Collateral Agents. (a) Notwithstanding any provision to the contrary elsewhere in the Secured Debt Documents, each Collateral Agent shall not have any duties or responsibilities or fiduciary relationship with any Secured Party, except such duties and responsibilities expressly set forth in this Agreement and the other Secured Debt Documents to which it is a party or third party beneficiary (it being understood that in no event shall any Collateral Agent have or be deemed to have any fiduciary relationship with any Secured Party or any other Person), and no implied covenants, functions or responsibilities, fiduciary or otherwise, shall be read into this Agreement or any other Secured Debt Document or otherwise exist against the Collateral Agents, and any such implied duties that may exist under any applicable law are hereby waived to the fullest extent permitted under such applicable law. (b) Any instruction or direction to a Collateral Agent pursuant to this Agreement by an Act of Controlling Creditors shall be expressly directed in writing. (c) Each Secured Debt Representative on behalf of the Secured Parties with respect to the applicable Series of Secured Debt hereby appoints each Collateral Agent, as applicable, as agent for the purposes of perfecting the security interest in assets which can be perfected by possession or control (or where the security interest of a Secured Party with possession or control has priority over the security interest of another Secured Party), including any accounts subject to an Account Control Agreement and the shares of stock of any Subsidiary pledged or mortgaged pursuant to any Collateral Document, and each Collateral Agent hereby acknowledges that it shall hold possession or otherwise control any such Collateral, including any such shares of stock of any Subsidiary, in accordance with the terms hereof and the Collateral Documents to which it is a party for the ratable benefit of all Secured Parties, including as gratuitous bailee for the sole purpose of perfecting the Liens in such Collateral, in each case without any representation or warranty of any kind. (d) Each Secured Party acting through its Secured Debt Representative with respect to the applicable Series of Secured Debt and each Secured Debt Representative (i) hereby authorizes each Collateral Agent to act at the direction of the Controlling Creditors with respect to any act, consent or waiver that is designated in any Secured Debt Document or this Agreement to be taken by such Collateral Agent acting at the direction of the Controlling Creditors and (ii) for all purposes under the First Priority Secured Debt Documents, shall be deemed to consent to any such action of the applicable Collateral Agent taken at the direction of the Controlling Creditors. Subject to the terms of this Agreement, each Collateral Agent ▇▇▇▇▇▇ agrees to follow any such written instruction of the Controlling Creditors. No Collateral Agent shall be required to exercise any discretionary rights or remedies hereunder or give any consent hereunder unless, subject to the other terms and provisions of this Agreement, it shall have been expressly directed to do so by an Act of Controlling Creditors. (e) Each Collateral Agent may execute any of the trusts or powers hereunder or perform any duties hereunder either directly or by or through agents, attorneys, custodians or nominees appointed with due care. Each Collateral Agent shall not be responsible for the acts or omissions of any such agent, attorney, custodian or nominee appointed with due care. Each Collateral Agent shall be entitled to seek the advice of its independent counsel concerning all matters pertaining to this Agreement and shall not be liable for any action or inaction based in good faith on such advice. (f) Neither any Collateral Agent nor any of its officers, directors, employees, agents, attorneys-in-fact or affiliates shall be: (i) liable to any of the Secured Parties or any other Person for any actions lawfully taken or omitted to be taken by them hereunder (except for its own gross negligence or willful misconduct, as determined ultimately by a court of competent jurisdiction) or (ii) responsible in any manner to any of the Secured Parties or any other Person for any recitals, statements, representations or warranties made by any Grantor, or any other party to a Secured Debt Document, any other Person or any authorized officer of any thereof contained in any Secured Debt Document or in any certificate, report, statement or other document referred to or provided for in, or received by such Collateral Agent under or in connection with, any Secured Debt Document or for the value, validity, effectiveness, genuineness, enforceability or sufficiency of the Collateral or the Secured Debt Documents or for any failure of any Grantor or any other party to a Secured Debt Document or any other Person to perform its obligations thereunder. Each Collateral Agent shall not be under any obligation to ascertain or to inquire as to the observance or performance of any of the agreements contained in, or conditions of, any Secured Debt Document, or to inspect the properties, books or records of any Obligor, any Secured Party or any other party to a Secured Debt Document. (g) Each Collateral Agent shall be entitled to conclusively rely, and shall be fully protected in relying, upon (i) any note, writing, resolution, notice, consent, certificate, affidavit, letter, telecopy, electronic mail message, statement, order or other document (whether in original or facsimile form) reasonably believed by it in good faith to be genuine and to have been signed, sent or made by the proper Person or Persons and (ii) advice and statements of legal counsel, independent accountants and other experts selected by the relevant Collateral Agent. (h) Neither any Collateral Agent nor any of its officers, directors, employees, agents or attorneys-in-fact shall be liable to any Obligor or any of the Secured Parties or any other Person for any act or omission on their part except for any such act or omission that is the result of their own gross negligence or willful misconduct. The powers conferred on the Collateral Agents hereunder are solely to protect its interests in the Collateral and shall not impose any duty upon it to exercise any such powers. Except for the safe custody of the Collateral in its possession and the accounting for monies actually received by it hereunder, the Collateral Agents shall have no other duty as to the Collateral, whether or not the Collateral Agents or any of the other Secured Parties have or are deemed to have knowledge of any matters, or as to the taking of any necessary steps to preserve rights against any parties or any other rights pertaining to the Collateral. Neither Collateral Agent shall be liable for any interest on any money received by it. Each Collateral Agent shall be deemed to have exercised reasonable care in the custody and preservation of the Collateral in its possession if the Collateral is accorded treatment at least equal to that which such Collateral Agent accords to similar assets held for the benefit of third parties. (i) Except as expressly set forth herein including in Article IV, each Collateral Agent shall be fully justified in failing or refusing to take any action under this Agreement or any other Secured Debt Document unless it shall first receive written instruction in an Act of Controlling Creditors as such Collateral Agent reasonably deems appropriate and/or it shall first be indemnified to its satisfaction by the applicable Secured Party against any and all liability and expense (including reasonable attorneys’ fees and disbursements and settlement costs) that may be incurred by it by reason of taking or continuing to take any such action, and any action taken or failure to act pursuant thereto shall be binding upon all the Secured Parties. Each Collateral Agent shall affirmatively act under this Agreement and the other Secured Debt Documents in accordance with any written instruction by the Controlling Creditors not in contravention of this Agreement. Each Collateral Agent shall not incur any liability for any determination made or written instruction in an Act of Controlling Creditors. Notwithstanding anything herein to the contrary, in no event shall a Collateral Agent be required to take any action (including any action that may be directed by the Controlling Creditors and/or that may be set forth in an Act of Controlling Creditors or a Remedies Direction) that exposes it to liability, financial or otherwise, or requires it to expend or risk its own funds or that is contrary to the Secured Debt Documents or any applicable law, unless such Controlling Creditors shall have offered to such Collateral Agent security or indemnity (satisfactory to such Collateral Agent in its sole discretion, acting reasonably) against the costs, expenses and liabilities which may be incurred by it in compliance with such request or direction. (j) Each Collateral Agent and its Affiliates may make loans to, accept deposits from and generally engage in any kind of business with the Obligors and the other parties to the Secured Debt Documents without regard to its acting as Collateral Agent hereunder and under the other Secured Debt Documents. The Secured Parties further understand that there may be situations where Affiliates of the Brazilian Collateral Agent or their respective customers (including the Obligors) either now have or may in the future have interests or take actions that may conflict with the interests of any one or more of the Secured Parties (including the interests of the Secured Parties hereunder and under the Secured Debt Documents). None of (i) this Agreement or any the Secured Debt Documents, (ii) the receipt by the Brazilian Collateral Agent of information concerning the Obligors (including information concerning the ability of the Obligors to perform their respective obligations under the Secured Debt Documents) or (iii) any other matter, shall give rise to any fiduciary, equitable or contractual duties (including any duty of trust or confidence) owing by the Brazilian Collateral Agent to any Secured Party, including any such duty that would prevent or restrict the Brazilian Collateral Agent or any of its Affiliates from acting on behalf of customers (including the Obligors) or for its own account. (k) For the purposes of this Agreement and all other Secured Debt Documents, no Collateral Agent shall be deemed to have knowledge of, or have any duty to ascertain or inquire into: (i) the occurrence of any Event of Default unless and until it has received written notice informing it of the occurrence of such Event of Default or (ii) the existence, the content, or the terms and conditions of any other agreement, instrument or document, in each case, to which it is not a party or third party beneficiary, whether or not referenced herein. Each Collateral Agent may take such action with respect to such Event of Default as is required or permitted to be taken by it pursuant to this Agreement following the occurrence of such Event of Default. (l) The Brazilian Collateral Agent may at any time give 90 days’ notice of its resignation and be discharged of its obligations under this Agreement and the Secured Debt Documents to which it is a party. Upon receiving any such notice of resignation from the Brazilian Collateral Agent, the Parent Guarantors shall propose a successor within thirty (30) days and shall notify each Representative of such proposed successor. Unless Representatives on behalf of the Controlling Creditors object to such proposed successor, such successor shall become the Brazilian Collateral Agent hereunder. If the Parent Guarantor has not proposed a successor within such 30- day period, or if an Event of Default is in effect, or if the Controlling Creditors have objected to the proposed successor, the Controlling Creditors shall appoint a successor which shall become the Brazilian Collateral Agent hereunder. After a ninety (90) day period from such notice of resignation, if no successor has been appointed, the Brazilian Collateral Agent shall hold the Collateral in its possession as a gratuitous bailee until a successor Brazilian Collateral Agent has been appointed, but shall otherwise be fully and immediately discharged of any and all responsibilities as collateral agent under this Agreement and the Secured Debt Documents to which it is a party. The resigning Brazilian Collateral Agent shall execute and deliver all documents requested by the Parent Guarantor to appoint a successor Brazilian Collateral Agent and transfer the Collateral to such successor. (m) The Brazilian Collateral Agent (i) shall solely be obligated to undertake any foreign exchange transaction (A) on the dates specified in Article IV hereof and (B) at any other time, as from the second Business Day subsequent to the Business Day on which the Brazilian Collateral Agent has received the instruction from the Controlling Creditors to perform any transfer of funds pursuant to this Agreement that requires such foreign exchange transaction; (ii) shall transfer converted funds required to be transferred under Article IV hereof no later than (a) the second Business Day subsequent to the Business Day on which US dollars are available for transfer; and (b) the second Business Day on which such transfer is allowed, under the terms of the respective Registry of Financial Transactions of the Brazilian Central Bank, if applicable; and (iii) shall not assume the obligation to undertake any foreign exchange transaction or transfer funds, unless the Brazilian Collateral Agent has received (a) all documents and information it deems necessary for the remittance of funds; and (b) the payment of the respective commissions, fees and expenses in connection with such currency conversion. The Brazilian Collateral Agent shall not be responsible for any losses that could result in possible delays or impairment to undertake a foreign exchange transaction and/or transfer required hereunder, as well as for the impossibility to perform a foreign exchange closing or a transfer resulting from any act or fact beyond its control.
Appears in 1 contract
Sources: Intercreditor, Collateral Sharing and Accounts Agreement (Azul Sa)
Collateral Agents. (i) Each Buyer hereby (a) Notwithstanding any provision to appoints Castlerigg, as the contrary elsewhere collateral agent hereunder and under the Second Amended and Restated Security Agreement (in such capacity, the Secured Debt Documents, each “Castlerigg Collateral Agent shall not have any duties or responsibilities or fiduciary relationship with any Secured Party, except such duties and responsibilities expressly set forth in this Agreement and the other Secured Debt Documents to which it is a party or third party beneficiary (it being understood that in no event shall any Collateral Agent have or be deemed to have any fiduciary relationship with any Secured Party or any other PersonAgent”), and no implied covenants, functions or responsibilities, fiduciary or otherwise, shall be read into this Agreement or any other Secured Debt Document or otherwise exist against the Collateral Agents, and any such implied duties that may exist under any applicable law are hereby waived to the fullest extent permitted under such applicable law.
(b) Any instruction or direction to a appoints DOF, as the collateral agent hereunder and under the First Amended and Restated Security Agreement (in such capacity, the “DOF Collateral Agent pursuant to this Agreement by an Act of Controlling Creditors shall be expressly directed in writing.
Agent”, and together with the Castlerigg Collateral Agent, the “Collateral Agents”) and (c) Each Secured Debt Representative authorizes the Collateral Agents (and its officers, directors, employees and agents) to take such action on such Buyer’s behalf of the Secured Parties with respect to the applicable Series of Secured Debt hereby appoints each Collateral Agent, as applicable, as agent for the purposes of perfecting the security interest in assets which can be perfected by possession or control (or where the security interest of a Secured Party with possession or control has priority over the security interest of another Secured Party), including any accounts subject to an Account Control Agreement and the shares of stock of any Subsidiary pledged or mortgaged pursuant to any Collateral Document, and each Collateral Agent hereby acknowledges that it shall hold possession or otherwise control any such Collateral, including any such shares of stock of any Subsidiary, in accordance with the terms hereof and thereof. The Collateral Agents shall not have, by reason hereof or the Security Agreements, a fiduciary relationship in respect of any Buyer. Neither the Collateral Documents to which it is a party for the ratable benefit of all Secured Parties, including as gratuitous bailee for the sole purpose of perfecting the Liens in such Collateral, in each case without any representation or warranty of any kind.
(d) Each Secured Party acting through its Secured Debt Representative with respect to the applicable Series of Secured Debt and each Secured Debt Representative (i) hereby authorizes each Collateral Agent to act at the direction of the Controlling Creditors with respect to any act, consent or waiver that is designated in any Secured Debt Document or this Agreement to be taken by such Collateral Agent acting at the direction of the Controlling Creditors and (ii) for all purposes under the First Priority Secured Debt Documents, shall be deemed to consent to any such action of the applicable Collateral Agent taken at the direction of the Controlling Creditors. Subject to the terms of this Agreement, each Collateral Agent ▇▇▇▇▇▇ agrees to follow any such written instruction of the Controlling Creditors. No Collateral Agent shall be required to exercise any discretionary rights or remedies hereunder or give any consent hereunder unless, subject to the other terms and provisions of this Agreement, it shall have been expressly directed to do so by an Act of Controlling Creditors.
(e) Each Collateral Agent may execute any of the trusts or powers hereunder or perform any duties hereunder either directly or by or through agents, attorneys, custodians or nominees appointed with due care. Each Collateral Agent shall not be responsible for the acts or omissions of any such agent, attorney, custodian or nominee appointed with due care. Each Collateral Agent shall be entitled to seek the advice of its independent counsel concerning all matters pertaining to this Agreement and shall not be liable for any action or inaction based in good faith on such advice.
(f) Neither any Collateral Agent Agents nor any of its their officers, directors, employees, agents, attorneys-in-fact or affiliates employees and agents shall be: (i) liable have any liability to any of the Secured Parties or any other Person Buyer for any actions lawfully action taken or omitted to be taken in connection hereof or the Security Agreements except to the extent caused by them hereunder (except for its their own gross negligence or willful misconduct, as determined ultimately and each Buyer agrees to defend, protect, indemnify and hold harmless the respective Collateral Agents and all of their officers, directors, employees and agents (collectively, the “Indemnitees”) from and against any losses, damages, liabilities, obligations, penalties, actions, judgments, suits, fees, costs and expenses (including, without limitation, reasonable attorneys’ fees, costs and expenses) incurred by a court such Indemnitee, whether direct, indirect or consequential, arising from or in connection with the performance by such Indemnitee of competent jurisdiction) the duties and obligations of Collateral Agents pursuant hereto or the Security Agreements.
(ii) responsible in any manner to any of the Secured Parties or any other Person for any recitals, statements, representations or warranties made by any Grantor, or any other party to a Secured Debt Document, any other Person or any authorized officer of any thereof contained in any Secured Debt Document or in any certificate, report, statement or other document referred to or provided for in, or received by such The Collateral Agent under or in connection with, any Secured Debt Document or for the value, validity, effectiveness, genuineness, enforceability or sufficiency of the Collateral or the Secured Debt Documents or for any failure of any Grantor or any other party to a Secured Debt Document or any other Person to perform its obligations thereunder. Each Collateral Agent shall not be under any obligation to ascertain or to inquire as to the observance or performance of any of the agreements contained in, or conditions of, any Secured Debt Document, or to inspect the properties, books or records of any Obligor, any Secured Party or any other party to a Secured Debt Document.
(g) Each Collateral Agent Agents shall be entitled to conclusively relyrely upon any written notices, and shall be fully protected in relyingstatements, upon (i) any notecertificates, writing, resolution, notice, consent, certificate, affidavit, letter, telecopy, electronic mail message, statement, order orders or other document (whether in original documents or facsimile form) reasonably any telephone message believed by it in good faith to be genuine and correct and to have been signed, sent or made by the proper Person or Persons Person, and (ii) advice and statements of legal counsel, independent accountants and other experts selected by the relevant Collateral Agent.
(h) Neither any Collateral Agent nor any of its officers, directors, employees, agents or attorneys-in-fact shall be liable with respect to any Obligor or any of the Secured Parties or any other Person for any act or omission on their part except for any such act or omission that is the result of their own gross negligence or willful misconduct. The powers conferred on the Collateral Agents hereunder are solely all matters pertaining to protect its interests in the Collateral and shall not impose any duty upon it to exercise any such powers. Except for the safe custody of the Collateral in its possession and the accounting for monies actually received by it hereunder, the Collateral Agents shall have no other duty as to the Collateral, whether or not the Collateral Agents this Agreement or any of the other Secured Parties have Transaction Documents and its duties hereunder or are deemed to have knowledge thereunder, upon advice of any matters, or as to the taking of any necessary steps to preserve rights against any parties or any other rights pertaining to the Collateral. Neither Collateral Agent shall be liable for any interest on any money received counsel selected by it. Each Collateral Agent shall be deemed to have exercised reasonable care in the custody and preservation of the Collateral in its possession if the Collateral is accorded treatment at least equal to that which such Collateral Agent accords to similar assets held for the benefit of third parties.
(iiii) Except as expressly set forth herein including in Article IV, each The Collateral Agent shall be fully justified in failing or refusing to take any action under this Agreement or any other Secured Debt Document unless it shall first receive written instruction in an Act Agents may resign from the performance of Controlling Creditors as such Collateral Agent reasonably deems appropriate and/or it shall first be indemnified to its satisfaction by the applicable Secured Party against any all their functions and all liability and expense (including reasonable attorneys’ fees and disbursements and settlement costs) that may be incurred by it by reason of taking or continuing to take any such action, and any action taken or failure to act pursuant thereto shall be binding upon all the Secured Parties. Each Collateral Agent shall affirmatively act under this Agreement and the other Secured Debt Documents in accordance with any written instruction by the Controlling Creditors not in contravention of this Agreement. Each Collateral Agent shall not incur any liability for any determination made or written instruction in an Act of Controlling Creditors. Notwithstanding anything herein to the contrary, in no event shall a Collateral Agent be required to take any action (including any action that may be directed by the Controlling Creditors and/or that may be set forth in an Act of Controlling Creditors or a Remedies Direction) that exposes it to liability, financial or otherwise, or requires it to expend or risk its own funds or that is contrary to the Secured Debt Documents or any applicable law, unless such Controlling Creditors shall have offered to such Collateral Agent security or indemnity (satisfactory to such Collateral Agent in its sole discretion, acting reasonably) against the costs, expenses and liabilities which may be incurred by it in compliance with such request or direction.
(j) Each Collateral Agent and its Affiliates may make loans to, accept deposits from and generally engage in any kind of business with the Obligors and the other parties to the Secured Debt Documents without regard to its acting as Collateral Agent duties hereunder and under the other Secured Debt Documents. The Secured Parties further understand that there may be situations where Affiliates New Notes and the Agreement at any time by giving at least ten (10) Business Days prior written notice to the Company and each holder of the Brazilian Collateral Agent or their respective customers (including New Notes. Such resignation shall take effect upon the Obligors) either now have or may in the future have interests or take actions that may conflict with the interests of any one or more of the Secured Parties (including the interests of the Secured Parties hereunder and under the Secured Debt Documents). None of (i) this Agreement or any the Secured Debt Documents, (ii) the receipt acceptance by the Brazilian a successor Collateral Agent of information concerning the Obligors (including information concerning the ability of the Obligors to perform their respective obligations under the Secured Debt Documents) or (iii) any other matter, shall give rise to any fiduciary, equitable or contractual duties (including any duty of trust or confidence) owing by the Brazilian Collateral Agent to any Secured Party, including any such duty that would prevent or restrict the Brazilian Collateral Agent or any of its Affiliates from acting on behalf of customers (including the Obligors) or for its own account.
(k) For the purposes of this Agreement and all other Secured Debt Documents, no Collateral Agent shall be deemed to have knowledge of, or have any duty to ascertain or inquire into: (i) the occurrence of any Event of Default unless and until it has received written notice informing it of the occurrence of such Event of Default or (ii) the existence, the content, or the terms and conditions of any other agreement, instrument or document, in each case, to which it is not a party or third party beneficiary, whether or not referenced herein. Each Collateral Agent may take such action with respect to such Event of Default appointment as is required or permitted to be taken by it pursuant to this Agreement following the occurrence of such Event of Default.
(l) The Brazilian Collateral Agent may at any time give 90 days’ notice of its resignation and be discharged of its obligations under this Agreement and the Secured Debt Documents to which it is a partyprovided below. Upon receiving any such notice of resignation from the Brazilian Collateral Agent, the Parent Guarantors shall propose a successor within thirty (30) days and shall notify each Representative of such proposed successor. Unless Representatives on behalf of the Controlling Creditors object to such proposed successor, such successor shall become the Brazilian Collateral Agent hereunder. If the Parent Guarantor has not proposed a successor within such 30- day period, or if an Event of Default is in effect, or if the Controlling Creditors have objected to the proposed successor, the Controlling Creditors shall appoint a successor which shall become the Brazilian Collateral Agent hereunder. After a ninety (90) day period from such notice of resignation, if no the holders of a majority of the outstanding principal under the respective New Notes shall appoint a successor has been appointedCollateral Agent, respectively. Upon the Brazilian acceptance of the appointment as Collateral Agent, such successor Collateral Agent shall hold succeed to and become vested with all the rights, powers, privileges and duties of the retiring Collateral in its possession as a gratuitous bailee until a successor Brazilian Collateral Agent has been appointedAgent, but shall otherwise be fully and immediately discharged of any and all responsibilities as collateral agent under this Agreement and the Secured Debt Documents to which it is a party. The resigning Brazilian retiring Collateral Agent shall execute be discharged from its duties and deliver all documents requested by obligations under this Agreement, the Parent Guarantor New Notes and the Security Agreement. After any Collateral Agents’ resignation hereunder, the provisions of this Section 4(q) shall inure to appoint its benefit. If a successor Brazilian Collateral Agent and transfer the Collateral to such successor.
(m) The Brazilian Collateral Agent (i) shall solely be obligated to undertake any foreign exchange transaction (A) on the dates specified in Article IV hereof and (B) at any other time, as from the second Business Day subsequent to the Business Day on which the Brazilian Collateral Agent has received the instruction from the Controlling Creditors to perform any transfer of funds pursuant to this Agreement that requires such foreign exchange transaction; (ii) shall transfer converted funds required to be transferred under Article IV hereof no later than (a) the second Business Day subsequent to the Business Day on which US dollars are available for transfer; and (b) the second Business Day on which such transfer is allowed, under the terms of the respective Registry of Financial Transactions of the Brazilian Central Bank, if applicable; and (iii) shall not assume the obligation to undertake any foreign exchange transaction or transfer funds, unless the Brazilian Collateral Agent has received (a) all documents and information it deems necessary for the remittance of funds; and (b) the payment of the respective commissions, fees and expenses in connection with such currency conversion. The Brazilian Collateral Agent shall not be responsible for any losses that could result in possible delays or impairment to undertake have been so appointed within such ten (10) Business Day period, the retiring Collateral Agent shall then appoint a foreign exchange transaction and/or transfer required hereundersuccessor Collateral Agent who shall serve until such time, if any, as well the holders of a majority of the outstanding principal under the New Notes appoint a successor Collateral Agent as for the impossibility to perform a foreign exchange closing or a transfer resulting from any act or fact beyond its controlprovided above.
Appears in 1 contract
Sources: Securities Purchase Agreement (Stinger Systems, Inc)
Collateral Agents. (a) Notwithstanding any provision to the contrary elsewhere in the Secured Debt Documents, each Collateral Agent shall not have any duties or responsibilities or fiduciary relationship with any Secured Party, except such duties and responsibilities expressly set forth in this Agreement The Issuer and the other Secured Debt Documents to which it is a party or third party beneficiary (it being understood that in no event shall any Collateral Agent have or be deemed to have any fiduciary relationship with any Secured Party or any other Person)Guarantors hereby appoint PT Bank CIMB Niaga Tbk., and no implied covenantsPT Bank CIMB Niaga Tbk. hereby accepts such appointment, functions or responsibilities, fiduciary or otherwise, shall be read into this Agreement or any other Secured Debt Document or otherwise exist against to act as collateral agent under the Collateral Agents, Security Documents governed by Indonesian law for and any such implied duties that may exist under any applicable law are hereby waived to the fullest extent permitted under such applicable law.
(b) Any instruction or direction to a Collateral Agent pursuant to this Agreement by an Act of Controlling Creditors shall be expressly directed in writing.
(c) Each Secured Debt Representative on behalf of the Secured Parties with respect (the “Onshore Collateral Agent”).
(b) The Issuer and the Guarantors hereby appoint The Bank of New York Mellon, and The Bank of New York Mellon hereby accepts such appointment, to act as collateral agent under the Security Documents governed by any law (other than Indonesian law) for and on behalf of the Secured Parties (the “Offshore Collateral Agent”).
(c) The parties hereto acknowledge and agree that powers and benefits conferred on each of the Collateral Agents pursuant to this Indenture shall be vested in each of the Collateral Agents for the benefit of the Secured Parties and shall be without prejudice to the applicable Series powers and benefits vested in each of Secured Debt hereby appoints each the Collateral Agent, as applicable, as agent for the purposes of perfecting the security interest in assets which can be perfected by possession or control (or where the security interest of a Secured Party with possession or control has priority over the security interest of another Secured Party), including any accounts subject to an Account Control Agreement and the shares of stock of any Subsidiary pledged or mortgaged Agents pursuant to any Collateral Document, the Security Documents and each Collateral Agent hereby acknowledges that it shall hold possession or otherwise control any such Collateral, including any such shares of stock of any Subsidiary, in accordance with the terms hereof and the Collateral Documents to which it is a party for the ratable benefit of all Secured Parties, including as gratuitous bailee for the sole purpose of perfecting the Liens in such Collateral, in each case without any representation or warranty of any kindapplicable law.
(d) Each Secured Party acting through holder of a Note, by its Secured Debt Representative with respect acceptance thereof, agrees, acknowledges and consents that each of the Collateral Agents shall be entitled to the applicable Series of Secured Debt rights, privileges, protections, immunities, indemnities and benefits provided to each Secured Debt Representative (i) hereby authorizes each Collateral Agent to act at the direction of the Controlling Creditors with respect to any actCollateral Agents by the Security Documents. Furthermore, consent or waiver that is designated in any Secured Debt Document or this Agreement to be taken each holder of a Note, by such Collateral Agent acting at the direction of the Controlling Creditors its acceptance thereof, agrees, acknowledges and (ii) for all purposes under the First Priority Secured Debt Documents, shall be deemed to consent to any such action of the applicable Collateral Agent taken at the direction of the Controlling Creditors. Subject consents to the terms of this Agreement(including, but not limited to, waivers, representations and covenants) of, and authorizes and directs each Collateral Agent ▇▇▇▇▇▇ agrees to follow any such written instruction of the Controlling Creditors. No Collateral Agent shall be required to exercise any discretionary rights or remedies hereunder or give any consent hereunder unlessAgents to, subject to enter into, and perform its duties and obligations under, the other terms and provisions of this Agreement, it shall have been expressly directed to do so by an Act of Controlling CreditorsSecurity Documents.
(e) Each Collateral Agent may execute any Neither of the trusts or powers hereunder or perform any duties hereunder either directly or by or through agentsCollateral Agents, attorneys, custodians or nominees appointed with due care. Each Collateral Agent shall not be responsible for the acts or omissions of any such agent, attorney, custodian or nominee appointed with due care. Each Collateral Agent shall be entitled to seek the advice of its independent counsel concerning all matters pertaining to this Agreement and shall not be liable for any action or inaction based in good faith on such advice.
(f) Neither any Collateral Agent nor any of its officers, directors, employees, their respective employees or agents, attorneys-in-fact or affiliates shall be: be obliged to:
(i) liable make any enquiry as to any of breach or default by the Secured Parties Issuer or any other Person for any actions lawfully taken Guarantor in the performance or omitted to be taken by them hereunder (except for its own gross negligence or willful misconduct, as determined ultimately by a court of competent jurisdiction) or (ii) responsible in any manner to any of the Secured Parties or any other Person for any recitals, statements, representations or warranties made by any Grantor, or any other party to a Secured Debt Document, any other Person or any authorized officer of any thereof contained in any Secured Debt Document or in any certificate, report, statement or other document referred to or provided for in, or received by such Collateral Agent under or in connection with, any Secured Debt Document or for the value, validity, effectiveness, genuineness, enforceability or sufficiency of the Collateral or the Secured Debt Documents or for any failure of any Grantor or any other party to a Secured Debt Document or any other Person to perform its obligations thereunder. Each Collateral Agent shall not be under any obligation to ascertain or to inquire as to the observance or performance of any of the agreements contained in, provisions of this Indenture or conditions of, any Secured Debt Document, or to inspect the properties, books or records of any Obligor, any Secured Party or any other party to a Secured Debt Document.
(g) Each Collateral Agent shall be entitled to conclusively rely, and shall be fully protected in relying, upon (i) any note, writing, resolution, notice, consent, certificate, affidavit, letter, telecopy, electronic mail message, statement, order or other document (whether in original or facsimile form) reasonably believed by it in good faith to be genuine and to have been signed, sent or made by the proper Person or Persons and (ii) advice and statements of legal counsel, independent accountants and other experts selected by the relevant Collateral Agent.
(h) Neither any Collateral Agent nor any of its officers, directors, employees, agents or attorneys-in-fact shall be liable to any Obligor or any of the Secured Parties or any other Person for any act or omission on their part except for any such act or omission that is the result of their own gross negligence or willful misconduct. The powers conferred on the Collateral Agents hereunder are solely to protect its interests in the Collateral and shall not impose any duty upon it to exercise any such powers. Except for the safe custody of the Collateral in its possession and the accounting for monies actually received by it hereunder, the Collateral Agents shall have no other duty as to the Collateral, whether or not the Collateral Agents or any of the other Secured Parties have or are deemed to have knowledge of any matters, Security Documents or as to the taking existence of any necessary steps to preserve rights against any parties a Default or any other rights pertaining to an Event of Default and neither of the Collateral. Neither Collateral Agent shall be liable for any interest on any money received by it. Each Collateral Agent Agents shall be deemed to have exercised reasonable care notice of a Default or an Event of Default unless it has received written notice thereof from the Trustee or from holders of a twenty-five percent (25%) in the custody and preservation principal amount of the Collateral in its possession if the Collateral is accorded treatment at least equal to that which such Collateral Agent accords to similar assets held for the benefit of third parties.outstanding Notes;
(i) Except as expressly set forth herein including in Article IV, each Collateral Agent shall be fully justified in failing or refusing to take any action under this Agreement or any other Secured Debt Document unless it shall first receive written instruction in an Act of Controlling Creditors as such Collateral Agent reasonably deems appropriate and/or it shall first be indemnified to its satisfaction by the applicable Secured Party against any and all liability and expense (including reasonable attorneys’ fees and disbursements and settlement costs) that may be incurred by it by reason of taking or continuing to take any such action, and any action taken or failure to act pursuant thereto shall be binding upon all the Secured Parties. Each Collateral Agent shall affirmatively act under this Agreement and the other Secured Debt Documents in accordance with any written instruction by the Controlling Creditors not in contravention of this Agreement. Each Collateral Agent shall not incur any liability for any determination made or written instruction in an Act of Controlling Creditors. Notwithstanding anything herein to the contrary, in no event shall a Collateral Agent be required to take any action (including any action that may be directed by the Controlling Creditors and/or that may be set forth in an Act of Controlling Creditors or a Remedies Direction) that exposes it to liability, financial or otherwise, or requires it to expend or risk its own funds or that is contrary to the Secured Debt Documents or any applicable law, unless such Controlling Creditors shall have offered to such Collateral Agent security or indemnity (satisfactory to such Collateral Agent in its sole discretion, acting reasonably) against the costs, expenses and liabilities which may be incurred by it in compliance with such request or direction.
(j) Each Collateral Agent and its Affiliates may make loans to, accept deposits from and generally engage in any kind of business with the Obligors and the other parties to the Secured Debt Documents without regard to its acting as Collateral Agent hereunder and under the other Secured Debt Documents. The Secured Parties further understand that there may be situations where Affiliates of the Brazilian Collateral Agent or their respective customers (including the Obligors) either now have or may in the future have interests or take actions that may conflict with the interests of any one or more of the Secured Parties (including the interests of the Secured Parties hereunder and under the Secured Debt Documents). None of (i) this Agreement or any the Secured Debt Documents, (ii) the receipt by the Brazilian Collateral Agent do anything which would, or might in its opinion, be contrary to any law or regulation or be a breach of information concerning the Obligors (including information concerning the ability any duty of the Obligors confidentiality or otherwise be actionable or render it liable to perform their respective obligations under the Secured Debt Documents) or any person; or
(iii) any other matter, shall give rise account to any fiduciary, equitable Person for any sum or contractual duties (including the profit element of any duty of trust or confidence) owing sum received by the Brazilian Collateral Agent to any Secured Party, including any such duty that would prevent or restrict the Brazilian Collateral Agent or any of its Affiliates from acting on behalf of customers (including the Obligors) or it for its own account.
(kf) For the purposes avoidance of this Agreement and all other Secured Debt Documents, no Collateral Agent shall be deemed to have knowledge of, or have any duty to ascertain or inquire into: (i) the occurrence of any Event of Default unless and until it has received written notice informing it of the occurrence of such Event of Default or (ii) the existencedoubt, the content, or the terms and conditions of any other agreement, instrument or document, in each case, to which it is not a party or third party beneficiary, whether or not referenced herein. Each Collateral Agent may take such action with respect to such Event of Default as is required or permitted to be taken by it pursuant to this Agreement following the occurrence of such Event of Default.
(l) The Brazilian Collateral Agent may at any time give 90 days’ notice of its resignation and be discharged of its obligations under this Agreement and the Secured Debt Documents to which it is a party. Upon receiving any such notice of resignation from the Brazilian Collateral Agent, the Parent Guarantors shall propose a successor within thirty (30) days and shall notify each Representative of such proposed successor. Unless Representatives on behalf of the Controlling Creditors object to such proposed successor, such successor shall become the Brazilian Collateral Agent hereunder. If the Parent Guarantor has not proposed a successor within such 30- day period, or if an Event of Default is in effect, or if the Controlling Creditors have objected to the proposed successor, the Controlling Creditors shall appoint a successor which shall become the Brazilian Collateral Agent hereunder. After a ninety (90) day period from such notice of resignation, if no successor has been appointed, the Brazilian Onshore Collateral Agent shall hold the relevant Collateral for and on behalf of the Secured Parties and not as an agent of the Trustee. Notwithstanding anything to the contrary in its possession as a gratuitous bailee until a successor Brazilian this Indenture, there is no principal-agent, trustee-beneficiary or fiduciary relationship between the Onshore Collateral Agent and the Trustee and, for the avoidance of doubt, the Onshore Collateral Agent has been appointed, but shall otherwise be fully and immediately discharged no authority to enter into contractual obligations on behalf of any and all responsibilities as collateral agent under this Agreement the Trustee.
(g) The Issuer and the Guarantors shall not be entitled to provide instructions to any Collateral Agent in relation to the exercise of its rights or powers or performance of its functions under the Transaction Documents and the Collateral Agents shall not be required to act on any instructions provided by either the Issuer or any of the Guarantors.
(h) Each of the Collateral Agents declares that it shall hold the Collateral on trust for the benefit of the Secured Debt Documents Parties in accordance with the Security Documents.
(i) To the extent that the trust created pursuant to which it paragraph (h) above is a party. The resigning Brazilian incapable of recognition or enforcement in the Republic of Indonesia, the Onshore Collateral Agent shall execute hold the relevant Collateral for the benefit of, and deliver all documents requested by as the Parent Guarantor to appoint a successor Brazilian Collateral Agent property of, the Secured Parties and transfer the Collateral to such successor.
(m) The Brazilian Collateral Agent (i) shall solely be obligated to undertake any foreign exchange transaction (A) on the dates specified in Article IV hereof and (B) at any other time, as from the second Business Day subsequent so that it is not available to the Business Day on which the Brazilian Collateral Agent has received the instruction from the Controlling Creditors to perform any transfer of funds pursuant to this Agreement that requires such foreign exchange transaction; (ii) shall transfer converted funds required to be transferred under Article IV hereof no later than (a) the second Business Day subsequent to the Business Day on which US dollars are available for transfer; and (b) the second Business Day on which such transfer is allowed, under the terms personal creditors of the respective Registry of Financial Transactions of the Brazilian Central Bank, if applicable; and (iii) shall not assume the obligation to undertake any foreign exchange transaction or transfer funds, unless the Brazilian Onshore Collateral Agent has received (a) all documents and information it deems necessary for the remittance of funds; and (b) the payment of the respective commissions, fees and expenses in connection with such currency conversion. The Brazilian Collateral Agent shall not be responsible for any losses that could result in possible delays or impairment to undertake a foreign exchange transaction and/or transfer required hereunder, as well as for the impossibility to perform a foreign exchange closing or a transfer resulting from any act or fact beyond its controlAgent.
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Sources: Indenture (PT Centralpertiwi Bahari)