Rights of Collateral Agent. (a) The Collateral Agent may execute any of its duties under any Security Document by or through agents, sub-agents or attorneys-in-fact and shall be entitled to rely on the advice of counsel (including counsel to the Borrower) concerning all matters pertaining to such duties. The Collateral Agent shall not be responsible for the negligence or misconduct of any agent or sub-agent or attorney-in-fact that it selects in the absence of gross negligence or willful misconduct (as determined in the final judgment of a court of competent jurisdiction). (b) Neither the Collateral Agent nor its Affiliates nor any of their respective officers, directors, employees, agents or attorneys-in-fact shall be (i) liable to any of the Secured Parties for any action lawfully taken or omitted to be taken by it hereunder or under or in connection with any Security Document (except for its gross negligence, willful misconduct or unlawful acts, as determined by the final judgment of a court of competent jurisdiction, in connection with its duties expressly set forth herein), or (ii) responsible in any manner to any of the Secured Parties for any recitals, statements, representations or warranties made by the Borrower or any other Loan Party or any representative of any thereof contained in any Credit Document or in any certificate, report, statement or other document referred to or provided for in, or received by the Collateral Agent under or in connection with, any Credit Document or for the value, validity, effectiveness, genuineness, enforceability or sufficiency of the Credit Documents, or the perfection or priority of any Lien or security interest created or purported to be created under the Security Documents, or for any failure of the Borrower or any other Loan Party to perform their obligations thereunder. The Collateral Agent as such shall not be under any obligation to any Secured Party to ascertain or to inquire as to the observance or performance of any of the agreements contained in, or conditions of, any Credit Document or to inspect the properties, books or records of the Borrower or any other Loan Party. (c) The Collateral Agent shall be entitled to rely conclusively, and shall be fully protected in relying, upon any note, writing, resolution, notice, consent, certificate, affidavit, letter, telecopy, electronic mail message, telex or teletype message, statement, order or other document believed by it to be genuine and correct and to have been signed, sent or made by the proper Person or Persons and upon advice and statements of legal counsel (including counsel to the Borrower), independent accountants and other experts selected by the Collateral Agent. The Collateral Agent shall in all cases be fully protected in acting, or in refraining from acting, under this Agreement or any other Credit Document in accordance with a request or consent of the Required Voting Parties and such request and any action taken or failure to act pursuant thereto shall be binding upon all the Secured Parties. (d) The Borrower agrees to pay, within 15 days after written demand, to the Collateral Agent the amount of any and all reasonable and documented out-of-pocket expenses, including the reasonable and documented Attorney Costs of one New York counsel and one local state counsel in each other applicable jurisdiction, and the reasonable costs of any experts and agents which the Collateral Agent may reasonably incur in connection with (i) the administration of the Security Documents, (ii) the custody or preservation of, or the sale of, collection from, or other realization upon, any of the Collateral, (iii) the exercise or enforcement (whether through negotiations, legal proceedings or otherwise) of any of the rights of the Collateral Agent or the Secured Parties under any of the Security Documents or (iv) the failure by the Borrower, any other Loan Party or any Affiliate thereof to perform or observe any of the provisions of the Security Documents. (e) Whether or not the transactions contemplated hereby are consummated, the Secured Parties shall indemnify upon demand the Collateral Agent (to the extent the Collateral Agent is required to be but is not reimbursed by or on behalf of the Loan Parties and without limiting the obligation of the Loan Parties to do so), pro rata (at the time such indemnity is sought), and hold harmless the Collateral Agent from and against any and all Indemnified Liabilities incurred by it; provided that no Secured Party shall be liable for the payment to the Collateral Agent of any portion of such Indemnified Liabilities resulting from the gross negligence or willful misconduct of the Collateral Agent as determined by the final judgment of a court of competent jurisdiction; provided further that no action taken in accordance with the directions of the Controlling Authorized Representative or the Required Voting Parties shall be deemed to constitute gross negligence or willful misconduct for purposes of this Section 5.01(e). In the case of any investigation, litigation or proceeding giving rise to any Indemnified Liabilities, this Section 5.01(e) applies whether any such investigation, litigation or proceeding is brought by any Secured Party or any other Person. The undertaking in this Section 5.01(e) shall survive termination of the Secured Obligations, the payment of all other Obligations and the resignation of the Collateral Agent. (f) Whether or not the transactions contemplated hereby are consummated, the Borrower shall indemnify and hold harmless the Collateral Agent (“Indemnified Secured Party”) from and against any and all liabilities, obligations, losses, damages, penalties, claims, demands, actions, judgments, suits, costs, expenses and disbursements (including Attorney Costs) of any kind or nature whatsoever which may at any time be imposed on, incurred by or asserted against the Indemnified Secured Party in any way relating to or arising out of or in connection with (a) the execution, delivery, enforcement, performance or administration of any Credit Document or any other agreement, letter or instrument delivered in connection with the transactions contemplated thereby, (b) any Commitment or Loan or the use or proposed use of the proceeds therefrom, or (c) any actual or alleged presence or release of Hazardous Materials on or from any property currently or formerly owned or operated by the Borrower or any Subsidiary, or any Environmental Liability related in any way to the Borrower or any Subsidiary, or (d) any actual or prospective claim, litigation, investigation or proceeding relating to any of the foregoing, whether based on contract, tort or any other theory (including any investigation of, preparation for or defense of any pending or threatened claim, investigation, litigation or proceeding), in all cases, whether or not caused by or arising, in whole or in part, out of the negligence of the Indemnified Secured Party; provided that such indemnity shall not, as to the Indemnified Secured Party, be available to the extent that such liabilities, obligations, losses, damages, penalties, claims, demands, actions, judgments, suits, costs, expenses or disbursements resulted from the gross negligence, bad faith or willful misconduct of the Indemnified Secured Party. Neither the Indemnified Secured Party nor the Borrower shall have any liability for any special, punitive, indirect or consequential damages relating to this Agreement or any other Credit Document or arising out of its activities in connection herewith or therewith (whether before or after the Financial Closing Date). In the case of an investigation, litigation or other proceeding to which the indemnity in this Section 5.01(f) applies, such indemnity shall be effective whether or not any of the transactions contemplated hereunder or under any of the other Credit Documents is consummated. All amounts due under this Section 5.01(f) shall be paid within ten (10) Business Days after demand therefor. The agreements in this Section 5.01(f) shall survive the resignation of the Collateral Agent, the replacement of any Secured Party, the termination of any Secured Obligation and the repayment, satisfaction or discharge of all the other Obligations. (g) Each Secured Party acknowledges that no Agent-Related Person has made any representation or warranty to it, and that no act by any Agent hereafter taken, including any consent to and acceptance of any assignment or review of the affairs of the Borrower or any Affiliate thereof, shall be deemed to constitute any representation or warranty by any Agent-Related Person to any Secured Party as to any matter, including whether Agent-Related Persons have disclosed material information in their possession. Each Secured Party represents to each Agent that it has, independently and without reliance upon any Agent-Related Person and based on such documents and information as it has deemed appropriate, made its own appraisal of and investigation into the business, prospects, operations, property, financial and other condition and creditworthiness of the Borrower Group, and all applicable bank or other regulatory Laws relating to the transactions contemplated hereby, and made its own decision to enter into this Agreement and to extend credit to the Borrower under the Credit Documents. Each Secured Party also represents that it will, independently and without reliance upon any Agent-Related Person and based on such documents and information as it shall deem appropriate at the time, continue to make its own credit analysis, appraisals and decisions in taking or not taking action under this Agreement and the other Credit Documents, and to make such investigations as it deems necessary to inform itself as to the business, prospects, operations, property, financial and other condition and creditworthiness of the Borrower. Except for notices, reports and other documents expressly required to be furnished to the Secured Parties by any Agent herein, such Agent shall not have any duty or responsibility to provide any Secured Party with any credit or other information concerning the business, prospects, operations, property, financial and other condition or creditworthiness of the Borrower or any of its Affiliates which may come into the possession of any Agent-Related Person. (h) Barclays Bank PLC and its Affiliates may make loans to, accept deposits from, acquire Equity Interests in and generally engage in any kind of banking, trust, financial advisory, underwriting or other business with the Borrower and its Affiliates as though Barclays Bank PLC were not the Collateral Agent hereunder and without notice to or consent of the Secured Parties. The Secured Parties acknowledge that, pursuant to such activities, Barclays Bank PLC or its Affiliates may receive information regarding the Borrower or its Affiliates (including information that may be subject to confidentiality obligations in favor of the Borrower or such Affiliates) and acknowledge that the Collateral Agent shall be under no obligation to provide such information to them.
Appears in 2 contracts
Sources: Credit Agreement (Puget Energy Inc /Wa), Credit Agreement (Puget Energy Inc /Wa)
Rights of Collateral Agent. (a) The Collateral Agent (i) may execute any of its duties under any Security Document this Deed of Trust by or through agents, sub-agents experts or attorneys-in-fact and shall be entitled to rely on the advice of counsel (including counsel to the Borrower) concerning all matters pertaining to such duties. The Collateral Agent shall not be responsible for any misconduct or negligence on the negligence or misconduct part of any agent or sub-agent such agent, expert or attorney-in-fact that appointed with due care by it selects hereunder, and (ii) shall be entitled to advice of counsel of its selection, and the advice of such counsel shall be full and complete authorization and protection in the absence respect of gross negligence any action taken, suffered or willful misconduct (as determined omitted by it hereunder in the final judgment of a court of competent jurisdiction)good faith and in reliance thereon.
(b) Neither the Collateral Agent nor its Affiliates nor any of their respective its officers, directors, employees, agents or agents, attorneys-in-fact or affiliates shall be (i) liable to any of the Secured Parties for any action lawfully taken or omitted to be taken by it hereunder or under or in connection with any Security Document this Deed of Trust (except for for, in the case of the Collateral Agent, its gross negligence, willful misconduct misconduct, or unlawful actsbad faith), as determined (ii) liable for any action taken or omitted to be taken by it in good faith and reasonably believed by it to be authorized or within the final judgment of a court of competent jurisdiction, in connection with its duties expressly set forth herein)rights or powers conferred upon it hereunder, or (iiiii) responsible in any manner to any of the Secured Parties for any recitals, statements, representations or warranties made by the Borrower or any other Loan Party or any representative in this Deed of any thereof contained in any Credit Document Trust or in any certificate, report, statement or other document referred to or provided for in, or received by the Collateral Agent under or in connection with, any Credit Document this Deed of Trust or for the value, validity, effectiveness, genuineness, enforceability or sufficiency of the Credit Documents, this Deed of Trust or the perfection or priority of any Lien or security interest created or purported to be created under the Security Documents, Mortgaged Property or for any failure of the Borrower Grantor or any other Loan Party Person to perform their its obligations thereunderhereunder. The Collateral Agent as such shall not be under any obligation to any Secured Party or any other Person to ascertain or to inquire as to the observance or performance of any of the agreements contained in, or conditions of, any Credit Document this Deed of Trust, or to inspect the properties, books or records of the Borrower or any other Loan PartyGrantor.
(c) The Collateral Agent shall be entitled to rely conclusively, and shall be fully protected in relying, relying upon any note, writing, resolution, request, direction, certificate, notice, consent, certificate, affidavit, letter, cablegram, telegram, telecopy, electronic mail message, telex or teletype message, statement, order or other document or conversation believed by it to be genuine and correct and to have been signed, sent or made by the proper Person or Persons and and/or upon advice and and/or statements of legal counsel (including who may be counsel to the BorrowerGrantor or any Secured Party), independent accountants and other experts selected by the Collateral Agent. In connection with any request or direction of the Required Secured Parties, the Collateral Agent shall be entitled to rely conclusively, and shall, subject to the other terms of this Deed of Trust, be fully protected in relying on any Secured Party Certificate. In connection with any request or direction of Grantor pursuant to a request for a release, the Collateral Agent shall be entitled to rely conclusively, and shall, subject to the terms of this Deed of Trust, be fully protected in relying on any request for release and/or supporting evidence. The Collateral Agent shall be fully justified in failing or refusing to take any action under this Deed of Trust (i) if such action would, in the opinion of the Collateral Agent (which may be based on the advice or opinion of counsel), be contrary to law (including if the Collateral Agent would not be qualified to act) or the terms of this Deed of Trust, (ii) if such action is not specifically provided for in this Deed of Trust or it shall not have received any such advice or concurrence of the Required Secured Parties as it deems appropriate, or (iii) if, in connection with the taking of any such action hereunder that would constitute an exercise of remedies under this Deed of Trust, it shall not first be indemnified to its satisfaction by the Secured Parties against any and all risk of nonpayment, liability and expense which may be incurred by it by reason of taking or continuing to take any such action. The Collateral Agent shall in all cases be fully protected in acting, or in refraining from acting, under this Agreement or any other Credit Document Deed of Trust in accordance with a request or consent of the Required Voting Secured Parties contained in Secured Party Certificates, and such request and any action taken or failure to act pursuant thereto shall be binding upon all the Secured Parties.
(d) If, with respect to a proposed action to be taken by it, the Collateral Agent shall determine in good faith that the provisions of this Deed of Trust relating to the functions, responsibilities or powers of the Collateral Agent are or may be ambiguous or inconsistent, the Collateral Agent shall notify the Secured Party Representatives and Grantor, identifying the proposed action, and may decline either to perform such function or responsibility or to take the action requested unless it has received the written confirmation of the Required Secured Parties, executed by Secured Party Representatives, that the Required Secured Parties concur in the circumstances that the action proposed to be taken by the Collateral Agent is consistent with the terms of this Deed of Trust or is otherwise appropriate. The Borrower agrees Collateral Agent shall be fully protected in acting or refraining from acting upon the confirmation of the Required Secured Parties in this respect, and such confirmation shall be binding upon the Collateral Agent and the other Secured Parties.
(e) The Collateral Agent shall not be deemed to payhave actual, within 15 days constructive, direct or indirect knowledge or notice of the occurrence of any Event of Default unless and until a Responsible Officer of the Collateral Agent has received at the Corporate Trust Office a written notice or a certificate from a Secured Party Officer of a Secured Party Representative or Grantor stating that an Event of Default has occurred, and such notice or certificate references the Deed of Trust. The Collateral Agent shall have no obligation whatsoever either prior to or after written demandreceiving such notice or certificate to inquire whether an Event of Default has in fact occurred and shall be entitled to rely conclusively, and shall be fully protected in so relying, on any notice or certificate so furnished to it. No provision of this Deed of Trust shall require the Collateral Agent to expend or risk its own funds or otherwise incur any financial liability in the performance of any of its duties hereunder or the exercise of any of its rights or powers, if it shall have reasonable grounds for believing that repayment of such funds or adequate indemnity against such risk or liability, including an advance of moneys necessary to take the action requested, is not reasonably assured to it, except that in respect of any potential environmental liability or the taking of title to any real property, the Collateral Agent may decline to act unless it receives indemnity satisfactory to it in its sole discretion, including, but not limited to, an advance of moneys necessary to take the action requested. In the event that the Collateral Agent receives such a notice of the occurrence of any Event of Default, the Collateral Agent shall give notice thereof to the Secured Party Representatives. The Secured Parties shall provide evidence of indemnity to the Collateral Agent which is satisfactory to the Collateral Agent for any action directed by the Required Secured Parties, including, but not limited to, an advance of moneys necessary to take the action requested.
(f) Grantor will pay upon demand to the Collateral Agent the amount of any and all reasonable and documented out-of-pocket fees and expenses, including the reasonable fees and documented Attorney Costs expenses of one New York counsel for the Collateral Agent and one local state counsel for the Collateral Agent (unless in each other the good faith opinion of the Collateral Agent or such counsel it would be inappropriate under applicable jurisdictionstandards of legal professional conduct due to an actual or potential conflict of interest, and the reasonable costs of any experts and agents to have only one counsel), which the Collateral Agent may reasonably incur in connection with (i) the administration of the Security Documentsthis Deed of Trust, (ii) the custody or preservation of, or the sale of, collection from, or other realization upon, any of the CollateralMortgaged Property, (iii) the exercise or enforcement (whether through negotiations, legal proceedings or otherwise) of any of the rights of the Collateral Agent or the Secured Parties under any this Deed of the Security Documents Trust, or (iv) the failure by the Borrower, any other Loan Party or any Affiliate thereof Grantor to perform or observe any of the provisions hereof or of any of the Security Documents.
(e) Whether documents evidencing or not the transactions contemplated hereby are consummated, the Secured Parties shall indemnify upon demand the Collateral Agent (relating to the extent the Collateral Agent is required to be but is not reimbursed by or on behalf any of the Loan Parties and without limiting the obligation of the Loan Parties to do so), pro rata (at the time such indemnity is sought), and hold harmless the Collateral Agent from and against any and all Indemnified Liabilities incurred by it; provided that no Secured Party shall be liable for the payment to the Collateral Agent of any portion of such Indemnified Liabilities resulting from the gross negligence or willful misconduct of the Collateral Agent as determined by the final judgment of a court of competent jurisdiction; provided further that no action taken in accordance with the directions of the Controlling Authorized Representative or the Required Voting Parties shall be deemed to constitute gross negligence or willful misconduct for purposes Obligations. The provision of this Section 5.01(e). In the case of any investigation, litigation or proceeding giving rise to any Indemnified Liabilities, this Section 5.01(e) applies whether any such investigation, litigation or proceeding is brought by any Secured Party or any other Person. The undertaking in this Section 5.01(e14(f) shall survive the expiration or earlier termination of the Secured Obligations, the payment this Deed of all other Obligations Trust and the resignation or removal of the Collateral Agent.
(fg) Whether or not the transactions contemplated hereby are consummated, the Borrower shall indemnify and hold harmless Neither the Collateral Agent (“Indemnified Secured Party”) from nor any of its officers, directors, employees or agents shall be liable for failure to demand, collect or realize upon any of the Mortgaged Property or for any delay in doing so. The powers conferred on the Collateral Agent hereunder are solely to protect the Collateral Agent’s interests in the Mortgaged Property and against shall not impose any and all liabilities, obligations, losses, damages, penalties, claims, demands, actions, judgments, suits, costs, expenses and disbursements (including Attorney Costs) duty upon the Collateral Agent to exercise any such powers. The Collateral Agent shall be accountable only for amounts that it actually receives as a result of the exercise of such powers. The Collateral Agent shall have no duty or liability as to the taking of any kind necessary steps to preserve or nature whatsoever which may protect the Mortgaged Property or to preserve rights against prior parties.
(h) The Collateral Agent shall not be responsible for (i) perfecting, maintaining, monitoring, preserving or protecting the security interest or Lien granted under this Deed of Trust, (ii) the filing, re-filing, recording, re-recording or continuing of any document, financing statement, mortgage, assignment, notice, instrument of further assurance or other instrument in any public office at any time be imposed onor times or (iii) providing, incurred by maintaining, monitoring or asserted against the Indemnified Secured Party in any way relating to or arising out of or in connection with (a) the execution, delivery, enforcement, performance or administration of any Credit Document or any other agreement, letter or instrument delivered in connection with the transactions contemplated thereby, (b) any Commitment or Loan preserving insurance on or the use or proposed use payment of the proceeds therefrom, or (c) any actual or alleged presence or release of Hazardous Materials on or from any property currently or formerly owned or operated by the Borrower or any Subsidiary, or any Environmental Liability related in any way to the Borrower or any Subsidiary, or (d) any actual or prospective claim, litigation, investigation or proceeding relating taxes with respect to any of the foregoing, whether based on contract, tort Mortgaged Property. The actions described in items (i) through (iii) shall be the responsibility of Grantor.
(i) No permissive or any other theory (including any investigation of, preparation for discretionary power or defense of any pending or threatened claim, investigation, litigation or proceeding), in all cases, whether or not caused by or arising, in whole or in part, out of the negligence of the Indemnified Secured Party; provided that such indemnity shall not, as to the Indemnified Secured Party, be authority available to the extent that such liabilities, obligations, losses, damages, penalties, claims, demands, actions, judgments, suits, costs, expenses or disbursements resulted from Collateral Agent shall be construed to be a duty.
(j) Under no circumstances shall the gross negligence, bad faith or willful misconduct of the Indemnified Secured Party. Neither the Indemnified Secured Party nor the Borrower shall have any liability Collateral Agent be liable for any special, punitive, indirect indirect, exemplary or consequential damages relating to damages, regardless of the form of action and even if the same were foreseeable.
(k) The Collateral Agent shall not be responsible or liable for any failure or delay in the performance of its obligations under this Agreement or any other Credit Document or Deed of Trust arising out of or caused, directly or indirectly, by circumstances beyond its activities in connection herewith or therewith (whether before or after the Financial Closing Date). In the case reasonable control, including, without limitation, acts of an investigation, litigation or other proceeding to which the indemnity in this Section 5.01(f) applies, such indemnity shall be effective whether or not any of the transactions contemplated hereunder or under any of the other Credit Documents is consummated. All amounts due under this Section 5.01(f) shall be paid within ten (10) Business Days after demand therefor. The agreements in this Section 5.01(f) shall survive the resignation of the Collateral Agent, the replacement of any Secured Party, the termination of any Secured Obligation and the repayment, satisfaction or discharge of all the other Obligations.
(g) Each Secured Party acknowledges that no Agent-Related Person has made any representation or warranty to it, and that no act by any Agent hereafter taken, including any consent to and acceptance of any assignment or review of the affairs of the Borrower or any Affiliate thereof, shall be deemed to constitute any representation or warranty by any Agent-Related Person to any Secured Party as to any matter, including whether Agent-Related Persons have disclosed material information in their possession. Each Secured Party represents to each Agent that it has, independently and without reliance upon any Agent-Related Person and based on such documents and information as it has deemed appropriate, made its own appraisal of and investigation into the business, prospects, operations, property, financial God; earthquakes; fire; flood; terrorism; wars and other condition military disturbances; sabotage; epidemics; riots; interruptions; loss or malfunctions of utilities, computer (hardware or software) or communication services; accidents; labor disputes; acts of civil or military authority and creditworthiness of the Borrower Group, and all applicable bank or other regulatory Laws relating to the transactions contemplated hereby, and made its own decision to enter into this Agreement and to extend credit to the Borrower under the Credit Documents. Each Secured Party also represents that it will, independently and without reliance upon any Agent-Related Person and based on such documents and information as it shall deem appropriate at the time, continue to make its own credit analysis, appraisals and decisions in taking or not taking action under this Agreement and the other Credit Documents, and to make such investigations as it deems necessary to inform itself as to the business, prospects, operations, property, financial and other condition and creditworthiness of the Borrower. Except for notices, reports and other documents expressly required to be furnished to the Secured Parties by any Agent herein, such Agent shall not have any duty or responsibility to provide any Secured Party with any credit or other information concerning the business, prospects, operations, property, financial and other condition or creditworthiness of the Borrower or any of its Affiliates which may come into the possession of any Agent-Related Persongovernmental action.
(h) Barclays Bank PLC and its Affiliates may make loans to, accept deposits from, acquire Equity Interests in and generally engage in any kind of banking, trust, financial advisory, underwriting or other business with the Borrower and its Affiliates as though Barclays Bank PLC were not the Collateral Agent hereunder and without notice to or consent of the Secured Parties. The Secured Parties acknowledge that, pursuant to such activities, Barclays Bank PLC or its Affiliates may receive information regarding the Borrower or its Affiliates (including information that may be subject to confidentiality obligations in favor of the Borrower or such Affiliates) and acknowledge that the Collateral Agent shall be under no obligation to provide such information to them.
Appears in 2 contracts
Sources: Deed of Trust, Security Agreement and Fixture Filing (Ovation Acquisition I, L.L.C.), Deed of Trust, Security Agreement and Fixture Filing (Oncor Electric Delivery Co LLC)
Rights of Collateral Agent. (a) The Collateral Agent may execute and effect any of its duties under any the Security Document Documents by or through agents, sub-agents or attorneys-in-fact and shall be entitled to rely on the advice of counsel (including counsel to the Borrower) concerning all matters pertaining to such duties. The Collateral Agent shall not be responsible for the negligence or misconduct of any agent or sub-agent or attorney-in-fact that it selects in the absence of gross negligence or willful misconduct (as determined in the final judgment of a court of competent jurisdiction).
(b) Neither the Collateral Agent nor its Affiliates nor any of their respective its officers, directors, employees, agents or agents, attorneys-in-fact or affiliates shall be (i) liable to any of the Secured Parties for any action lawfully taken or omitted to be taken in good faith by it hereunder or such Person under or in connection with any Security Document (except for its or such Person's own gross negligence, negligence or willful misconduct or unlawful acts, as determined by the final judgment of a court of competent jurisdiction, in connection with its duties expressly set forth hereinmisconduct), or (ii) responsible in any manner to any of the Secured Parties Lenders for any recitals, statements, representations or warranties made by the any Borrower or any other Loan Party or any representative of any officer thereof contained in any Credit Loan Document or in any certificate, report, statement or other document referred to or provided for in, or received by the Collateral Agent under or in connection with, with any Credit Loan Document or for the value, validity, effectiveness, genuineness, enforceability or sufficiency of the Credit Documents, or the perfection or priority of any Lien or security interest created or purported to be created under the Security DocumentsLoan Document, or for any failure of the any Borrower or any other Loan Party to perform their its obligations thereunder. The Collateral Agent as such shall not be under any obligation to any Secured Party Lender to ascertain or to inquire as to the observance or performance of any of the agreements contained in, or conditions of, of any Credit Loan Document or to inspect the properties, books or records of the Borrower or any other Loan PartyBorrower.
(c) The Collateral Agent shall be entitled to rely conclusivelyrely, and shall be fully protected in relying, relying upon any note, writing, resolution, notice, consent, certificate, affidavit, letter, cablegram, telegram, telecopy, electronic mail message, telex or teletype message, statement, order or other document or conversation believed by it to be genuine and correct and to have been signed, sent or made by the proper Person or Persons and upon advice and statements of legal counsel (including including, without limitation, counsel to the BorrowerBorrowers), independent accountants and other experts selected by the Collateral Agent. The Collateral Agent shall be fully justified in failing or refusing to take any action hereunder or under any other Loan Document (i) if such action would, in the opinion of the Collateral Agent, be contrary to law or the terms of this Agreement or the other Loan Documents, (ii) if it shall not receive any such advice or concurrence of the Administrative Agent or the Majority Lenders as it deems appropriate, or (iii) if it shall not first be indemnified to its satisfaction by the Lenders against any and all liability and expense which may be incurred by it by reason of taking or continuing to take any such action. The Collateral Agent shall in all cases be fully protected in acting, or in refraining from acting, under this Agreement or any other Credit Loan Document in accordance with a request of either the Administrative Agent or consent of the Required Voting Parties Majority Lenders, and such request and any action taken or failure to act pursuant thereto shall be binding upon all the Secured PartiesLenders.
(d) The Borrower agrees If, with respect to paya proposed action to be taken by it, within 15 days after written demand, to the Collateral Agent shall determine in good faith that the amount provisions of any and all reasonable and documented out-of-pocket expenses, including this Agreement relating to the reasonable and documented Attorney Costs of one New York counsel and one local state counsel in each other applicable jurisdiction, and the reasonable costs of any experts and agents which the Collateral Agent may reasonably incur in connection with (i) the administration of the Security Documents, (ii) the custody functions or preservation of, responsibilities or the sale of, collection from, or other realization upon, any of the Collateral, (iii) the exercise or enforcement (whether through negotiations, legal proceedings or otherwise) of any of the rights discretionary powers of the Collateral Agent are or may be ambiguous or inconsistent, the Secured Parties under any Collateral Agent shall notify the Lenders, identifying the proposed action and the provisions that it considers are or may be ambiguous or inconsistent, and may decline either to perform such function or responsibility or to exercise such discretionary power unless it has received the written confirmation of the Security Documents or (iv) Majority Lenders that the failure Majority Lenders concur in the circumstances that the action proposed to be taken by the Borrower, any other Loan Party Collateral Agent is consistent with the terms of this Agreement or any Affiliate thereof is otherwise appropriate. Subject to perform or observe any of the provisions of Sections 3.01(b) and 5.01 hereof, the Security DocumentsCollateral Agent shall be fully protected in acting or refraining from acting upon the confirmation of the Majority Lenders in this respect, and such confirmation shall be binding upon the Collateral Agent and the other Lenders.
(e) Whether or not the transactions contemplated hereby are consummated, the Secured Parties No provision of this Agreement shall indemnify upon demand require the Collateral Agent (to the extent the Collateral Agent is required to be but is not reimbursed by expend or on behalf of the Loan Parties and without limiting the obligation of the Loan Parties to do so), pro rata (at the time such indemnity is sought), and hold harmless the Collateral Agent from and against any and all Indemnified Liabilities incurred by it; provided that no Secured Party shall be liable for the payment to the Collateral Agent of any portion of such Indemnified Liabilities resulting from the gross negligence or willful misconduct of the Collateral Agent as determined by the final judgment of a court of competent jurisdiction; provided further that no action taken in accordance with the directions of the Controlling Authorized Representative or the Required Voting Parties shall be deemed to constitute gross negligence or willful misconduct for purposes of this Section 5.01(e). In the case of any investigation, litigation or proceeding giving rise to any Indemnified Liabilities, this Section 5.01(e) applies whether any such investigation, litigation or proceeding is brought by any Secured Party or any other Person. The undertaking in this Section 5.01(e) shall survive termination of the Secured Obligations, the payment of all other Obligations and the resignation of the Collateral Agent.
(f) Whether or not the transactions contemplated hereby are consummated, the Borrower shall indemnify and hold harmless the Collateral Agent (“Indemnified Secured Party”) from and against any and all liabilities, obligations, losses, damages, penalties, claims, demands, actions, judgments, suits, costs, expenses and disbursements (including Attorney Costs) of any kind or nature whatsoever which may at any time be imposed on, incurred by or asserted against the Indemnified Secured Party in any way relating to or arising out of or in connection with (a) the execution, delivery, enforcement, performance or administration of any Credit Document or any other agreement, letter or instrument delivered in connection with the transactions contemplated thereby, (b) any Commitment or Loan or the use or proposed use of the proceeds therefrom, or (c) any actual or alleged presence or release of Hazardous Materials on or from any property currently or formerly owned or operated by the Borrower or any Subsidiary, or any Environmental Liability related in any way to the Borrower or any Subsidiary, or (d) any actual or prospective claim, litigation, investigation or proceeding relating to any of the foregoing, whether based on contract, tort or any other theory (including any investigation of, preparation for or defense of any pending or threatened claim, investigation, litigation or proceeding), in all cases, whether or not caused by or arising, in whole or in part, out of the negligence of the Indemnified Secured Party; provided that such indemnity shall not, as to the Indemnified Secured Party, be available to the extent that such liabilities, obligations, losses, damages, penalties, claims, demands, actions, judgments, suits, costs, expenses or disbursements resulted from the gross negligence, bad faith or willful misconduct of the Indemnified Secured Party. Neither the Indemnified Secured Party nor the Borrower shall have any liability for any special, punitive, indirect or consequential damages relating to this Agreement or any other Credit Document or arising out of its activities in connection herewith or therewith (whether before or after the Financial Closing Date). In the case of an investigation, litigation or other proceeding to which the indemnity in this Section 5.01(f) applies, such indemnity shall be effective whether or not any of the transactions contemplated hereunder or under any of the other Credit Documents is consummated. All amounts due under this Section 5.01(f) shall be paid within ten (10) Business Days after demand therefor. The agreements in this Section 5.01(f) shall survive the resignation of the Collateral Agent, the replacement of any Secured Party, the termination of any Secured Obligation and the repayment, satisfaction or discharge of all the other Obligations.
(g) Each Secured Party acknowledges that no Agent-Related Person has made any representation or warranty to it, and that no act by any Agent hereafter taken, including any consent to and acceptance of any assignment or review of the affairs of the Borrower or any Affiliate thereof, shall be deemed to constitute any representation or warranty by any Agent-Related Person to any Secured Party as to any matter, including whether Agent-Related Persons have disclosed material information in their possession. Each Secured Party represents to each Agent that it has, independently and without reliance upon any Agent-Related Person and based on such documents and information as it has deemed appropriate, made risk its own appraisal funds or otherwise incur any financial liability in the performance of and investigation into the business, prospects, operations, property, financial and other condition and creditworthiness of the Borrower Group, and all applicable bank or other regulatory Laws relating to the transactions contemplated hereby, and made its own decision to enter into this Agreement and to extend credit to the Borrower under the Credit Documents. Each Secured Party also represents that it will, independently and without reliance upon any Agent-Related Person and based on such documents and information as it shall deem appropriate at the time, continue to make its own credit analysis, appraisals and decisions in taking or not taking action under this Agreement and the other Credit Documents, and to make such investigations as it deems necessary to inform itself as to the business, prospects, operations, property, financial and other condition and creditworthiness of the Borrower. Except for notices, reports and other documents expressly required to be furnished to the Secured Parties by any Agent herein, such Agent shall not have any duty or responsibility to provide any Secured Party with any credit or other information concerning the business, prospects, operations, property, financial and other condition or creditworthiness of the Borrower or any of its Affiliates which may come into duties hereunder or in the possession exercise of any Agent-Related Personof its rights or powers, if it shall have reasonable grounds for believing that repayment of such funds or adequate indemnity against such risk or liability is not reasonably assured to it.
(h) Barclays Bank PLC and its Affiliates may make loans to, accept deposits from, acquire Equity Interests in and generally engage in any kind of banking, trust, financial advisory, underwriting or other business with the Borrower and its Affiliates as though Barclays Bank PLC were not the Collateral Agent hereunder and without notice to or consent of the Secured Parties. The Secured Parties acknowledge that, pursuant to such activities, Barclays Bank PLC or its Affiliates may receive information regarding the Borrower or its Affiliates (including information that may be subject to confidentiality obligations in favor of the Borrower or such Affiliates) and acknowledge that the Collateral Agent shall be under no obligation to provide such information to them.
Appears in 2 contracts
Sources: Collateral Agency Agreement (Northeast Utilities System), Collateral Agency Agreement (Northeast Utilities System)
Rights of Collateral Agent. (a) The Collateral Agent may execute any of its duties under any the Security Document Documents or this Agreement by or through agents, sub-agents or attorneys-in-fact and shall be entitled to rely on the advice of counsel (including counsel to the Borrower) concerning all matters pertaining to such duties. The Collateral Agent shall not be responsible for the negligence or misconduct of any agent or sub-agent or attorney-in-fact that it selects in the absence of gross negligence or willful misconduct (as determined in the final judgment of a court of competent jurisdiction).
(b) Neither the Collateral Agent nor its Affiliates nor any of their respective its officers, directors, employees, agents or agents, attorneys-in-fact or affiliates shall be (i) liable to any of the Secured Parties for any action lawfully taken or omitted to be taken by it hereunder or under or in connection with any Security Document or this Agreement (except for its gross negligence, negligence or willful misconduct or unlawful acts, as determined by the final judgment of a court of competent jurisdiction, in connection with its duties expressly set forth herein), misconduct) or (ii) responsible in any manner to any of the Secured Senior Parties for any recitals, statements, representations or warranties made by the Borrower or any other Loan Party or any representative of any thereof contained in any Credit Security Document or this Agreement or in any certificate, report, statement or other document referred to or provided for in, or received by the Collateral Agent under or in connection with, any Credit Security Document or this Agreement or for the value, validity, effectiveness, genuineness, enforceability or sufficiency of the Credit Documents, Security Documents or the perfection or priority of any Lien or security interest created or purported to be created under the Security Documents, this Agreement or for any failure of the Borrower Company or any other Loan Party Person to perform their obligations thereunder. The Collateral Agent as such shall not be under any obligation to any Secured Senior Party or any other Person to ascertain or to inquire as to the observance or performance of any of the agreements contained in, or conditions of, any Credit Security Document or this Agreement, or to inspect the properties, books or records of the Borrower or any other Loan PartyCompany.
(c) The Collateral Agent shall be entitled to rely conclusivelyrely, and shall be fully protected in relying, upon any note, writing, resolution, request, direction, certificate, notice, consent, certificate, affidavit, letter, cablegram, telegram, telecopy, electronic mail message, telex or teletype message, statement, order or other document or conversation believed by it to be genuine and correct and to have been signed, sent or made by the proper Person or Persons and and/or upon advice and and/or statements of legal counsel (including including, without limitation, counsel to the BorrowerCompany), independent accountants and other experts selected by the Collateral Agent. In connection with any request or direction of the Required Senior Parties, the Collateral Agent shall be entitled to rely, and shall be fully protected in relying on any Senior Party Certificate delivered by a Senior Party; provided, however, that in the event the Collateral Agent receives conflicting directions contained in Senior Party Certificates representing two or more groups of Required Senior Parties, the Collateral Agent shall act in accordance with directions contained in Senior Party Certificates representing the greatest percentage of the Combined Exposure. The Collateral Agent shall be fully justified in failing or refusing to take any action under any Security Document or this Agreement (i) if such action would, in the opinion of the Collateral Agent (which may be based on the opinion of legal counsel), be contrary to law or the terms of this Agreement or the other Security Documents, (ii) if such action is not specifically provided for in such Security Document or this Agreement or it shall not have received any such advice or concurrence of the Required Senior Parties as it deems appropriate, (iii) if, in connection with the taking of any such action hereunder or under any Security Document that would constitute an exercise of remedies under such Security Document or this Agreement, it shall not first be indemnified to its satisfaction by the Senior Parties (other than the Trustee in its individual capacity and the Collateral Agent) against any and all risk of nonpayment, liability and expense which may be incurred by it by reason of taking or continuing to take any such action or (iv) if, notwithstanding anything to the contrary contained in Section 5.2(e), in connection with the taking of any such action that would constitute a payment due under any Transaction Document, it shall not first have received from the Senior Parties funds equal to the amount payable. The Collateral Agent shall in all cases be fully protected in acting, or in refraining from acting, under any Security Document or this Agreement or any other Credit Document in accordance with a request or consent of the Required Voting Senior Parties contained in Senior Party Certificates, and such request and any action taken or failure to act pursuant thereto shall be binding upon all the Secured Senior Parties.
(d) If, with respect to a proposed action to be taken by it, the Collateral Agent shall determine in good faith that the provisions of any Security Document or this Agreement relating to the functions or responsibilities or discretionary powers of the Collateral Agent are or may be ambiguous or inconsistent, the Collateral Agent shall notify the Senior Parties, identifying the proposed action, and may decline either to perform such function or responsibility or to take the action requested unless it has received the written confirmation of the Required Senior Parties executed by Authorized Representatives of such Persons that the Required Senior Parties concur in the circumstances that the action proposed to be taken by the Collateral Agent is consistent with the terms of this Agreement or such Security Document or is otherwise appropriate. The Borrower agrees Collateral Agent shall be fully protected in acting or refraining from acting upon the confirmation of the Required Senior Parties in this respect, and such confirmation shall be binding upon the Collateral Agent and the other Senior Parties.
(e) The Collateral Agent shall not be deemed to payhave actual, within 15 days constructive, direct or indirect knowledge or notice of the occurrence of any default or Event of Default or any other event unless and until a Responsible Officer of the Collateral Agent has received a written notice or a certificate from an Authorized Representative of a Senior Party or the Company stating that a default or an Event of Default has occurred. The Collateral Agent shall have no obligation whatsoever either prior to or after written demandreceiving such notice or certificate to inquire whether a default or an Event of Default has in fact occurred and shall be entitled to rely conclusively, and shall be fully protected in so relying, on any notice or certificate so furnished to it. No provision of this Agreement or any other Security Document shall require the Collateral Agent to expend or risk its own funds or otherwise incur any financial liability in the performance of any of its duties hereunder or under any Security Document or the exercise of any of its rights or powers, if it shall have reasonable grounds for believing that repayment of such funds or adequate indemnity against such risk or liability including an advance of funds necessary to take the action requested is not reasonably assured to it, except that in respect of any potential environmental liability or the taking of title to any real property, the Collateral Agent may decline to act unless it receives indemnity satisfactory to it in its sole discretion, including, but not limited to, an advance of funds necessary to take the action requested. If the Collateral Agent receives such a notice of the occurrence of any Event of Default, the Collateral Agent shall give notice thereof to the Senior Parties. The Senior Parties shall provide evidence of satisfactory indemnity to the Collateral Agent for any action directed by the Required Senior Parties including, but not limited to, an advance of funds necessary to take the action requested. The Collateral Agent shall take such action with respect to such Event of Default as so requested pursuant to Section 2.3(a) subject, however, to the third sentence of this Section 5.2(e).
(f) The Company will pay upon demand to the Collateral Agent the amount of any and all reasonable fees and documented out-of-pocket expenses, including the reasonable fees and documented Attorney Costs expenses of one New York its counsel (and any one local state counsel in each other applicable jurisdiction, counsel) and the reasonable costs of any experts and agents agents, which the Collateral Agent may reasonably incur in connection with (i) the administration of this Agreement and the other Security Documents, (ii) the custody or preservation of, or the sale of, collection from, or other realization upon, any of the Collateral, (iii) the exercise or enforcement (whether through negotiations, legal proceedings or otherwise) of any of the rights of the Collateral Agent or the Secured Senior Parties hereunder or under any of the other Security Documents or (iv) the failure by the Borrower, any other Loan Party or any Affiliate thereof Company to perform or observe any of the provisions hereof or of the Security Documents.
(e) Whether or not the transactions contemplated hereby are consummated, the Secured Parties shall indemnify upon demand the Collateral Agent (to the extent the Collateral Agent is required to be but is not reimbursed by or on behalf of the Loan Parties and without limiting the obligation of the Loan Parties to do so), pro rata (at the time such indemnity is sought), and hold harmless the Collateral Agent from and against any and all Indemnified Liabilities incurred by it; provided that no Secured Party shall be liable for the payment to the Collateral Agent of any portion of such Indemnified Liabilities resulting from the gross negligence or willful misconduct of the Collateral Agent as determined by the final judgment of a court of competent jurisdiction; provided further that no action taken in accordance with the directions of the Controlling Authorized Representative or the Required Voting Parties shall be deemed to constitute gross negligence or willful misconduct for purposes of this Section 5.01(e). In the case of any investigation, litigation or proceeding giving rise to any Indemnified Liabilities, this Section 5.01(e) applies whether any such investigation, litigation or proceeding is brought by any Secured Party or any other Person. The undertaking in this Section 5.01(e) shall survive termination of the Secured Obligations, the payment of all other Obligations and the resignation of the Collateral Agent.
(f) Whether or not the transactions contemplated hereby are consummated, the Borrower shall indemnify and hold harmless the Collateral Agent (“Indemnified Secured Party”) from and against any and all liabilities, obligations, losses, damages, penalties, claims, demands, actions, judgments, suits, costs, expenses and disbursements (including Attorney Costs) of any kind or nature whatsoever which may at any time be imposed on, incurred by or asserted against the Indemnified Secured Party in any way relating to or arising out of or in connection with (a) the execution, delivery, enforcement, performance or administration of any Credit Document or any other agreement, letter or instrument delivered in connection with the transactions contemplated thereby, (b) any Commitment or Loan or the use or proposed use of the proceeds therefrom, or (c) any actual or alleged presence or release of Hazardous Materials on or from any property currently or formerly owned or operated by the Borrower or any Subsidiary, or any Environmental Liability related in any way to the Borrower or any Subsidiary, or (d) any actual or prospective claim, litigation, investigation or proceeding relating to any of the foregoing, whether based on contract, tort or any other theory (including any investigation of, preparation for or defense of any pending or threatened claim, investigation, litigation or proceeding), in all cases, whether or not caused by or arising, in whole or in part, out of the negligence of the Indemnified Secured Party; provided that such indemnity shall not, as to the Indemnified Secured Party, be available to the extent that such liabilities, obligations, losses, damages, penalties, claims, demands, actions, judgments, suits, costs, expenses or disbursements resulted from the gross negligence, bad faith or willful misconduct of the Indemnified Secured Party. Neither the Indemnified Secured Party nor the Borrower shall have any liability for any special, punitive, indirect or consequential damages relating to this Agreement or any other Credit Document or arising out of its activities in connection herewith or therewith (whether before or after the Financial Closing Date). In the case of an investigation, litigation or other proceeding to which the indemnity in this Section 5.01(f) applies, such indemnity shall be effective whether or not any of the transactions contemplated hereunder or under any of the other Credit Documents is consummatedSecurity Documents. All amounts due under The provision of this Section 5.01(f) shall be paid within ten (10) Business Days after demand therefor. The agreements in this Section 5.01(f5.2(f) shall survive the resignation of the Collateral Agent, the replacement of any Secured Party, the expiration or earlier termination of any Secured Obligation and the repayment, satisfaction or discharge of all the other Obligationsthis Agreement.
(g) Each Secured Party acknowledges that no Agent-Related Person has made any representation or warranty to it, and that no act by any Agent hereafter taken, including any consent to and acceptance of any assignment or review of the affairs of the Borrower or any Affiliate thereof, shall be deemed to constitute any representation or warranty by any Agent-Related Person to any Secured Party as to any matter, including whether Agent-Related Persons have disclosed material information in their possession. Each Secured Party represents to each Agent that it has, independently and without reliance upon any Agent-Related Person and based on such documents and information as it has deemed appropriate, made its own appraisal of and investigation into the business, prospects, operations, property, financial and other condition and creditworthiness of the Borrower Group, and all applicable bank or other regulatory Laws relating to the transactions contemplated hereby, and made its own decision to enter into this Agreement and to extend credit to the Borrower under the Credit Documents. Each Secured Party also represents that it will, independently and without reliance upon any Agent-Related Person and based on such documents and information as it shall deem appropriate at the time, continue to make its own credit analysis, appraisals and decisions in taking or not taking action under this Agreement and the other Credit Documents, and to make such investigations as it deems necessary to inform itself as to the business, prospects, operations, property, financial and other condition and creditworthiness of the Borrower. Except for notices, reports and other documents expressly required to be furnished to the Secured Parties by any Agent herein, such Agent shall not have any duty or responsibility to provide any Secured Party with any credit or other information concerning the business, prospects, operations, property, financial and other condition or creditworthiness of the Borrower or any of its Affiliates which may come into the possession of any Agent-Related Person.
(h) Barclays Bank PLC and its Affiliates may make loans to, accept deposits from, acquire Equity Interests in and generally engage in any kind of banking, trust, financial advisory, underwriting or other business with the Borrower and its Affiliates as though Barclays Bank PLC were not the Collateral Agent hereunder and without notice to or consent of the Secured Parties. The Secured Parties acknowledge that, pursuant to such activities, Barclays Bank PLC or its Affiliates may receive information regarding the Borrower or its Affiliates (including information that may be subject to confidentiality obligations in favor of the Borrower or such Affiliates) and acknowledge that the Collateral Agent shall be under no obligation to provide such information to them.
Appears in 2 contracts
Sources: Collateral Agency Agreement (PPL Electric Utilities Corp), Collateral Agency and Intercreditor Agreement (Aes Ironwood LLC)
Rights of Collateral Agent. (a) The Collateral Agent may execute any of its duties under any Security Document by or through agentsand each such co-agent, sub-agents or attorneysagent, and attorney-in-fact and fact, including, without limitation, the Sub-Collateral Agents, shall be entitled to rely on seek the advice of counsel (including counsel to the Borrower) independent counsel, accountants, experts and other advisors selected by it concerning all matters pertaining to such duties. The Collateral Agent its rights and duties and shall not be responsible liable for the negligence any action or misconduct of any agent or sub-agent or attorney-in-fact that it selects inaction based in the absence of gross negligence or willful misconduct (as determined in the final judgment of a court of competent jurisdiction)good faith on such advice.
(b) Neither the Collateral Agent nor any of its Affiliates co-agents, sub-agents and attorneys-in-fact, including, without limitation, the Sub-Collateral Agents, nor any of their respective officers, directors, employees, agents agents, attorneys, or attorneys-in-fact affiliates shall be (i) liable to any of the Secured Parties or any other Person for any action lawfully taken or omitted to be taken by it hereunder or under or in connection with this Agreement, any other Security Document (except for its gross negligence, willful misconduct or unlawful acts, as determined by the final judgment of a court of competent jurisdiction, in connection with its duties expressly set forth herein), any Secured Transaction Document or (ii) responsible in any manner to any of the Secured Parties for any recitals, statements, representations or warranties made by the Borrower Company or any other Loan Party party to a Secured Transaction Document or any representative Authorized Officer of any thereof contained in any Credit Secured Transaction Document or in any certificate, report, statement or other document referred to or provided for in, or received by the Collateral Agent or any of its co-agents, sub-agents and attorneys-in-fact, including, without limitation, the Sub-Collateral Agents, under or in connection with, this Agreement, any Credit other Security Document, any Secured Transaction Document or any Collateral or for the value, validity, effectiveness, genuineness, enforceability or sufficiency of the Credit Documentsthis Agreement, any other Security Document or the perfection or priority of any Lien or security interest created or purported to be created under the Security Documents, Secured Transaction Documents or for any failure of the Borrower Company or any other Loan Party party to this Agreement, any other Security Document or any Secured Transaction Document to perform their its obligations hereunder or thereunder, except to the extent expressly agreed by it in the applicable Secured Transaction Document or for its own gross negligence or willful misconduct (as determined by a court of competent jurisdiction in a final non appealable judgment). The Neither the Collateral Agent as such nor any of its co-agents, sub-agents or attorneys-in-fact, including, without limitation, the Sub-Collateral Agents, shall not be under any obligation to any Secured Party to ascertain or to inquire as to the observance or performance of any of the agreements contained interms, conditions or conditions ofcovenants of this Agreement, any Credit other Security Document or any Secured Transaction Document, or to inspect the properties, books or records of the Borrower Company or any other Loan Partyparty to this Agreement, any other Security Document or any Secured Transaction Document.
(c) The Collateral Agent and each of its co-agents, sub-agents and attorneys-in-fact, , including, without limitation, the Sub-Collateral Agents, shall be fully entitled to request, receive and rely conclusively, and shall be fully protected in relying, relying upon any request, instrument, direction, instruction, communication, opinion, note, writing, resolution, notice, consent, certificate, affidavit, letter, telecopy, electronic mail message, telex or teletype message, statement, order or other document (whether in original or electronic form) reasonably believed by it to be genuine and correct and to have been signed, sent or made by the proper Person or Persons and upon advice and statements of legal counsel (including counsel to the Borrower)counsel, independent accountants and other experts selected with due care by it. Neither the Collateral Agent. The Agent nor any of its co-agents, sub-agents and attorneys-in-fact, including, without limitation, the Sub-Collateral Agent Agents, shall in all cases be fully protected in actinghave any duty or obligation to (i) verify, investigate, ascertain or in refraining from actingdetermine whether any request, under this Agreement instrument, note, writing, resolution, consent, order, statement, opinion, certificate, direction, instruction, notice, communication or document provided to it contains accurate and complete information or whether any other Credit Document in accordance with a request individual signing such request, instrument, note, writing, resolution, consent, order, statement, certificate, direction, instruction, notice, communication or consent of document has the Required Voting Parties and authority such request and individual purports to have or (ii) take any discretionary action taken or failure to act pursuant thereto shall be binding upon all the Secured Partiesprivilege or exercise any discretionary powers.
(d) The Borrower agrees to pay, within 15 days after written demand, to powers conferred on the Collateral Agent (and by extension to any of its co-agents, sub-agents and attorneys-in-fact, including, without limitation, the amount Sub-Collateral Agents) hereunder are solely to protect its interest in the Collateral and shall not impose any duty upon it to exercise any such powers. Except for the safe custody of any and all reasonable and documented out-of-pocket expenses, including the reasonable and documented Attorney Costs of one New York counsel and one local state counsel Collateral in each other applicable jurisdiction, its possession and the reasonable costs of any experts and agents which accounting for monies actually received by it hereunder, neither the Collateral Agent may reasonably incur in connection with (i) nor any of its co-agents, sub-agents and attorneys-in-fact, including, without limitation, the administration of Sub-Collateral Agents, shall have any other duty as to the Security DocumentsCollateral, (ii) whether or not the custody or preservation ofCollateral Agent, any other co-agents, sub-agents and attorneys-in-fact, including, without limitation, the Sub-Collateral Agents, or the sale of, collection from, or other realization upon, any of the Collateral, (iii) the exercise other Secured Parties has or enforcement (whether through negotiations, legal proceedings or otherwise) is deemed to have knowledge of any matters, or as to the taking of any necessary steps to preserve rights against any parties or any other rights pertaining to the rights Collateral. Neither the Collateral Agent nor any of its co-agents, sub-agents and attorneys-in-fact, including, without limitation, the Sub-Collateral Agents, shall be liable for any interest on any money received by it. The Collateral Agent and each of its co-agents, sub-agents and attorneys-in-fact, including, without limitation, the Sub-Collateral Agents, shall be deemed to have exercised reasonable care in the custody and preservation of the Collateral Agent or in its possession if such Collateral is accorded treatment substantially equal to that which it accords similar assets held for the Secured Parties under any benefit of the Security Documents or (iv) the failure by the Borrower, any other Loan Party or any Affiliate thereof to perform or observe any of the provisions of the Security Documentsthird parties.
(e) Whether or not the transactions contemplated hereby are consummated, the Secured Parties shall indemnify upon demand the Collateral Agent (to the extent the Collateral Agent is required to be but is not reimbursed by or on behalf of the Loan Parties and without limiting the obligation of the Loan Parties to do so), pro rata (at the time such indemnity is sought), and hold harmless the Collateral Agent from and against any and all Indemnified Liabilities incurred by it; provided that no Secured Party shall be liable for the payment to the Collateral Agent of any portion of such Indemnified Liabilities resulting from the gross negligence or willful misconduct of the Collateral Agent as determined by the final judgment of a court of competent jurisdiction; provided further that no action taken in accordance with the directions of the Controlling Authorized Representative or the Required Voting Parties shall be deemed to constitute gross negligence or willful misconduct for purposes of this Section 5.01(e). In the case of any investigation, litigation or proceeding giving rise to any Indemnified Liabilities, this Section 5.01(e) applies whether any such investigation, litigation or proceeding is brought by any Secured Party or any other Person. The undertaking in this Section 5.01(e) shall survive termination of the Secured Obligations, the payment of all other Obligations and the resignation of the Collateral Agent[Reserved].
(f) Whether or not the transactions contemplated hereby are consummatedThe Collateral Agent and each of its co-agents, sub-agents and attorneys-in-fact, including, without limitation, the Borrower shall indemnify and hold harmless the Sub-Collateral Agent (“Indemnified Secured Party”) from and against any and all liabilities, obligations, losses, damages, penalties, claims, demands, actions, judgments, suits, costs, expenses and disbursements (including Attorney Costs) of any kind or nature whatsoever which may at any time be imposed on, incurred by or asserted against the Indemnified Secured Party in any way relating to or arising out of or in connection with (a) the execution, delivery, enforcement, performance or administration of any Credit Document or any other agreement, letter or instrument delivered in connection with the transactions contemplated thereby, (b) any Commitment or Loan or the use or proposed use of the proceeds therefrom, or (c) any actual or alleged presence or release of Hazardous Materials on or from any property currently or formerly owned or operated by the Borrower or any Subsidiary, or any Environmental Liability related in any way to the Borrower or any Subsidiary, or (d) any actual or prospective claim, litigation, investigation or proceeding relating to any of the foregoing, whether based on contract, tort or any other theory (including any investigation of, preparation for or defense of any pending or threatened claim, investigation, litigation or proceeding), in all cases, whether or not caused by or arising, in whole or in part, out of the negligence of the Indemnified Secured Party; provided that such indemnity shall not, as to the Indemnified Secured Party, be available to the extent that such liabilities, obligations, losses, damages, penalties, claims, demands, actions, judgments, suits, costs, expenses or disbursements resulted from the gross negligence, bad faith or willful misconduct of the Indemnified Secured Party. Neither the Indemnified Secured Party nor the Borrower shall have any liability for any special, punitive, indirect or consequential damages relating to this Agreement or any other Credit Document or arising out of its activities in connection herewith or therewith (whether before or after the Financial Closing Date). In the case of an investigation, litigation or other proceeding to which the indemnity in this Section 5.01(f) applies, such indemnity shall be effective whether or not any of the transactions contemplated hereunder or under any of the other Credit Documents is consummated. All amounts due under this Section 5.01(f) shall be paid within ten (10) Business Days after demand therefor. The agreements in this Section 5.01(f) shall survive the resignation of the Collateral Agent, the replacement of any Secured Party, the termination of any Secured Obligation and the repayment, satisfaction or discharge of all the other Obligations.
(g) Each Secured Party acknowledges that no Agent-Related Person has made any representation or warranty to itAgents, and that no act by any Agent hereafter taken, including any consent to and acceptance of any assignment or review of the affairs of the Borrower or any Affiliate thereof, shall be deemed to constitute any representation or warranty by any Agent-Related Person to any Secured Party as to any matter, including whether Agent-Related Persons have disclosed material information in their possession. Each Secured Party represents to each Agent that it has, independently and without reliance upon any Agent-Related Person and based on such documents and information as it has deemed appropriate, made its own appraisal of and investigation into the business, prospects, operations, property, financial and other condition and creditworthiness of the Borrower Group, and all applicable bank or other regulatory Laws relating to the transactions contemplated hereby, and made its own decision to enter into this Agreement and to extend credit to the Borrower under the Credit Documents. Each Secured Party also represents that it will, independently and without reliance upon any Agent-Related Person and based on such documents and information as it shall deem appropriate at the time, continue to make its own credit analysis, appraisals and decisions in taking or not taking action under this Agreement and the other Credit Documents, and to make such investigations as it deems necessary to inform itself as to the business, prospects, operations, property, financial and other condition and creditworthiness of the Borrower. Except for notices, reports and other documents expressly required to be furnished to the Secured Parties by any Agent herein, such Agent shall not have any duty or responsibility to provide any Secured Party with any credit or other information concerning the business, prospects, operations, property, financial and other condition or creditworthiness of the Borrower or any of its Affiliates which may come into the possession of any Agent-Related Person.
(h) Barclays Bank PLC and its respective Affiliates may make loans to, accept deposits from, acquire Equity Interests in from and generally engage in any kind of banking, trust, financial advisory, underwriting or other business with the Borrower Company and the other parties to the Secured Transaction Documents, without regard to its Affiliates acting as the Collateral Agent or co-agent, sub-agent or attorney-in-fact hereunder and under the other Secured Transaction Documents. With respect to the extensions of credit made by it under a Secured Transaction Document, if any, the Collateral Agent and each co-agent, sub-agent and attorney-in-fact, including, without limitation, the Sub-Collateral Agents, shall have the same rights and powers under this Agreement and the other Secured Transaction Documents as any other Secured Party making a comparable extension of credit to the Company and may exercise the same as though Barclays Bank PLC it were not the Collateral Agent hereunder or a co-agent, sub-agent or attorney-in-fact hereunder.
(g) For the purposes of this Agreement, the other Security Documents and all Secured Transaction Documents, neither the Collateral Agent nor any of its co-agents, sub-agents and attorneys-in-fact, including, without limitation, the Sub-Collateral Agents, shall be deemed to have knowledge of, (i) the occurrence of any Default or Event of Default, or any other triggering event under the Security Documents or Secured Transaction Documents unless and until such Person has received written notice thereof from the Controlling Agent or the Company or, with respect to the LC Facility Agent or ▇▇▇▇, in any such capacity, it has actual knowledge thereof, (ii) the existence, the content, or the terms and conditions of, any other agreement, instrument or document, in each case, to which it is not a party or beneficiary (so long as, in such capacity as a beneficiary, it has received such other agreement, instrument or document), whether or not referenced herein, (iii) the performance or observance of any of the covenants, agreements or other terms or conditions set forth in any Security Document or Secured Transaction Document, (iv) the validity, enforceability, effectiveness or genuineness of any Secured Transaction Document or any other agreement, instrument or document or (v) the satisfaction of any condition set forth in Articles II or III or Section 5.02 of the LC Facility Agreement or elsewhere in any Security Document or other Secured Transaction Document. The Sub-Collateral Agents or any co-agents, sub-agents and attorneys-in-fact, including, without limitation, the Sub-Collateral Agents, may take such action with respect to such Event of Default as is required and permitted to be taken by it pursuant to each Security Document or other Secured Transaction Document at the written direction of the Controlling Agent or Controlling Secured Parties following the occurrence thereof, and neither any Sub-Collateral Agent nor any of its co-agents, sub-agents and attorneys-in-fact, including, without limitation, the Sub-Collateral Agents, shall have any liability for acting in accordance with any such direction. Without prejudice to the foregoing, none of the knowledge or information that any department or division of the Collateral Agent, any of its co-agents, sub-agents and attorneys-in-fact, including, without limitation, the Sub-Collateral Agents, or any of their respective Affiliates may have from time to time shall be attributed to it, and it shall have no duty to disclose, nor shall it be liable for the failure to disclose, any information relating to the Company that is communicated to or consent obtained by it or any of its Affiliates in any capacity.
(h) Neither the Collateral Agent nor any of its co-agents, sub-agents and attorneys-in-fact, including, without limitation, the Sub-Collateral Agents, shall be deemed to have knowledge of facts and circumstances unless it has received written notice of such facts and circumstances in accordance with Section 6.01, nor shall it have any obligation to perform any actions or respond to any matters without express authorization to do so.
(i) Subject to Section 2.04, notwithstanding anything to the contrary contained herein or in any other Secured Transaction Document, in no event shall the Collateral Agent or any of its co-agents, sub-agents and attorneys-in-fact, including, without limitation, the Sub-Collateral Agents, be obligated to execute or deliver any document evidencing any release or re-conveyance without receipt of a certificate executed by a Senior Officer of the Company certifying that such release is permitted by this Agreement, the other Security Documents, and the other Secured Parties. The Secured Parties acknowledge thatTransaction Documents, pursuant and that all conditions precedent to such activitiesrelease or re-conveyance (if any) have been complied with.
(j) The parties hereto acknowledge that in accordance with the Customer Identification Program (CIP) requirements under the Patriot Act and its implementing regulations, Barclays Bank PLC or its Affiliates may receive information regarding the Borrower or its Affiliates (including Collateral Agent in order to help fight the funding of terrorism and money laundering, is required to obtain, verify, and record information that identifies each person or legal entity that establishes a relationship or opens an account with the Collateral Agent. Each party hereby agrees that it shall provide the Collateral Agent with such information as the Collateral Agent may reasonably request that will help the Collateral Agent to identify and verify each party’s identity, including without limitation each party’s name, physical address, tax identification number, organizational documents, certificate of good standing, license to do business, or other pertinent identifying information.
(k) Any entity into which the Collateral Agent may be subject merged or converted or with which it may be consolidated, or any entity resulting from any merger, conversion or consolidation to confidentiality obligations in favor of the Borrower or such Affiliates) and acknowledge that which the Collateral Agent shall be a party, or any entity succeeding to the business of the Collateral Agent shall be, subject to the satisfaction of applicable “know-your-customer” requirements of the Senior Secured Party Representatives, the successor of the Collateral Agent hereunder without the execution or filing of any paper with any party hereto or any further act on the part of any of the parties hereto except where an instrument of transfer or assignment is required by law to effect such succession, anything herein to the contrary notwithstanding.
(l) Neither the Collateral Agent nor any of its co-agents, sub-agents and attorneys-in-fact, including, without limitation, the Sub-Collateral Agents, will be liable for any delay (or any related consequences) in crediting an account with an amount required under no obligation this Agreement to be paid by it if it has taken all necessary steps to comply with the regulations or operating procedures of any recognized clearing or settlement system used by it for that purpose.
(m) Neither the Collateral Agent nor any of its co-agents, sub-agents and attorneys-in-fact, including, without limitation, the Sub-Collateral Agents, shall be liable for any error of judgment made in good faith unless it shall be proved that it was grossly negligent in ascertaining the pertinent facts (as determined by a court of competent jurisdiction in a final, non-appealable judgment).
(n) Whether or not therein expressly so provided, every provision of this Agreement, each Security Document, and each other Secured Transaction Document relating to the conduct or affecting the liability of or affording protection to the Collateral Agent or any of its co-agents, sub-agents and attorneys-in-fact, including, without limitation, the Sub-Collateral Agents, shall be deemed to incorporate the provisions of Section 4.02 and this Section 4.03 and such provisions will also be deemed to extend to each of their respective co-agents, sub-agents, attorneys, custodians, an nominees, whether or not so stated.
(o) The Collateral Agent may, from time to time, request that the Company and each Senior Secured Party Representative deliver a certificate (upon which the Collateral Agent may conclusively rely) setting forth the names of individuals and/or titles of officers authorized at such time to take specified actions pursuant to this Agreement or any related document together with a specimen signature of such authorized officers.
(p) In order to comply with applicable Tax laws, rules and regulations (“Applicable Tax Law”) related to this Agreement or any agreement supplemental hereto, the parties hereto each agree: (i) to provide to the Collateral Agent sufficient information about such information parties and/or transactions (including any modification to themthe terms of such transactions) so it can determine whether it has any Tax-related obligations under Applicable Tax Law, and (ii) that the Collateral Agent and each of its co-agents, sub-agents and attorneys-in-fact, including, without limitation, the Sub-Collateral Agents, shall be entitled to make any withholding or deduction from payments this Agreement or any agreement supplemental hereto to the extent necessary to comply with Applicable Tax Law for which it shall not have any liability. The Company agrees to indemnify the Collateral Agent and each of its co-agents, sub-agents and attorneys-in-fact, including, without limitation, the Sub-Collateral Agents, for, and to hold each harmless against, any losses it may suffer due to the actions it takes to comply with such Applicable Tax Law. The terms of this section shall survive the termination of this Agreement or the earlier resignation or removal of the Collateral Agent or applicable co-agent, sub-agent or attorney-in-fact hereunder.
(q) In the event of any disagreement between the Controlling Agent and any Senior Secured Party Representative, the Controlling Agent shall control with respect to its applicable Collateral. In the event of any disagreement as to the identity of the Controlling Agent resulting in adverse claims or demands being made with respect to the subject matter of this Agreement, or in the event that the Collateral Agent, in good faith, is in doubt as to any action it should take hereunder, the Collateral Agent may refuse to comply with any claims or demands and refuse to take any other action hereunder, so long as such disagreement continues or such doubt exists, and in any such event, the Collateral Agent shall not be liable in any way or to any person for its failure or refusal to act, and the Collateral Agent shall be entitled to continue to so refuse to act and refrain from acting until the Collateral Agent shall have received either (i
Appears in 1 contract
Sources: Collateral Agency and Intermediation Rights Agreement (Par Pacific Holdings, Inc.)