Regarding the Collateral Agent. (a) The Collateral Agent is authorized and empowered to appoint one or more subagents or co-collateral agents as it deems necessary or appropriate (it being understood that the Real Property Collateral Agent is executing its duties as a subagent for the Collateral Agent). (b) Except as otherwise expressly set forth in Section 3 of the Security Agreement, none of the Trustee, the Collateral Agent or the Real Property Collateral Agent shall have any 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 of the Issuers’ or any Guarantor’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 Collateral Agent and the Real Property Collateral Agent pursuant to this Indenture or any Security Document other than pursuant to the instructions of the Trustee or the Holders of a majority in aggregate principal amount of the Notes of a series with respect to such series of Notes or as otherwise provided in the Security Documents and/or the Intercreditor Agreements. (c) Notwithstanding anything to the contrary contained in this Indenture or the Security Documents, in the event the Collateral Agent or the Real Property 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 or the Real Property Collateral Agent, as the case may be, 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 or the Real Property Collateral Agent has determined that the Collateral Agent or the Real Property 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. The Collateral Agent and the Real Property Collateral Agent shall at any time be entitled to cease taking any action described in this clause if it no longer reasonably deems any indemnity, security or undertaking from the Issuers or the Holders to be sufficient. (d) The Collateral Agent and the Real Property Collateral Agent shall not be liable for (i) any action taken or omitted to be taken by it in connection with this Indenture and the Security Documents or 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, and (ii) interest on any money received by it except as the Collateral Agent or the Real Property Collateral Agent may agree in writing with the Issuers (and money held in trust by the Collateral Agent or the Real Property Collateral Agent shall be segregated from other funds except to the extent required by law). (e) The Collateral Agent and the Real Property Collateral Agent shall exercise reasonable care in the custody of any Collateral in its possession or control or in the possession or control of any agent or bailee or any income thereon. The Collateral Agent and the Real Property Collateral Agent shall be deemed to have exercised reasonable care in the custody of Collateral in its possession if the Collateral is accorded treatment substantially equal to that which it accords similar property held for its own benefit and shall not be liable or responsible for any loss or diminution in value of any of the Collateral, including, without limitation, by reason of the act or omission of any carrier, forwarding agency or other agent or bailee selected by the Collateral Agent or the Real Property Collateral Agent in good faith. (f) The parties hereto and the Holders hereby agree and acknowledge that none of the Collateral Agent, the Trustee or the Real Property Collateral Agent shall 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 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 Indenture, the Security Documents or any actions taken pursuant hereto or thereto. Further, the parties hereto and the Holders hereby agree and acknowledge that in the exercise of its rights under this Indenture and the Security Documents, the Collateral Agent, the Trustee or the Real Property Collateral Agent may hold or obtain indicia of ownership primarily to protect the security interest of the Collateral Agent, the Trustee or the Real Property Collateral Agent in the Collateral and that any such actions taken by the Collateral Agent, the Trustee or the Real Property Collateral Agent shall not be construed as or otherwise constitute any participation in the management of such Collateral. In the event that the Collateral Agent, the Trustee or the Real Property Collateral Agent is required to acquire title to an asset for any reason, or take any managerial action of any kind in regard thereto, which in the Collateral Agent’s, Real Property Collateral Agent’s or the Trustee’s sole discretion may cause the Collateral Agent, Real Property Collateral Agent or the Trustee 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 Collateral Agent, the Trustee or the Real Property Collateral Agent to incur liability under CERCLA or any other federal, state or local law, the Collateral Agent, the Trustee and the Real Property Collateral Agent reserves the right, instead of taking such action, to either resign as the Collateral Agent, the Trustee or the Real Property Collateral Agent or arrange for the transfer of the title or control of the asset to a court-appointed receiver or monitor. None of the Collateral Agent, the Trustee or the Real Property Collateral Agent shall be liable to the Issuers, the Guarantors or any other Person for any environmental claims or contribution actions under any federal, state or local law, rule or regulation by reason of the Collateral Agent’s, the Real Property Collateral Agent’s or the Trustee’s actions and conduct as authorized, empowered and directed hereunder or relating to the discharge, release or threatened release of hazardous materials into the environment. If at any time it is necessary or advisable for property to be possessed, owned, operated or managed by any Person (including the Collateral Agent, the Real Property Collateral Agent or the Trustee) other than the Issuers or the Guarantors, subject to the terms of the Security Documents and the Intercreditor Agreements, a majority in interest of Holders of Notes of a series shall direct the Collateral Agent, the Real Property Collateral Agent or the Trustee with respect to such series of Notes to appoint an appropriately qualified Person (excluding the Collateral Agent, the Real Property Collateral Agent or the Trustee) whom it shall designate to possess, own, operate or manage, as the case may be, such property. (g) For the avoidance of doubt, the rights, privileges, protections, immunities and benefits given to the Collateral Agent and the Real Property Collateral Agent hereunder, including, without limitation, its right to be indemnified prior to taking action, shall survive the satisfaction, discharge or termination of this Indenture or earlier termination, resignation or removal of the Trustee, in such capacity, with respect to the holders of the ABL Priority Collateral or the Other Pari Passu Lien Obligations, as applicable, to the extent the Security Documents remain in force thereafter. (h) For the purposes of holding any hypothec granted to the Attorney (as defined below) pursuant to the laws of the Province of Québec to secure the prompt payment and performance of any and all Notes Obligations by any Issuers or Guarantors, each of Holder hereby irrevocably appoints and authorizes the Collateral Agent and, to the extent necessary, ratifies the appointment and authorization of the Collateral Agent, to, as part of its duties as Collateral Agent, act as the hypothecary representative of the creditors as contemplated under Article 2692 of the Civil Code of Québec (in such capacity, the “Attorney”), and to enter into, to take and to hold on their behalf, and for their benefit, any hypothec, and to exercise such powers and duties that are conferred upon the Attorney under any related deed of hypothec. The Attorney shall: (a) have the sole and exclusive right and authority to exercise, except as may be otherwise specifically restricted by the terms hereof, all rights and remedies given to the Attorney pursuant to any such deed of hypothec and applicable law, and (b) benefit from and be subject to all provisions hereof with respect to the Collateral Agent mutatis mutandis, including, without limitation, all such provisions with respect to the liability or responsibility to and indemnification by the Issuer and the Guarantors. Any person who becomes a Holder shall be deemed to have consented to and confirmed the Attorney as the person acting as hypothecary representative holding the aforesaid hypothecs as aforesaid and to have ratified, as of the date it becomes a Holder, all actions taken by the Attorney in such capacity. The substitution of the Collateral Agent pursuant to the provisions of this Article XIII shall also result in the substitution of the Attorney.
Appears in 3 contracts
Sources: Supplemental Indenture (NGL Energy Partners LP), Indenture (NGL Energy Partners LP), Indenture (NGL Energy Partners LP)
Regarding the Collateral Agent. (a) The Trustee, on behalf of the Secured Parties, hereby appoints Citicorp USA, Inc. to act as Collateral Agent is authorized under this Indenture and empowered to appoint one or more subagents or co-collateral agents the Security Documents, provided however that for so long as it deems necessary or appropriate (it being understood that any Revolver Obligations are outstanding, the Real Property same Person shall act as Collateral Agent is executing its duties as a subagent for under both the Security Documents and the Revolving Loan Documentation. The Trustee on behalf of itself and the Secured Parties hereby irrevocably appoints the Collateral Agent)Agent as its agent and authorizes the Collateral Agent to take such actions on its behalf and to exercise such powers as are delegated to the Collateral Agent by the terms hereof and of the Security Documents, together with such actions and powers as are reasonably incidental thereto.
(b) Except The Person serving as otherwise expressly set forth Collateral Agent and its Affiliates may accept deposits from, lend money to and generally engage in Section 3 any kind of banking, trust or other business with the Security Agreement, none of the Trustee, Issuer or any Subsidiary or other Affiliate thereof as if it were not the Collateral Agent or the Real Property Collateral Agent shall have any 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 of the Issuers’ or any Guarantor’s property constituting collateral intended to be subject to the Lien hereunder and security interest of the Security Documents has been properly may accept fees 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 and the Real Property Collateral Agent pursuant to this Indenture or any Security Document other than pursuant to the instructions of the Trustee or the Holders of a majority in aggregate principal amount of the Notes of a series with respect to such series of Notes or as otherwise provided in the Security Documents and/or the Intercreditor Agreements.
(c) Notwithstanding anything to the contrary contained in this Indenture or the Security Documents, in the event the Collateral Agent or the Real Property 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 or the Real Property Collateral Agent, as the case may be, 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 or the Real Property Collateral Agent has determined that the Collateral Agent or the Real Property 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. The Collateral Agent and the Real Property Collateral Agent shall at any time be entitled to cease taking any action described in this clause if it no longer reasonably deems any indemnity, security or undertaking consideration from the Issuers or the Holders to be sufficient.
(d) The Collateral Agent and the Real Property Collateral Agent shall not be liable Issuer for (i) any action taken or omitted to be taken by it services in connection with this Indenture and the Security Documents or 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, and (ii) interest on any money received by it except as the Collateral Agent or the Real Property Collateral Agent may agree in writing with the Issuers (and money held in trust by the Collateral Agent or the Real Property Collateral Agent shall be segregated from other funds except to the extent required by law).
(e) The Collateral Agent and the Real Property Collateral Agent shall exercise reasonable care in the custody of any Collateral in its possession or control or in the possession or control of any agent or bailee or any income thereon. The Collateral Agent and the Real Property Collateral Agent shall be deemed to have exercised reasonable care in the custody of Collateral in its possession if the Collateral is accorded treatment substantially equal to that which it accords similar property held for its own benefit and shall not be liable or responsible for any loss or diminution in value of any of the Collateral, including, without limitation, by reason of the act or omission of any carrier, forwarding agency or other agent or bailee selected by the Collateral Agent or the Real Property Collateral Agent in good faith.
(f) The parties hereto and the Holders hereby agree and acknowledge that none of the Collateral Agent, the Trustee or the Real Property Collateral Agent shall 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 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 Indenture, the Security Documents or otherwise without having to account for the same to the Trustee or the Holders.
(c) The Collateral Agent shall not have any actions taken pursuant hereto duties or thereto. Further, the parties hereto obligations except those expressly set forth in this Indenture and the Security Documents. Without limiting the generality of the foregoing, (i) the Collateral Agent shall not be subject to any fiduciary or other implied duties, regardless of whether a Default has occurred and is continuing, (ii) the Collateral Agent shall not have any duty to take any discretionary action or exercise any discretionary powers, except discretionary rights and powers expressly contemplated by this Indenture and the Security Documents that the Collateral Agent is required to exercise in writing by the Trustee or such number or percentage of the Holders hereby agree as shall be necessary under the circumstances as provided in Article 10, and acknowledge that (iii) except as expressly set forth in the exercise of its rights under this Indenture and the Security Documents, the Collateral AgentAgent shall not have any duty to disclose, and shall not be liable for the Trustee failure to disclose, any information relating to the Issuer or any of the Real Property Subsidiaries that is communicated to or obtained by the Person serving as Collateral Agent may hold or obtain indicia any of ownership primarily to protect the security interest of the Collateral Agent, the Trustee or the Real Property Collateral Agent its Affiliates in the Collateral and that any such actions taken by the Collateral Agent, the Trustee or the Real Property capacity. The Collateral Agent shall not be construed liable for any action taken or not taken by it with the consent or at the request of the Trustee or such number or percentage of the Holders as shall be necessary under the circumstances as provided in Article 10 or otherwise constitute any participation in the management absence of such Collateralits own gross negligence or willful misconduct as determined in a final judgment by a court of competent jurisdiction. In The Collateral Agent shall be deemed not to have knowledge of any Default unless and until written notice thereof is given to the event that Collateral Agent by the Issuer or the Trustee, and the Collateral Agent shall not be responsible for or have any duty to ascertain or inquire into (i) any statement, warranty or representation made in or in connection with this Indenture or any Security Document, (ii) the contents of any certificate, report or other document delivered thereunder or in connection therewith, (iii) the performance or observance of any of the covenants, agreements or other terms or conditions set forth in this Indenture or any Security Document, (iv) the validity, enforceability, effectiveness or genuineness of this Indenture or any Security Document or any other agreement, instrument or document, or the validity, perfection, or priority of any Lien created by any of the Security Documents, or (v) the satisfaction of any condition set forth in this Indenture or any Security Document, other than to confirm receipt of items expressly required to be delivered to the Collateral Agent, the Trustee or the Real Property .
(d) The Collateral Agent is required shall be entitled to acquire title rely upon, and shall not incur any liability for relying upon, any notice, request, certificate, consent, statement, instrument, document or other writing believed by it to an asset be genuine and to have been signed or sent by the proper Person. The Collateral Agent also may rely upon any statement made to it orally or by telephone and believed by it to be made by the proper Person, and shall not incur any liability for relying thereon. The Collateral Agent may consult with legal counsel (who may be counsel for the Issuer), independent accountants and other experts selected by it, and shall not be liable for any reason, action taken or take any managerial action not taken by it in accordance with the advice of any kind in regard theretosuch counsel, which in accountants or experts.
(e) The Collateral Agent may perform any and all of its duties and exercise its rights and powers by or through any one or more sub-agents or attorneys-in-fact appointed by the Collateral Agent’s, Real Property Collateral Agent’s or the Trustee’s sole discretion may cause the Collateral Agent, Real Property . The Collateral Agent and any such sub-agent or the Trustee to be considered an “owner or operator” under the attorney-in-fact may perform any and all its duties and exercise its rights and powers through their respective Related Parties. The exculpatory provisions of the Comprehensive Environmental Response, Compensation preceding paragraphs shall apply to any such sub-agent or attorney-in-fact and Liability Act (“CERCLA”), 42 U.S.C. §9601, et seq., or otherwise cause to the Related Parties of the Collateral Agent, Agent and any such sub-agent or attorney-in-fact.
(f) Subject to the Trustee or the Real Property appointment and acceptance of a successor Collateral Agent to incur liability under CERCLA or any other federal, state or local lawas provided in this paragraph, the Collateral Agent, Agent may resign at any time by notifying the Trustee and the Real Property Collateral Agent reserves Issuer and may be removed at any time with or without cause by the Holders of a majority in principal amount of the Notes. Upon any such resignation, the Holders of a majority in principal amount of the Notes shall have the right, instead of taking such actionin consultation with the Issuer, to either resign appoint a successor. If no successor shall have been so appointed by such Holders and shall have accepted such appointment within 30 days after the retiring Collateral Agent gives notice of its resignation, then the retiring Collateral Agent may, on behalf of the Trustee and the Holders, appoint a successor Collateral Agent that shall have an office in New York, New York. Upon the acceptance of its appointment as Collateral Agent hereunder by a successor, such successor shall succeed to and become vested with all the rights, powers, privileges and duties of the retiring Collateral Agent, and the Trustee or the Real Property Collateral Agent or arrange for the transfer of the title or control of the asset to a court-appointed receiver or monitor. None of the Collateral Agent, the Trustee or the Real Property retiring Collateral Agent shall be liable discharged from its duties and obligations hereunder and under the Security Documents. The fees payable by the Issuer to a successor Collateral Agent shall be the Issuers, same as those payable to its predecessor unless otherwise agreed between the Guarantors or any other Person for any environmental claims or contribution actions under any federal, state or local law, rule or regulation by reason of Issuer and such successor. After the Collateral Agent’s's resignation hereunder, the Real Property Collateral Agent’s or provisions of this Article shall continue in effect for the Trustee’s actions and conduct as authorized, empowered and directed hereunder or relating to the discharge, release or threatened release benefit of hazardous materials into the environment. If at any time it is necessary or advisable for property to be possessed, owned, operated or managed by any Person (including the such retiring Collateral Agent, its sub-agents and attorneys-in-fact and their respective Related Parties in respect of any actions taken or omitted to be taken by any of them while it was acting as Collateral Agent. Notwithstanding the Real Property foregoing, any successor Collateral Agent or must meet the Trustee) other than the Issuers or the Guarantors, subject to the terms requirements of the Security Documents and the Intercreditor Agreements, a majority in interest of Holders of Notes of a series shall direct the Collateral Agent, the Real Property Collateral Agent or the Trustee with respect to such series of Notes to appoint an appropriately qualified Person (excluding the Collateral Agent, the Real Property Collateral Agent or the Trustee) whom it shall designate to possess, own, operate or manage, as the case may be, such propertySection 11.02(a).
(g) For the avoidance Except for action expressly required of doubt, the rights, privileges, protections, immunities and benefits given to the Collateral Agent by this Indenture and the Real Property Security Documents, the Collateral Agent hereundershall in all cases be fully justified in failing or refusing to act thereunder unless it shall receive further assurances to its satisfaction from the Holders of their indemnification obligations under Section 11.02(i) in respect of such action. Without limiting the foregoing, includingthe Collateral Agent shall not be required to, without limitationand shall not, take any action to enforce any of its right to be indemnified prior to taking actionor the Trustee's or Holders' rights under, shall survive the satisfactionnor waive or amend any provision of, discharge or termination of this Indenture or earlier terminationany Security Document or any Collateral, resignation nor give any notice or removal of the Trusteemake any request or demand or filing thereunder, except in such capacity, with respect to the holders of the ABL Priority Collateral or the Other Pari Passu Lien Obligations, each instance as applicable, and to the extent instructed to do so by the Security Documents remain in force thereafter.
(h) For the purposes of holding any hypothec granted to the Attorney (as defined below) pursuant to the laws Trustee or such number or percentage of the Province of Québec to secure Holders as shall be necessary under the prompt payment circumstances as provided in Article 10, and performance of any and all Notes Obligations by any Issuers or Guarantors, each of Holder hereby irrevocably appoints and authorizes the Collateral Agent and, to the extent necessary, ratifies the appointment and authorization of the Collateral Agent, to, as part of its duties as Collateral Agent, act as the hypothecary representative of the creditors as contemplated under Article 2692 of the Civil Code of Québec (in such capacity, the “Attorney”), and to enter into, shall have no liability for failure to take and to hold on their behalfany action in the absence of such instructions, and for their benefit, any hypothec, and to exercise such powers and duties provided that are conferred upon the Attorney under any related deed of hypothec. The Attorney shall: (a) have the sole and exclusive right and authority to exercise, except as may be otherwise specifically restricted by the terms hereof, all rights and remedies given to the Attorney pursuant to any such deed of hypothec and applicable law, and (b) benefit from and be subject to all provisions hereof with respect to the Collateral Agent mutatis mutandis, including, without limitation, all such provisions with respect will promptly send to the liability Trustee a copy of each notice, request or responsibility other document delivered to and indemnification by the Issuer and the Guarantors. Any person who becomes a Holder shall be deemed to have consented to and confirmed the Attorney as the person acting as hypothecary representative holding the aforesaid hypothecs as aforesaid and to have ratified, as of the date it becomes a Holder, all actions taken by the Attorney in such capacity. The substitution of the Collateral Agent pursuant to the provisions terms of this Indenture and the Security Documents and will take such actions contemplated by this Indenture and the Security Documents as the Trustee and such number or percentage of the Holders as shall be necessary under the circumstances as provided in Article XIII 10 may reasonably instruct, except that nothing herein or in any Security Document shall also result require the Collateral Agent to take any action that in the substitution reasonable opinion of the AttorneyCollateral Agent would be contrary to the terms of this Indenture or any Security Document or applicable law or subject the Collateral Agent to personal liability.
(h) The Issuer shall pay (i) all reasonable out-of-pocket expenses incurred by the Collateral Agent and its Affiliates, including the reasonable fees, charges and disbursements of Milbank, Tweed, ▇▇▇▇▇▇ & ▇▇▇▇▇▇ LLP, special New York counsel for the Collateral Agent, in connection with the preparation of this Indenture and the Security Documents or any amendments, modifications or waivers of the provisions thereof (whether or not the transactions contemplated hereby or thereby shall be consummated), and (ii) all reasonable out-of-pocket expenses incurred by the Collateral Agent, including the reasonable fees, charges and disbursements of any counsel for the Collateral Agent in connection with the enforcement or protection of its rights in connection with this Indenture and the Security Documents, including its rights under this Article.
(i) The Issuer shall indemnify the Collateral Agent and each Related Party of the Collateral Agent (each such Person being called an "Indemnitee") against, and hold each Indemnitee harmless from, any and all losses, claims, damages, liabilities and related expenses, including the fees, charges and disbursements of any counsel for any Indemnitee, incurred by or asserted against any Indemnitee arising out of, in connection with, or as a result of (i) the execution or delivery of this Indenture, the Notes and any Security Document or any other agreement or instrument contemplated thereby, the performance by the parties to such documents of their respective obligations thereunder or the consummation of the transactions contemplated thereby, (ii) the use of the proceeds from the sale of any Note, (iii) any presence, Release or threatened Release of Hazardous Materials on, at, under or from any Mortgaged Property or any other property currently or formerly owned or operated by the Issuer or any of the Subsidiaries, or any Environmental Liability related in any way to the Issuer or any of the Subsidiaries, or (iv) any actual or prospective claim, litigation, investigation or proceeding relating to any of the foregoing, whether based on contract, tort or any other theory and regardless of whether any Indemnitee is a party thereto, provided that such indemnity shall not, as to any Indemnitee, be available to the extent that such losses, claims, damages, liabilities or related expenses resulted from the gross negligence or willful misconduct of such Indemnitee or any Related Person of such Indemnitee as determined in a final judgment by a court of competent jurisdiction.
(j) To the extent permitted by applicable law, the Issuer shall not assert, and each hereby waives, any claim against any Indemnitee, on any theory of liability, for special, indirect, consequential or punitive damages (as opposed to direct or actual damages) arising out of, in connection with, or as a result of, this Indenture, the Security Documents or any agreement or instrument contemplated hereby or thereby.
Appears in 2 contracts
Sources: Indenture (Memc Electronic Materials Inc), Indenture (Memc Electronic Materials Inc)
Regarding the Collateral Agent. (a) The 1. Party A, as secured party hereunder, hereby irrevocably appoints and authorizes the Collateral Agent is authorized to take such action as agent on its behalf and empowered to appoint one or more subagents or co-collateral agents exercise such powers under this Confirmation as it deems necessary or appropriate (it being understood that are delegated to the Real Property Collateral Agent is executing its duties by the terms hereof, together with all such powers as a subagent for are reasonably incidental thereto.
2. The obligations of the Collateral Agent).
(b) Except as otherwise Agent hereunder are only those expressly set forth in Section 3 of the Security Agreement, none of the Trustee, the Collateral Agent or the Real Property Collateral Agent shall have any 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 of the Issuers’ or any Guarantor’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 Collateral Agent and the Real Property Collateral Agent pursuant to this Indenture or any Security Document other than pursuant to the instructions of the Trustee or the Holders of a majority in aggregate principal amount of the Notes of a series with respect to such series of Notes or as otherwise provided in the Security Documents and/or the Intercreditor AgreementsConfirmation.
(c) Notwithstanding anything to the contrary contained in this Indenture or the Security Documents, in the event the Collateral Agent or the Real Property 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 or the Real Property Collateral Agent, as the case may be, 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 or the Real Property Collateral Agent has determined that the Collateral Agent or the Real Property 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 substances3. The Collateral Agent may consult with legal counsel, independent public accountants and the Real Property Collateral Agent shall at any time be entitled to cease taking any action described in this clause if other experts selected by it no longer reasonably deems any indemnity, security or undertaking from the Issuers or the Holders to be sufficient.
(d) The Collateral Agent and the Real Property Collateral Agent shall not be liable for (i) any action taken or omitted to be taken by it in good faith in accordance with the advice of such counsel, accountants or experts.
4. Neither the Collateral Agent nor any of its directors, officers, agents or employees shall be liable to Party A for any action taken or not taken by it in connection with this Indenture and Confirmation (1) with the Security Documents consent or instrument referred to herein at the request of Party A, as secured party, or therein, except to (2) in the extent that any absence 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. The Collateral Agent shall not incur any liability by acting in reliance upon any notice, and consent, certificate, statement, or other writing (iiwhich may be a bank wire, telex or similar writing) interest on any money received believed by it except as to be genuine or to be signed by the proper party or parties.
5. Party B shall indemnify the Collateral Agent against any cost, expense (including counsel fees and disbursements), claim, demand, action, loss or liability (except such as result from the Real Property Collateral Agent’s gross negligence or willful misconduct) that the Collateral Agent may agree suffer or incur in writing connection with the Issuers (and money held in trust this Confirmation or any action taken or omitted by the Collateral Agent or the Real Property Collateral Agent shall be segregated from other funds except to the extent required by law)hereunder.
(e) The Collateral Agent and 6. Beyond the Real Property Collateral Agent shall exercise of reasonable care in the custody of thereof, the Collateral Agent shall have no duty as to any Collateral in its possession or control or in the possession or control of any agent agent, bailee or bailee securities intermediary or any income thereonthereon or as to the preservation of rights against prior parties or any other rights pertaining thereto. The Collateral Agent and the Real Property Collateral Agent shall be deemed to have exercised reasonable care in the custody and preservation of the Collateral in its possession if the Collateral is accorded treatment substantially equal to that which it accords similar property held for its own benefit property, and shall not be liable or responsible for any loss or diminution in value of damage to any of the Collateral, including, without limitationor for any diminution in the value thereof, by reason of the act or omission of any carrieragent, forwarding agency bailee or other agent securities intermediary selected by the Collateral Agent in good faith (or selected by an agent, bailee or securities intermediary so selected by the Collateral Agent or the Real Property Collateral Agent by any agent, bailee or securities intermediary selected in good faithaccordance with this parenthetical phrase).
(f) The parties hereto and 7. Any corporation or association into which the Holders hereby agree and acknowledge that none of the Collateral Agent, the Trustee or the Real Property Collateral Agent shall 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 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 Indenture, the Security Documents or any actions taken pursuant hereto or thereto. Further, the parties hereto and the Holders hereby agree and acknowledge that in the exercise of its rights under this Indenture and the Security Documents, the Collateral Agent, the Trustee or the Real Property Collateral Agent may hold be converted or obtain indicia of ownership primarily merged, or with which it may be consolidated, or to protect the security interest of the Collateral Agentwhich it may sell or transfer its agency business and assets as a whole or substantially as a whole, the Trustee or the Real Property Collateral Agent in the Collateral and that any corporation or association resulting from any such actions taken by the Collateral Agentconversion, the Trustee sale, merger, consolidation or the Real Property Collateral Agent shall not be construed as or otherwise constitute any participation in the management of such Collateral. In the event that the Collateral Agent, the Trustee or the Real Property Collateral Agent is required transfer to acquire title to an asset for any reason, or take any managerial action of any kind in regard thereto, which in the Collateral Agent’s, Real Property Collateral Agent’s or the Trustee’s sole discretion may cause the Collateral Agent, Real Property Collateral Agent or the Trustee 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 Collateral Agent, the Trustee or the Real Property Collateral Agent to incur liability under CERCLA or any other federal, state or local law, the Collateral Agent, the Trustee and the Real Property Collateral Agent reserves the right, instead of taking such action, to either resign as the Collateral Agent, the Trustee or the Real Property Collateral Agent or arrange for the transfer of the title or control of the asset to a court-appointed receiver or monitor. None of the Collateral Agent, the Trustee or the Real Property Collateral Agent shall be liable to the Issuers, the Guarantors or any other Person for any environmental claims or contribution actions under any federal, state or local law, rule or regulation by reason of the Collateral Agent’s, the Real Property Collateral Agent’s or the Trustee’s actions and conduct as authorized, empowered and directed hereunder or relating to the discharge, release or threatened release of hazardous materials into the environment. If at any time it is necessary or advisable for property to be possesseda party, owned, operated or managed by any Person (including the Collateral Agent, the Real Property Collateral Agent or the Trustee) other than the Issuers or the Guarantorsshall, subject to the terms prior written consent of Party A, as secured party, be and become a successor Collateral Agent hereunder and vested with all of the Security Documents and the Intercreditor Agreements, a majority in interest of Holders of Notes of a series shall direct the Collateral Agent, the Real Property Collateral Agent or the Trustee with respect to such series of Notes to appoint an appropriately qualified Person (excluding the Collateral Agent, the Real Property Collateral Agent or the Trustee) whom it shall designate to possess, own, operate or manage, as the case may be, such property.
(g) For the avoidance of doubt, the rights, privileges, protections, immunities and benefits given title to the Collateral Agent and the Real Property Collateral Agent hereunder, including, without limitation, its right to be indemnified prior to taking action, shall survive the satisfaction, discharge or termination of this Indenture or earlier termination, resignation or removal all of the Trusteepowers, in such capacitydiscretions, with respect to the holders of the ABL Priority Collateral or the Other Pari Passu Lien Obligationsimmunities, privileges and other matters as applicable, to the extent the Security Documents remain in force thereafter.
(h) For the purposes of holding any hypothec granted to the Attorney (as defined below) pursuant to the laws of the Province of Québec to secure the prompt payment and performance of any and all Notes Obligations by any Issuers or Guarantors, each of Holder hereby irrevocably appoints and authorizes the Collateral Agent and, to the extent necessary, ratifies the appointment and authorization of the Collateral Agent, to, as part of was its duties as Collateral Agent, act as the hypothecary representative of the creditors as contemplated under Article 2692 of the Civil Code of Québec (in such capacity, the “Attorney”), and to enter into, to take and to hold on their behalf, and for their benefit, any hypothec, and to exercise such powers and duties that are conferred upon the Attorney under any related deed of hypothec. The Attorney shall: (a) have the sole and exclusive right and authority to exercisepredecessor without, except as may be otherwise specifically restricted by provided above, the terms hereofexecution or filing of any instrument or any further act, all rights and remedies given deed or conveyance on the part of any of the parties hereto, anything herein to the Attorney pursuant to any such deed of hypothec and applicable law, and (b) benefit from and be subject to all provisions hereof with respect to the Collateral Agent mutatis mutandis, including, without limitation, all such provisions with respect to the liability or responsibility to and indemnification by the Issuer and the Guarantors. Any person who becomes a Holder shall be deemed to have consented to and confirmed the Attorney as the person acting as hypothecary representative holding the aforesaid hypothecs as aforesaid and to have ratified, as of the date it becomes a Holder, all actions taken by the Attorney in such capacity. The substitution of the Collateral Agent pursuant to the provisions of this Article XIII shall also result in the substitution of the Attorneycontrary notwithstanding.
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Sources: Confirmation Agreement (St Paul Travelers Companies Inc), Confirmation Agreement (St Paul Travelers Companies Inc)
Regarding the Collateral Agent. (a) The Trustee, on behalf of the Secured Parties, hereby appoints Citicorp USA, Inc. to act as Collateral Agent is authorized under this Indenture and empowered to appoint one or more subagents or co-collateral agents the Security Documents, provided however that for so long as it deems necessary or appropriate (it being understood that any Revolver Obligations are outstanding, the Real Property same Person shall act as Collateral Agent is executing its duties as a subagent for under both the Security Documents and the Revolving Loan Documentation. The Trustee on behalf of itself and the Secured Parties hereby irrevocably appoints the Collateral Agent)Agent as its agent and authorizes the Collateral Agent to take such actions on its behalf and to exercise such powers as are delegated to the Collateral Agent by the terms hereof and of the Security Documents, together with such actions and powers as are reasonably incidental thereto.
(b) Except The Person serving as otherwise expressly set forth Collateral Agent and its Affiliates may accept deposits from, lend money to and generally engage in Section 3 any kind of banking, trust or other business with the Security Agreement, none of the Trustee, Issuer or any Subsidiary or other Affiliate thereof as if it were not the Collateral Agent or the Real Property Collateral Agent shall have any 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 of the Issuers’ or any Guarantor’s property constituting collateral intended to be subject to the Lien hereunder and security interest of the Security Documents has been properly may accept fees 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 and the Real Property Collateral Agent pursuant to this Indenture or any Security Document other than pursuant to the instructions of the Trustee or the Holders of a majority in aggregate principal amount of the Notes of a series with respect to such series of Notes or as otherwise provided in the Security Documents and/or the Intercreditor Agreements.
(c) Notwithstanding anything to the contrary contained in this Indenture or the Security Documents, in the event the Collateral Agent or the Real Property 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 or the Real Property Collateral Agent, as the case may be, 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 or the Real Property Collateral Agent has determined that the Collateral Agent or the Real Property 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. The Collateral Agent and the Real Property Collateral Agent shall at any time be entitled to cease taking any action described in this clause if it no longer reasonably deems any indemnity, security or undertaking consideration from the Issuers or the Holders to be sufficient.
(d) The Collateral Agent and the Real Property Collateral Agent shall not be liable Issuer for (i) any action taken or omitted to be taken by it services in connection with this Indenture and the Security Documents or 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, and (ii) interest on any money received by it except as the Collateral Agent or the Real Property Collateral Agent may agree in writing with the Issuers (and money held in trust by the Collateral Agent or the Real Property Collateral Agent shall be segregated from other funds except to the extent required by law).
(e) The Collateral Agent and the Real Property Collateral Agent shall exercise reasonable care in the custody of any Collateral in its possession or control or in the possession or control of any agent or bailee or any income thereon. The Collateral Agent and the Real Property Collateral Agent shall be deemed to have exercised reasonable care in the custody of Collateral in its possession if the Collateral is accorded treatment substantially equal to that which it accords similar property held for its own benefit and shall not be liable or responsible for any loss or diminution in value of any of the Collateral, including, without limitation, by reason of the act or omission of any carrier, forwarding agency or other agent or bailee selected by the Collateral Agent or the Real Property Collateral Agent in good faith.
(f) The parties hereto and the Holders hereby agree and acknowledge that none of the Collateral Agent, the Trustee or the Real Property Collateral Agent shall 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 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 Indenture, the Security Documents or otherwise without having to account for the same to the Trustee or the Holders.
(c) The Collateral Agent shall not have any actions taken pursuant hereto duties or thereto. Further, the parties hereto obligations except those expressly set forth in this Indenture and the Security Documents. Without limiting the generality of the foregoing, (i) the Collateral Agent shall not be subject to any fiduciary or other implied duties, regardless of whether a Default has occurred and is continuing, (ii) the Collateral Agent shall not have any duty to take any discretionary action or exercise any discretionary powers, except discretionary rights and powers expressly contemplated by this Indenture and the Security Documents that the Collateral Agent is required to exercise in writing by the Trustee or such number or percentage of the Holders hereby agree as shall be necessary under the circumstances as provided in Article 10, and acknowledge that (iii) except as expressly set forth in the exercise of its rights under this Indenture and the Security Documents, the Collateral AgentAgent shall not have any duty to disclose, and shall not be liable for the Trustee failure to disclose, any information relating to the Issuer or any of the Real Property Subsidiaries that is communicated to or obtained by the Person serving as Collateral Agent may hold or obtain indicia any of ownership primarily to protect the security interest of the Collateral Agent, the Trustee or the Real Property Collateral Agent its Affiliates in the Collateral and that any such actions taken by the Collateral Agent, the Trustee or the Real Property capacity. The Collateral Agent shall not be construed liable for any action taken or not taken by it with the consent or at the request of the Trustee or such number or percentage of the Holders as shall be necessary under the circumstances as provided in Article 10 or otherwise constitute any participation in the management absence of such Collateralits own gross negligence or willful misconduct as determined in a final judgment by a court of competent jurisdiction. In The Collateral Agent shall be deemed not to have knowledge of any Default unless and until written notice thereof is given to the event that Collateral Agent by the Issuer or the Trustee, and the Collateral Agent shall not be responsible for or have any duty to ascertain or inquire into (i) any statement, warranty or representation made in or in connection with this Indenture or any Security Document, (ii) the contents of any certificate, report or other document delivered thereunder or in connection therewith, (iii) the performance or observance of any of the covenants, agreements or other terms or conditions set forth in this Indenture or any Security Document, (iv) the validity, enforceability, effectiveness or genuineness of this Indenture or any Security Document or any other agreement, instrument or document, or the validity, perfection, or priority of any Lien created by any of the Security Documents, or (v) the satisfaction of any condition set forth in this Indenture or any Security Document, other than to confirm receipt of items expressly required to be delivered to the Collateral Agent, the Trustee or the Real Property .
(d) The Collateral Agent is required shall be entitled to acquire title rely upon, and shall not incur any liability for relying upon, any notice, request, certificate, consent, statement, instrument, document or other writing believed by it to an asset be genuine and to have been signed or sent by the proper Person. The Collateral Agent also may rely upon any statement made to it orally or by telephone and believed by it to be made by the proper Person, and shall not incur any liability for relying thereon. The Collateral Agent may consult with legal counsel (who may be counsel for the Issuer), independent accountants and other experts selected by it, and shall not be liable for any reason, action taken or take any managerial action not taken by it in accordance with the advice of any kind in regard theretosuch counsel, which in accountants or experts.
(e) The Collateral Agent may perform any and all of its duties and exercise its rights and powers by or through any one or more sub-agents or attorneys-in-fact appointed by the Collateral Agent’s, Real Property Collateral Agent’s or the Trustee’s sole discretion may cause the Collateral Agent, Real Property . The Collateral Agent and any such sub-agent or the Trustee to be considered an “owner or operator” under the attorney-in-fact may perform any and all its duties and exercise its rights and powers through their respective Related Parties. The exculpatory provisions of the Comprehensive Environmental Response, Compensation preceding paragraphs shall apply to any such sub-agent or attorney-in-fact and Liability Act (“CERCLA”), 42 U.S.C. §9601, et seq., or otherwise cause to the Related Parties of the Collateral Agent, Agent and any such sub-agent or attorney-in-fact.
(f) Subject to the Trustee or the Real Property appointment and acceptance of a successor Collateral Agent to incur liability under CERCLA or any other federal, state or local lawas provided in this paragraph, the Collateral Agent, Agent may resign at any time by notifying the Trustee and the Real Property Collateral Agent reserves Issuer and may be removed at any time with or without cause by the Holders of a majority in principal amount of the Notes. Upon any such resignation, the Holders of a majority in principal amount of the Notes shall have the right, instead of taking such actionin consultation with the Issuer, to either resign appoint a successor. If no successor shall have been so appointed by such Holders and shall have accepted such appointment within 30 days after the retiring Collateral Agent gives notice of its resignation, then the retiring Collateral Agent may, on behalf of the Trustee and the Holders, appoint a successor Collateral Agent that shall have an office in New York, New York. Upon the acceptance of its appointment as Collateral Agent hereunder by a successor, such successor shall succeed to and become vested with all the rights, powers, privileges and duties of the retiring Collateral Agent, and the Trustee or the Real Property Collateral Agent or arrange for the transfer of the title or control of the asset to a court-appointed receiver or monitor. None of the Collateral Agent, the Trustee or the Real Property retiring Collateral Agent shall be liable discharged from its duties and obligations hereunder and under the Security Documents. The fees payable by the Issuer to a successor Collateral Agent shall be the Issuers, same as those payable to its predecessor unless otherwise agreed between the Guarantors or any other Person for any environmental claims or contribution actions under any federal, state or local law, rule or regulation by reason of Issuer and such successor. After the Collateral Agent’s's resignation hereunder, the Real Property Collateral Agent’s or provisions of this Article shall continue in effect for the Trustee’s actions and conduct as authorized, empowered and directed hereunder or relating to the discharge, release or threatened release benefit of hazardous materials into the environment. If at any time it is necessary or advisable for property to be possessed, owned, operated or managed by any Person (including the such retiring Collateral Agent, its sub-agents and attorneys-in-fact and their respective Related Parties in respect of any actions taken or omitted to be taken by any of them while it was acting as Collateral Agent. Notwithstanding the Real Property foregoing, any successor Collateral Agent or must meet the Trustee) other than the Issuers or the Guarantors, subject to the terms requirements of the Security Documents and the Intercreditor Agreements, a majority in interest of Holders of Notes of a series shall direct the Collateral Agent, the Real Property Collateral Agent or the Trustee with respect to such series of Notes to appoint an appropriately qualified Person (excluding the Collateral Agent, the Real Property Collateral Agent or the Trustee) whom it shall designate to possess, own, operate or manage, as the case may be, such propertySection 11.02(a).
(g) For the avoidance Except for action expressly required of doubt, the rights, privileges, protections, immunities and benefits given to the Collateral Agent by this Indenture and the Real Property Security Documents, the Collateral Agent hereundershall in all cases be fully justified in failing or refusing to act thereunder unless it shall receive further assurances to its satisfaction from the Holders of their indemnification obligations under Section 11.02(i) in respect of such action. Without limiting the foregoing, includingthe Collateral Agent shall not be required to, without limitationand shall not, take any action to enforce any of its right to be indemnified prior to taking actionor the Trustee's or Holders' rights under, shall survive the satisfactionnor waive or amend any provision of, discharge or termination of this Indenture or earlier terminationany Security Document or any Collateral, resignation nor give any notice or removal of the Trusteemake any request or demand or filing thereunder, except in such capacity, with respect to the holders of the ABL Priority Collateral or the Other Pari Passu Lien Obligations, each instance as applicable, and to the extent instructed to do so by the Security Documents remain in force thereafter.
(h) For the purposes of holding any hypothec granted to the Attorney (as defined below) pursuant to the laws Trustee or such number or percentage of the Province of Québec to secure Holders as shall be necessary under the prompt payment circumstances as provided in Article 10, and performance of any and all Notes Obligations by any Issuers or Guarantors, each of Holder hereby irrevocably appoints and authorizes the Collateral Agent and, to the extent necessary, ratifies the appointment and authorization of the Collateral Agent, to, as part of its duties as Collateral Agent, act as the hypothecary representative of the creditors as contemplated under Article 2692 of the Civil Code of Québec (in such capacity, the “Attorney”), and to enter into, shall have no liability for failure to take and to hold on their behalfany action in the absence of such instructions, and for their benefit, any hypothec, and to exercise such powers and duties provided that are conferred upon the Attorney under any related deed of hypothec. The Attorney shall: (a) have the sole and exclusive right and authority to exercise, except as may be otherwise specifically restricted by the terms hereof, all rights and remedies given to the Attorney pursuant to any such deed of hypothec and applicable law, and (b) benefit from and be subject to all provisions hereof with respect to the Collateral Agent mutatis mutandis, including, without limitation, all such provisions with respect will promptly send to the liability Trustee a copy of each notice, request or responsibility other document delivered to and indemnification by the Issuer and the Guarantors. Any person who becomes a Holder shall be deemed to have consented to and confirmed the Attorney as the person acting as hypothecary representative holding the aforesaid hypothecs as aforesaid and to have ratified, as of the date it becomes a Holder, all actions taken by the Attorney in such capacity. The substitution of the Collateral Agent pursuant to the provisions terms of this Indenture and the Security Documents and will take such actions contemplated by this Indenture and the Security Documents as the Trustee and such number or percentage of the Holders as shall be necessary under the circumstances as provided in Article XIII 10 may reasonably instruct, except that nothing herein or in any Security Document shall also result require the Collateral Agent to take any action that in the substitution reasonable opinion of the AttorneyCollateral Agent would be contrary to the terms of this Indenture or any Security Document or applicable law or subject the Collateral Agent to personal liability.
(h) The Issuer shall pay (i) all reasonable out-of-pocket expenses incurred by the Collateral Agent and its Affiliates, including the reasonable fees, charges and disbursements of Milbank, Tweed, Hadley & McCloy LLP, special New York counsel for the Collateral Agent, ▇▇ ▇▇nne▇▇▇▇▇ with the preparation of this Indenture and the Security Documents or any amendments, modifications or waivers of the provisions thereof (whether or not the transactions contemplated hereby or thereby shall be consummated), and (ii) all reasonable out-of-pocket expenses incurred by the Collateral Agent, including the reasonable fees, charges and disbursements of any counsel for the Collateral Agent in connection with the enforcement or protection of its rights in connection with this Indenture and the Security Documents, including its rights under this Article.
(i) The Issuer shall indemnify the Collateral Agent and each Related Party of the Collateral Agent (each such Person being called an "Indemnitee") against, and hold each Indemnitee harmless from, any and all losses, claims, damages, liabilities and related expenses, including the fees, charges and disbursements of any counsel for any Indemnitee, incurred by or asserted against any Indemnitee arising out of, in connection with, or as a result of (i) the execution or delivery of this Indenture, the Notes and any Security Document or any other agreement or instrument contemplated thereby, the performance by the parties to such documents of their respective obligations thereunder or the consummation of the transactions contemplated thereby, (ii) the use of the proceeds from the sale of any Note, (iii) any presence, Release or threatened Release of Hazardous Materials on, at, under or from any Mortgaged Property or any other property currently or formerly owned or operated by the Issuer or any of the Subsidiaries, or any Environmental Liability related in any way to the Issuer or any of the Subsidiaries, or (iv) any actual or prospective claim, litigation, investigation or proceeding relating to any of the foregoing, whether based on contract, tort or any other theory and regardless of whether any Indemnitee is a party thereto, provided that such indemnity shall not, as to any Indemnitee, be available to the extent that such losses, claims, damages, liabilities or related expenses resulted from the gross negligence or willful misconduct of such Indemnitee or any Related Person of such Indemnitee as determined in a final judgment by a court of competent jurisdiction.
(j) To the extent permitted by applicable law, the Issuer shall not assert, and each hereby waives, any claim against any Indemnitee, on any theory of liability, for special, indirect, consequential or punitive damages (as opposed to direct or actual damages) arising out of, in connection with, or as a result of, this Indenture, the Security Documents or any agreement or instrument contemplated hereby or thereby.
Appears in 1 contract
Regarding the Collateral Agent. (a) The Collateral Agent is authorized and empowered to appoint one or more subagents or co-collateral agents as it deems necessary or appropriate (it being understood that the Real Property Collateral Agent is executing its duties as a subagent for the Collateral Agent)appropriate.
(b) Except as otherwise expressly set forth in Section 3 of the Security Agreement, none of neither the Trustee, Trustee nor the Collateral Agent or the Real Property Collateral Agent shall have any 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 of the Issuers’ or any Guarantor’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 Collateral Agent and the Real Property Collateral Agent pursuant to this Indenture or any Security Document other than pursuant to the instructions of the Trustee or the Holders of a majority in aggregate principal amount of the Notes of a series with respect to such series of Notes or as otherwise provided in the Security Documents and/or the Intercreditor AgreementsDocuments.
(c) Notwithstanding anything to the contrary contained in this Indenture or the Security Documents, in the event the Collateral Agent or the Real Property 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 or the Real Property Collateral Agent, as the case may be, 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 or the Real Property Collateral Agent has determined that the Collateral Agent or the Real Property 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. The Collateral Agent and the Real Property Collateral Agent shall at any time be entitled to cease taking any action described in this clause if it no longer reasonably deems any indemnity, security or undertaking from the Issuers or the Holders to be sufficient.
(d) The Collateral Agent and the Real Property Collateral Agent shall not be liable for (i) any action taken or omitted to be taken by it in connection with this Indenture and the Security Documents or 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, and (ii) interest on any money received by it except as the Collateral Agent or the Real Property Collateral Agent may agree in writing with the Issuers (and money held in trust by the Collateral Agent or the Real Property Collateral Agent shall be segregated from other funds except to the extent required by law).
(e) The Collateral Agent and the Real Property Collateral Agent shall exercise reasonable care in the custody of any Collateral in its possession or control or in the possession or control of any agent or bailee or any income thereon. The Collateral Agent and the Real Property Collateral Agent shall be deemed to have exercised reasonable care in the custody of Collateral in its possession if the Collateral is accorded treatment substantially equal to that which it accords similar property held for its own benefit and shall not be liable or responsible for any loss or diminution in value of any of the Collateral, including, without limitation, by reason of the act or omission of any carrier, forwarding agency or other agent or bailee selected by the Collateral Agent or the Real Property Collateral Agent in good faith.
(f) The parties hereto and the Holders hereby agree and acknowledge that none of neither the Collateral Agent, Agent nor the Trustee or the Real Property Collateral Agent shall 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 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 Indenture, the Security Documents or any actions taken pursuant hereto or thereto. Further, the parties hereto and the Holders hereby agree and acknowledge that in the exercise of its rights under this Indenture and the Security Documents, the Collateral Agent, Agent or the Trustee or the Real Property Collateral Agent may hold or obtain indicia of ownership primarily to protect the security interest of the Collateral Agent, Agent or the Trustee or the Real Property Collateral Agent in the Collateral and that any such actions taken by the Collateral Agent, Agent or the Trustee or the Real Property Collateral Agent shall not be construed as or otherwise constitute any participation in the management of such Collateral. In the event that the Collateral Agent, Agent or the Trustee or the Real Property Collateral Agent is required to acquire title to an asset for any reason, or take any managerial action of any kind in regard thereto, which in the Collateral Agent’s, Real Property Collateral Agent’s or the Trustee’s sole discretion may cause the Collateral Agent, Real Property Collateral Agent or the Trustee 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 Collateral Agent, Agent or the Trustee or the Real Property Collateral Agent to incur liability under CERCLA or any other federal, state or local law, the Collateral Agent, Agent and the Trustee and the Real Property Collateral Agent reserves the right, instead of taking such action, to either resign as the Collateral Agent, Agent or the Trustee or the Real Property Collateral Agent or arrange for the transfer of the title or control of the asset to a court-appointed receiver or monitor. None of Neither the Collateral Agent, Agent nor the Trustee or the Real Property Collateral Agent shall be liable to the Issuers, the Guarantors or any other Person for any environmental claims or contribution actions under any federal, state or local law, rule or regulation by reason of the Collateral Agent’s, the Real Property Collateral Agent’s or the Trustee’s actions and conduct as authorized, empowered and directed hereunder or relating to the discharge, release or threatened release of hazardous materials into the environment. If at any time it is necessary or advisable for property to be possessed, owned, operated or managed by any Person (including the Collateral Agent, the Real Property Collateral Agent or the Trustee) other than the Issuers or the Guarantors, subject to the terms of the Security Documents and the Intercreditor AgreementsDocuments, a majority in interest of Holders of Notes of a series shall direct the Collateral Agent, the Real Property Collateral Agent or the Trustee with respect to such series of Notes to appoint an appropriately qualified Person (excluding the Collateral Agent, the Real Property Collateral Agent or the Trustee) whom it shall designate to possess, own, operate or manage, as the case may be, such property.
(g) For the avoidance of doubt, the rights, privileges, protections, immunities and benefits given to the Collateral Agent and the Real Property Collateral Agent hereunder, including, without limitation, its right to be indemnified prior to taking action, shall survive the satisfaction, discharge or termination of this Indenture or earlier termination, resignation or removal of the Trustee, in such capacity, with respect to the holders of the ABL Priority Collateral or the Other Pari Passu Lien Obligations, as applicable, to the extent the Security Documents remain in force thereafter.
(h) For the purposes of holding any hypothec granted to the Attorney (as defined below) pursuant to the laws of the Province of Québec to secure the prompt payment and performance of any and all Notes Obligations by any Issuers or Guarantors, each of Holder hereby irrevocably appoints and authorizes the Collateral Agent and, to the extent necessary, ratifies the appointment and authorization of the Collateral Agent, to, as part of its duties as Collateral Agent, act as the hypothecary representative of the creditors as contemplated under Article 2692 of the Civil Code of Québec (in such capacity, the “Attorney”), and to enter into, to take and to hold on their behalf, and for their benefit, any hypothec, and to exercise such powers and duties that are conferred upon the Attorney under any related deed of hypothec. The Attorney shall: (a) have the sole and exclusive right and authority to exercise, except as may be otherwise specifically restricted by the terms hereof, all rights and remedies given to the Attorney pursuant to any such deed of hypothec and applicable law, and (b) benefit from and be subject to all provisions hereof with respect to the Collateral Agent mutatis mutandis, including, without limitation, all such provisions with respect to the liability or responsibility to and indemnification by the Issuer and the Guarantors. Any person who becomes a Holder shall be deemed to have consented to and confirmed the Attorney as the person acting as hypothecary representative holding the aforesaid hypothecs as aforesaid and to have ratified, as of the date it becomes a Holder, all actions taken by the Attorney in such capacity. The substitution of the Collateral Agent pursuant to the provisions of this Article XIII shall also result in the substitution of the Attorney.
Appears in 1 contract
Sources: Indenture (NGL Energy Partners LP)
Regarding the Collateral Agent. (a) The Collateral Agent is authorized and empowered to appoint one shall have no liability for losses arising from (i) any cause beyond its control, (ii) any delay, error, omission or more subagents default of any mail, telegraph, cable or co-collateral agents as it deems necessary wireless agency or appropriate operator, or (it being understood that iii) the Real Property Collateral Agent is executing its duties as a subagent for the Collateral Agent)acts or edicts of any government or governmental agency or other group or entity exercising governmental powers.
(b) Except as otherwise expressly set forth in Section 3 The Collateral Agent shall not be responsible for any indirect, special, exemplary, punitive or consequential damages of the Security Agreementany kind whatsoever, none of the Trusteeincluding but not limited to lost profits, whether or not foreseeable, even if the Collateral Agent or the Real Property Collateral Agent shall have any obligation whatsoever to the Trustee or any has been advised 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 possibility thereof and regardless of the Issuers’ or any Guarantor’s property constituting collateral intended to be subject to the Lien and security interest form 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 action 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 and the Real Property Collateral Agent pursuant to this Indenture or any Security Document other than pursuant to the instructions of the Trustee or the Holders of a majority in aggregate principal amount of the Notes of a series with respect to which such series of Notes or as otherwise provided in the Security Documents and/or the Intercreditor Agreementsdamages are sought.
(c) Notwithstanding anything to the contrary contained in this Indenture or the Security Documents, in the event the The Collateral Agent or the Real Property 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 or the Real Property Collateral Agent, as the case may be, shall not be required to commence any such action responsible for the preparation or exercise any remedy or to inspect or conduct any studies filing of any property under the mortgages UCC financing statements or take any such other action if the Collateral Agent continuation statement or the Real Property Collateral Agent has determined that the Collateral Agent correctness of any financing statements or continuation statement filed in connection with this Agreement or the Real Property Collateral Agent may incur personal liability as a result of the presence atvalidity, adequacy, sufficiency or release on or from, the Collateral or such property, perfection of any hazardous substances. The Collateral Agent and the Real Property Collateral Agent shall at any time be entitled lien or security interest created pursuant to cease taking any action described in this clause if it no longer reasonably deems any indemnity, security or undertaking from the Issuers or the Holders to be sufficientAgreement.
(d) The Collateral Agent may rely and the Real Property Collateral Agent shall not be liable for (i) protected in acting or refraining from acting upon any action taken resolution, certificate, statement, instrument, opinion, report, notice, request, direction, consent, order, note or omitted other paper or document believed by it to be taken by it in connection with this Indenture genuine and the Security Documents or 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 been signed or willful misconduct, and (ii) interest on any money received by it except as the Collateral Agent or the Real Property Collateral Agent may agree in writing with the Issuers (and money held in trust presented by the Collateral Agent proper party or the Real Property Collateral Agent shall be segregated from other funds except to the extent required by law)parties.
(e) 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, note or other paper or document, but the Collateral Agent, in its discretion, may, and upon the Real Property written direction of any Lender, shall make such further inquiry or investigation into such facts or matters as it may see fit or as it shall be directed.
(f) Except as otherwise expressly set forth herein, nothing herein shall be construed to impose an obligation on the part of the Collateral Agent shall exercise reasonable care in to recalculate, evaluate, verify or independently determine the custody accuracy of any report, certificate or information received from the Borrower, any Lender, the Facility Agent or the Collateral in its possession or control or in Manager.
(g) Except as otherwise expressly set forth herein, the possession or control of any agent or bailee or any income thereon. The Collateral Agent and the Real Property Collateral Agent shall be deemed under no obligation to have exercised reasonable care in monitor, supervise or perform the custody functions of Collateral in its possession if the Borrower or the Collateral is accorded treatment substantially equal Manager under any Facility Document and shall be entitled to assume that which it accords similar property held for its own benefit the Borrower and the Collateral Manager are properly performing their functions and obligations thereunder and the Collateral Agent shall not be liable or responsible for any loss or diminution in the value of any of or loss occasioned to the Collateral, including, without limitation, assets subject thereto by reason of the act or omission of by the Borrower and the Collateral Manager in relation to their functions thereunder.
(h) The Collateral Agent shall have no responsibility whatsoever to the Borrower, any carrierLender, forwarding agency the Facility Agent or other agent or bailee selected by the Collateral Manager for any deficiency which might arise because the Collateral Agent is subject to any tax in respect of the Facility Documents, the security created thereby or the Real Property Collateral Agent in good faithany part thereof or any income therefrom or any proceeds thereof.
(fi) The parties hereto and the Holders hereby agree and acknowledge that none delivery of reports, certificates or other information required to be provided hereunder to a Person other than a Responsible Officer of the Collateral Agent, the Trustee or the Real Property Collateral Agent shall 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 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 Indenture, the Security Documents or any actions taken pursuant hereto or thereto. Further, the parties hereto and the Holders hereby agree and acknowledge that in the exercise of its rights under this Indenture and the Security Documents, the Collateral Agent, the Trustee or the Real Property Collateral Agent may hold or obtain indicia of ownership primarily to protect the security interest of the Collateral Agent, the Trustee or the Real Property Collateral Agent in the Collateral and that any such actions taken by the Collateral Agent, the Trustee or the Real Property Collateral Agent shall not be construed constitute actual or constructive notice or knowledge of the contents thereof.
(j) No later than 11:00 a.m. on each Business Day, the Collateral Agent shall deliver to the Collateral Manager via such means of communication as they shall mutually agree a daily “cash availability report” which will detail all cash receipts with respect to the Collateral Obligations received as of the close of business of the prior Business Day, identifying which portion thereof constitutes Interest Proceeds, which portion thereof constitutes Principal Proceeds and any other amounts received not classified as either Interest Proceeds or otherwise constitute Principal Proceeds. No later than the close of business on the Business Day the Collateral Manager receives such a daily cash availability report, the Collateral Manager shall review the same and identify any participation in discrepancies that it becomes aware of between the management of such Collateral. In the event that cash receipts shown on the Collateral Agent, the Trustee or the Real Property Collateral Agent is required to acquire title to an asset for any reason, or take any managerial action of any kind in regard thereto, which in the Collateral Agent’s, Real Property Collateral Agent’s or the Trustee’s sole discretion may cause the Collateral Agent, Real Property Collateral Agent or the Trustee 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 Collateral Agent, the Trustee or the Real Property Collateral Agent to incur liability under CERCLA or any other federal, state or local law, the Collateral Agent, the Trustee daily cash availability report and the Real Property Collateral Agent reserves the right, instead of taking such action, to either resign as the Collateral Agent, the Trustee or the Real Property Collateral Agent or arrange for the transfer of the title or control of the asset to a court-appointed receiver or monitor. None of the Collateral Agent, the Trustee or the Real Property Collateral Agent shall be liable to the Issuers, the Guarantors or any other Person for any environmental claims or contribution actions under any federal, state or local law, rule or regulation by reason of the Collateral Agent’s, the Real Property Collateral Agent’s or the Trustee’s actions and conduct as authorized, empowered and directed hereunder or cash receipts relating to the discharge, release or threatened release of hazardous materials into the environment. If at any time it is necessary or advisable for property to be possessed, owned, operated or managed by any Person (including Collateral Obligations shown on the Collateral Agent, the Real Property Collateral Agent or the Trustee) other than the Issuers or the Guarantors, subject to the terms of the Security Documents and the Intercreditor Agreements, a majority in interest of Holders of Notes of a series shall direct the Collateral Agent, the Real Property Collateral Agent or the Trustee with respect to such series of Notes to appoint an appropriately qualified Person (excluding the Collateral Agent, the Real Property Collateral Agent or the Trustee) whom it shall designate to possess, own, operate or manage, as the case may be, such property.
(g) For the avoidance of doubt, the rights, privileges, protections, immunities and benefits given to Manager’s records. Thereafter the Collateral Agent and the Real Property Collateral Agent hereunder, including, without limitation, its right Manager will cooperate to be indemnified prior to taking action, shall survive the satisfaction, discharge or termination of this Indenture or earlier termination, resignation or removal of the Trustee, in such capacity, with respect to the holders of the ABL Priority Collateral or the Other Pari Passu Lien Obligations, as applicable, to the extent the Security Documents remain in force thereafterpromptly resolve any discrepancies.
(h) For the purposes of holding any hypothec granted to the Attorney (as defined below) pursuant to the laws of the Province of Québec to secure the prompt payment and performance of any and all Notes Obligations by any Issuers or Guarantors, each of Holder hereby irrevocably appoints and authorizes the Collateral Agent and, to the extent necessary, ratifies the appointment and authorization of the Collateral Agent, to, as part of its duties as Collateral Agent, act as the hypothecary representative of the creditors as contemplated under Article 2692 of the Civil Code of Québec (in such capacity, the “Attorney”), and to enter into, to take and to hold on their behalf, and for their benefit, any hypothec, and to exercise such powers and duties that are conferred upon the Attorney under any related deed of hypothec. The Attorney shall: (a) have the sole and exclusive right and authority to exercise, except as may be otherwise specifically restricted by the terms hereof, all rights and remedies given to the Attorney pursuant to any such deed of hypothec and applicable law, and (b) benefit from and be subject to all provisions hereof with respect to the Collateral Agent mutatis mutandis, including, without limitation, all such provisions with respect to the liability or responsibility to and indemnification by the Issuer and the Guarantors. Any person who becomes a Holder shall be deemed to have consented to and confirmed the Attorney as the person acting as hypothecary representative holding the aforesaid hypothecs as aforesaid and to have ratified, as of the date it becomes a Holder, all actions taken by the Attorney in such capacity. The substitution of the Collateral Agent pursuant to the provisions of this Article XIII shall also result in the substitution of the Attorney.
Appears in 1 contract
Sources: Revolving Credit and Security Agreement (WhiteHorse Finance, LLC)
Regarding the Collateral Agent. (a) The Trustee, on behalf of the Secured Parties, hereby appoints Citicorp USA, Inc. to act as Collateral Agent is authorized under this Indenture and empowered to appoint one or more subagents or co-collateral agents the Security Documents, provided however that for so long as it deems necessary or appropriate (it being understood that any Revolver Obligations are outstanding, the Real Property same Person shall act as Collateral Agent is executing its duties as a subagent for under both the Security Documents and the Revolving Loan Documentation. The Trustee on behalf of itself and the Secured Parties hereby irrevocably appoints the Collateral Agent)Agent as its agent and authorizes the Collateral Agent to take such actions on its behalf and to exercise such powers as are delegated to the Collateral Agent by the terms hereof and of the Security Documents, together with such actions and powers as are reasonably incidental thereto.
(b) Except The Person serving as otherwise expressly set forth Collateral Agent and its Affiliates may accept deposits from, lend money to and generally engage in Section 3 any kind of banking, trust or other business with the Security Agreement, none of the Trustee, Issuer or any Subsidiary or other Affiliate thereof as if it were not the Collateral Agent or the Real Property Collateral Agent shall have any 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 of the Issuers’ or any Guarantor’s property constituting collateral intended to be subject to the Lien hereunder and security interest of the Security Documents has been properly may accept fees 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 and the Real Property Collateral Agent pursuant to this Indenture or any Security Document other than pursuant to the instructions of the Trustee or the Holders of a majority in aggregate principal amount of the Notes of a series with respect to such series of Notes or as otherwise provided in the Security Documents and/or the Intercreditor Agreements.
(c) Notwithstanding anything to the contrary contained in this Indenture or the Security Documents, in the event the Collateral Agent or the Real Property 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 or the Real Property Collateral Agent, as the case may be, 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 or the Real Property Collateral Agent has determined that the Collateral Agent or the Real Property 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. The Collateral Agent and the Real Property Collateral Agent shall at any time be entitled to cease taking any action described in this clause if it no longer reasonably deems any indemnity, security or undertaking consideration from the Issuers or the Holders to be sufficient.
(d) The Collateral Agent and the Real Property Collateral Agent shall not be liable Issuer for (i) any action taken or omitted to be taken by it services in connection with this Indenture and the Security Documents or 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, and (ii) interest on any money received by it except as the Collateral Agent or the Real Property Collateral Agent may agree in writing with the Issuers (and money held in trust by the Collateral Agent or the Real Property Collateral Agent shall be segregated from other funds except to the extent required by law).
(e) The Collateral Agent and the Real Property Collateral Agent shall exercise reasonable care in the custody of any Collateral in its possession or control or in the possession or control of any agent or bailee or any income thereon. The Collateral Agent and the Real Property Collateral Agent shall be deemed to have exercised reasonable care in the custody of Collateral in its possession if the Collateral is accorded treatment substantially equal to that which it accords similar property held for its own benefit and shall not be liable or responsible for any loss or diminution in value of any of the Collateral, including, without limitation, by reason of the act or omission of any carrier, forwarding agency or other agent or bailee selected by the Collateral Agent or the Real Property Collateral Agent in good faith.
(f) The parties hereto and the Holders hereby agree and acknowledge that none of the Collateral Agent, the Trustee or the Real Property Collateral Agent shall 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 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 Indenture, the Security Documents or otherwise without having to account for the same to the Trustee or the Holders.
(c) The Collateral Agent shall not have any actions taken pursuant hereto duties or thereto. Further, the parties hereto obligations except those expressly set forth in this Indenture and the Security Documents. Without limiting the generality of the foregoing, (i) the Collateral Agent shall not be subject to any fiduciary or other implied duties, regardless of whether a Default has occurred and is continuing, (ii) the Collateral Agent shall not have any duty to take any discretionary action or exercise any discretionary powers, except discretionary rights and powers expressly contemplated by this Indenture and the Security Documents that the Collateral Agent is required to exercise in writing by the Trustee or such number or percentage of the Holders hereby agree as shall be necessary under the circumstances as provided in Article 10, and acknowledge that (iii) except as expressly set forth in the exercise of its rights under this Indenture and the Security Documents, the Collateral AgentAgent shall not have any duty to disclose, and shall not be liable for the Trustee failure to disclose, any information relating to the Issuer or any of the Real Property Subsidiaries that is communicated to or obtained by the Person serving as Collateral Agent may hold or obtain indicia any of ownership primarily to protect the security interest of the Collateral Agent, the Trustee or the Real Property Collateral Agent its Affiliates in the Collateral and that any such actions taken by the Collateral Agent, the Trustee or the Real Property capacity. The Collateral Agent shall not be construed liable for any action taken or not taken by it with the consent or at the request of the Trustee or such number or percentage of the Holders as shall be necessary under the circumstances as provided in Article 10 or otherwise constitute any participation in the management absence of such Collateralits own gross negligence or willful misconduct as determined in a final judgment by a court of competent jurisdiction. In The Collateral Agent shall be deemed not to have knowledge of any Default unless and until written notice thereof is given to the event that Collateral Agent by the Issuer or the Trustee, and the Collateral Agent shall not be responsible for or have any duty to ascertain or inquire into (i) any statement, warranty or representation made in or in connection with this Indenture or any Security Document, (ii) the contents of any certificate, report or other document delivered thereunder or in connection therewith, (iii) the performance or observance of any of the covenants, agreements or other terms or conditions set forth in this Indenture or any Security Document, (iv) the validity, enforceability, effectiveness or genuineness of this Indenture or any Security Document or any other agreement, instrument or document, or the validity, perfection, or priority of any Lien created by any of the Security Documents, or (v) the satisfaction of any condition set forth in this Indenture or any Security Document, other than to confirm receipt of items expressly required to be delivered to the Collateral Agent, the Trustee or the Real Property .
(d) The Collateral Agent is required shall be entitled to acquire title rely upon, and shall not incur any liability for relying upon, any notice, request, certificate, consent, statement, instrument, document or other writing believed by it to an asset be genuine and to have been signed or sent by the proper Person. The Collateral Agent also may rely upon any statement made to it orally or by telephone and believed by it to be made by the proper Person, and shall not incur any liability for relying thereon. The Collateral Agent may consult with legal counsel (who may be counsel for the Issuer), independent accountants and other experts selected by it, and shall not be liable for any reason, action taken or take any managerial action not taken by it in accordance with the advice of any kind in regard theretosuch counsel, which in accountants or experts.
(e) The Collateral Agent may perform any and all of its duties and exercise its rights and powers by or through any one or more sub-agents or attorneys-in-fact appointed by the Collateral Agent’s, Real Property Collateral Agent’s or the Trustee’s sole discretion may cause the Collateral Agent, Real Property . The Collateral Agent and any such sub-agent or the Trustee to be considered an “owner or operator” under the attorney-in-fact may perform any and all its duties and exercise its rights and powers through their respective Related Parties. The exculpatory provisions of the Comprehensive Environmental Response, Compensation preceding paragraphs shall apply to any such sub-agent or attorney-in-fact and Liability Act (“CERCLA”), 42 U.S.C. §9601, et seq., or otherwise cause to the Related Parties of the Collateral Agent, Agent and any such sub-agent or attorney-in-fact.
(f) Subject to the Trustee or the Real Property appointment and acceptance of a successor Collateral Agent to incur liability under CERCLA or any other federal, state or local lawas provided in this paragraph, the Collateral Agent, Agent may resign at any time by notifying the Trustee and the Real Property Collateral Agent reserves Issuer and may be removed at any time with or without cause by the Holders of a majority in principal amount of the Notes. Upon any such resignation, the Holders of a majority in principal amount of the Notes shall have the right, instead of taking such actionin consultation with the Issuer, to either resign appoint a successor. If no successor shall have been so appointed by such Holders and shall have accepted such appointment within 30 days after the retiring Collateral Agent gives notice of its resignation, then the retiring Collateral Agent may, on behalf of the Trustee and the Holders, appoint a successor Collateral Agent that shall have an office in New York, New York. Upon the acceptance of its appointment as Collateral Agent hereunder by a successor, such successor shall succeed to and become vested with all the rights, powers, privileges and duties of the retiring Collateral Agent, and the Trustee or the Real Property Collateral Agent or arrange for the transfer of the title or control of the asset to a court-appointed receiver or monitor. None of the Collateral Agent, the Trustee or the Real Property retiring Collateral Agent shall be liable discharged from its duties and obligations hereunder and under the Security Documents. The fees payable by the Issuer to a successor Collateral Agent shall be the Issuers, same as those payable to its predecessor unless otherwise agreed between the Guarantors or any other Person for any environmental claims or contribution actions under any federal, state or local law, rule or regulation by reason of Issuer and such successor. After the Collateral Agent’s's resignation hereunder, the Real Property Collateral Agent’s or provisions of this Article shall continue in effect for the Trustee’s actions and conduct as authorized, empowered and directed hereunder or relating to the discharge, release or threatened release benefit of hazardous materials into the environment. If at any time it is necessary or advisable for property to be possessed, owned, operated or managed by any Person (including the such retiring Collateral Agent, its sub-agents and attorneys-in-fact and their respective Related Parties in respect of any actions taken or omitted to be taken by any of them while it was acting as Collateral Agent. Notwithstanding the Real Property foregoing, any successor Collateral Agent or must meet the Trustee) other than the Issuers or the Guarantors, subject to the terms requirements of the Security Documents and the Intercreditor Agreements, a majority in interest of Holders of Notes of a series shall direct the Collateral Agent, the Real Property Collateral Agent or the Trustee with respect to such series of Notes to appoint an appropriately qualified Person (excluding the Collateral Agent, the Real Property Collateral Agent or the Trustee) whom it shall designate to possess, own, operate or manage, as the case may be, such propertySection 11.02(a).
(g) For the avoidance Except for action expressly required of doubt, the rights, privileges, protections, immunities and benefits given to the Collateral Agent by this Indenture and the Real Property Security Documents, the Collateral Agent hereundershall in all cases be fully justified in failing or refusing to act thereunder unless it shall receive further assurances to its satisfaction from the Holders of their indemnification obligations under Section 11.02(i) in respect of such action. Without limiting the foregoing, includingthe Collateral Agent shall not be required to, without limitationand shall not, take any action to enforce any of its right to be indemnified prior to taking actionor the Trustee's or Holders' rights under, shall survive the satisfactionnor waive or amend any provision of, discharge or termination of this Indenture or earlier terminationany Security Document or any Collateral, resignation nor give any notice or removal of the Trusteemake any request or demand or filing thereunder, except in such capacity, with respect to the holders of the ABL Priority Collateral or the Other Pari Passu Lien Obligations, each instance as applicable, and to the extent instructed to do so by the Security Documents remain in force thereafter.
(h) For the purposes of holding any hypothec granted to the Attorney (as defined below) pursuant to the laws Trustee or such number or percentage of the Province of Québec to secure Holders as shall be necessary under the prompt payment circumstances as provided in Article 10, and performance of any and all Notes Obligations by any Issuers or Guarantors, each of Holder hereby irrevocably appoints and authorizes the Collateral Agent and, to the extent necessary, ratifies the appointment and authorization of the Collateral Agent, to, as part of its duties as Collateral Agent, act as the hypothecary representative of the creditors as contemplated under Article 2692 of the Civil Code of Québec (in such capacity, the “Attorney”), and to enter into, shall have no liability for failure to take and to hold on their behalfany action in the absence of such instructions, and for their benefit, any hypothec, and to exercise such powers and duties provided that are conferred upon the Attorney under any related deed of hypothec. The Attorney shall: (a) have the sole and exclusive right and authority to exercise, except as may be otherwise specifically restricted by the terms hereof, all rights and remedies given to the Attorney pursuant to any such deed of hypothec and applicable law, and (b) benefit from and be subject to all provisions hereof with respect to the Collateral Agent mutatis mutandis, including, without limitation, all such provisions with respect will promptly send to the liability Trustee a copy of each notice, request or responsibility other document delivered to and indemnification by the Issuer and the Guarantors. Any person who becomes a Holder shall be deemed to have consented to and confirmed the Attorney as the person acting as hypothecary representative holding the aforesaid hypothecs as aforesaid and to have ratified, as of the date it becomes a Holder, all actions taken by the Attorney in such capacity. The substitution of the Collateral Agent pursuant to the provisions terms of this Indenture and the Security Documents and will take such actions contemplated by this Indenture and the Security Documents as the Trustee and such number or percentage of the Holders as shall be necessary under the circumstances as provided in Article XIII 10 may reasonably instruct, except that nothing herein or in any Security Document shall also result require the Collateral Agent to take any action that in the substitution reasonable opinion of the AttorneyCollateral Agent would be contrary to the terms of this Indenture or any Security Document or applicable law or subject the Collateral Agent to personal liability.
(h) The Issuer shall pay (i) all reasonable out-of-pocket expenses incurred by the Collateral Agent and its Affiliates, including the reasonable fees, charges and disbursements of Milbank, Tweed, Hadley & McCloy LLP, special New York counsel for the Collateral Agent, ▇▇ ▇onn▇▇▇▇▇▇ with the preparation of this Indenture and the Security Documents or any amendments, modifications or waivers of the provisions thereof (whether or not the transactions contemplated hereby or thereby shall be consummated), and (ii) all reasonable out-of-pocket expenses incurred by the Collateral Agent, including the reasonable fees, charges and disbursements of any counsel for the Collateral Agent in connection with the enforcement or protection of its rights in connection with this Indenture and the Security Documents, including its rights under this Article.
(i) The Issuer shall indemnify the Collateral Agent and each Related Party of the Collateral Agent (each such Person being called an "Indemnitee") against, and hold each Indemnitee harmless from, any and all losses, claims, damages, liabilities and related expenses, including the fees, charges and disbursements of any counsel for any Indemnitee, incurred by or asserted against any Indemnitee arising out of, in connection with, or as a result of (i) the execution or delivery of this Indenture, the Notes and any Security Document or any other agreement or instrument contemplated thereby, the performance by the parties to such documents of their respective obligations thereunder or the consummation of the transactions contemplated thereby, (ii) the use of the proceeds from the sale of any Note, (iii) any presence, Release or threatened Release of Hazardous Materials on, at, under or from any Mortgaged Property or any other property currently or formerly owned or operated by the Issuer or any of the Subsidiaries, or any Environmental Liability related in any way to the Issuer or any of the Subsidiaries, or (iv) any actual or prospective claim, litigation, investigation or proceeding relating to any of the foregoing, whether based on contract, tort or any other theory and regardless of whether any Indemnitee is a party thereto, provided that such indemnity shall not, as to any Indemnitee, be available to the extent that such losses, claims, damages, liabilities or related expenses resulted from the gross negligence or willful misconduct of such Indemnitee or any Related Person of such Indemnitee as determined in a final judgment by a court of competent jurisdiction.
(j) To the extent permitted by applicable law, the Issuer shall not assert, and each hereby waives, any claim against any Indemnitee, on any theory of liability, for special, indirect, consequential or punitive damages (as opposed to direct or actual damages) arising out of, in connection with, or as a result of, this Indenture, the Security Documents or any agreement or instrument contemplated hereby or thereby.
Appears in 1 contract
Regarding the Collateral Agent. (a) The Collateral Agent is authorized and empowered to appoint one or more subagents or co-collateral agents as it deems necessary or appropriate (it being understood that the Real Property Collateral Agent is executing its duties as a subagent for the Collateral Agent)appropriate.
(b) Except as otherwise expressly set forth in Section 3 4.4 of the Security Agreement, none of neither the Trustee, Trustee nor the Collateral Agent or the Real Property Collateral Agent shall have any obligation whatsoever to the Trustee or any of the Holders to assure that the Collateral exists or is owned by any Grantor Note Party 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 Issuers’ Issuer’s or any Guarantor’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 bemaybe, 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 and the Real Property Collateral Agent pursuant to this Indenture or any Security Document other than pursuant to the instructions of the Trustee or the Holders of a majority in aggregate principal amount of the Notes of a series with respect to such series of Notes or as otherwise provided in the Security Documents and/or the Intercreditor AgreementsDocuments.
(c) Notwithstanding anything to the contrary contained in this Indenture or the Security Documents, in the event the Collateral Agent or the Real Property 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 or the Real Property Collateral Agent, as the case may be, 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 or the Real Property Collateral Agent has determined that the Collateral Agent or the Real Property 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. The Collateral Agent and the Real Property Collateral Agent shall at any time be entitled to cease taking any action described in this clause if it no longer reasonably deems any indemnity, security or undertaking from the Issuers Issuer or the Holders to be sufficient.
(d) The Collateral Agent and the Real Property Collateral Agent shall not be liable for (i) any action taken or omitted to be taken by it in connection with this Indenture and the Security Documents or 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, and (ii) interest on any money received by it except as the Collateral Agent or the Real Property Collateral Agent may agree in writing with the Issuers Issuer (and money held in trust by the Collateral Agent or the Real Property Collateral Agent shall be segregated from other funds except to the extent required by law).
(e) The Collateral Agent and the Real Property Collateral Agent shall exercise reasonable care in the custody of any Collateral in its possession or control or in the possession or control of any agent or bailee or any income thereon. The Collateral Agent and the Real Property Collateral Agent shall be deemed to have exercised reasonable care in the custody of Collateral in its possession if the Collateral is accorded treatment substantially equal to that which it accords similar property held for its own benefit and shall not be liable or responsible for any loss or diminution in value of any of the Collateral, including, without limitation, by reason of the act or omission of any carrier, forwarding agency or other agent or bailee selected by the Collateral Agent or the Real Property Collateral Agent in good faith.
(f) The parties hereto and the Holders hereby agree and acknowledge that none of neither the Collateral Agent, Agent nor the Trustee or the Real Property Collateral Agent shall 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 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 Indenture, the Security Documents or any actions taken pursuant hereto or thereto. Further, the parties hereto and the Holders hereby agree and acknowledge that in the exercise of its rights under this Indenture and the Security Documents, the Collateral Agent, Agent or the Trustee or the Real Property Collateral Agent may hold or obtain indicia of ownership primarily to protect the security interest of the Collateral Agent, Agent or the Trustee or the Real Property Collateral Agent in the Collateral and that any such actions taken by the Collateral Agent, Agent or the Trustee or the Real Property Collateral Agent shall not be construed as or otherwise constitute any participation in the management of such Collateral. In the event that the Collateral Agent, Agent or the Trustee or the Real Property Collateral Agent is required to acquire title to an asset for any reason, or take any managerial action of any kind in regard thereto, which in the Collateral Agent’s, Real Property Collateral Agent’s or the Trustee’s sole discretion may cause the Collateral Agent, Real Property Collateral Agent or the Trustee 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 Collateral Agent, Agent or the Trustee or the Real Property Collateral Agent to incur liability under CERCLA or any other federal, state or local law, the Collateral Agent, Agent and the Trustee and the Real Property Collateral Agent reserves the right, instead of taking such action, to either resign as the Collateral Agent, Agent or the Trustee or the Real Property Collateral Agent or arrange for the transfer of the title or control of the asset to a court-appointed receiver or monitorreceiver. None of Neither the Collateral Agent, Agent nor the Trustee or the Real Property Collateral Agent shall be liable to the IssuersIssuer, the Guarantors or any other Person for any environmental claims or contribution actions under any federal, state or local law, rule or regulation by reason of the Collateral Agent’s, the Real Property Collateral Agent’s or the Trustee’s actions and conduct as authorized, empowered and directed hereunder or relating to the discharge, release or threatened release of hazardous materials into the environment. If at any time it is necessary or advisable for property to be possessed, owned, operated or managed by any Person (including the Collateral Agent, the Real Property Collateral Agent or the Trustee) other than the Issuers Issuer or the Guarantors, subject to the terms of the Security Documents and the Intercreditor AgreementsDocuments, a majority in interest of Holders of Notes of a series shall direct the Collateral Agent, the Real Property Collateral Agent or the Trustee with respect to such series of Notes to appoint an appropriately qualified Person (excluding the Collateral Agent, the Real Property Collateral Agent or the Trustee) whom it shall designate to possess, own, operate or manage, as the case may be, such property.
(g) For the avoidance of doubt, the rights, privileges, protections, immunities and benefits given to the Collateral Agent and the Real Property Collateral Agent hereunder, including, without limitation, its right to be indemnified prior to taking action, shall survive the satisfaction, discharge or termination of this Indenture or earlier termination, resignation or removal of the Trustee, in such capacity, with respect to the holders of the ABL Priority Collateral or the Other Pari Passu Lien Obligations, as applicable, to the extent the Security Documents remain in force thereafter.
(h) For the purposes of holding any hypothec granted to the Attorney (as defined below) pursuant to the laws of the Province of Québec to secure the prompt payment and performance of any and all Notes Obligations by any Issuers or Guarantors, each of Holder hereby irrevocably appoints and authorizes the Collateral Agent and, to the extent necessary, ratifies the appointment and authorization of the Collateral Agent, to, as part of its duties as Collateral Agent, act as the hypothecary representative of the creditors as contemplated under Article 2692 of the Civil Code of Québec (in such capacity, the “Attorney”), and to enter into, to take and to hold on their behalf, and for their benefit, any hypothec, and to exercise such powers and duties that are conferred upon the Attorney under any related deed of hypothec. The Attorney shall: (a) have the sole and exclusive right and authority to exercise, except as may be otherwise specifically restricted by the terms hereof, all rights and remedies given to the Attorney pursuant to any such deed of hypothec and applicable law, and (b) benefit from and be subject to all provisions hereof with respect to the Collateral Agent mutatis mutandis, including, without limitation, all such provisions with respect to the liability or responsibility to and indemnification by the Issuer and the Guarantors. Any person who becomes a Holder shall be deemed to have consented to and confirmed the Attorney as the person acting as hypothecary representative holding the aforesaid hypothecs as aforesaid and to have ratified, as of the date it becomes a Holder, all actions taken by the Attorney in such capacity. The substitution of the Collateral Agent pursuant to the provisions of this Article XIII shall also result in the substitution of the Attorney.
Appears in 1 contract
Sources: Securities Purchase Agreement (KLX Energy Services Holdings, Inc.)
Regarding the Collateral Agent. (a) The Collateral Agent is authorized and empowered to appoint one shall have no liability for losses arising from (i) any cause beyond its control, (ii) any delay, error, omission or more subagents default of any mail, telegraph, cable or co-collateral agents as it deems necessary wireless agency or appropriate operator, or (it being understood that iii) the Real Property Collateral Agent is executing its duties as a subagent for the Collateral Agent)acts or edicts of any government or governmental agency or other group or entity exercising governmental powers.
(b) Except as otherwise expressly set forth in Section 3 The Collateral Agent shall not be responsible for any indirect, special, exemplary, punitive or consequential damages of the Security Agreementany kind whatsoever, none of the Trusteeincluding but not limited to lost profits, whether or not foreseeable, even if the Collateral Agent or the Real Property Collateral Agent shall have any obligation whatsoever to the Trustee or any has been advised 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 possibility thereof and regardless of the Issuers’ or any Guarantor’s property constituting collateral intended to be subject to the Lien and security interest form 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 action 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 and the Real Property Collateral Agent pursuant to this Indenture or any Security Document other than pursuant to the instructions of the Trustee or the Holders of a majority in aggregate principal amount of the Notes of a series with respect to which such series of Notes or as otherwise provided in the Security Documents and/or the Intercreditor Agreementsdamages are sought.
(c) Notwithstanding anything to the contrary contained in this Indenture or the Security Documents, in the event the The Collateral Agent or the Real Property 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 or the Real Property Collateral Agent, as the case may be, shall not be required to commence any such action responsible for the preparation or exercise any remedy or to inspect or conduct any studies filing of any property under the mortgages UCC financing statements or take any such other action if the Collateral Agent continuation statement or the Real Property Collateral Agent has determined that the Collateral Agent correctness of any financing statements or continuation statement filed in connection with this Agreement or the Real Property Collateral Agent may incur personal liability as a result of the presence atvalidity, adequacy, sufficiency or release on or from, the Collateral or such property, perfection of any hazardous substances. The Collateral Agent and the Real Property Collateral Agent shall at any time be entitled lien or security interest created pursuant to cease taking any action described in this clause if it no longer reasonably deems any indemnity, security or undertaking from the Issuers or the Holders to be sufficientAgreement.
(d) The Collateral Agent may rely and the Real Property Collateral Agent shall not be liable for (i) protected in acting or refraining from acting upon any action taken resolution, certificate, statement, instrument, opinion, report, notice, request, direction, consent, order, note or omitted other paper or document believed by it to be taken by it in connection with this Indenture genuine and the Security Documents or 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 been signed or willful misconduct, and (ii) interest on any money received by it except as the Collateral Agent or the Real Property Collateral Agent may agree in writing with the Issuers (and money held in trust presented by the Collateral Agent proper party or the Real Property Collateral Agent shall be segregated from other funds except to the extent required by law)parties.
(e) 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, note or other paper or document, but the Collateral Agent, in its discretion, may, and upon the Real Property written direction of any Lender, shall make such further inquiry or investigation into such facts or matters as it may see fit or as it shall be directed.
(f) Except as otherwise expressly set forth herein, nothing herein shall be construed to impose an obligation on the part of the Collateral Agent shall exercise reasonable care in to recalculate, evaluate, verify or independently determine the custody accuracy of any report, certificate or information received from the Borrower, any Lender, the Facility Agent or the Collateral in its possession or control or in Manager.
(g) Except as otherwise expressly set forth herein, the possession or control of any agent or bailee or any income thereon. The Collateral Agent and the Real Property Collateral Agent shall be deemed under no obligation to have exercised reasonable care in monitor, supervise or perform the custody functions of Collateral in its possession if the Borrower, the Collateral is accorded treatment substantially equal Manager or the Facility Agent under any Facility Document and shall be entitled to assume that which it accords similar property held for its own benefit the Borrower, the Collateral Manager and the Facility Agent are properly performing their functions and obligations thereunder and the Collateral Agent shall not be liable or responsible for any loss or diminution in the value of any of or loss occasioned to the Collateral, including, without limitation, assets subject thereto by reason of the act or omission of by the Borrower, the Collateral Manager and the Facility Agent in relation to their functions thereunder.
(h) The Collateral Agent shall have no responsibility whatsoever to the Borrower, any carrierLender, forwarding agency the Facility Agent or other agent or bailee selected by the Collateral Manager for any deficiency which might arise because the Collateral Agent is subject to any tax in respect of the Facility Documents, the security created thereby or the Real Property Collateral Agent in good faithany part thereof or any income therefrom or any proceeds thereof.
(fi) The parties hereto and the Holders hereby agree and acknowledge that none delivery of reports, certificates or other information required to be provided hereunder to a Person other than a Responsible Officer of the Collateral Agent, the Trustee or the Real Property Collateral Agent shall 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 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 Indenture, the Security Documents or any actions taken pursuant hereto or thereto. Further, the parties hereto and the Holders hereby agree and acknowledge that in the exercise of its rights under this Indenture and the Security Documents, the Collateral Agent, the Trustee or the Real Property Collateral Agent may hold or obtain indicia of ownership primarily to protect the security interest of the Collateral Agent, the Trustee or the Real Property Collateral Agent in the Collateral and that any such actions taken by the Collateral Agent, the Trustee or the Real Property Collateral Agent shall not be construed constitute actual or constructive notice or knowledge of the contents thereof.
(j) No later than 11:00 a.m. on each Business Day, the Collateral Agent shall deliver to the Collateral Manager via such means of communication as they shall mutually agree a daily "cash availability report" which will detail all cash receipts with respect to the Collateral Obligations received as of the close of business of the prior Business Day, identifying which portion thereof constitutes Interest Proceeds, which portion thereof constitutes Principal Proceeds and any other amounts received not classified as either Interest Proceeds or otherwise constitute Principal Proceeds. No later than the close of business on the Business Day the Collateral Manager receives such a daily cash availability report, the Collateral Manager shall review the same and identify any participation in discrepancies that it becomes aware of between the management of such Collateral. In the event that cash receipts shown on the Collateral Agent, the Trustee or the Real Property Collateral Agent is required to acquire title to an asset for any reason, or take any managerial action of any kind in regard thereto, which in the Collateral Agent’s, Real Property Collateral Agent’s or the Trustee’s sole discretion may cause the Collateral Agent, Real Property Collateral Agent or the Trustee 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 Collateral Agent, the Trustee or the Real Property Collateral Agent to incur liability under CERCLA or any other federal, state or local law, the Collateral Agent, the Trustee 's daily cash availability report and the Real Property Collateral Agent reserves the right, instead of taking such action, to either resign as the Collateral Agent, the Trustee or the Real Property Collateral Agent or arrange for the transfer of the title or control of the asset to a court-appointed receiver or monitor. None of the Collateral Agent, the Trustee or the Real Property Collateral Agent shall be liable to the Issuers, the Guarantors or any other Person for any environmental claims or contribution actions under any federal, state or local law, rule or regulation by reason of the Collateral Agent’s, the Real Property Collateral Agent’s or the Trustee’s actions and conduct as authorized, empowered and directed hereunder or cash receipts relating to the discharge, release or threatened release of hazardous materials into the environment. If at any time it is necessary or advisable for property to be possessed, owned, operated or managed by any Person (including Collateral Obligations shown on the Collateral Agent, the Real Property Collateral Agent or the Trustee) other than the Issuers or the Guarantors, subject to the terms of the Security Documents and the Intercreditor Agreements, a majority in interest of Holders of Notes of a series shall direct the Collateral Agent, the Real Property Collateral Agent or the Trustee with respect to such series of Notes to appoint an appropriately qualified Person (excluding the Collateral Agent, the Real Property Collateral Agent or the Trustee) whom it shall designate to possess, own, operate or manage, as the case may be, such property.
(g) For the avoidance of doubt, the rights, privileges, protections, immunities and benefits given to Manager's records. Thereafter the Collateral Agent and the Real Property Collateral Agent hereunder, including, without limitation, its right Manager will cooperate to be indemnified prior to taking action, shall survive the satisfaction, discharge or termination of this Indenture or earlier termination, resignation or removal of the Trustee, in such capacity, with respect to the holders of the ABL Priority Collateral or the Other Pari Passu Lien Obligations, as applicable, to the extent the Security Documents remain in force thereafterpromptly resolve any discrepancies.
(h) For the purposes of holding any hypothec granted to the Attorney (as defined below) pursuant to the laws of the Province of Québec to secure the prompt payment and performance of any and all Notes Obligations by any Issuers or Guarantors, each of Holder hereby irrevocably appoints and authorizes the Collateral Agent and, to the extent necessary, ratifies the appointment and authorization of the Collateral Agent, to, as part of its duties as Collateral Agent, act as the hypothecary representative of the creditors as contemplated under Article 2692 of the Civil Code of Québec (in such capacity, the “Attorney”), and to enter into, to take and to hold on their behalf, and for their benefit, any hypothec, and to exercise such powers and duties that are conferred upon the Attorney under any related deed of hypothec. The Attorney shall: (a) have the sole and exclusive right and authority to exercise, except as may be otherwise specifically restricted by the terms hereof, all rights and remedies given to the Attorney pursuant to any such deed of hypothec and applicable law, and (b) benefit from and be subject to all provisions hereof with respect to the Collateral Agent mutatis mutandis, including, without limitation, all such provisions with respect to the liability or responsibility to and indemnification by the Issuer and the Guarantors. Any person who becomes a Holder shall be deemed to have consented to and confirmed the Attorney as the person acting as hypothecary representative holding the aforesaid hypothecs as aforesaid and to have ratified, as of the date it becomes a Holder, all actions taken by the Attorney in such capacity. The substitution of the Collateral Agent pursuant to the provisions of this Article XIII shall also result in the substitution of the Attorney.
Appears in 1 contract
Sources: Credit and Security Agreement (WhiteHorse Finance, Inc.)
Regarding the Collateral Agent. (a) The Collateral Agent is authorized and empowered to appoint one shall have no liability for losses arising from (i) any cause beyond its control, (ii) any delay, error, omission or more subagents default of any mail, telegraph, cable or co-collateral agents as it deems necessary wireless agency or appropriate operator, or (it being understood that iii) the Real Property Collateral Agent is executing its duties as a subagent for the Collateral Agent)acts or edicts of any government or governmental agency or other group or entity exercising governmental powers.
(b) Except as otherwise expressly set forth in Section 3 The Collateral Agent shall not be responsible for any indirect, special, exemplary, punitive or consequential damages of the Security Agreementany kind whatsoever, none of the Trusteeincluding but not limited to lost profits, whether or not foreseeable, even if the Collateral Agent or the Real Property Collateral Agent shall have any obligation whatsoever to the Trustee or any has been advised 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 possibility thereof and regardless of the Issuers’ or any Guarantor’s property constituting collateral intended to be subject to the Lien and security interest form 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 action 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 and the Real Property Collateral Agent pursuant to this Indenture or any Security Document other than pursuant to the instructions of the Trustee or the Holders of a majority in aggregate principal amount of the Notes of a series with respect to which such series of Notes or as otherwise provided in the Security Documents and/or the Intercreditor Agreementsdamages are sought.
(c) Notwithstanding anything to the contrary contained in this Indenture or the Security Documents, in the event the The Collateral Agent or the Real Property 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 or the Real Property Collateral Agent, as the case may be, shall not be required to commence any such action responsible for the preparation or exercise any remedy or to inspect or conduct any studies filing of any property under the mortgages UCC financing statements or take any such other action if the Collateral Agent continuation statement or the Real Property Collateral Agent has determined that the Collateral Agent correctness of any financing statements or continuation statement filed in connection with this Agreement or the Real Property Collateral Agent may incur personal liability as a result of the presence atvalidity, adequacy, sufficiency or release on or from, the Collateral or such property, perfection of any hazardous substances. The Collateral Agent and the Real Property Collateral Agent shall at any time be entitled lien or security interest created pursuant to cease taking any action described in this clause if it no longer reasonably deems any indemnity, security or undertaking from the Issuers or the Holders to be sufficientAgreement.
(d) The Collateral Agent may rely and the Real Property Collateral Agent shall not be liable for (i) protected in acting or refraining from acting upon any action taken resolution, certificate, statement, instrument, opinion, report, notice, request, direction, consent, order, note or omitted other paper or document believed by it to be taken by it in connection with this Indenture genuine and the Security Documents or 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 been signed or willful misconduct, and (ii) interest on any money received by it except as the Collateral Agent or the Real Property Collateral Agent may agree in writing with the Issuers (and money held in trust presented by the Collateral Agent proper party or the Real Property Collateral Agent shall be segregated from other funds except to the extent required by law)parties.
(e) 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, note or other paper or document, but the Collateral Agent, in its discretion, may, and upon the Real Property written direction of any Lender, shall make such further inquiry or investigation into such facts or matters as it may see fit or as it shall be directed.
(f) Except as otherwise expressly set forth herein, nothing herein shall be construed to impose an obligation on the part of the Collateral Agent shall exercise reasonable care in to recalculate, evaluate, verify or independently determine the custody accuracy of any report, certificate or information received from the Borrower, any Lender, any Subordinated Noteholder, the Facility Agent or the Collateral in its possession or control or in Manager.
(g) Except as otherwise expressly set forth herein, the possession or control of any agent or bailee or any income thereon. The Collateral Agent and the Real Property Collateral Agent shall be deemed under no obligation to have exercised reasonable care in monitor, supervise or perform the custody functions of Collateral in its possession if the Borrower, the Collateral is accorded treatment substantially equal Manager or the Facility Agent under any Facility Document and shall be entitled to assume that which it accords similar property held for its own benefit the Borrower, the Collateral Manager and the Facility Agent are properly performing their functions and obligations thereunder and the Collateral Agent shall not be liable or responsible for any loss or diminution in the value of any of or loss occasioned to the Collateral, including, without limitation, assets subject thereto by reason of the act or omission of by the Borrower, the Collateral Manager and the Facility Agent in relation to their functions thereunder.
(h) The Collateral Agent shall have no responsibility whatsoever to the Borrower, any carrierLender, forwarding agency any Subordinated Noteholder, the Facility Agent or other agent or bailee selected by the Collateral Manager for any deficiency which might arise because the Collateral Agent is subject to any tax in respect of the Facility Documents, the security created thereby or the Real Property Collateral Agent in good faithany part thereof or any income therefrom or any proceeds thereof.
(fi) The parties hereto and the Holders hereby agree and acknowledge that none delivery of reports, certificates or other information required to be provided hereunder to a Person other than a Responsible Officer of the Collateral Agent, the Trustee or the Real Property Collateral Agent shall 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 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 Indenture, the Security Documents or any actions taken pursuant hereto or thereto. Further, the parties hereto and the Holders hereby agree and acknowledge that in the exercise of its rights under this Indenture and the Security Documents, the Collateral Agent, the Trustee or the Real Property Collateral Agent may hold or obtain indicia of ownership primarily to protect the security interest of the Collateral Agent, the Trustee or the Real Property Collateral Agent in the Collateral and that any such actions taken by the Collateral Agent, the Trustee or the Real Property Collateral Agent shall not be construed constitute actual or constructive notice or knowledge of the contents thereof.
(j) No later than 11:00 a.m. on each Business Day, the Collateral Agent shall deliver to the Collateral Manager via such means of communication as they shall mutually agree a daily "cash availability report" which will detail all cash receipts with respect to the Collateral Obligations received as of the close of business of the prior Business Day, identifying which portion thereof constitutes Interest Proceeds, which portion thereof constitutes Principal Proceeds and any other amounts received not classified as either Interest Proceeds or otherwise constitute Principal Proceeds. No later than the close of business on the Business Day the Collateral Manager receives such a daily cash availability report, the Collateral Manager shall review the same and identify any participation in discrepancies that it becomes aware of between the management of such Collateral. In the event that cash receipts shown on the Collateral Agent, the Trustee or the Real Property Collateral Agent is required to acquire title to an asset for any reason, or take any managerial action of any kind in regard thereto, which in the Collateral Agent’s, Real Property Collateral Agent’s or the Trustee’s sole discretion may cause the Collateral Agent, Real Property Collateral Agent or the Trustee 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 Collateral Agent, the Trustee or the Real Property Collateral Agent to incur liability under CERCLA or any other federal, state or local law, the Collateral Agent, the Trustee 's daily cash availability report and the Real Property Collateral Agent reserves the right, instead of taking such action, to either resign as the Collateral Agent, the Trustee or the Real Property Collateral Agent or arrange for the transfer of the title or control of the asset to a court-appointed receiver or monitor. None of the Collateral Agent, the Trustee or the Real Property Collateral Agent shall be liable to the Issuers, the Guarantors or any other Person for any environmental claims or contribution actions under any federal, state or local law, rule or regulation by reason of the Collateral Agent’s, the Real Property Collateral Agent’s or the Trustee’s actions and conduct as authorized, empowered and directed hereunder or cash receipts relating to the discharge, release or threatened release of hazardous materials into the environment. If at any time it is necessary or advisable for property to be possessed, owned, operated or managed by any Person (including Collateral Obligations shown on the Collateral Agent, the Real Property Collateral Agent or the Trustee) other than the Issuers or the Guarantors, subject to the terms of the Security Documents and the Intercreditor Agreements, a majority in interest of Holders of Notes of a series shall direct the Collateral Agent, the Real Property Collateral Agent or the Trustee with respect to such series of Notes to appoint an appropriately qualified Person (excluding the Collateral Agent, the Real Property Collateral Agent or the Trustee) whom it shall designate to possess, own, operate or manage, as the case may be, such property.
(g) For the avoidance of doubt, the rights, privileges, protections, immunities and benefits given to Manager's records. Thereafter the Collateral Agent and the Real Property Collateral Agent hereunder, including, without limitation, its right Manager will cooperate to be indemnified prior to taking action, shall survive the satisfaction, discharge or termination of this Indenture or earlier termination, resignation or removal of the Trustee, in such capacity, with respect to the holders of the ABL Priority Collateral or the Other Pari Passu Lien Obligations, as applicable, to the extent the Security Documents remain in force thereafterpromptly resolve any discrepancies.
(h) For the purposes of holding any hypothec granted to the Attorney (as defined below) pursuant to the laws of the Province of Québec to secure the prompt payment and performance of any and all Notes Obligations by any Issuers or Guarantors, each of Holder hereby irrevocably appoints and authorizes the Collateral Agent and, to the extent necessary, ratifies the appointment and authorization of the Collateral Agent, to, as part of its duties as Collateral Agent, act as the hypothecary representative of the creditors as contemplated under Article 2692 of the Civil Code of Québec (in such capacity, the “Attorney”), and to enter into, to take and to hold on their behalf, and for their benefit, any hypothec, and to exercise such powers and duties that are conferred upon the Attorney under any related deed of hypothec. The Attorney shall: (a) have the sole and exclusive right and authority to exercise, except as may be otherwise specifically restricted by the terms hereof, all rights and remedies given to the Attorney pursuant to any such deed of hypothec and applicable law, and (b) benefit from and be subject to all provisions hereof with respect to the Collateral Agent mutatis mutandis, including, without limitation, all such provisions with respect to the liability or responsibility to and indemnification by the Issuer and the Guarantors. Any person who becomes a Holder shall be deemed to have consented to and confirmed the Attorney as the person acting as hypothecary representative holding the aforesaid hypothecs as aforesaid and to have ratified, as of the date it becomes a Holder, all actions taken by the Attorney in such capacity. The substitution of the Collateral Agent pursuant to the provisions of this Article XIII shall also result in the substitution of the Attorney.
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Sources: Credit and Security Agreement (WhiteHorse Finance, Inc.)