any such sale and the Administrative Agentof its officers, as agent for and representative of the Lenders (but not any Lender directors, employees or Lenders in its or their respective individual capacities unless the Required Lenders shall otherwise agree in writing) agents shall be entitled, with the consent or at the direction of the Required Lenders, for the purpose of bidding and making settlement or payment of the purchase price for all or any portion of the Collateral sold at any such sale, to use and apply any of the Obligations as a credit on account of the purchase price responsible for any Collateral payable by the Administrative Agent at such saleact or failure to act hereunder, except for its own willful misconduct, gross negligence or bad faith.
Appears in 1 contract
Sources: Indenture (Exide Technologies)
Collateral Agent. (a) The Administrative Agent shall also act as the “collateral agent” under the Loan Documents, Trustee and each of the Lenders (including in Holders by acceptance of the Notes hereby designates and appoints the Collateral Agent as its capacities as a potential Qualified Counterparty and a potential Cash Management Provider) agent under this Indenture, the Security Documents and the Issuing Lenders Intercreditor Agreement and the Trustee and each of the Holders by acceptance of the Notes hereby irrevocably appoints and authorizes the Administrative Collateral Agent to act as take such action on its behalf under the agent provisions of such Lender this Indenture, the Security Documents and the Issuing Lenders (with the full power to appoint Intercreditor Agreement and to substitute exercise such powers and perform such duties as are expressly delegated to delegate) on its behalfthe Collateral Agent by the terms of this Indenture, or in its own name as joint the Security Documents and several creditor or creditor of a parallel debt (as the case may be) for purposes of acquiring, holding and enforcing any and all Liens on Collateral granted by any of the Loan Parties to secure any of the ObligationsIntercreditor Agreement, together with such powers and discretion as are reasonably incidental thereto. In this connection, the Administrative Agent, The Collateral Agent agrees to act as “collateral agent” and any co-agents, sub-agents and attorneys-in-fact appointed by the Administrative Agent pursuant to Section 10.5 for purposes of holding or enforcing any Lien such on the Collateral (or any portion thereof) granted under the Security Documents, or for exercising any rights and remedies thereunder at the direction of the Administrative Agent, shall be entitled to the benefits of all express conditions contained in this Section 10.06. The provisions of this Section 10 10.06 are solely for the benefit of the Collateral Agent and none of the Trustee, any of the Holders nor any of the Issuers or Guarantors shall have any rights as a third party beneficiary of any of the provisions contained herein other than as expressly provided in Section 1110.03. Notwithstanding any provision to the contrary contained elsewhere in this Indenture, as though such co-agentsthe Security Documents and the Intercreditor Agreement, sub-agents and attorneys-in-fact were the “collateral agent” under the Loan Documents as if Collateral Agent shall not have any duties or responsibilities, except those expressly set forth in full herein herein, nor shall the Collateral Agent have or be deemed to have any fiduciary relationship with respect theretothe Trustee, any Holder, any Issuer or any Subsidiary of the Company, and no implied covenants, functions, responsibilities, duties, obligations or liabilities shall be read into this Indenture, the Security Documents and the Intercreditor Agreement or otherwise exist against the Collateral Agent. Without limiting the generality of the foregoingforegoing sentence, the Lenders hereby use of the term “agent” in this Indenture 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. 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. Except as expressly authorize otherwise provided in this Indenture, the Administrative Collateral Agent on shall have and may use its behalf and/or in its own name (including under any parallel debt) to execute any and all documents (including releases) sole discretion with respect to exercising or refraining from exercising any discretionary rights or taking or refraining from taking any actions which the Collateral and the rights of the Secured Parties with respect theretoAgent is expressly entitled to take or assert under this Indenture, as contemplated by and in accordance with the provisions of this Agreement and the Security Documents and acknowledge the Intercreditor Agreement, including the exercise of remedies pursuant to Article Six, and agree any action so taken or not taken shall be deemed consented to by the Trustee and the Holders.
(b) The Collateral Agent may execute any of its duties under this Indenture, the Security Documents or the Intercreditor Agreement by or through agents, employees, attorneys-in-fact or through its related Persons and shall be entitled to advice of counsel concerning all matters pertaining to such duties. The Collateral Agent shall not be responsible for the negligence or misconduct of any agent, employee, attorney-in-fact or related Person that it selects as long as such selection was made without gross negligence or willful misconduct.
(c) None of the Collateral Agent, nor any of its respective related Persons shall (i) be liable for any action taken or omitted to be taken by any of them under or in connection with this Indenture or the transactions contemplated hereby (except for its own gross negligence or willful misconduct) or under or in connection with any Security Document or Intercreditor Agreement or the transactions contemplated thereby (except for its own negligence or willful misconduct), or (ii) be responsible in any manner to any of the Trustee or any Holder for any recital, statement, representation, warranty, covenant or agreement made by any Issuer or any Guarantor, officer or related Person thereof, contained in this or any Indenture, 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 or any other Indenture, the Security Documents or the Intercreditor Agreement, or the validity, effectiveness, genuineness, enforceability or sufficiency of this or any other Indenture, the Security Documents or the Intercreditor Agreement, or for any failure of any Issuer, Guarantor or any other party to this Indenture, the Security Documents or the Intercreditor Agreement to perform its obligations hereunder or thereunder. None of the Collateral Agent or any of its respective related Persons shall be under any obligation to the Trustee or any Holder to ascertain or to inquire as to the observance or performance of any of the agreements contained in, or conditions of, this or any other Indenture, the Security Documents or the Intercreditor Agreement or to inspect the properties, books, or records of any Issuer or Guarantor.
(d) The Collateral Agent shall be entitled to rely, and shall be fully protected in relying, upon any writing, resolution, notice, consent, certificate, affidavit, letter, telegram, facsimile, telex, or telephone message, statement, or other document or conversation believed by it to be genuine and correct and to have been signed, sent, or made by the proper Person or Persons, and upon advice and statements of legal counsel (including, without limitation, counsel to any Issuer or Guarantor), independent accountants and other experts and advisors selected by the Collateral Agent. The Collateral Agent shall be fully justified in failing or refusing to take any action under this or any other Indenture, the Security Documents or the Intercreditor Agreement unless it shall first receive such advice or concurrence of the Trustee as it deems appropriate and, if it so requests, it shall first be indemnified to its satisfaction by the Holders against any and all liability and expense which may be incurred by it by reason of taking or continuing to take any such action by any action. The Collateral Agent shall bind in all cases be fully protected in acting, or in refraining from acting, under this or any other Indenture, the Lenders. Each Lender agrees that it Security Documents or the Intercreditor Agreement in accordance with a request or consent of the Trustee and such request and any action taken or failure to act pursuant thereto shall be binding upon all of the Holders.
(e) The Collateral Agent shall not be deemed to have knowledge or notice of the occurrence of any Default or Event of Default, unless the Collateral Agent shall have received written notice from the Trustee or an Issuer or Guarantor referring to this Indenture, describing such Default or Event of Default and stating that such notice is a “notice of default.” The Collateral Agent shall take or institute any actions or proceedings, judicial or otherwise, for any right or remedy such action with respect to such Default or Event of Default as may be requested by the Trustee in accordance with Article Six (subject to this Section 10.06); provided, however, that unless and until the Collateral Agent has received any Collateral against any Borrower or any other Loan Party or any other obligor under any of the Loan Documents, Specified Swap Agreements or any Specified Cash Management Agreement (including, in each casesuch request, the exercise of any right of setoff, rights on account of any banker’s lien or similar claim or other rights of self-help)Collateral Agent may (but shall not be obligated to) take such action, or institute any actions or proceedings, or otherwise commence any remedial proceduresrefrain from taking such action, with respect to such Default or Event of Default as it shall deem advisable.
(f) U.S. Bank National Association and its respective Affiliates (and any successor Collateral Agent and its affiliates) may make loans to, issue letters of credit for the account of, accept deposits from, acquire equity interests in and generally engage in any Borrower kind of banking, trust, financial advisory, underwriting, or other business with any other Loan Party, Issuer or Guarantor and its Affiliates as though it was not the Collateral Agent hereunder and without the prior written notice to or consent of the Administrative AgentTrustee. In The Trustee and the event Holders acknowledge that, pursuant to such activities, U.S. Bank National Association or its respective Affiliates (and any successor Collateral Agent and its affiliates) may receive information regarding any Issuer or Guarantor or its Affiliates (including information that may be subject to confidentiality obligations in favor of a foreclosure by the Administrative Agent on any of such Issuer, Guarantor or such Affiliate) and acknowledge that the Collateral pursuant Agent shall not be under any obligation to a public provide such information to the Trustee or private sale the Holders. Nothing herein shall impose or a sale imply any obligation on the part of any of the Collateral pursuant to Section 363 of the Bankruptcy Code U.S. Bank National Association (or an equivalent process in any foreign jurisdiction), the Administrative Agent or any Lender may be the purchaser of any or all of such successor Collateral at any such sale and the Administrative Agent, as agent for and representative of the Lenders (but not any Lender or Lenders in its or their respective individual capacities unless the Required Lenders shall otherwise agree in writing) shall be entitled, with the consent or at the direction of the Required Lenders, for the purpose of bidding and making settlement or payment of the purchase price for all or any portion of the Collateral sold at any such sale, to use and apply any of the Obligations as a credit on account of the purchase price for any Collateral payable by the Administrative Agent at such saleadvance funds.
Appears in 1 contract
Sources: Indenture (Norcraft Holdings, L.P.)
Collateral Agent. The Administrative Agent shall also act as the “collateral agent” under the Loan Documents, and each of the Lenders (including in its capacities as a potential Qualified Counterparty and a potential Cash Management Provider) and the Issuing Lenders hereby irrevocably appoints and authorizes the Administrative Agent to act as the agent of such Lender and the Issuing Lenders (with the full power to appoint and to substitute and to delegate) on its behalf, or in its own name as joint and several creditor or creditor of a parallel debt (as the case may be) for purposes of acquiring, holding and enforcing any and all Liens on Collateral granted by any of the Loan Parties to secure any of the Obligations, together with such powers and discretion as are reasonably incidental thereto. In this connection, the Administrative Each Lender hereby authorizes Agent, on behalf of and for the ratable benefit of Lenders, in its capacity as “collateral agent” and , to enter into any co-agents, sub-agents and attorneys-in-fact appointed by of the Administrative Agent pursuant to Section 10.5 Loan Documents as secured party for purposes of acquiring, holding or and enforcing any Lien all Liens on the Collateral (or and any portion thereof) granted under other collateral from time to time securing the Security DocumentsObligations), or and as Agent for exercising any and representative of Lender thereunder, and each Lender agrees to be bound by the terms of each such document. All powers, rights and remedies thereunder at the direction of the Administrative Agent, shall be entitled to the benefits of all provisions of this Section 10 and Section 11, as though such co-agents, sub-agents and attorneys-in-fact were the “collateral agent” under the Loan Documents as if set forth in full herein with respect thereto. Without limiting may be exercised solely by Agent for the generality benefit of the foregoing, the Lenders hereby expressly authorize the Administrative and Agent on its behalf and/or in its own name (including under any parallel debt) to execute any and all documents (including releases) with respect to the Collateral and the rights of the Secured Parties with respect thereto, as contemplated by and in accordance with the provisions of this Agreement and the Security Documents and acknowledge and agree that any such action by any Agent shall bind the Lenders. Each Lender agrees that it shall not take or institute any actions or proceedings, judicial or otherwise, for any right or remedy with respect to any Collateral against any Borrower or any other Loan Party or any other obligor under any of the Loan Documents, Specified Swap Agreements or any Specified Cash Management Agreement (including, in each case, the exercise of any right of setoff, rights on account of any banker’s lien or similar claim or other rights of self-help), or institute any actions or proceedings, or otherwise commence any remedial procedures, with respect to any Collateral of any Borrower or any other Loan Party, without the prior written consent of the Administrative Agentterms thereof. In the event of a foreclosure by the Administrative Agent on any of the Collateral pursuant to a public or private sale or a sale of any of the Collateral pursuant to Section 363 of the Bankruptcy Code (or an equivalent process in any foreign jurisdiction)sale, the Administrative either Agent or any Lender may be the purchaser of any or all of such Collateral at any such sale and the Administrative Agent, as agent for and representative of the Lenders (but not any Lender or Lenders in its or their respective individual capacities unless the Required Lenders shall otherwise agree in writing) shall be entitled, with entitled (subject to the consent or proviso at the direction end of the Required Lendersthis sentence), for the purpose of bidding and making settlement or payment of the purchase price for all or any 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 the Administrative Agent at such sale; provided however, that neither Agent nor any Lender shall “credit bid” at any foreclosure and/or other public or private sale absent the consent of the Lenders. Without limiting the generality of the foregoing, Agent is hereby expressly authorized to execute any and all documents (including releases) that bind Lenders with respect to (i) the Collateral and the rights of Lenders with respect thereto, as contemplated by and in accordance with the provisions of the Loan Documents, and (ii) any other subordination agreement with respect to any Subordinated Debt.
Appears in 1 contract
Collateral Agent. (a) The Administrative Agent shall also act as the “collateral agent” under the Loan Documents, Trustee and each of the Lenders (including in Holders by acceptance of the Securities hereby designates and appoints the Collateral Agent as its capacities as a potential Qualified Counterparty and a potential Cash Management Provider) agent under this Indenture, the Security Documents and the Issuing Lenders Intercreditor Agreement and the Trustee and each of the Holders by acceptance of the Securities hereby irrevocably appoints and authorizes the Administrative Collateral Agent to take such action on its behalf under the provisions of this Indenture, the Security Documents and the Intercreditor Agreement and to exercise such powers and perform such duties as are expressly delegated to the Collateral Agent by the terms of this Indenture, the Security Documents and the Intercreditor Agreement, and consents and agrees to the terms of the Intercreditor Agreement and each Security Document, as the same may be in effect or may be amended, restated, supplemented or otherwise modified from time to time in accordance with their respective terms. The Collateral Agent agrees to act as such on the agent express conditions contained in this Section 11.08. The provisions of such Lender this Section 11.08 are solely for the benefit of the Collateral Agent and none of the Issuing Lenders (with the full power to appoint and to substitute and to delegate) on its behalfTrustee, or in its own name as joint and several creditor or creditor of a parallel debt (as the case may be) for purposes of acquiring, holding and enforcing any and all Liens on Collateral granted by any of the Loan Parties to secure Holders nor any of the Obligations, together Grantors shall have any rights as a third party beneficiary of any of the provisions contained herein other than as expressly provided in Section 11.03. Each Holder agrees that any action taken by the Collateral Agent in accordance with such powers and discretion as are reasonably incidental thereto. In the provision of this connectionIndenture, the Administrative Agent, as “collateral agent” Intercreditor Agreement and any co-agents, sub-agents and attorneys-in-fact appointed by the Administrative Agent pursuant to Section 10.5 for purposes of holding or enforcing any Lien on the Collateral (or any portion thereof) granted under the Security Documents, or for exercising and the exercise by the Collateral Agent of any rights or remedies set forth herein and remedies thereunder at therein shall be authorized and binding upon all Holders. Notwithstanding any provision to the direction contrary contained elsewhere in this Indenture, the Security Documents and the Intercreditor Agreement, the duties of the Administrative Agent, Collateral Agent shall be entitled to ministerial and administrative in nature, and the benefits of all provisions of this Section 10 and Section 11Collateral Agent shall not have any duties or responsibilities, as though such co-agents, sub-agents and attorneys-in-fact were the “collateral agent” under the Loan Documents as if except those expressly set forth herein and in full herein the other Notes Documents to which the Collateral Agent is a party, nor shall the Collateral Agent have or be deemed to have any trust or other fiduciary relationship with respect theretothe Trustee, any Holder or any Grantor, and no implied covenants, functions, responsibilities, duties, obligations or liabilities shall be read into this Indenture, the Security Documents and the Intercreditor Agreement or otherwise exist against the Collateral Agent. Without limiting the generality of the foregoingforegoing sentence, the Lenders hereby expressly authorize use of the Administrative Agent on its behalf and/or term “agent” in its own name (including under any parallel debt) to execute any and all documents (including releases) this Indenture with respect 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. Instead, such term is used merely as a matter of market custom, and the rights is intended to create or reflect only an administrative relationship between independent contracting parties.
(b) The Collateral Agent may perform any of the Secured Parties with respect theretoits duties under this Indenture, as contemplated by and in accordance with the provisions of this Agreement and the Security Documents and acknowledge and agree that any such action or the Intercreditor Agreement by any Agent shall bind the Lenders. Each Lender agrees that it shall not take or institute any actions through receivers, agents, employees, attorneys-in-fact or proceedings, judicial or otherwise, for any right or remedy with respect to any specified Person, such Person’s Affiliates, and the respective officers, directors, employees, agents, advisors and attorneys-in-fact of such Person and its Affiliates, (a “Related Person”) and shall be entitled to advice of counsel of its selection concerning all matters pertaining to such duties, and shall be entitled to act upon, and shall be fully protected in taking action in reliance upon any advice or opinion given by legal counsel. The Collateral against Agent shall not be responsible for the negligence or willful misconduct of any Borrower receiver, agent, employee, attorney-in-fact or Related Person that it selects as long as such selection was made in good faith.
(c) None of the Collateral Agent or any of its respective Related Persons shall (i) be liable for any action taken or omitted to be taken by any of them under or in connection with this Indenture or the transactions contemplated hereby (except for its own gross negligence or willful misconduct) or under or in connection with any Security Document or the Intercreditor Agreement or the transactions contemplated thereby (except for its own gross negligence or willful misconduct), or (ii) be responsible in any manner to any of the Trustee or any Holder for any recital, statement, representation, warranty, covenant or agreement made by the Issuer or any other Loan Party Grantor or Affiliate of any Grantor, or any Officer or Related Person thereof, contained in this Indenture, or any other obligor under any of the Loan Notes Documents, Specified Swap Agreements or in any Specified Cash Management Agreement (includingcertificate, report, statement or other document referred to or provided for in, or received by the Collateral Agent under or in each caseconnection with, this Indenture, the exercise Security Documents or the Intercreditor Agreement, or the validity, effectiveness, genuineness, enforceability or sufficiency of this Indenture, the Security Documents or the Intercreditor Agreement, or for any failure of any right of setoff, rights on account of any banker’s lien or similar claim or other rights of self-help), or institute any actions or proceedings, or otherwise commence any remedial procedures, with respect to any Collateral of any Borrower Grantor or any other Loan Partyparty to this Indenture, without the prior written consent of Security Documents or the Administrative AgentIntercreditor Agreement to perform its obligations hereunder or thereunder. In the event of a foreclosure by the Administrative Agent on any None of the Collateral pursuant Agent or any of its respective Related Persons shall be under any obligation to a public the Trustee or private sale any Holder to ascertain or a sale to inquire as to the observance or performance of any of the agreements contained in, or conditions of, this Indenture, the Security Documents or the Intercreditor Agreement or to inspect the properties, books, or records of any Grantor or any Grantor’s Affiliates.
(d) The Collateral pursuant Agent shall be entitled to Section 363 rely, and shall be fully protected in relying, upon any writing, resolution, notice, consent, certificate, affidavit, letter, telegram, facsimile, certification, telephone message, statement, or other communication, document or conversation (including those by telephone or e-mail) believed by it to be genuine and correct and to have been signed, sent, or made by the proper Person or Persons, and upon advice and statements of legal counsel (including, without limitation, counsel to the Issuer or any other Grantor), independent accountants and other experts and advisors selected by the Collateral Agent. The Collateral Agent shall not be bound to make any investigation into the facts or matters stated in any resolution, certificate, statement, instrument, opinion, report, notice, request, direction, consent, order, bond, debenture, or other paper or document. The Collateral Agent shall be fully justified in failing or refusing to take any action under this Indenture, the Security Documents or the Intercreditor Agreement unless it shall first have received indemnity or security satisfactory to it. Whenever reference is made in this Agreement, the Security Documents or the Intercreditor Agreement 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 fully justified in failing or refusing to take any such action under this Agreement if it shall not have received such advice or concurrence of the Bankruptcy Code (or an equivalent process in any foreign jurisdiction)Trustee, the Administrative Agent or any Lender may be the purchaser of any or all of such Collateral at any such sale and the Administrative Agent, as agent for and representative of the Lenders (but not any Lender or Lenders in its or their respective individual capacities unless the Required Lenders shall otherwise agree in writing) shall be entitled, with the consent or acting at the direction of the Required Lendersrequired Holders of the Notes (acting in accordance with the Indenture and other transaction documents, with such direction to be binding upon all of the Holders), as it deems appropriate. This provision is intended solely for the purpose of bidding and making settlement or payment of the purchase price for all or any portion benefit of the Collateral sold Agent and its successors and permitted assigns and is not intended to and will not entitle the other parties hereto to any defense, claim or counterclaim, or confer any rights or benefits on any party hereto.
(e) The Collateral Agent shall not be deemed to have knowledge or notice of the occurrence of any Default or Event of Default, unless a Responsible Officer of the Collateral Agent shall have received written notice from the Trustee or the Issuer referring to this Indenture, describing such Default or Event of Default and stating that such notice is a “notice of default.” The Collateral Agent shall take such action with respect to such Default or Event of Default as may be requested by the Trustee in accordance with Article 6 or the Holders of a majority in aggregate principal amount of the Securities (subject to this Section 11.08).
(f) The Collateral Agent may resign at any time by notice to the Trustee and the Issuer, such saleresignation to be effective upon the acceptance of a successor agent to its appointment as Collateral Agent. If the Collateral Agent resigns under this Indenture, the Issuer shall appoint a successor collateral agent. If no successor collateral agent is appointed prior to use and apply any the intended effective date of the Obligations as a credit on account resignation of the purchase price for any Collateral payable Agent (as stated in the notice of resignation), the Collateral Agent may appoint, after consulting with the Trustee, subject to the consent of the Issuer (which shall not be unreasonably withheld and which shall not be required during a continuing Event of Default), a successor collateral agent. If no successor collateral agent is appointed and consented to by the Administrative Issuer pursuant to the preceding sentence within thirty (30) days after the intended effective date of resignation (as stated in the notice of resignation) the Collateral Agent shall be entitled to petition a court of competent jurisdiction to appoint a successor, at the expense of the Issuer. Upon the acceptance of its appointment as successor collateral agent hereunder, such salesuccessor collateral agent shall succeed to all the rights, powers and duties of the retiring Collateral Agent, and the term “Collateral Agent” shall mean such successor collateral agent, and the retiring Collateral Agent’s appointment, powers and duties as the Collateral Agent shall be terminated. After the retiring Collateral Agent’s resignation hereunder, the provisions of this Section 11.08 (and Section 7.7) shall continue to inure to its benefit and the retiring Collateral Agent shall not by reason of such resignation be deemed to be released from liability as to any actions taken or omitted to be taken by it while it was the Collateral Agent under this Indenture.
Appears in 1 contract
Sources: Indenture (Scientific Games Corp)
Collateral Agent. The Administrative DELAWARE TRUST COMPANY, as Collateral Agent shall also act By: Name: Title: THIS PLEDGE AMENDMENT, dated as of , 20 , is delivered by [NAME OF PLEDGOR] (the “collateral agent” under the Loan Documents, and each of the Lenders (including in its capacities as a potential Qualified Counterparty and a potential Cash Management ProviderPledgor”) and the Issuing Lenders hereby irrevocably appoints and authorizes the Administrative Agent to act as the agent of such Lender and the Issuing Lenders (with the full power to appoint and to substitute and to delegate) on its behalf, or in its own name as joint and several creditor or creditor of a parallel debt (as the case may be) for purposes of acquiring, holding and enforcing any and all Liens on Collateral granted by any of the Loan Parties to secure any of the Obligations, together with such powers and discretion as are reasonably incidental thereto. In this connection, the Administrative Agent, as “collateral agent” and any co-agents, sub-agents and attorneys-in-fact appointed by the Administrative Agent pursuant to Section 10.5 5.1 of the Security Agreement referred to herein below. The Pledgor hereby agrees that this Pledge Amendment may be attached to the Pledge and Security Agreement, dated as of [ ], 20[ ] (as amended, modified, restated or supplemented from time to time, the “Security Agreement,” capitalized terms defined therein being used herein as therein defined) made by the Pledgor in favor of , as trustee and collateral agent for purposes the Holders under the Indenture referred to below (in its capacity as trustee and together with its successors and assigns in such capacity, the “Trustee” and in its capacity as collateral agent and together with its successors and assigns in such capacity, the “Collateral Agent”), and that the Equity Interests listed on Annex A to this Pledge Amendment shall be deemed to be part of holding or enforcing any Lien on the Equity Interests within the meaning of the Security Agreement and shall become part of the Collateral (or any portion thereof) granted under and shall secure all of the Secured Obligations as provided in the Security Documents, or for exercising any rights Agreement. The Pledgor hereby confirms that all representations and remedies thereunder at the direction of the Administrative Agent, shall be entitled to the benefits of all provisions of this Section 10 and Section 11, as though such co-agents, sub-agents and attorneys-in-fact were the “collateral agent” under the Loan Documents as if warranties set forth in full herein with respect thereto. Without limiting the generality Sections 3.1, 3.2, 3.4, 3.5 and 3.7 of the foregoing, the Lenders hereby expressly authorize the Administrative Agent on its behalf and/or in its own name (including under any parallel debt) to execute any Security Agreement are true and all documents (including releases) correct with respect to the Collateral Equity Interests listed on Annex A to this Pledge Amendment. This Pledge Amendment and its attachments are hereby incorporated into the rights of the Secured Parties with respect thereto, as contemplated by and in accordance with the provisions of this Security Agreement and the Security Documents and acknowledge and agree that any such action by any Agent shall bind the Lendersmade a part thereof. Each Lender agrees that it shall not take or institute any actions or proceedings, judicial or otherwise, for any right or remedy with respect to any Collateral against any Borrower or any other Loan Party or any other obligor under any [ACQUIRED SUBSIDIARY] By: Name: Title: Name of the Loan Documents, Specified Swap Agreements or any Specified Cash Management Agreement Issuer Type of Interests Certificate No. (including, if applicable) No. of Shares/Units (if applicable) Percentage of Outstanding Interests in each case, the exercise of any right of setoff, rights on account of any banker’s lien or similar claim or other rights of self-help), or institute any actions or proceedings, or otherwise commence any remedial procedures, with respect to any Collateral of any Borrower or any other Loan Party, without the prior written consent of the Administrative Agent. In the event of a foreclosure by the Administrative Agent on any of the Collateral pursuant to a public or private sale or a sale of any of the Collateral pursuant to Section 363 of the Bankruptcy Code (or an equivalent process in any foreign jurisdiction), the Administrative Agent or any Lender may be the purchaser of any or all of such Collateral at any such sale and the Administrative Agent, as agent for and representative of the Lenders (but not any Lender or Lenders in its or their respective individual capacities unless the Required Lenders shall otherwise agree in writing) shall be entitled, with the consent or at the direction of the Required Lenders, for the purpose of bidding and making settlement or payment of the purchase price for all or any portion of the Collateral sold at any such sale, to use and apply any of the Obligations as a credit on account of the purchase price for any Collateral payable by the Administrative Agent at such sale.Issuer
Appears in 1 contract
Collateral Agent. (a) The Administrative Agent shall also act as the “collateral agent” under the Loan Documents, Trustee and each of the Lenders (including in Holders by acceptance of the Notes hereby designates and appoints the Collateral Agent as its capacities as a potential Qualified Counterparty and a potential Cash Management Provider) agent under this Indenture, the Security Documents and the Issuing Lenders Intercreditor Agreement and the Trustee and each of the Holders by acceptance of the Notes hereby irrevocably appoints and authorizes the Administrative Collateral Agent to act as take such action on its behalf under the agent provisions of such Lender this Indenture, the Security Documents and the Issuing Lenders (with the full power to appoint Intercreditor Agreement and to substitute exercise such powers and perform such duties as are expressly delegated to delegate) on its behalfthe Collateral Agent by the terms of this Indenture, or in its own name as joint the Security Documents and several creditor or creditor of a parallel debt (as the case may be) for purposes of acquiring, holding and enforcing any and all Liens on Collateral granted by any of the Loan Parties to secure any of the ObligationsIntercreditor Agreement, together with such powers and discretion as are reasonably incidental thereto. In this connection, the Administrative Agent, The Collateral Agent agrees to act as “collateral agent” and any co-agents, sub-agents and attorneys-in-fact appointed by the Administrative Agent pursuant to Section 10.5 for purposes of holding or enforcing any Lien such on the Collateral (or any portion thereof) granted under the Security Documents, or for exercising any rights and remedies thereunder at the direction of the Administrative Agent, shall be entitled to the benefits of all express conditions contained in this Section 10.06. The provisions of this Section 10 10.06 are solely for the benefit of the Collateral Agent and none of the Trustee, any of the Holders nor any of the Issuers or Subsidiary Guarantors shall have any rights as a third party beneficiary of any of the provisions contained herein other than as expressly provided in Section 1110.03. Notwithstanding any provision to the contrary contained elsewhere in this Indenture, as though such co-agentsthe Security Documents and the Intercreditor Agreement, sub-agents and attorneys-in-fact were the “collateral agent” under the Loan Documents as if Collateral Agent shall not have any duties or responsibilities, except those expressly set forth in full herein herein, nor shall the Collateral Agent have or be deemed to have any fiduciary relationship with respect theretothe Trustee, any Holder, any Issuer or any Subsidiary of the Company, and no implied covenants, functions, responsibilities, duties, obligations or liabilities shall be read into this Indenture, the Security Documents and the Intercreditor Agreement or otherwise exist against the Collateral Agent. Without limiting the generality of the foregoingforegoing sentence, the Lenders use of the term “agent” in this Indenture 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. 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. Except as expressly otherwise provided in this Indenture, the Collateral Agent shall have and may use its sole discretion with respect to exercising or refraining from exercising any discretionary rights or taking or refraining from taking any actions which the Collateral Agent is expressly entitled to take or assert under this Indenture, the Security Documents and the Intercreditor Agreement, including the exercise of remedies pursuant to Article 6, and any action so taken or not taken shall be deemed consented to by the Trustee and the Holders.
(b) The Collateral Agent may execute any of its duties under this Indenture, the Security Documents or the Intercreditor Agreement by or through agents, employees, attorneys-in-fact or through its Related Persons and shall be entitled to advice of counsel concerning all matters pertaining to such duties. The Collateral Agent shall not be responsible for the negligence or misconduct of any agent, employee, attorney-in-fact or Related Person that it selects as long as such selection was made without gross negligence or willful misconduct
(c) None of the Collateral Agent, any of its respective Related Persons shall (i) be liable for any action taken or omitted to be taken by any of them under or in connection with this Indenture or the transactions contemplated hereby expressly authorize the Administrative Agent on its behalf and/or in (except for its own name gross negligence or willful misconduct) or under or in connection with any Security Document or Intercreditor Agreement or the transactions contemplated thereby (including except for its own negligence or willful misconduct), or (ii) be responsible in any manner to any of the Trustee or any Holder for any recital, statement, representation, warranty, covenant or agreement made by any Issuer or any Subsidiary Guarantor, officer or Related Person thereof, contained in this or any Indenture, 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 or any other Indenture, the Security Documents or the Intercreditor Agreement, or the validity, effectiveness, genuineness, enforceability or sufficiency of this or any other Indenture, the Security Documents or the Intercreditor Agreement, or for any failure of any Issuer, Subsidiary Guarantor or any other party to this Indenture, the Security Documents or the Intercreditor Agreement to perform its obligations hereunder or thereunder. None of the Collateral Agent or any of its respective Related Persons shall be under any parallel debtobligation to the Trustee or any Holder to ascertain or to inquire as to the observance or performance of any of the agreements contained in, or conditions of, this or any other Indenture, the Security Documents or the Intercreditor Agreement or to inspect the properties, books, or records of any Issuer or Subsidiary Guarantor.
(d) The Collateral Agent shall be entitled to execute rely, and shall be fully protected in relying, upon any writing, resolution, notice, consent, certificate, affidavit, letter, telegram, facsimile, telex, or telephone message, statement, or other document or conversation believed by it to be genuine and correct and to have been signed, sent, or made by the proper Person or Persons, and upon advice and statements of legal counsel (including, without limitation, counsel to any Issuer or Subsidiary Guarantor), independent accountants and other experts and advisors selected by the Collateral Agent. The Collateral Agent shall be fully justified in failing or refusing to take any action under this or any other Indenture, the Security Documents or the Intercreditor Agreement unless it shall first receive such advice or concurrence of the Trustee as it deems appropriate and, if it so requests, it shall first be indemnified to its satisfaction by the Holders against any and all documents liability and expense which may be incurred by it by reason of taking or continuing to take any such action. The Collateral Agent shall in all cases be fully protected in acting, or in refraining from acting, under this or any other Indenture, the Security Documents or the Intercreditor Agreement in accordance with a request or consent of the Trustee and such request and any action taken or failure to act pursuant thereto shall be binding upon all of the Holders.
(including releasese) The Collateral Agent shall not be deemed to have knowledge or notice of the occurrence of any Default or Event of Default, unless the Collateral Agent shall have received written notice from the Trustee or an Issuer or Subsidiary Guarantor referring to this Indenture, describing such Default or Event of Default and stating that such notice is a “notice of default.” The Collateral Agent shall take such action with respect to such Default or Event of Default as may be requested by the Collateral and the rights of the Secured Parties with respect thereto, as contemplated by and Trustee in accordance with Article 6 (subject to this Section 10.11); provided, however, that unless and until the Collateral Agent has received any such request, the Collateral Agent may (but shall not be obligated to) take such action, or refrain from taking such action, with respect to such Default or Event of Default as it shall deem advisable.
(f) Deutsche Bank Trust Company Americas and its respective Affiliates (and any successor Collateral Agent and its affiliates) may make loans to, issue letters of credit for the account of, accept deposits from, acquire equity interests in and generally engage in any kind of banking, trust, financial advisory, underwriting, or other business with any Issuer or Subsidiary Guarantor and its Affiliates as though it was not the Collateral Agent hereunder and without notice to or consent of the Trustee. The Trustee and the Holders acknowledge that, pursuant to such activities, Deutsche Bank Trust Company Americas or its respective Affiliates (and any successor Collateral Agent and its affiliates) may receive information regarding any Issuer or Subsidiary Guarantor or its Affiliates (including information that may be subject to confidentiality obligations in favor of any such Issuer, Subsidiary Guarantor or such Affiliate) and acknowledge that the Collateral Agent shall not be under any obligation to provide such information to the Trustee or the Holders. Nothing herein shall impose or imply any obligation on the part of the Deutsche Bank Trust Company Americas (or any successor Collateral Agent) to advance funds.
(g) The Collateral Agent may resign at any time upon thirty (30) days prior written notice to the Trustee and the Issuers and the Guarantors, such resignation to be effective upon the acceptance of a successor agent to its appointment as Collateral Agent. If the Collateral Agent resigns under this Indenture, the Trustee, subject to the consent of the Issuer (which shall not be unreasonably withheld and which shall not be required during a continuing Event of Default), shall appoint a successor Collateral Agent. If no successor collateral agent is appointed prior to the intended effective date of the resignation of the Collateral Agent (as stated in the notice of resignation), the Collateral Agent may appoint, after consulting with the Trustee, subject to the consent of the Issuers (which shall not be unreasonably withheld and which shall not be required during a continuing Event of Default), a successor collateral agent. If no successor collateral agent is appointed and consented to by the Issuers pursuant to the preceding sentence within thirty (30) days after the intended effective date of resignation (as stated in the notice of resignation) the Collateral Agent shall be entitled to petition a court of competent jurisdiction to appoint a successor. Upon the acceptance of its appointment as successor collateral agent hereunder, such successor collateral agent shall succeed to all the rights, powers and duties of the retiring Collateral Agent, and the term “Collateral Agent” shall mean such successor collateral agent, and the retiring Collateral Agent’s appointment, powers and duties as the Collateral Agent shall be terminated. After the retiring Collateral Agent’s resignation hereunder, the provisions of this Agreement Section 10.06 (and Section 10.7) shall continue to inure to its benefit and the retiring Collateral Agent shall not by reason of such resignation be deemed to be released from liability as to any actions taken or omitted to be taken by it while it was the Collateral Agent under this Indenture. The Trustee shall initially act as Collateral Agent and shall be authorized to appoint co-Collateral Agents as necessary in its sole discretion. Except as otherwise explicitly provided herein or in the Security Documents and acknowledge and agree that any such action by any or the Intercreditor Agreement, neither the Collateral Agent shall bind the Lenders. Each Lender agrees that it shall not take or institute any actions or proceedings, judicial or otherwise, for any right or remedy with respect to any Collateral against any Borrower or any other Loan Party or any other obligor under nor any of the Loan Documentsits respective officers, Specified Swap Agreements directors, employees or any Specified Cash Management Agreement (including, in each case, the exercise of any right of setoff, rights on account of any banker’s lien or similar claim agents or other rights of self-help)Related Persons shall be liable for failure to demand, collect or institute any actions or proceedings, or otherwise commence any remedial procedures, with respect to any Collateral of any Borrower or any other Loan Party, without the prior written consent of the Administrative Agent. In the event of a foreclosure by the Administrative Agent on realize upon any of the Collateral pursuant or for any delay in doing so or shall be under any obligation to a public sell or private sale or a sale 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 Collateral Agent shall be accountable only for amounts that it actually receives as a result of the Collateral pursuant to Section 363 of the Bankruptcy Code (or an equivalent process in any foreign jurisdiction), the Administrative Agent or any Lender may be the purchaser of any or all exercise of such powers, and neither the Collateral at Agent nor any such sale and the Administrative Agentof its officers, as agent for and representative of the Lenders (but not any Lender directors, employees or Lenders in its or their respective individual capacities unless the Required Lenders shall otherwise agree in writing) agents shall be entitled, with the consent or at the direction of the Required Lenders, for the purpose of bidding and making settlement or payment of the purchase price for all or any portion of the Collateral sold at any such sale, to use and apply any of the Obligations as a credit on account of the purchase price responsible for any Collateral payable by the Administrative Agent at such saleact or failure to act hereunder, except for its own willful misconduct, gross negligence or bad faith.
Appears in 1 contract
Collateral Agent. (a) The Administrative Agent Trustee shall also act as the “collateral agent” under the Loan Documents, Collateral Agent and each of the Lenders (including shall be authorized to appoint co-Collateral Agents as necessary in its capacities sole discretion. Except as a potential Qualified Counterparty and a potential Cash Management Provider) and the Issuing Lenders hereby irrevocably appoints and authorizes the Administrative Agent to act as the agent of such Lender and the Issuing Lenders (with the full power to appoint and to substitute and to delegate) on its behalf, otherwise explicitly provided herein or in its own name as joint and several creditor or creditor of a parallel debt (as the case may be) for purposes of acquiring, holding and enforcing any and all Liens on Collateral granted by any of the Loan Parties to secure any of the Obligations, together with such powers and discretion as are reasonably incidental thereto. In this connection, the Administrative Agent, as “collateral agent” and any co-agents, sub-agents and attorneys-in-fact appointed by the Administrative Agent pursuant to Section 10.5 for purposes of holding or enforcing any Lien on the Collateral (or any portion thereof) granted under the Security Documents, 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 exercising any rights and remedies thereunder at delay in doing so or shall be under any obligation to sell or otherwise dispose of any Collateral upon the direction request of any other Person or to take any other action whatsoever with regard to the Collateral or any part thereof. The Collateral Agent shall be accountable only for amounts that it actually receives as a result of the Administrative exercise of such powers, and neither the Collateral Agent nor any of its officers, directors, employees or agents shall be responsible for any act or failure to act hereunder, except for its own willful misconduct, negligence or bad faith.
(b) The Trustee, as Collateral Agent, shall be entitled is authorized and directed to (i) enter into the benefits of all provisions of this Section 10 and Section 11Security Documents, (ii) enter into the Intercreditor Agreement, (iii) bind the Holders on the terms as though such co-agents, sub-agents and attorneys-in-fact were the “collateral agent” under the Loan Documents as if set forth in full herein with respect thereto. Without limiting the generality of the foregoing, the Lenders hereby expressly authorize the Administrative Agent on its behalf and/or in its own name (including under any parallel debt) to execute any and all documents (including releases) with respect to the Collateral and the rights of the Secured Parties with respect thereto, as contemplated by and in accordance with the provisions of this Agreement and the Security Documents and acknowledge the Intercreditor Agreement and agree that (iv) perform and observe its obligations under the Security Documents and the Intercreditor Agreement.
(c) If the Issuers (i) incur Indebtedness constituting Credit Agreement Obligations at any such action by time when no Intercreditor Agreement is in effect or at any time when Indebtedness constituting Credit Agreement Obligations entitled to the benefit of an existing Intercreditor Agreement is concurrently retired, and (ii) deliver to the Collateral Agent an Officers' Certificate so stating and requesting the Collateral Agent to enter into an Intercreditor Agreement in favor of a designated agent or representative for the holders of the Indebtedness so incurred, the Collateral Agent shall (and is hereby authorized and directed to) enter into such Intercreditor Agreement, bind the Lenders. Each Lender agrees that it shall not take Holders on the terms set forth therein, and perform and observe its obligations thereunder.
(d) If (i) the Issuers at any time incur any Indebtedness constituting Other Second-Lien Obligations, (ii) the indenture or institute agreement governing such Indebtedness provides that, notwithstanding the date, manner or order of grant, attachment or perfection of any actions Liens granted to the Collateral Agent under the Security Documents (the "Liens Securing Note Obligations") or proceedings, judicial or otherwise, for any right or remedy with respect granted to any Collateral against any Borrower the holders of Other Second-Lien Obligations or any other Loan Party agent or any other obligor under any representative for the holders of Other Second-Lien Obligations (the Loan Documents, Specified Swap Agreements or any Specified Cash Management Agreement (including, in each case, the exercise of any right of setoff, rights on account of any banker’s lien or similar claim or other rights of self"Liens Securing Other Second-help), or institute any actions or proceedings, or otherwise commence any remedial procedures, with respect to any Collateral of any Borrower or any other Loan Party, without the prior written consent of the Administrative Agent. In the event of a foreclosure by the Administrative Agent on any of the Collateral pursuant to a public or private sale or a sale of any of the Collateral pursuant to Section 363 of the Bankruptcy Code (or an equivalent process in any foreign jurisdictionLien Obligations"), the Administrative Liens Securing Note Obligations and the Liens Securing Other Second-Lien Obligations shall be of equal dignity, priority and rank, (iii) the Issuers deliver to the Collateral Agent an Officer's Certificate so stating and requesting that the Collateral Agent assign or any Lender may be transfer the purchaser Liens Securing Note Obligations to a Common Collateral Agent identified therein and (iv) the Issuers deliver to the Collateral Agent and the Common Collateral Agent an Opinion of any or all Counsel stating that, in the opinion of such counsel, the Common Collateral at any Agent is empowered and obligated (on substantially the terms applicable to the Collateral Agent pursuant to the Indenture Documents) to hold the Liens Securing Note Obligations and all Liens Securing Other-Second Lien Obligations and all proceeds of all such sale Liens for the equal and the Administrative Agent, as agent for and representative ratable benefit of the Lenders holders of all Obligations secured thereby and further confirming as to all such Liens each of the matters referred to in Section 10.02(a)(i), giving effect to the assignment or transfer requested in such Officer's Certificate, then (but not any Lender or Lenders in its or their respective individual capacities unless A) the Required Lenders shall otherwise agree in writing) Liens Securing Note Obligations shall be entitledof equal dignity, priority and rank with the consent or at the direction of the Required Lenders, for the purpose of bidding all such Liens Securing Other Second-Lien Obligations and making settlement or payment of the purchase price for all or any portion of (B) the Collateral sold at any Agent shall assign or transfer the Liens Securing Note Obligations to the Common Collateral Agent as requested in such sale, to use and apply any of the Obligations as a credit on account of the purchase price for any Collateral payable by the Administrative Agent at such saleOfficer's Certificate.
Appears in 1 contract
Sources: Indenture (On Semiconductor Corp)
Collateral Agent. The Administrative Collateral Agent has been appointed to act as Collateral Agent hereunder by Lenders and, by their acceptance of the benefits hereof, the other Secured Parties. The Collateral Agent shall also act as be obligated, and shall have the “collateral agent” right hereunder, to make demands, to give notices, to exercise or refrain from exercising any rights, and to take or refrain from taking any action (including, without limitation, the release or substitution of Collateral), solely in accordance with this Agreement, the Intercreditor Agreement and the Credit Agreement; provided, the Collateral Agent shall, after payment in full of all Obligations under the Loan Documents, and each of the Lenders Credit Agreement (including in its capacities as a potential Qualified Counterparty and a potential Cash Management Providerother than contingent indemnification obligations for which no claim has been asserted) and the Issuing Lenders hereby irrevocably appoints and authorizes the Administrative Agent to act as the agent of such Lender and the Issuing Lenders (other Credit Documents, exercise, or refrain from exercising, any remedies provided for herein in accordance with the full power to appoint and to substitute and to delegate) on its behalf, or in its own name as joint and several creditor or creditor instructions of the holders of a parallel debt majority of the aggregate notional amount (as or, with respect to any Hedge Agreement that has been terminated in accordance with its terms, the case may beamount then due and payable (exclusive of expenses and similar payments but including any early termination payments then due) for purposes under such Hedge Agreement) under all Hedge Agreements. In furtherance of acquiringthe foregoing provisions of this Section, holding and enforcing any and all Liens on Collateral granted each Secured Party, by its acceptance of the benefits hereof, agrees that it shall have no right individually to realize upon any of the Loan Collateral hereunder, it being understood and agreed by such Secured Party that all rights and remedies hereunder may be exercised solely by the Collateral Agent for the benefit of Secured Parties in accordance with the terms of this Section. Collateral Agent may resign at any time by giving thirty (30) days’ prior written notice thereof to secure Lenders and the Grantors, and Collateral Agent may be removed at any time with or without cause by an instrument or concurrent instruments in writing delivered to the Grantors and Collateral Agent signed by the Requisite Lenders. Upon any such notice of resignation or any such removal, Requisite Lenders shall have the Obligationsright, together with such powers and discretion as are reasonably incidental thereto. In this connection, upon five (5) Business Days’ notice to the Administrative Agent, to appoint a successor Collateral Agent, and if no Default or Event of Default shall have occurred and be continuing, with the consent of Company, such consent not to be unreasonably withheld or delayed. Upon the acceptance of any appointment as “collateral agent” Collateral Agent hereunder by a successor Collateral Agent, that 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 under this Agreement, and the retiring or removed Collateral Agent under this Agreement shall promptly (i) transfer to such successor Collateral Agent all sums, Securities and other items of Collateral held hereunder, together with all records and other documents necessary or appropriate in connection with the performance of the duties of the successor Collateral Agent under this Agreement, and (ii) execute and deliver to such successor Collateral Agent or otherwise authorize the filing of such amendments to financing statements, and take such other actions, as may be necessary or appropriate in connection with the assignment to such successor Collateral Agent of the security interests created hereunder, whereupon such retiring or removed Collateral Agent shall be discharged from its duties and obligations under this Agreement. After any co-agents, sub-agents and attorneys-in-fact appointed by the Administrative Agent pursuant to Section 10.5 for purposes of holding retiring or enforcing any Lien on removed Collateral Agent’s resignation or removal hereunder as the Collateral (or any portion thereof) granted under the Security Documents, or for exercising any rights and remedies thereunder at the direction of the Administrative Agent, shall be entitled to the benefits of all provisions of this Section 10 and Section 11, as though such co-agents, sub-agents and attorneys-in-fact were the “collateral agent” under the Loan Documents as if set forth in full herein with respect thereto. Without limiting the generality of the foregoing, the Lenders hereby expressly authorize the Administrative Agent on its behalf and/or in its own name (including under any parallel debt) to execute any and all documents (including releases) with respect to the Collateral and the rights of the Secured Parties with respect thereto, as contemplated by and in accordance with the provisions of this Agreement shall inure to its benefit as to any actions taken or omitted to be taken by it under this Agreement while it was the Collateral Agent hereunder. If any Grantor fails to perform or comply with any of its agreements contained in this Agreement and the Security Documents and acknowledge and agree that any such action Collateral Agent, as provided for by any Agent shall bind the Lenders. Each Lender agrees that it shall not take or institute any actions or proceedings, judicial or otherwise, for any right or remedy with respect to any Collateral against any Borrower terms of this Agreement or any other Loan Party Credit Document, shall itself perform or any other obligor under any of the Loan Documents, Specified Swap Agreements or any Specified Cash Management Agreement (including, in each case, the exercise of any right of setoff, rights on account of any banker’s lien or similar claim or other rights of self-help), or institute any actions or proceedingscomply, or otherwise commence any remedial procedurescause performance or compliance, with respect to any Collateral of any Borrower or any other Loan Partysuch agreement, without the prior written consent of the Administrative Agent. In the event of a foreclosure by the Administrative Agent on any expenses of the Collateral pursuant to a public Agent incurred in connection with such performance or private sale or a sale of any compliance, together with interest thereon at the rate then in effect in respect of the Collateral pursuant to Section 363 of the Bankruptcy Code (or an equivalent process in any foreign jurisdiction)Revolving Loan, the Administrative Agent or any Lender may be the purchaser of any or all of such Collateral at any such sale and the Administrative Agent, as agent for and representative of the Lenders (but not any Lender or Lenders in its or their respective individual capacities unless the Required Lenders shall otherwise agree in writing) shall be entitled, with the consent or at the direction of the Required Lenders, for the purpose of bidding and making settlement or payment of the purchase price for all or any portion of payable by such Grantor to the Collateral sold at any such sale, to use Agent on demand and apply any of the shall constitute Obligations as a credit on account of the purchase price for any Collateral payable secured by the Administrative Agent at such saleCollateral.
Appears in 1 contract
Sources: Revolving Credit Agreement (Dura Automotive Systems Inc)
Collateral Agent. The Administrative APPOINTED ATTORNEY-IN-FACT. By way of securing its obligations hereunder, each Guarantor hereby appoints the Collateral Agent shall also act as the “collateral agent” under the Loan Documents, and each of the Lenders (including in its capacities as a potential Qualified Counterparty and a potential Cash Management Provider) and the Issuing Lenders hereby irrevocably appoints and authorizes the Administrative Agent to act as the agent of such Lender and the Issuing Lenders (with the full power to appoint and to substitute and to delegate) on its behalf, or in its own name as joint and several creditor or creditor of a parallel debt (as the case may be) for purposes of acquiring, holding and enforcing any and all Liens on Collateral granted by any of the Loan Parties to secure any of the Obligations, together with such powers and discretion as are reasonably incidental thereto. In this connection, the Administrative Agent, as “collateral agent” and any co-agents, sub-agents and attorneysattorney-in-fact appointed by of such Guarantor for the Administrative Agent pursuant to Section 10.5 for purposes purpose, if the First Lien Termination Date has occurred, during the continuance of holding or enforcing any Lien on an Event of Default, of carrying out the Collateral (or any portion thereof) granted under the Security Documents, or for exercising any rights and remedies thereunder at the direction of the Administrative Agent, shall be entitled to the benefits of all provisions of this Section 10 Agreement and Section 11taking any action and executing any instrument that the Collateral Agent may deem necessary or advisable to accomplish the purposes hereof, as though such co-agents, sub-agents which appointment is irrevocable and attorneys-in-fact were the “collateral agent” under the Loan Documents as if set forth in full herein coupled with respect theretoan interest. Without limiting the generality of the foregoing, if and only if the Lenders hereby expressly authorize First Lien Termination Date has occurred, the Administrative Collateral Agent on its behalf and/or shall have the right, upon the occurrence and during the continuance of a Noticed Event of Default, with full power of substitution either in its own the Collateral Agent's name or in the name of a Guarantor, (including under any parallel debta) to execute receive, endorse, assign or deliver any and all documents notes, acceptances, checks, drafts, money orders or other evidences of payment relating to the Collateral or any part thereof; (including releasesb) to demand, collect, receive payment of, give receipt for and give discharges and releases of all or any of the Collateral; (c) to ask for, demand, ▇▇▇ for, collect, receive and give acquittance for any and all moneys due or to become due under and by virtue of any Collateral; (d) to commence and prosecute any and all suits, actions or proceedings at law or in equity in any court of competent jurisdiction to collect or otherwise realize on all or any of the Collateral or to enforce any rights in respect of any Collateral; (e) to settle, compromise, compound, adjust or defend any actions, suits or proceedings relating to all or any of the Collateral; and (f) to use, sell, assign, transfer, pledge, make any agreement with respect to or otherwise deal with all or any of the Collateral, and to do all other acts and things necessary to carry out the purposes of this Agreement, as fully and completely as though the Collateral Agent were the absolute owner of the Collateral for all purposes; PROVIDED that nothing herein contained shall be construed as requiring or obligating the Collateral Agent to make any commitment or to make any inquiry as to the nature or sufficiency of any payment received by the Collateral Agent, or to present or file any claim or notice, or to take any action with respect to the Collateral or any part thereof or the moneys due or to become due in respect thereof or any property covered thereby. The Collateral Agent and the rights of the other Second Lien Secured Parties with respect thereto, shall be accountable only for amounts actually received as contemplated by and in accordance with the provisions a result of this Agreement and the Security Documents and acknowledge and agree that any such action by any Agent shall bind the Lenders. Each Lender agrees that it shall not take or institute any actions or proceedings, judicial or otherwise, for any right or remedy with respect to any Collateral against any Borrower or any other Loan Party or any other obligor under any of the Loan Documents, Specified Swap Agreements or any Specified Cash Management Agreement (including, in each case, the exercise of any right of setoffthe powers granted to them herein, rights on account of any banker’s lien and neither they nor their officers, directors, employees or similar claim or other rights of self-help), or institute any actions or proceedings, or otherwise commence any remedial procedures, with respect to any Collateral of any Borrower or any other Loan Party, without the prior written consent of the Administrative Agent. In the event of a foreclosure by the Administrative Agent on any of the Collateral pursuant to a public or private sale or a sale of any of the Collateral pursuant to Section 363 of the Bankruptcy Code (or an equivalent process in any foreign jurisdiction), the Administrative Agent or any Lender may be the purchaser of any or all of such Collateral at any such sale and the Administrative Agent, as agent for and representative of the Lenders (but not any Lender or Lenders in its or their respective individual capacities unless the Required Lenders shall otherwise agree in writing) agents shall be entitled, with responsible to the consent or at the direction of the Required Lenders, for the purpose of bidding and making settlement or payment of the purchase price for all or any portion of the Collateral sold at any such sale, to use and apply any of the Obligations as a credit on account of the purchase price Guarantor for any Collateral payable by the Administrative Agent at such saleact or failure to act hereunder, except for their own gross negligence or willful misconduct.
Appears in 1 contract
Collateral Agent. The Administrative Agent shall also act (a) Each Secured Party hereby appoints Bush Ross, P.A. (the "Colla▇▇▇▇▇ ▇▇▇nt") as the “collateral agent” under the Loan Documents, Collateral Agent hereunder and each of Secured Party authorizes the Lenders (including in Collateral Agent to take such action as agent on its capacities as a potential Qualified Counterparty behalf and a potential Cash Management Provider) to exercise such powers under this Agreement and the Issuing Lenders hereby irrevocably appoints and authorizes other Transaction Documents as are delegated to the Administrative Collateral Agent to act as the agent of under such Lender and the Issuing Lenders (with the full power to appoint agreements and to substitute and to delegate) on its behalf, or in its own name as joint and several creditor or creditor of a parallel debt (as the case may be) for purposes of acquiring, holding and enforcing any and all Liens on Collateral granted by any of the Loan Parties to secure any of the Obligations, together with exercise such powers and discretion as are reasonably incidental thereto. In this connection, the Administrative Agent, as “collateral agent” and any co-agents, sub-agents and attorneys-in-fact appointed by the Administrative Agent pursuant to Section 10.5 for purposes of holding or enforcing any Lien on the Collateral (or any portion thereof) granted under the Security Documents, or for exercising any rights and remedies thereunder at the direction of the Administrative Agent, shall be entitled to the benefits of all provisions of this Section 10 and Section 11, as though such co-agents, sub-agents and attorneys-in-fact were the “collateral agent” under the Loan Documents as if set forth in full herein with respect thereto. Without limiting the generality foregoing, each Secured Party hereby authorizes the Collateral Agent to execute and deliver, and to perform its obligations under, each of the foregoingdocuments to which the Collateral Agent is a party relating to security for the obligations under the Notes, to exercise all rights, powers and remedies that the Collateral Agent may have under such Transaction Documents and, in the case of the Transaction Documents, to act as agent for the Secured Parties under such Transaction Documents.
(b) As to any matters not expressly provided for by this Agreement and the other document relating thereto (including enforcement or collection), the Lenders hereby expressly authorize Collateral Agent shall not be required to exercise any discretion or take any action, but shall be required to act or to refrain from acting (and shall be fully protected in so acting or refraining from acting) upon the Administrative Agent on its behalf and/or in its own name (including under any parallel debt) to execute any instructions of the Secured Parties, and such instructions shall be binding upon all documents (including releases) with respect to Secured Parties; provided, however, that the Collateral and Agent shall not be required to take any action that (i) the rights of Collateral Agent in good faith believes exposes it to personal liability unless the Collateral Agent receives an indemnification satisfactory to it from the Secured Parties with respect to such action or (ii) is contrary to this Agreement or applicable law. The Collateral Agent agrees to give to each Secured Party prompt notice of each notice given to it by the Grantor pursuant to the terms of this Agreement or the other Transaction Documents. If the Collateral Agent receives conflicting instructions from the Secured Parties it will not be required to act until it receives instructions from the Secured Parties holding a majority of the Notes (calculated in dollar amounts rather than noteholders).
(c) In performing its functions and duties hereunder and under the Transaction Documents and the other documents required to be executed or delivered in connection therewith, the Collateral Agent is acting solely on behalf of the Secured Parties and its duties are entirely administrative in nature. The Collateral Agent does not assume and shall not be deemed to have assumed any obligation other than as expressly set forth herein, in the Transaction Documents and any other documents required to be executed or delivered in connection therewith related hereto or any other relationship as the agent, fiduciary or trustee of or for any Secured Party or holder of any other obligation under this Agreement or the Notes. The Collateral Agent may perform any of its duties under any Transaction Document by or through its agents or employees.
(d) None of the Collateral Agent, any of its affiliates or any of their respective directors, officers, agents or employees shall be liable for any action taken or omitted to be taken by it, him, her or them under or in connection with this Agreement or the other Transaction Documents, except for its, his, her or their own gross negligence or willful misconduct.
(e) Each Secured Party acknowledges that it shall, independently and without reliance upon the Collateral Agent or any other Secured Party conduct its own independent investigation of the financial condition and affairs of the Parent and its Subsidiaries in connection with the issuance of the Securities. Each Secured Party also acknowledges that it shall, independently and without reliance upon the Collateral Agent or any other Secured Party and based on such documents and information as it shall deem appropriate at the time, continue to make its own credit decisions in taking or not taking action under this Agreement and other Transaction Documents. For avoidance of doubt, each Secured Party represents that it has had no contact with the Collateral Agent; that the Collateral Agent has had no role in the negotiation or preparation of the Transaction Documents and was contacted after such negotiations and documents were finalized for the purpose of serving solely in the administrative role of Collateral Agent under this Agreement.
(f) Each Secured Party agrees to indemnify the Collateral Agent and each of its affiliates, and each of their respective directors, officers, employees, agents and advisors (to the extent not reimbursed by the Borrower), from any and all liabilities, obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses and disbursements (including fees, expenses and disbursements of financial and legal advisors) of any kind or nature whatsoever that may be imposed on, incurred by, or asserted against, the Collateral Agent or any of its affiliates, directors, officers, employees, agents and advisors in any way relating to or arising out of this Agreement or the other Transaction Documents or any action taken or omitted by the Collateral Agent under this Agreement or the document related thereto; provided, however, that no Secured 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 or such Affiliate's gross negligence or willful misconduct.
(g) The Collateral Agent may resign at any time by giving written notice thereof to the Secured Parties and the Parent. Upon any such resignation, the Secured Parties shall have the right to appoint a successor Collateral Agent. If no successor Collateral Agent shall have been so appointed by the Secured Parties, and shall have accepted such appointment, within 30 days after the retiring Collateral Agent's giving of notice of resignation, then the retiring Collateral Agent may, on behalf of the Secured Parties, appoint a successor Collateral Agent, selected from among the Secured Parties. Upon the acceptance of any appointment as contemplated Collateral Agent by 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 under this Agreement, the Transaction Documents and any other documents required to be executed or delivered in connection therewith. Prior to any retiring Collateral Agent's resignation hereunder as Collateral Agent, the retiring Collateral Agent shall take such action as may be reasonably necessary to assign to the successor Collateral Agent its rights as Collateral Agent under the Transaction Documents. After such resignation, the retiring Collateral Agent shall continue to have the benefit of this Agreement as to any actions taken or omitted to be taken by it while it was Collateral Agent under this Agreement, the Transaction Documents and any other documents required to be executed or delivered in connection therewith.
(h) Each Secured Party agrees that any action taken by the Collateral Agent in accordance with the provisions of this Agreement or of the other document relating thereto, and the Security Documents exercise by the Collateral Agent or the Secured Parties of the powers set forth herein or therein, together with such other powers as are reasonably incidental thereto, shall be authorized and acknowledge and agree that binding upon all of the Secured Parties.
(i) Each of the Secured Parties hereby directs, in accordance with the terms hereof, the Collateral Agent to release (or in the case of clause (ii) below, release or subordinate) any such action Lien held by any the Collateral Agent shall bind for the Lenders. Each Lender agrees that it shall not take or institute any actions or proceedings, judicial or otherwise, for any right or remedy with respect to any Collateral benefit of the Secured Parties against any Borrower or any other Loan Party or any other obligor under any of the Loan Documents, Specified Swap Agreements or any Specified Cash Management Agreement following: (including, in each case, the exercise of any right of setoff, rights on account of any banker’s lien or similar claim or other rights of self-help), or institute any actions or proceedings, or otherwise commence any remedial procedures, with respect to any Collateral of any Borrower or any other Loan Party, without the prior written consent of the Administrative Agent. In the event of a foreclosure by the Administrative Agent on any i) all of the Collateral pursuant upon payment and satisfaction in full of all obligations under the Notes and all other obligations under the Transaction Documents that the Collateral Agent has been notified in writing are then due and payable; (ii) any assets that are subject to a public or private sale or a sale of Lien permitted by Section 3.2); and (iii) any of the Collateral pursuant to Section 363 of the Bankruptcy Code (or an equivalent process in any foreign jurisdiction), the Administrative Agent or any Lender may be the purchaser of any or all of such Collateral at any such sale and the Administrative Agent, as agent for and representative of the Lenders (but not any Lender or Lenders in its or their respective individual capacities unless the Required Lenders shall otherwise agree in writing) shall be entitled, with the consent or at the direction of the Required Lenders, for the purpose of bidding and making settlement or payment of the purchase price for all or any portion part of the Collateral sold at or disposed of by the Parent or any Subsidiary if such sale or disposition is permitted by this Agreement and the Notes (or permitted pursuant to a waiver or consent of a transaction otherwise prohibited by this Agreement and the Notes). Each of the Secured Parties hereby directs the Collateral Agent to execute and deliver or file such termination and partial release statements and do such other things as are necessary to release Liens to be released pursuant to this Section 7.14 promptly upon the effectiveness of any such salerelease.
(j) The contact information for the Collateral Agent is: Bush Ross, P.A., 220 S. Fra▇▇▇▇▇ ▇▇▇eet, Tam▇▇, ▇▇ ▇▇▇▇▇, ▇ttention: John Giordano. The fax numb▇▇ ▇▇▇ ▇▇▇▇ ▇oss, P.A. is (813) 22▇-▇▇▇▇ ▇▇d the E-ma▇▇ ▇▇▇▇▇▇▇ ▇▇ jgiordano@bushross.com. The ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇ Bush Ross, P.A. is (813) 22▇-▇▇▇▇.
(k) The Collateral Agent:
(i) shall not be responsible in any manner for the validity, correctness or sufficiency of any document or instrument received by or made available to it, in its capacity as Collateral Agent hereunder.
(ii) shall be entitled to act upon any written certificate, statement, notice, demand, request, consent, agreement or other instrument whatever, not only in reliance upon its due execution and the validity and effectiveness of its provisions, but also as to the accuracy and completeness of any information therein contained, which the Collateral Agent shall in good faith believe to be genuine and to have been signed or presented by any authorized person.
(iii) shall be entitled to request and receive from any party hereto such documents in addition to those provided for herein as the Collateral Agent may deem necessary to resolve any questions of fact involved in the administration of its duties hereunder.
(iv) may, at the expense of the remaining parties, consult independent counsel of its choice in respect to any question relating to its duties or responsibilities under this Agreement, and shall not be liable for any action taken or omitted in good faith on advice of such counsel.
(v) shall be under no obligation to advance any monetary sum in connection with the maintenance or administration of this Agreement, to use institute or defend any action, suit or legal proceeding in connection herewith, or to take any other action likely to involve the Collateral Agent in expense, unless first indemnified by the remaining parties to the Collateral Agent's satisfaction.
(vi) shall not be bound by any amendment to this Agreement or by any other such amendment or agreement unless the same shall have been executed by the Collateral Agent.
(vii) shall have only such duties and apply responsibilities as are expressly set forth in this Agreement in the performance of its obligations hereunder.
(viii) shall be indemnified and held harmless by the remaining parties against any and all liabilities incurred by it hereunder (including all costs, expenses and fees incurred in defending any legal action or administrative proceeding or in resisting any claim), except for those resulting from its own willful misconduct or gross negligence.
(ix) may, if it becomes uncertain concerning its rights and responsibilities with respect to its duties or if it receives instructions with respect to the Collateral that it believes to be in conflict with this Agreement or is advised that a dispute has arisen with respect to its duties under this Agreement, without liability, refrain from taking any action until it is directed otherwise in a writing signed by all of the Obligations Secured Parties or by an order of a court of competent jurisdiction. The Collateral Agent is not obligated to institute or defend any legal proceedings, although it may, in its sole discretion and at the remaining parties' expense, institute or defend such proceedings (including proceedings seeking a declaratory judgment) and join interested parties.
(x) The Collateral Agent will be paid a fee of $3,000 for its agreement to serve as a credit on account the Collateral Agent. This fee is payable upon the execution of the purchase price for any Collateral payable by the Administrative Agent at such salethis Agreement.
Appears in 1 contract
Collateral Agent. The Administrative Agent shall also act as the “collateral agent” under the Loan Documents, and each of the Lenders (including in its capacities as a potential Qualified Counterparty and a potential Cash Management Provider) and the Issuing Lenders hereby irrevocably appoints and authorizes the Administrative Agent to act as the agent of such Lender and the Issuing Lenders (with the full power to appoint and to substitute and to delegate) on its behalf, or in its own name as joint and several creditor or creditor of a parallel debt (as the case may be) for purposes of acquiring, holding and enforcing any and all Liens on Collateral granted by any of the Loan Parties to secure any of the Obligations, together with such powers and discretion as are reasonably incidental thereto. In this connection, the Administrative Agent, as “collateral agent” and any co-agents, sub-agents and attorneys-in-fact appointed by the Administrative Agent pursuant to Section 10.5 for purposes of holding or enforcing any Lien on the Collateral (or any portion thereof) granted under the Security Documents, or for exercising any rights and remedies thereunder at the direction of the Administrative Agent, shall be entitled to the benefits of all provisions of this Section 10 and Section 11, as though such co-agents, sub-agents and attorneys-in-fact were the “collateral agent” under the Loan Documents as if set forth in full herein with respect thereto. Without limiting the generality of the foregoing, the Lenders hereby expressly authorize the Administrative Agent on its behalf and/or in its own name (including under any parallel debt) to execute any and all documents (including releases) with respect to the Collateral and the rights of the Secured Parties with respect thereto, as contemplated by and in accordance with the provisions of this Agreement and the Security Documents and acknowledge and agree that any such action by any Agent shall bind the Lenders. Each Lender agrees that it shall not take or institute any actions or proceedings, judicial or otherwise, for any right or remedy with respect to any Collateral against any the Borrower or any other Loan Party or any other obligor under any of the Loan Documents, the Specified Swap Agreements or any Specified Cash Management Agreement (including, in each case, the exercise of any right of setoff, rights on account of any banker’s lien or similar claim or other rights of self-help), or institute any actions or proceedings, or otherwise commence any remedial procedures, with respect to any Collateral of any the Borrower or any other Loan Party, without the prior written consent of the Administrative Agent. In the event of a foreclosure by the Administrative Agent on any of the Collateral pursuant to a public or private sale or a sale of any of the Collateral pursuant to Section 363 of the Bankruptcy Code (or an equivalent process in any foreign jurisdiction)Code, the Administrative Agent or any Lender may be the purchaser of any or all of such Collateral at any such sale and the Administrative Agent, as agent for and representative of the Lenders (but not any Lender or Lenders in its or their respective individual capacities unless the Required Lenders shall otherwise agree in writing) shall be entitled, with the consent or at the direction of the Required Lenders, for the purpose of bidding and making settlement or payment of the purchase price for all or any portion of the Collateral sold at any such sale, to use and apply any of the Obligations as a credit on account of the purchase price for any Collateral payable by the Administrative Agent at such sale.
Appears in 1 contract
Collateral Agent. The Administrative Agent shall also act as the “collateral agent” under the Loan Documents, Trustee and each of the Lenders (including in Holders thereof by acceptance of the Second Lien Notes hereby designates and appoints the Second Lien Notes Collateral Agent as its capacities as a potential Qualified Counterparty and a potential Cash Management Provider) agent under this Indenture, the Collateral Documents and the Issuing Lenders Intercreditor Agreements and the Trustee and each of the Holders by acceptance of the Second Lien Notes hereby irrevocably appoints and authorizes the Administrative Second Lien Notes Collateral Agent to act as the agent of take such Lender and the Issuing Lenders (with the full power to appoint and to substitute and to delegate) on its behalf, or in its own name as joint and several creditor or creditor of a parallel debt (as the case may be) for purposes of acquiring, holding and enforcing any and all Liens on Collateral granted by any of the Loan Parties to secure any of the Obligations, together with such powers and discretion as are reasonably incidental thereto. In this connection, the Administrative Agent, as “collateral agent” and any co-agents, sub-agents and attorneys-in-fact appointed by the Administrative Agent pursuant to Section 10.5 for purposes of holding or enforcing any Lien on the Collateral (or any portion thereof) granted under the Security Documents, or for exercising any rights and remedies thereunder at the direction of the Administrative Agent, shall be entitled to the benefits of all provisions of this Section 10 and Section 11, as though such co-agents, sub-agents and attorneys-in-fact were the “collateral agent” under the Loan Documents as if set forth in full herein with respect thereto. Without limiting the generality of the foregoing, the Lenders hereby expressly authorize the Administrative Agent action on its behalf and/or in its own name (including under any parallel debt) to execute any and all documents (including releases) with respect to the Collateral and the rights of the Secured Parties with respect thereto, as contemplated by and in accordance with the provisions of this Agreement Indenture, the Collateral Documents and the Security Intercreditor Agreements and to exercise such powers and perform such duties as are expressly delegated to the Second Lien Notes Collateral Agent by the terms of this Indenture, the Collateral Documents and acknowledge the Intercreditor Agreements, and agree that any consents and agrees to the terms of the Intercreditor Agreements and each Collateral Document, as the same may be in effect or may be amended, restated, supplemented or otherwise modified from time to time in accordance with their respective terms. The Second Lien Notes Collateral Agent agrees to act as such action by any on the express conditions contained in this SECTION 12.8. The provisions of this SECTION 12.8 are solely for the benefit of the Second Lien Notes Collateral Agent shall bind and none of the Lenders. Each Lender agrees that it shall not take or institute any actions or proceedingsTrustee, judicial or otherwise, for any right or remedy with respect to any Collateral against any Borrower or any other Loan Party or any other obligor under any of the Loan Documents, Specified Swap Agreements Holders nor the Issuer or any Specified Cash Management Agreement (including, in each case, the exercise of any right of setoff, rights on account of any banker’s lien or similar claim or other rights of self-help), or institute any actions or proceedings, or otherwise commence any remedial procedures, with respect to any Collateral of any Borrower or any other Loan Party, without the prior written consent of the Administrative Agent. In the event of a foreclosure by the Administrative Agent on any of the Collateral pursuant to Guarantors shall have any rights as a public or private sale or a sale third party beneficiary of any of the Collateral pursuant to Section 363 of the Bankruptcy Code (or an equivalent process provisions contained herein other than as expressly provided in any foreign jurisdiction), the Administrative Agent or any Lender may be the purchaser of any or all of such Collateral at any such sale and the Administrative Agent, as agent for and representative of the Lenders (but not any Lender or Lenders in its or their respective individual capacities unless the Required Lenders shall otherwise agree in writing) shall be entitled, with the consent or at the direction of the Required Lenders, for the purpose of bidding and making settlement or payment of the purchase price for all or any portion of the Collateral sold at any such sale, to use and apply any of the Obligations as a credit on account of the purchase price for any Collateral payable by the Administrative Agent at such saleSECTION 12.
Appears in 1 contract
Sources: Indenture (iHeartMedia, Inc.)
Collateral Agent. The Administrative (a) By their acceptance of the Notes, the Holders hereby designate and appoint the Trustee to serve as Collateral Agent shall also act and as their agent under this Indenture and the “collateral agent” under Security Documents and the Loan Documents, Trustee and each of the Lenders (including in Holders by acceptance of the Notes hereby irrevocably authorizes the Collateral Agent to take such action on its capacities as a potential Qualified Counterparty and a potential Cash Management Provider) behalf under the provisions of this Indenture and the Issuing Lenders hereby irrevocably appoints and authorizes the Administrative Agent to act as the agent of such Lender and the Issuing Lenders (with the full power to appoint Security Documents and to substitute and to delegate) on its behalf, or in its own name as joint and several creditor or creditor of a parallel debt (as the case may be) for purposes of acquiring, holding and enforcing any and all Liens on Collateral granted by any of the Loan Parties to secure any of the Obligations, together with exercise such powers and discretion perform such duties as are reasonably incidental thereto. In this connection, expressly delegated to the Administrative Agent, as “collateral agent” and any co-agents, sub-agents and attorneys-in-fact appointed Collateral Agent by the Administrative Agent pursuant to Section 10.5 for purposes terms of holding or enforcing any Lien on the Collateral (or any portion thereof) granted under this Indenture and the Security Documents, or for exercising any rights and remedies thereunder at the direction of the Administrative Agent, shall be entitled consents and agrees to the benefits terms of all each Security Document, as the same may be in effect or may be amended, restated, supplemented or otherwise modified from time to time in accordance with their respective terms. The Trustee acknowledges that the Collateral Agent agrees to act as such on the express conditions contained in this Section 11.09. The provisions of this Section 10 11.09 are solely for the benefit of the Collateral Agent and none of the Trustee, any of the Holders nor any of the Grantors shall have any rights as a third party beneficiary of any of the provisions contained herein other than as expressly provided in Section 1111.03. Each Holder agrees that any action taken by the Collateral Agent in accordance with the provisions of this Indenture and the Security Documents, as though such co-agents, sub-agents and attorneys-in-fact were the “collateral agent” under exercise by the Loan Documents as if Collateral Agent of any rights or remedies set forth herein or therein, shall be authorized and binding upon all Holders. Notwithstanding any provision to the contrary contained elsewhere in full this Indenture and the Security Documents, the duties of the Collateral Agent shall be ministerial and administrative in nature, and the Collateral Agent shall not have any duties or responsibilities, except those expressly set forth herein and in the other Notes Documents to which the Collateral Agent is a party, nor shall the Collateral Agent have or be deemed to have any trust or other fiduciary relationship with respect theretothe Trustee, any Holder or any Grantor, and no implied covenants, functions, responsibilities, duties, obligations or liabilities shall be read into this Indenture or the Security Documents or otherwise exist against the Collateral Agent. Without limiting the generality of the foregoingforegoing sentence, the Lenders hereby expressly authorize use of the Administrative Agent on its behalf and/or term “agent” in its own name (including under any parallel debt) to execute any and all documents (including releases) this Indenture with respect 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. Instead, such term is used merely as a matter of market custom, and the rights is intended to create or reflect only an administrative relationship between independent contracting parties.
(b) The Collateral Agent may perform any of the Secured Parties with respect thereto, as contemplated by and in accordance with the provisions of its duties under this Agreement and Indenture or the Security Documents by or through receivers, agents, employees, attorneys-in-fact or through its Related Persons and acknowledge shall be entitled to advice of counsel concerning all matters pertaining to such duties, and agree shall be entitled to act upon, and shall be fully protected in taking action in reliance upon any advice or opinion given by legal counsel. The Collateral Agent shall not be responsible for the negligence or willful misconduct of any receiver, agent, employee, attorney-in-fact or Related Person that it selects as long as such selection was made in good faith.
(c) None of the Collateral Agent or any such of its Related Persons shall (i) be liable for any action taken or omitted to be taken by any Agent shall bind of them under or in connection with this Indenture or the Lenders. Each Lender agrees transactions contemplated hereby (except to the extent that it shall not take the foregoing are found by a final, non-appealable judgment of a court of competent jurisdiction to have resulted from its own gross negligence or institute willful misconduct) or under or in connection with any actions Security Document or proceedingsthe transactions contemplated thereby (except to the extent that the foregoing are found by a final, judicial non-appealable judgment of a court of competent jurisdiction to have resulted from its own gross negligence or otherwisewillful misconduct), or (ii) be responsible in any manner to any of the Trustee or any Holder for any right recital, statement, representation, warranty, covenant or remedy with respect to agreement made by the Issuer or any Collateral against Grantor or Affiliate of any Borrower Grantor, or any Officer or Related Persons thereof, contained in this Indenture, or any other Loan Party Notes 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 Indenture or the Security Documents or the validity, effectiveness, genuineness, enforceability or sufficiency of this Indenture or the Security Documents, or for any failure of any Grantor or any other obligor under any of party to this Indenture or the Loan Documents, Specified Swap Agreements Security Documents to perform its obligations hereunder or any Specified Cash Management Agreement (including, in each case, the exercise of any right of setoff, rights on account of any banker’s lien or similar claim or other rights of self-help), or institute any actions or proceedings, or otherwise commence any remedial procedures, with respect to any Collateral of any Borrower or any other Loan Party, without the prior written consent of the Administrative Agentthereunder. In the event of a foreclosure by the Administrative Agent on any None of the Collateral pursuant Agent or any of its respective Related Persons shall be under any obligation to a public the Trustee or private sale any Holder to monitor, ascertain or a sale inquire as to the observance or performance of any of the agreements contained in, or conditions of, this Indenture or the Security Documents or to inspect the properties, books, or records of any Grantor or any Grantor’s Affiliates.
(d) The Collateral pursuant Agent shall be entitled to Section 363 rely, and shall be fully protected in relying, upon any writing, resolution, notice, consent, certificate, affidavit, letter, telegram, facsimile, certification, telephone message, statement, or other communication, document or conversation (including those by telephone or e-mail) believed by it to be genuine and correct and to have been signed, sent, or made by the proper Person or Persons, and upon advice and statements of legal counsel (including, without limitation, counsel to the Bankruptcy Code (Issuer or an equivalent process any other Grantor), independent accountants and other experts and advisors selected by the Collateral Agent. The Collateral Agent shall not be bound to make any investigation into the facts or matters stated in any foreign jurisdiction)resolution, the Administrative certificate, statement, instrument, opinion, report, notice, request, direction, consent, order, bond, debenture, or other paper or document. The Collateral Agent or any Lender may be the purchaser of any or all of such Collateral at any such sale and the Administrative Agent, as agent for and representative of the Lenders (but not any Lender or Lenders in its or their respective individual capacities unless the Required Lenders shall otherwise agree in writing) shall be entitled, with fully justified in failing or refusing to take action under the consent Notes Documents unless it shall first receive such advice or at concurrence from the direction of party or parties entitled to give instructions to the Required Lenders, for Collateral Agent under the purpose of bidding and making settlement or payment of the purchase price for all or any portion terms of the Collateral sold at any such sale, Agreement.
(e) The Collateral Agent shall not be deemed to use and apply any have knowledge or notice of the Obligations as occurrence of any Default or Event of Default, unless a credit on account Responsible Officer of the purchase price for any Collateral payable Agent shall have received written notice from the Trustee or the Issuer referring to this Indenture, describing such Default or Event of Default and stating that such notice is a “notice of default.” The Collateral Agent shall take such action with respect to such Default or Event of Default as may be requested by the Administrative Agent at such saleTrustee in accordance with Article 7 or the Holders of a majority in aggregate principal amount of the Notes (subject to this Section 11.09).
Appears in 1 contract
Collateral Agent. The Administrative Agent shall also act as the “collateral agent” under the Loan Documents, and each of the Lenders (including in its capacities as a potential Qualified Counterparty and a potential Cash Management Providera) and the Issuing Lenders Each Guarantor hereby irrevocably appoints appoints, designates and authorizes EDI as its collateral agent (together with its co-agents, sub-agents, attorneys-in-fact, successors, assigns and replacements to the Administrative Agent to act as the agent of such Lender and the Issuing Lenders (extent allowed in accordance with the full power terms hereof, the "Collateral Agent") under and for purposes of this Agreement to appoint and take such actions as Collateral Agent deems to substitute and to delegate) on its behalf, be necessary or in its own name as joint and several creditor or creditor of a parallel debt (as the case may be) desirable for purposes of acquiring, holding and enforcing any and all Liens on Collateral security interests, mortgages, pledges, hypothecations, assignments, or other lien (statutory or otherwise) against, in, on, or with respect to the Collateral, including, without limitation (i) perfecting or maintaining perfect of the security interest granted by Borrower in the Collateral, (ii) making demands and giving notices under this Agreement or applicable law; (iii) selling, leasing, releasing, surrendering, realizing upon or otherwise dealing with, in any of the Loan Parties to secure manner and in any of the Obligationsorder, together with such powers and discretion as are reasonably incidental thereto. In this connection, the Administrative Agent, as “collateral agent” and any co-agents, sub-agents and attorneys-in-fact appointed by the Administrative Agent pursuant to Section 10.5 for purposes of holding or enforcing any Lien on the Collateral (all or any portion thereofof the Collateral, (iv) granted under the Security Documents, or for exercising any rights other powers set forth in the hereunder with respect to the Collateral or otherwise available under applicable law; (v) distributing proceeds realized by the Collateral Agent from the Collateral in accordance with the terms of Section 3(b) hereof; and remedies thereunder at (iv) processing payments from Paying Guarantors and disbursing payments from Contributing Guarantors. Collateral Agent acknowledges and agrees that any actions performed or to be performed by it hereunder as Collateral Agent or otherwise shall be without financial remuneration from the direction Guarantors or Borrower. Each Guarantor acknowledges that it has, independently and without reliance upon Collateral Agent, any other Guarantor or any related parties, and based on such documents and information as it has deemed appropriate, made its own analysis and decision to enter into this Agreement and to rely on the judgment of the Administrative Collateral Agent, shall be entitled to the benefits of all and hereby waives any conflicts or potential conflicts that may arise. The provisions of this Section 10 7 are solely for the benefit of the Collateral Agent and Section 11the Guarantors, and neither Borrower nor any other person or entity shall have rights as though a third party beneficiary of any of such co-agentsprovisions. EDI hereby accepts this appointment and agrees to act as the Collateral Agent for the Guarantors in accordance with the terms of this Agreement.
(b) Notwithstanding any provision to the contrary contained in this Agreement, sub-agents the Collateral Agent shall not be deemed to have any fiduciary relationship with any Guarantor or with Borrower solely by virtue of its role as Collateral Agent hereunder, and attorneys-in-fact were no implied covenants, functions, responsibilities, duties, obligations or liabilities shall be read into this Agreement or otherwise exist against the “collateral agent” under the Loan Documents as if set forth in full herein with respect theretoCollateral Agent. Without limiting the generality of the foregoingforegoing sentence, the Lenders hereby use of the term “agent” in this Agreement 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 and the term "agent" is instead used merely as a matter of market custom, and is intended to create or reflect only an administrative relationship between independent contracting parties;
(c) Without in any way limiting the Collateral Agent's discretion hereunder, Guarantors expressly authorize agree that (i) Collateral Agent shall not be required to take any action that, in the Administrative opinion of its counsel, may expose the Collateral Agent on to liability or that is contrary to this Agreement or applicable Law; (ii) neither Collateral Agent, nor any of its behalf and/or respective directors, officers, employees or agents shall be liable for any action taken or not taken by it (A) in the absence of its own name gross negligence or willful misconduct or (including under B) with the prior written consent of, or at the request of, the three Guarantors identified on Exhibit C (the "Guarantor Committee"), (iii) neither Collateral Agent, nor its directors, officers, employees or agents shall be responsible for or have any parallel debtduty to ascertain or inquire into (A) any statement, warranty or representation made in or in connection with this Agreement, (B) the contents of any certificate, report, opinion or other document delivered hereunder or in connection herewith or therewith, or (C) the performance or observance of any of the covenants, agreements or other terms or conditions set forth herein; and (iv) the Collateral Agent shall not be required to execute advance or expend any funds, to incur any financial liability, or to institute any legal proceedings arising out of or in connection with this Agreement unless it has been provided with security or indemnity reasonably satisfactory to it against any and all documents liability or expense which may be incurred by it by reason of taking or continuing to take such action.
(d) Collateral Agent shall be entitled to rely upon, and shall not (nor shall any of its directors, officers, employees or agents) incur any liability for relying upon, any notice, request, certificate, consent, statement, instrument, document or other writing (including releasesany electronic message, internet or intranet website posting or other distribution) reasonably believed by it to be genuine and to have been signed, sent or otherwise authenticated by the proper person or entity. Collateral Agent may consult with respect legal counsel, independent accountants and other experts reasonably selected by it, and shall not be liable for any action taken or not taken by it in accordance with the advice of any such counsel, accountants or experts. Collateral Agent may at any time and from time to time, but shall be under no obligation to, solicit written instructions in the form of directions from the Guarantor Committee or an order of a court of competent jurisdiction as to any action that it may be requested or required to take, or that it may propose to take, in the performance of any of its obligations under this Agreement.
(e) Collateral Agent may resign from the performance of all its functions and duties hereunder at any time by giving thirty (30) days’ prior notice to Borrower and the Guarantors. Collateral Agent may be removed at any time by the Guarantor Committee. Such resignation or removal shall take effect upon the appointment of a successor collateral agent, in accordance with the following provisions:
(i) Upon any notice of resignation by Collateral Agent or upon the removal of Collateral Agent by the Guarantor Committee, the Guarantor Committee shall appoint a successor collateral agent under this Agreement. So long as no Event of Default has occurred and is continuing, such replacement collateral agent must be approved by Borrower in writing, which approval shall not be unreasonably withheld, conditioned or delayed.
(ii) If no successor collateral agent has been appointed by the Guarantor Committee within thirty (30) days after the date such notice of resignation was given by Collateral Agent or the Guarantor Committee elected to remove Collateral Agent, any Guarantor or EDI may petition any court of competent jurisdiction for the appointment of a successor collateral agent. Such court may thereupon, after such notice, if any, as it may deem proper, appoint a successor collateral agent, as applicable, who shall serve as Collateral Agent under this Agreement until such time, if any, as the Guarantor Committee appoints a successor collateral agent, as provided above. Upon the acceptance of a successor’s appointment as Collateral Agent hereunder, such successor shall succeed to and become vested with all of the rights, powers, privileges and duties of the retiring (or removed) Collateral Agent, and the retiring (or removed) Collateral Agent shall be discharged from all of its duties and obligations hereunder. The retiring (or removed) Collateral Agent will promptly transfer any Collateral in its possession or control to the successor Collateral Agent and will, subject to payment of its reasonable costs and expenses (including the fees and expenses of outside counsel), execute and deliver such notices, instructions and assignments as may be reasonably necessary or desirable to transfer the rights of the Secured Parties Collateral Agent with respect theretoto such Collateral to the successor Collateral Agent. After the retirement or removal of any Collateral Agent hereunder, as contemplated by and in accordance with the provisions of this Agreement and Section 7 shall continue in effect for the Security Documents and acknowledge and agree that any benefit of such action by any retiring (or removed) Collateral Agent shall bind the Lenders. Each Lender agrees that it shall not take or institute in respect of any actions taken or proceedings, judicial or otherwise, for any right or remedy with respect omitted to any be taken by it while serving as Collateral against any Borrower or any other Loan Party or any other obligor under any of the Loan Documents, Specified Swap Agreements or any Specified Cash Management Agreement (including, in each case, the exercise of any right of setoff, rights on account of any banker’s lien or similar claim or other rights of self-help), or institute any actions or proceedings, or otherwise commence any remedial procedures, with respect to any Collateral of any Borrower or any other Loan Party, without the prior written consent of the Administrative Agent. In the event of a foreclosure by the Administrative Agent on any of the Collateral pursuant to a public or private sale or a sale of any of the Collateral pursuant to Section 363 of the Bankruptcy Code (or an equivalent process in any foreign jurisdiction), the Administrative Agent or any Lender may be the purchaser of any or all of such Collateral at any such sale and the Administrative Agent, as agent for and representative of the Lenders (but not any Lender or Lenders in its or their respective individual capacities unless the Required Lenders shall otherwise agree in writing) shall be entitled, with the consent or at the direction of the Required Lenders, for the purpose of bidding and making settlement or payment of the purchase price for all or any portion of the Collateral sold at any such sale, to use and apply any of the Obligations as a credit on account of the purchase price for any Collateral payable by the Administrative Agent at such sale.
Appears in 1 contract
Sources: Security and Inter Creditor Agreement (American Caresource Holdings, Inc.)
Collateral Agent. (a) The Administrative Collateral Agent shall also act as will hold (directly or through co-trustees or agents) and, subject to the “collateral agent” under the Loan Documents, and each terms of the Lenders Intercreditor Agreements, will be entitled to enforce all Liens on the Collateral created by the Security Documents.
(including b) Except as expressly provided in its capacities the Security Documents or as a potential Qualified Counterparty and a potential Cash Management Provider) and directed by the Issuing Lenders hereby irrevocably appoints and authorizes Majority Holders of the Administrative Notes (provided that the Collateral Agent has been provided with security or indemnity satisfactory to act as the agent of such Lender and the Issuing Lenders (with the full power to appoint and to substitute and to delegate) on its behalf, or in its own name as joint and several creditor or creditor of a parallel debt (as the case may be) for purposes of acquiring, holding and enforcing it against any and all Liens on 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, and subject to the provisions of Section 1512(i) hereof), the Collateral granted Agent will not be obligated:
(1) to act upon directions purported to be delivered to it by any Person;
(2) to foreclose upon or otherwise enforce any Lien; or
(3) to take any other action whatsoever with regard to any or all of the Loan Parties Security Documents, the Liens created thereby or the Collateral.
(c) By accepting a Security, each Holder is deemed to secure authorize the Collateral Agent to release or subordinate any Collateral that is permitted to be sold, reclassified or released or be subject to a Priority Lien pursuant to the terms of this Indenture and the Security Documents or the Intercreditor Agreements. By accepting a Security, each Holder is deemed to authorize the Collateral Agent to execute and deliver to the Company, at the Company’s sole cost and expense, any and all releases of Liens, termination statements, assignments or other documents reasonably requested by the Company in connection with any sale, reclassification or other disposition of Collateral to the extent such sale, reclassification or other disposition, and such release of Liens, is permitted by the terms of this Indenture and the Security Documents or the Intercreditor Agreements.
(d) Neither the Trustee nor the Collateral Agent nor any of their respective officers, directors, employees, attorneys or agents shall be responsible for (i) perfecting, maintaining, monitoring, preserving or protecting the Obligations, together with such powers and discretion as are reasonably incidental thereto. In this connection, the Administrative Agent, as “collateral agent” and any co-agents, sub-agents and attorneys-in-fact appointed by the Administrative Agent pursuant to Section 10.5 for purposes of holding security interest or enforcing any Lien on the Collateral (or any portion thereof) granted under the Security Documents or any agreement or instrument contemplated hereby or thereby, (ii) the filing, re- filing, recording, re-recording or continuing of any document, financing statement, assignment, notice, instrument of further assurance or other instrument in any public office at any time or times or (iii) providing, maintaining, monitoring or preserving insurance on or the payment of taxes with respect to the Collateral. The actions described in clauses (i) through (iii) shall be the sole responsibility of the Company and the Guarantors. The Collateral Agent hereby disclaims any representation or warranty to each current and future Holder of the Securities and Obligations concerning the perfection of the security interests granted to it or in the value of any Collateral.
(e) Neither the Trustee nor the Collateral Agent nor any of their respective officers, directors, employees, attorneys or agents will be responsible or liable for the existence, genuineness, value or protection of any Collateral, for the legality, enforceability, effectiveness, or sufficiency of the Security Documents, for the creation, perfection, priority, sufficiency or protection of any Lien, including without limitation not being responsible for payment of any Taxes, charges or assessments upon the Collateral or otherwise as to the maintenance of the Collateral, or for exercising any rights and remedies thereunder at the direction defect or deficiency as to any such matters, or for any failure to demand, collect, foreclose or realize upon or otherwise enforce any of the Administrative Liens or Collateral Documents or any delay in doing so. Neither the Trustee nor the Collateral Agent nor any of their respective officers, directors, employees, attorneys or agents will be responsible or liable for making any filings or recordings to perfect or maintain the perfection of the Collateral Agent’s Lien in the Collateral, including without limitation, the filing of any UCC financing statements, continuation statements or other filings.
(f) The Company shall furnish to the Trustee, at such time as required by the Trust Indenture Act, such Opinions of Counsel and certificates or opinions of engineers, appraisers or other experts as may be required by §§314(b) or 314(d) of the Trust Indenture Act and shall take such other action as may be necessary to cause Trust Indenture Act §314(d) relating to the release of Collateral from the security interests created by this Indenture and the Security Documents to be complied with. Any certificate or opinion required by Trust Indenture Act §314(d) may be made by an Officer of the Company, except in cases where Trust Indenture Act §314(d) requires that such certificate or opinion be made by an independent Person, which Person shall be an independent engineer, appraiser or other expert selected or approved by the Trustee in the exercise of reasonable care. A Person is “independent” if such Person (a) is in fact independent, (b) does not have any direct financial interest or any material indirect financial interest in the Company or in any Affiliate of the Company and (c) is not an officer, employee, promoter, underwriter, trustee, partner or director or person performing similar functions to any of the foregoing for the Company. The Trustee and the Collateral Agent shall be entitled to receive and rely upon a certificate provided by any such Person confirming that such Person is independent within the benefits foregoing definition.
(g) In acting under this Indenture and, whether or not expressly stated therein, under each other Notes Document, the Collateral Agent shall be entitled to all of all provisions of this Section 10 the rights, privileges, immunities and Section 11indemnities granted to the Trustee in Article Six hereof, as though such co-agentsincluding without limitation, sub-agents the right to compensation and attorneys-in-fact were the “collateral agent” under the Loan Documents as if indemnity set forth in full herein with respect theretoSection 609, as if the references to Trustee in such applicable provisions of Article Six were references to Collateral Agent.
(h) The 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, except for its own gross negligence or willful misconduct, as determined by a court of competent jurisdiction in a final and non-appealable decision. No implied covenants, functions, responsibilities, duties, obligations or liabilities, whether arising under statute, common law or otherwise shall be read into this Indenture, Security Documents or the Intercreditor Agreements, or otherwise exist against the Collateral Agent. Without limiting the generality of the foregoingforegoing sentence, the Lenders hereby expressly authorize use of the Administrative term “agent” in this Indenture with reference to the Collateral Agent on its behalf and/or is not intended to connote any fiduciary or other implied (or express) obligations arising under agency doctrine of any applicable law. Instead, such term is used merely as a matter of market custom, and is intended to create or reflect only an administrative relationship between independent contracting parties. The Collateral Agent will not be required to take any action that is contrary to applicable law or any provision of this Indenture, the Security Documents or the Intercreditor Agreements and will not have any duty to take any discretionary action or exercise any discretionary powers. Prior to taking any action, the Collateral Agent will be entitled to seek direction from the Trustee or the Holders of a majority in aggregate principal amount of the Securities outstanding.
(i) No provision of this Indenture, the Security Documents or the Intercreditor Agreements will require the Collateral Agent to advance or expend any of its own name funds or otherwise incur any financial liability in the performance of its duties or the exercise of its powers or rights hereunder or thereunder (including under or any parallel debtomission 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 execute the Collateral Agent against any and all documents (including releases) with respect 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 Agreements, in the event the 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 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 Collateral Agent has determined that the Collateral Agent may incur personal liability as a result of the presence at, or release on or from, the Collateral or such property, of any hazardous substances unless the Collateral Agent has received security or indemnity from the Holders in an amount and in a form all satisfactory to the Collateral Agent in its sole discretion, protecting the Collateral Agent from all such liability. The Collateral Agent shall at any time be entitled to cease taking any action described in this paragraph (i) if it no longer reasonably deems any indemnity, security or undertaking from the Company or the Holders to be sufficient.
(j) Beyond the exercise of reasonable care in the custody of Collateral in its possession or control, the 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.
(k) The Collateral Agent may resign or be removed and the rights of the Secured Parties with respect theretoa successor collateral agent be appointed, as contemplated by and all in accordance with the provisions of this Agreement Sections 612 and the Security Documents and acknowledge and agree that any such action by any Agent shall bind the Lenders. Each Lender agrees that it shall not take or institute any actions or proceedings, judicial or otherwise, for any right or remedy with respect to any Collateral against any Borrower or any other Loan Party or any other obligor under any of the Loan Documents, Specified Swap Agreements or any Specified Cash Management Agreement (including, in each case, the exercise of any right of setoff, rights on account of any banker’s lien or similar claim or other rights of self-help), or institute any actions or proceedings, or otherwise commence any remedial procedures, with respect to any Collateral of any Borrower or any other Loan Party, without the prior written consent of the Administrative Agent. In the event of a foreclosure by the Administrative Agent on any of the Collateral pursuant to a public or private sale or a sale of any of the Collateral pursuant to Section 363 of the Bankruptcy Code (or an equivalent process in any foreign jurisdiction), the Administrative Agent or any Lender may be the purchaser of any or all of such Collateral at any such sale and the Administrative Agent613 hereof, as agent for and representative of the Lenders (but not any Lender or Lenders in its or their respective individual capacities unless the Required Lenders shall otherwise agree in writing) shall be entitled, with the consent or at the direction of the Required Lenders, for the purpose of bidding and making settlement or payment of the purchase price for all or any portion of the if references to Trustee therein were references to Collateral sold at any such sale, to use and apply any of the Obligations as a credit on account of the purchase price for any Collateral payable by the Administrative Agent at such saleAgent.
Appears in 1 contract
Collateral Agent. The Administrative Agent shall also act as the “collateral agent” under the Loan Documents, and each of the Lenders (including in its capacities as a potential Qualified Counterparty and a potential Cash Management Provider) and each of the Issuing Lenders hereby irrevocably appoints and authorizes the Administrative Agent to act as the agent of such Lender and the Issuing Lenders (with the full power to appoint and to substitute and to delegate) on its behalf, or in its own name as joint and several creditor or creditor of a parallel debt (as the case may be) for purposes of acquiring, holding and enforcing any and all Liens on Collateral granted by any of the Loan Parties to secure any of the Obligations, together with such powers and discretion as are reasonably incidental theretothereto and references in this Agreement to “Administrative Agent” will include the “Collateral Agent” as the context may require. In this connection, the Administrative Agent, as “collateral agent” and any co-agents, sub-agents and attorneys-in-fact appointed by the Administrative Agent pursuant to Section 10.5 for purposes of holding or enforcing any Lien on the Collateral (or any portion thereof) granted under the Security Documents, or for exercising any rights and remedies thereunder at the direction of the Administrative Agent, shall be entitled to the benefits of all provisions of this Section 10 and Section 11, as though such co-agents, sub-agents and attorneys-in-fact were the “collateral agent” under the Loan Documents as if set forth in full herein with respect thereto. Without limiting the generality of the foregoing, the Lenders hereby expressly authorize the Administrative Agent on its behalf and/or in its own name (including under any the parallel debt) to execute any and all documents (including releases) with respect to the Collateral and the rights of the Secured Parties with respect thereto, as contemplated by and in accordance with the provisions of this Agreement and the Security Documents and acknowledge and agree that any such action by any Agent shall bind the Lenders. Each Lender agrees that it shall not take or institute any actions or proceedings, judicial or otherwise, for any right or remedy with respect to any Collateral against any Borrower or any other Loan Party or any other obligor under any of the Loan Documents, any Specified Swap Agreements or any Specified Cash Management Agreement (including, in each case, the exercise of any right of setoff, rights on account of any banker’s lien or similar claim or other rights of self-help), or institute any actions or proceedings, or otherwise commence any remedial procedures, with respect to any Collateral of any Borrower or any other Loan Party, without the prior written consent of the Administrative Agent. In the event of a foreclosure by the Administrative Agent on any of the Collateral pursuant to a public or private sale or a sale of any of the Collateral pursuant to Section 363 of the Bankruptcy Code (or an equivalent process in any foreign jurisdiction), the Administrative Agent or any Lender may be the purchaser of any or all of such Collateral at any such sale and the Administrative Agent, as agent for and representative of the Lenders (but not any Lender or Lenders in its or their respective individual capacities unless the Required Lenders shall otherwise agree in writing) shall be entitled, with the consent or at the direction of the Required Lenders, for the purpose of bidding and making settlement or payment of the purchase price for all or any portion of the Collateral sold at any such sale, to use and apply any of the Obligations as a credit on account of the purchase price for any Collateral payable by the Administrative Agent at such sale.
Appears in 1 contract
Collateral Agent. (a) The Administrative Collateral Agent shall also act have all the rights and protections provided in the Security Documents and those afforded the Trustee under this Indenture.
(b) Each of the Holders by acceptance of the Notes hereby designates and appoints the Collateral Agent as its agent under this Indenture, the Security Documents and the Intercreditor Agreements and hereby irrevocably authorizes the Collateral Agent to take such action on its behalf under the provisions of this Indenture, the Security Documents and the Intercreditor Agreements and to exercise such powers and perform such duties as are expressly delegated to the Collateral Agent by the terms of this Indenture, the Security Documents and the Intercreditor Agreements, and consents and agrees to the terms of the Intercreditor Agreements and each Security Document, as the “collateral agent” under the Loan Documentssame may be in effect or may be amended, and each restated, supplemented or otherwise modified from time to time in accordance with their respective terms.
(c) Each of the Lenders (including in Holders by acceptance of the Notes hereby directs the Trustee to so designate and appoint the Collateral Agent as its capacities as a potential Qualified Counterparty and a potential Cash Management Provider) agent under this Indenture, the Security Documents and the Issuing Lenders Intercreditor Agreements and the Trustee hereby irrevocably so designates and appoints and authorizes the Administrative Collateral Agent. The Collateral Agent agrees to act as such on the agent express conditions contained in this Section 12.02. The provisions of such Lender this Section 12.02 are solely for the benefit of the Collateral Agent and none of the Issuing Lenders (with the full power to appoint and to substitute and to delegate) on its behalfTrustee, or in its own name as joint and several creditor or creditor of a parallel debt (as the case may be) for purposes of acquiring, holding and enforcing any and all Liens on Collateral granted by any of the Loan Parties to secure Holders, the Issuer, nor any of the Obligations, together Guarantors shall have any rights as a third party beneficiary of any of the provisions contained herein other than as expressly provided in this Section or in Article 7. Each Holder agrees that any action taken by the Collateral Agent in accordance with such powers and discretion as are reasonably incidental thereto. In the provisions of this connectionIndenture, the Administrative Agent, as “collateral agent” Intercreditor Agreements and any co-agents, sub-agents and attorneys-in-fact appointed by the Administrative Agent pursuant to Section 10.5 for purposes of holding or enforcing any Lien on the Collateral (or any portion thereof) granted under the Security Documents, or for exercising and the exercise by the Collateral Agent of any rights or remedies set forth herein and remedies thereunder at therein shall be authorized and binding upon all Holders. Notwithstanding any provision to the direction contrary contained elsewhere in this Indenture, the Security Documents and the Intercreditor Agreements, the duties of the Administrative Agent, Collateral Agent shall be entitled to ministerial and administrative in nature and the benefits of all provisions of this Section 10 and Section 11Collateral Agent shall not have any duties or responsibilities, as though such co-agents, sub-agents and attorneys-in-fact were the “collateral agent” under the Loan Documents as if except those expressly set forth herein and in full herein the Security Documents and the Intercreditor Agreements to which the Collateral Agent is a party, nor shall the Collateral Agent have or be deemed to have any trust or other fiduciary relationship with respect theretothe Trustee, any Holder, the Issuer or any Guarantor, and no implied covenants, functions, responsibilities, duties, obligations or liabilities shall be read into this Indenture, the Security Documents and the Intercreditor Agreements or otherwise exist against the Collateral Agent. Without limiting the generality of the foregoingforegoing sentence, the Lenders use of the term “agent” in this Indenture 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.
(d) The Collateral Agent may perform any of its duties under this Indenture, the Security Documents or the Intercreditor Agreements by or through receivers, agents, employees, attorneys-in-fact or through its related Persons and shall be entitled to advice of counsel concerning all matters pertaining to such duties, and shall be entitled to act upon, and shall be fully protected in taking action in reliance upon, any advice or opinion given by legal counsel. The Collateral Agent shall not be responsible for the gross negligence or willful misconduct of any receiver, agent, employee, attorney-in-fact or related Person that it selects as long as such selection was made in good faith.
(e) None of the Collateral Agent or any of its respective related Persons shall (i) be liable for any action taken or omitted to be taken by any of them under or in connection with this Indenture or the transactions contemplated hereby expressly authorize the Administrative Agent on its behalf and/or in (except for its own name gross negligence or willful misconduct) or under or in connection with any Security Document or Intercreditor Agreement or the transactions contemplated thereby (except for its own gross negligence or willful misconduct), or (ii) be responsible in any manner to any of the Trustee or any Holder for any recital, statement, representation, warranty, covenant or agreement made by the Issuer or any Guarantor or Affiliate of the Issuer or any Guarantor, or any officer or related Person thereof, contained in this Indenture, or any Security Documents or Intercreditor Agreements, 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 Indenture, the Security Documents or the Intercreditor Agreements, or the validity, effectiveness, genuineness, enforceability or sufficiency of this Indenture, the Security Documents or the Intercreditor Agreements, or for any failure of the Issuer or any Guarantor or any other party to this Indenture, the Security Documents or the Intercreditor Agreements to perform its obligations hereunder or thereunder. None of the Collateral Agent or any of its respective related Persons shall be under any obligation to the Trustee or any Holder to ascertain or to inquire as to the observance or performance of any of the agreements contained in, or conditions of, this Indenture, the Security Documents or the Intercreditor Agreements or to inspect the properties, books, or records of the Issuer, any Guarantor or any of the Issuer’s or Guarantors’ Affiliates.
(f) The Collateral Agent shall be entitled to rely, and shall be fully protected in relying, upon any writing, resolution, notice, consent, certificate, affidavit, letter, facsimile, certification, telephone message, statement, or other communication, document or conversation (including those by telephone or e-mail) believed by it to be genuine and correct and to have been signed, sent, or made by the proper Person or Persons, and upon advice and statements of legal counsel (including, without limitation, counsel to the Issuer or any Guarantor), independent accountants and other experts and advisors selected by the Collateral Agent. The Collateral Agent shall not be bound to make any investigation into the facts or matters stated in any resolution, certificate, statement, instrument, opinion, report, notice, request, direction, consent, order, bond, debenture, or other paper or document. The Collateral Agent shall be fully justified in failing or refusing to take any action under this or any parallel debt) other indenture, the Security Documents or the Intercreditor Agreements, unless it shall first receive such advice or concurrence of the Holders of a majority in aggregate principal amount of the Notes as it determines and, if it so requests, it shall first be indemnified to execute its reasonable satisfaction by the Holders against any and all documents liability and expense which may be incurred by it by reason of taking or continuing to take any such action. The Collateral Agent shall in all cases be fully protected in acting, or in refraining from acting, under this or any other indenture, the Security Documents or the Intercreditor Agreements in accordance with a request, direction, instruction or consent of the Trustee or the Holders of a majority in aggregate principal amount of the then outstanding Notes and such request and any action taken or failure to act pursuant thereto shall be binding upon all of the Holders.
(including releasesg) The Collateral Agent shall not be deemed to have knowledge or notice of the occurrence of any Default or Event of Default, unless a responsible officer of the Collateral Agent shall have received written notice from the Trustee or the Issuer referring to this Indenture, describing such Default or Event of Default and stating that such notice is a “notice of default.” The Collateral Agent shall take such action with respect to such Default or Event of Default as may be requested by the Collateral and the rights of the Secured Parties with respect thereto, as contemplated by and Trustee in accordance with Article 6 or the Holders of a majority in aggregate principal amount of the Notes.
(h) Wilmington Trust, National Association and its respective Affiliates may make loans to, issue letters of credit for the account of, accept deposits from, acquire equity interests in and generally engage in any kind of banking, trust, financial advisory, underwriting, or other business with the Issuer, any Guarantor and their respective Affiliates as though it was not the Collateral Agent hereunder and without notice to or consent of the Trustee. The Trustee and the Holders acknowledge that, pursuant to such activities, Wilmington Trust, National Association or its respective Affiliates may receive information regarding the Issuer, any Guarantor or their Affiliates (including information that may be subject to confidentiality obligations in favor of the Issuer or any such Guarantor or such Affiliate) and acknowledge that the Collateral Agent shall not be under any obligation to provide such information to the Trustee or the Holders. Nothing herein shall impose or imply any obligation on the part of Wilmington Trust, National Association to advance funds.
(i) The Collateral Agent may resign at any time by notice to the Trustee and the Issuer, such resignation to be effective upon the acceptance of a successor agent to its appointment as Collateral Agent. If the Collateral Agent resigns under this Indenture, the Issuer shall appoint a successor collateral agent. If no successor collateral agent is appointed prior to the intended effective date of the resignation of the Collateral Agent (as stated in the notice of resignation), the Collateral Agent may appoint, subject to the consent of the Issuer (which shall not be unreasonably withheld and which shall not be required during a continuing Event of Default), a successor collateral agent. If no successor collateral agent is appointed and consented to by the Issuer pursuant to the preceding sentence, the Collateral Agent shall be entitled to petition a court of competent jurisdiction to appoint a successor. Upon the acceptance of its appointment as successor collateral agent hereunder, such successor collateral agent shall succeed to all the rights, powers and duties of the retiring Collateral Agent, and the term “Collateral Agent” shall mean such successor collateral agent, and the retiring Collateral Agent’s appointment, powers and duties as the Collateral Agent shall be terminated. After the retiring Collateral Agent’s resignation hereunder, the provisions of this Agreement Section 12.02 and Section 7.07 shall continue to inure to its benefit and the Security Documents and acknowledge and agree that any such action by any retiring Collateral Agent shall bind the Lenders. Each Lender agrees that it shall not take or institute by reason of such resignation be deemed to be released from liability as to any actions taken or proceedings, judicial or otherwise, for any right or remedy with respect omitted to any Collateral against any Borrower or any other Loan Party or any other obligor under any of the Loan Documents, Specified Swap Agreements or any Specified Cash Management Agreement (including, in each case, the exercise of any right of setoff, rights on account of any banker’s lien or similar claim or other rights of self-help), or institute any actions or proceedings, or otherwise commence any remedial procedures, with respect to any Collateral of any Borrower or any other Loan Party, without the prior written consent of the Administrative Agent. In the event of a foreclosure be taken by the Administrative Agent on any of it while it was the Collateral pursuant to a public or private sale or a sale of any of the Collateral pursuant to Section 363 of the Bankruptcy Code (or an equivalent process in any foreign jurisdiction), the Administrative Agent or any Lender may be the purchaser of any or all of such Collateral at any such sale and the Administrative Agent, as agent for and representative of the Lenders (but not any Lender or Lenders in its or their respective individual capacities unless the Required Lenders shall otherwise agree in writing) shall be entitled, with the consent or at the direction of the Required Lenders, for the purpose of bidding and making settlement or payment of the purchase price for all or any portion of the Collateral sold at any such sale, to use and apply any of the Obligations as a credit on account of the purchase price for any Collateral payable by the Administrative Agent at such saleunder this Indenture.
Appears in 1 contract
Collateral Agent. The Administrative (a) On the Issue Date, the Collateral Agent shall also act as be appointed for the “collateral agent” under the Loan Documents, and each benefit of the Lenders Holders of the Notes and is hereby authorized to enter into the Pledge Agreements.
(b) Subject to the terms of this Indenture and the Pledge Agreements, the Collateral Agent (directly or through LSC Sub-Agents) and any Additional Share Pledge Collateral Agent will hold and will be entitled to enforce on behalf of the Holders of Notes, all Liens on the Collateral.
(c) All of the rights, protections, benefits, privileges, indemnities and immunities granted to the Trustee hereunder shall inure to the benefit of the Collateral Agent (including in its capacities as a potential Qualified Counterparty and a potential Cash Management Providereach LSC Sub-Agent duly appointed by it) and the Issuing Lenders hereby irrevocably appoints and authorizes the Administrative Agent to act as the agent of such Lender and the Issuing Lenders any Additional Share Pledge Collateral Agent.
(with the full power to appoint and to substitute and to delegated) on its behalfThe Collateral Agent, or in its own name as joint and several creditor or creditor of a parallel debt (any LSC Sub-Agent, as the case may be) for purposes of acquiring, holding and enforcing any and all Liens on Collateral granted by any of the Loan Parties shall be authorized to secure any of the Obligations, together with such powers and appoint LSC Sub-Agents as necessary in its respective sole discretion as are reasonably incidental thereto. In this connection, the Administrative Agent, as “collateral agent” and any co-agents, sub-agents and attorneys-in-fact appointed by the Administrative Agent pursuant to Section 10.5 for purposes of holding or enforcing any Lien on such appointment shall be reflected in documentation (which the Collateral (Agent is hereby authorized to enter into). Except as otherwise explicitly provided herein or any portion thereof) granted under in the Security Documents, no Collateral Agent nor any of its respective officers, directors, employees or for exercising any rights and remedies thereunder at the direction of the Administrative Agent, agents or other related persons shall be entitled liable for failure to the benefits of all provisions of this Section 10 and Section 11demand, as though such co-agents, sub-agents and attorneys-in-fact were the “collateral agent” under the Loan Documents as if set forth in full herein with respect thereto. Without limiting the generality of the foregoing, the Lenders hereby expressly authorize the Administrative Agent on its behalf and/or in its own name (including under any parallel debt) to execute any and all documents (including releases) with respect to the Collateral and the rights of the Secured Parties with respect thereto, as contemplated by and in accordance with the provisions of this Agreement and the Security Documents and acknowledge and agree that any such action by any Agent shall bind the Lenders. Each Lender agrees that it shall not take collect or institute any actions or proceedings, judicial or otherwise, for any right or remedy with respect to any Collateral against any Borrower or any other Loan Party or any other obligor under any of the Loan Documents, Specified Swap Agreements or any Specified Cash Management Agreement (including, in each case, the exercise of any right of setoff, rights on account of any banker’s lien or similar claim or other rights of self-help), or institute any actions or proceedings, or otherwise commence any remedial procedures, with respect to any Collateral of any Borrower or any other Loan Party, without the prior written consent of the Administrative Agent. In the event of a foreclosure by the Administrative Agent on realize upon any of the Collateral pursuant or for any delay in doing so or shall be under any obligation to a public sell or private sale or a sale 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. Each Collateral Agent shall be accountable only for amounts that it actually receives as a result of the Collateral pursuant to Section 363 of the Bankruptcy Code (or an equivalent process in any foreign jurisdiction), the Administrative Agent or any Lender may be the purchaser of any or all exercise of such powers, and neither the Collateral at Agent nor any such sale and the Administrative Agentof its respective officers, as agent for and representative of the Lenders (but not any Lender directors, employees or Lenders in its or their respective individual capacities unless the Required Lenders shall otherwise agree in writing) agents shall be entitled, with the consent or at the direction of the Required Lenders, for the purpose of bidding and making settlement or payment of the purchase price for all or any portion of the Collateral sold at any such sale, to use and apply any of the Obligations as a credit on account of the purchase price responsible for any Collateral payable by the Administrative Agent at such saleact or failure to act, except for its own gross negligence or willful misconduct.
Appears in 1 contract
Sources: Indenture (GeoPark LTD)
Collateral Agent. The Administrative Collateral Agent has been appointed to act as Collateral Agent hereunder by Lenders and, by their acceptance of the benefits hereof, the other Secured Parties. The Collateral Agent shall also act as be obligated, and shall have the “collateral agent” right hereunder, to make demands, to give notices, to exercise or refrain from exercising any rights, and to take or refrain from taking any action (including, without limitation, the release or substitution of Collateral), solely in accordance with this Agreement and the Credit Agreement; provided, the Collateral Agent shall, after payment in full of all Obligations under the Credit Agreement and the other Loan Documents, and each of the Lenders (including in its capacities as a potential Qualified Counterparty and a potential Cash Management Provider) and the Issuing Lenders hereby irrevocably appoints and authorizes the Administrative Agent to act as the agent of such Lender and the Issuing Lenders (with the full power to appoint and to substitute and to delegate) on its behalfexercise, or in its own name as joint and several creditor or creditor of a parallel debt (as the case may be) refrain from exercising, any remedies provided for purposes of acquiring, holding and enforcing any and all Liens on Collateral granted by any of the Loan Parties to secure any of the Obligations, together with such powers and discretion as are reasonably incidental thereto. In this connection, the Administrative Agent, as “collateral agent” and any co-agents, sub-agents and attorneys-in-fact appointed by the Administrative Agent pursuant to Section 10.5 for purposes of holding or enforcing any Lien on the Collateral (or any portion thereof) granted under the Security Documents, or for exercising any rights and remedies thereunder at the direction of the Administrative Agent, shall be entitled to the benefits of all provisions of this Section 10 and Section 11, as though such co-agents, sub-agents and attorneys-in-fact were the “collateral agent” under the Loan Documents as if set forth in full herein with respect thereto. Without limiting the generality of the foregoing, the Lenders hereby expressly authorize the Administrative Agent on its behalf and/or in its own name (including under any parallel debt) to execute any and all documents (including releases) with respect to the Collateral and the rights of the Secured Parties with respect thereto, as contemplated by and in accordance with the provisions of this Agreement and the Security Documents and acknowledge and agree that any such action by any Agent shall bind the Lenders. Each Lender agrees that it shall not take or institute any actions or proceedings, judicial or otherwise, for any right or remedy with respect to any Collateral against any Borrower or any other Loan Party or any other obligor under any instructions of the Loan Documents, Specified Swap holders (the “Majority Holders”) of a majority of the aggregate “settlement amount” as defined in the Hedge Agreements or any Specified Cash Management Agreement (including, in each case, the exercise of any right of setoff, rights on account of any banker’s lien or similar claim or other rights of self-help), or institute any actions or proceedings, or otherwise commence any remedial proceduresor, with respect to any Hedge Agreement that has been terminated in accordance with its terms, the amount then due and payable (exclusive of expenses and similar payments but including any early termination payments then due) under such Hedge Agreement) under all Hedge Agreements. For purposes of the foregoing sentence, settlement amount for any Hedge Agreement that has not been terminated shall be the settlement amount as of the last Business Day of the month preceding any date of determination and shall be calculated by the appropriate swap counterparties and reported to the Collateral Agent upon request; provided any Hedge Agreement with a settlement amount that is a negative number shall be disregarded for purposes of any Borrower or any other Loan determining the Majority Holders. In furtherance of the foregoing provisions of this Section, each Secured Party, without the prior written consent by its acceptance of the Administrative Agent. In the event of a foreclosure by the Administrative Agent on benefits hereof, agrees that it shall have no right individually to realize upon any of the Collateral pursuant hereunder, it being understood and agreed by such Secured Party that all rights and remedies hereunder may be exercised solely by the Collateral Agent for the benefit of Secured Parties in accordance with the terms of this Section. The provisions of the Credit Agreement relating to a public the Collateral Agent including, without limitation, the provisions relating to resignation or private sale or a sale of any removal of the Collateral pursuant to Section 363 of the Bankruptcy Code (or an equivalent process in any foreign jurisdiction), the Administrative Agent or any Lender may be the purchaser of any or all of such Collateral at any such sale and the Administrative Agent, as agent for powers and representative of the Lenders (but not any Lender or Lenders in its or their respective individual capacities unless the Required Lenders shall otherwise agree in writing) shall be entitled, with the consent or at the direction of the Required Lenders, for the purpose of bidding duties and making settlement or payment of the purchase price for all or any portion immunities of the Collateral sold at Agent are incorporated herein by this reference and shall survive any such sale, to use and apply any termination of the Obligations as a credit on account of the purchase price for any Collateral payable by the Administrative Agent at such saleCredit Agreement.
Appears in 1 contract
Sources: Pledge and Security Agreement (Ocwen Financial Corp)
Collateral Agent. (a) The Administrative Agent shall also act as hold the “collateral agent” Collateral at any time received under this Agreement in accordance with the Loan Documentsterms of this Agreement. To the extent permitted by law, and each the obligations of the Lenders (including in its capacities Agent as a potential Qualified Counterparty and a potential Cash Management Provider) and the Issuing Lenders hereby irrevocably appoints and authorizes the Administrative Agent to act as the agent of such Lender and the Issuing Lenders (with the full power to appoint and to substitute and to delegate) on its behalf, or in its own name as joint and several creditor or creditor of a parallel debt (as the case may be) for purposes of acquiring, holding and enforcing any and all Liens on Collateral granted by any holder of the Loan Parties to secure any of the Obligations, together with such powers Collateral and discretion as are reasonably incidental thereto. In this connection, the Administrative Agent, as “collateral agent” interests therein and any co-agents, sub-agents and attorneys-in-fact appointed by the Administrative Agent pursuant to Section 10.5 for purposes of holding or enforcing any Lien on the Collateral (or any portion thereof) granted under the Security Documents, or for exercising any rights and remedies thereunder at the direction of the Administrative Agent, shall be entitled to the benefits of all provisions of this Section 10 and Section 11, as though such co-agents, sub-agents and attorneys-in-fact were the “collateral agent” under the Loan Documents as if set forth in full herein with respect thereto. Without limiting the generality of the foregoing, the Lenders hereby expressly authorize the Administrative Agent on its behalf and/or in its own name (including under any parallel debt) to execute any and all documents (including releases) with respect to the Collateral disposition thereof, and the rights of the Secured Parties with respect thereto, as contemplated by and in accordance with the provisions of otherwise under this Agreement and the Security Documents and acknowledge and agree that any such action by any Agent shall bind the Lenders. Each Lender agrees that it shall not take or institute any actions or proceedings, judicial or otherwise, for any right or remedy with respect to any Collateral against any Borrower or any other Loan Party or any other obligor under any of the Loan Documents, Specified Swap Agreements are only those expressly set forth in this Agreement and the other Loan Documents. The Agent shall act hereunder at the direction, or any Specified Cash Management Agreement (includingwith the consent, of the Required Lenders and on the terms and conditions set forth in the Loan Agreement. Except for treatment of the Collateral in its possession in a manner substantially equivalent to that which the Agent, in each caseits individual capacity, accords its own property of a similar nature, and the accounting for moneys actually received by it hereunder, and, in all events, the exercise of any right of setoff, rights on account of any banker’s lien or similar claim or other rights of self-help), or institute any actions or proceedings, or otherwise commence any remedial procedures, reasonable care with respect to Collateral in its possession, the Agent shall have no duty as to any Collateral or as to the taking of any Borrower necessary steps to preserve rights against prior parties or any other Loan Partyrights pertaining to the Collateral. To the extent permitted by law, without neither the prior written consent of the Administrative Agent. In the event of a foreclosure by the Administrative Agent on nor any of the Collateral pursuant other Lender shall be liable for failure to a public collect or private sale or a sale of any of the Collateral pursuant to Section 363 of the Bankruptcy Code (or an equivalent process in any foreign jurisdiction), the Administrative Agent or any Lender may be the purchaser of realize upon any or all of such the Collateral at or for any such sale delay in so doing, nor shall any of them be under any obligation to take any action whatsoever with regard thereto except as expressly required by this Agreement and the Administrative other Loan Documents.
(b) The parties agree that, except as set forth herein regarding setoff, the rights under this Agreement may be enforced only by the action of the Agent, as agent for and representative acting upon the instructions or with the consent of the Lenders (but not any Lender or Lenders in its or their respective individual capacities unless the Required Lenders and as provided in the Loan Agreement, and that no Lender shall otherwise agree in writing) shall be entitled, with have any right individually to enforce or seek to enforce the consent rights under this Agreement or at to realize upon any Collateral or other security given to secure the direction payment and performance of the Required Lenders, for the purpose of bidding and making settlement or payment of the purchase price for all or any portion of the Collateral sold at any such sale, to use and apply any of the Obligations as a credit on account of the purchase price for any Collateral payable by the Administrative Agent at such saleGuarantors' obligations hereunder.
Appears in 1 contract
Sources: Loan Agreement (American Oncology Resources Inc /De/)