Security Agent. (a) Each of the holders by acceptance of the Notes, and each beneficial owner of an interest in a Note, hereby designates and appoint the Security Agent as its agent under this Indenture, the Security Documents and the Intercreditor Agreement and each of the holders by acceptance of the Notes, and each beneficial owner of an interest in a Note, hereby irrevocably authorizes the Security Agent to take such action on its behalf under the provisions of this Indenture, the Security Documents, the Intercreditor Agreement, if any, and to exercise such powers and perform such duties as are expressly delegated to the Security Agent by the terms of this Indenture, the Security Documents, the Intercreditor Agreement, if any, and consents and agrees to the terms of this Indenture, the Intercreditor Agreement and each Security Document (as applicable), as the same may be in effect or may be amended, restated, supplemented or otherwise modified from time to time in accordance with their respective terms. The Security Agent agrees to act as such on the express conditions contained in this Section 10.07. Each holder agrees that any action taken by the Security Agent in accordance with the provisions of this Indenture, the Intercreditor Agreement or the Security Documents (as applicable), and the exercise by the Security Agent of any rights or remedies set forth herein and therein shall be authorized and binding upon all holders. Notwithstanding any provision to the contrary contained elsewhere in this Indenture, the Security Documents or the Intercreditor Agreement (as applicable) the duties of the Security Agent shall be ministerial and administrative in nature, and the Security Agent shall not have any duties or responsibilities, except those expressly set forth herein and in the Security Documents and/or the Intercreditor Agreement (as applicable) to which the Security Agent is a party, nor shall the Security Agent have or be deemed to have any trust or other fiduciary relationship with the Trustee, any holder or any Grantor, and no implied covenants, functions, responsibilities, duties, obligations or liabilities shall be read into this Indenture, the Security Documents, the Intercreditor Agreement or otherwise exist against the Security Agent. Without limiting the generality of the foregoing sentence, the use of the term “agent” in this Indenture with reference to the Security Agent is not intended to connote any fiduciary or other implied (or express) obligations arising under agency doctrine of any applicable law. Instead, such term is used merely as a matter of market custom, and is intended to create or reflect only an administrative relationship between independent contracting parties. (b) The Security Agent may perform any of its duties under this Indenture, the Security Documents and/or the Intercreditor Agreement (as applicable) by or through receivers, agents, employees, attorneys-in-fact or with respect to any specified Person, such Person’s Affiliates, and the respective officers, directors, employees, agents, advisors and attorneys-in-fact of such Person and its Affiliates (a “Related Person”), and shall be entitled to advice of counsel concerning all matters pertaining to such duties, and shall be entitled to act upon, and shall be fully protected in taking action in reliance upon any advice or opinion given by legal counsel. The Security Agent shall not be responsible for the negligence or willful misconduct of any receiver, agent, employee, attorney-in-fact or Related Person that it selects as long as such selection was made in good faith and with due care. The exculpatory provisions of this Article X shall apply to any such sub-agent and to the Affiliates of the Security Agent and any such sub-agent. (c) None of the Security Agent or any of its respective Related Persons shall (i) be liable for any action taken or omitted to be taken in good faith by any of them under or in connection with this Indenture or the transactions contemplated hereby (except for its own gross negligence or willful misconduct as determined by a court of competent jurisdiction by a final and non-appealable judgment) or under or in connection with any Security Document and/or Intercreditor Agreement or the transactions contemplated thereby (except for its own gross negligence or willful misconduct as determined by a court of competent jurisdiction by a final and non-appealable judgment), or (ii) be responsible in any manner to any of the Trustee or any holder for any recital, statement, representation, warranty, covenant or agreement made by the Issuer or any other Grantor or Affiliate of any Grantor, or any Officer or Related Person thereof, contained in this Indenture, the Security Documents and/or the Intercreditor Agreement or in any certificate, report, statement or other document referred to or provided for in, or received by the Security Agent under or in connection with, this Indenture, the Security Documents and/or the Intercreditor Agreement or the validity, effectiveness, genuineness, enforceability or sufficiency of this Indenture, the Security Documents and/or the Intercreditor Agreement or for any failure of any Grantor or any other party to this Indenture, the Security Documents and/or the Intercreditor Agreement to perform its obligations hereunder or thereunder (if any). None of the Security Agent or any of its Related Persons shall be under any obligation to the Trustee or any holder to ascertain or to inquire as to the observance or performance of any of the agreements contained in, or conditions of, this Indenture, the Security Documents and/or the Intercreditor Agreement, if any, or to inspect the properties, books, or records of any Grantor or any Grantor’s Affiliates. (d) The Security Agent shall be entitled to rely, and shall be fully protected in relying, upon any writing, resolution, notice, consent, certificate, affidavit, letter, telegram, facsimile, certification, telephone message, statement, or other communication, document or conversation (including those by telephone or e-mail) believed by it to be genuine and correct and to have been signed, sent, or made by the proper Person or Persons, and upon advice and statements of legal counsel (including, without limitation, counsel to the Issuer or any other Grantor), independent accountants and other experts and advisors selected by the Security Agent. The Security Agent shall not be bound to make any investigation into the facts or matters stated in any resolution, certificate, statement, instrument, opinion, report, notice, request, direction, consent, order, bond, debenture, or other paper or document. Unless otherwise expressly required hereunder or pursuant to the Security Documents or the Intercreditor Agreement, the Security Agent shall be fully justified in failing or refusing to take any action under this Indenture, the Security Documents and/or the Intercreditor Agreement unless it shall first receive such written advice or concurrence of the Trustee or the holders of a majority in aggregate principal amount of the Notes as it determines and, if it so requests, it shall first be indemnified to its satisfaction by the holders against any and all liability and expense which may be incurred by it by reason of taking or continuing to take any such action. The Security Agent shall in all cases be fully protected in acting, or in refraining from acting, under this Indenture, the Security Documents and/or the Intercreditor Agreement in accordance with a request, direction, instruction or consent of the Trustee or the holders of a majority in aggregate principal amount of the then outstanding Notes and such request and any action taken or failure to act pursuant thereto shall be binding upon all of the holders. (e) The Security Agent shall not be deemed to have knowledge or notice of the occurrence of any Default or Event of Default, unless a Responsible Officer of the Security Agent shall have received written notice from the Trustee or the Issuer referring to this Indenture, describing such Default or Event of Default and stating that such notice is a “notice of default” and such notice references the Notes, the Issuer and this Indenture. The Security Agent shall take such action with respect to such Default or Event of Default as may be requested by the Trustee in accordance with Article VI or the holders of a majority in aggregate principal amount of the Notes (subject to this Section 10.07). (f) The Security Agent under this Indenture may resign at any time by ▇▇▇▇▇▇ (30) Business Days’ written notice to the Trustee and the Issuer, such resignation to be effective upon the acceptance of a successor agent to its appointment as Security Agent. If the Security Agent resigns under this Indenture, the Issuer shall appoint a successor collateral agent. If no successor collateral agent is appointed prior to the intended effective date of the resignation of the Security Agent (as stated in the notice of resignation), the Trustee, at the written direction of the holders of a majority of the aggregate principal amount of the Notes then outstanding, may appoint a successor collateral agent under this Indenture, subject to the consent of the Issuer (which consent shall not be unreasonably withheld and which shall not be required during a continuing Event of Default). If no successor collateral agent is appointed and consented to by the Issuer pursuant to the preceding sentence within 30 days after the intended effective date of resignation (as stated in the notice of resignation) the Security Agent shall be entitled to petition a court of competent jurisdiction to appoint a successor. Upon the acceptance of its appointment as successor collateral agent hereunder, such successor collateral agent shall succeed to all the rights, powers and duties of the retiring Security Agent, and the term “Security Agent” shall include such successor collateral agent, and the retiring Security Agent’s appointment, powers and duties as the Security Agent shall be terminated. After the retiring Security Agent’s resignation hereunder, the provisions of this Section 10.07 (and Section 7.07 hereof) shall continue to inure to its benefit and the retiring Security Agent shall not by reason of such resignation be deemed to be released from liability as to any actions taken or omitted to be taken by it while it was the Security Agent under this Indenture. (g) Except as otherwise explicitly provided herein or in the Security Documents or the Intercreditor Agreement, neither the Security Agent nor any of its respective officers, directors, employees or agents or other Related Persons shall be liable for failure to demand, collect or realize upon any of the Collateral or for any delay in doing so or shall be under any obligation to sell or otherwise dispose of any Collateral upon the request of any other Person or to take any other action whatsoever with regard to the Collateral or any part thereof. The Security Agent shall be accountable only for amounts that it actually receives as a result of the exercise of such powers, and neither the Security Agent nor any of its officers, directors, employees or agents shall be responsible for any act or failure to act hereunder, except for its own gross negligence or willful misconduct as determined by a court of competent jurisdiction by a final and non-appealable judgment. (h) The Trustee and/or the Security Agent, as applicable, are hereby authorized and directed to, and hereby agree to, whether on or after the Issue Date (i) enter into and/or join the Security Documents to which it is party (and any joinders, supplements or amendments thereto contemplated hereby), (ii) make any representations of the holders set forth in the Security Documents or the Intercreditor Agreement, (iii) bind the holders on the terms as set forth in the Security Documents and the Intercreditor Agreement and (iv) perform and observe its obligations under the Security Documents and the Intercreditor Agreement. Any such action shall be at the direction and expense of the Issuer and shall be accompanied by an Officer’s Certificate and an Opinion of Counsel stating that the execution is authorized or permitted pursuant to this Indenture; provided that neither an Officer’s Certificate nor an Opinion of Counsel shall be required in connection with the entry into the any accession documents to the Intercreditor Agreement by the Security Agent on the Issue Date. (i) If applicable, the Security Agent is each holder’s agent for the purpose of perfecting the holders’ security interest in assets which, in accordance with Article 9 of the Uniform Commercial Code, can be perfected only by possession. Should the Trustee obtain possession of any such Collateral, upon written request from the Issuer, the Trustee shall notify the Security Agent thereof and promptly shall, subject to the Intercreditor Agreement, deliver such Collateral to the Security Agent or otherwise deal with such Collateral in accordance with the Security Agent’s instructions. (j) The Security Agent shall have no obligation whatsoever to the Trustee or any of the holders to assure that the Collateral exists or is owned by any Grantor or is cared for, protected, or insured or has been encumbered, or that the Security Agent’s Liens have been properly or sufficiently or lawfully created, perfected, protected, maintained or enforced or are entitled to any particular priority, or to determine whether all or the Grantor’s property constituting Collateral intended to be subject to the Lien and security interest of the Security Documents has been properly and completely listed or delivered, as the case may be, or the genuineness, validity, marketability or sufficiency thereof or title thereto, or to exercise at all or in any particular manner or under any duty of care, disclosure, or fidelity, or to continue exercising, any of the rights, authorities, and powers granted or available to the Security Agent pursuant to this Indenture, any Security Document or the Intercreditor Agreement, other than pursuant to the instructions of the holders of a majority in aggregate principal amount of the Notes or as otherwise provided in the Security Documents. (k) No provision of this Indenture, any Security Document or the Intercreditor Agreement shall require the Security Agent (or the Trustee) to expend or risk its own funds or otherwise incur any financial liability in the performance of any of its duties hereunder or thereunder or to take or omit to take any action hereunder or thereunder or take any action at the request or direction of holders (or the Trustee in the case of the Security Agent), unless it shall have received indemnity and/or security satisfactory to the Security Agent and the Trustee against potential costs and liabilities incurred by the Security Agent and the Trustee relating thereto. Notwithstanding anything to the contrary contained in this Indenture, the Security Documents or the Intercreditor Agreement, in the event the Security 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 Security Agent shall not be required to commence any such action or exercise any remedy or to inspect or conduct any studies of any property under the mortgages or take any such other action if the Security Agent has determined that the Security 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 Security Agent shall at any time be entitled to cease taking any action described in this clause (k) if it no longer reasonably deems any indemnity, security or undertaking from the Issuer or the holders to be sufficient. (l) The Security Agent (i) shall not be liable for any action taken or omitted to be taken by it in connection with this Indenture, the Security Documents and/or the Intercreditor Agreement 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 bad faith, gross negligence or willful misconduct as determined by a court of competen
Appears in 1 contract
Sources: Indenture (Outbrain Inc.)
Security Agent. (a) Each The Security Agent agrees to take instructions from the Trustee in accordance with this Indenture with respect thereto and agrees to act as a collateral agent under the Security Documents for and on behalf of the holders by acceptance Holders.
(b) Each Holder of the Notes, and each beneficial owner of an interest in a Note, hereby designates and appoint the Security Agent as by its agent under this Indentureacceptance thereof, the Security Documents and the Intercreditor Agreement and each of the holders by acceptance of the Notes, and each beneficial owner of an interest in a Note, hereby irrevocably authorizes the Security Agent to take such action on its behalf under the provisions of this Indenture, the Security Documents, the Intercreditor Agreement, if any, and to exercise such powers and perform such duties as are expressly delegated to the Security Agent by the terms of this Indenture, the Security Documents, the Intercreditor Agreement, if any, and consents and agrees agrees:
(1) to the terms of this Indenturethe Security Documents (including, without limitation, the Intercreditor Agreement provisions providing for foreclosure, release, amendments and each Security Document (as applicable), re-filings of Collateral) as the same may be in effect or may be amended, restated, supplemented or otherwise modified amended from time to time in accordance with their respective terms. The Security Agent agrees to act as such on the express conditions contained in this Section 10.07. Each holder agrees that any action taken by its terms and authorizes and directs the Security Agent in accordance with the provisions of this Indenture, the Intercreditor Agreement or to enter into the Security Documents and to perform its obligations and exercise its rights thereunder in accordance therewith; and
(as applicable), and the exercise by the Security Agent of any rights or remedies set forth herein and therein shall be authorized and binding upon all holders. Notwithstanding any provision to the contrary contained elsewhere in this Indenture, the Security Documents or the Intercreditor Agreement (as applicable2) the duties of that the Security Agent shall be ministerial entitled to the rights, privileges, protections, immunities, indemnities and administrative benefits provided to the Security Agent by the Security Documents. Furthermore, each Holder of a Note, by accepting such Note, agrees, acknowledges and consents to the terms (including, but not limited to, waivers, representations and covenants) of and authorizes and directs the Trustee (in nature, each of its capacities) and the Security Agent shall not have any duties or responsibilities, except those expressly set forth herein to enter into and in perform the Security Documents and/or the Intercreditor Agreement (as applicable) to which the Security Agent is a party, nor shall the Security Agent have or be deemed to have any trust or other fiduciary relationship with the Trustee, any holder or any Grantor, and no implied covenants, functions, responsibilities, duties, obligations or liabilities shall be read into this Indenture, the Security Documents, the Intercreditor Agreement or otherwise exist against the Security Agent. Without limiting the generality of the foregoing sentence, the use of the term “agent” in this Indenture with reference to the Security Agent is not intended to connote any fiduciary or other implied (or express) obligations arising under agency doctrine of any applicable law. Instead, such term is used merely as a matter of market custom, and is intended to create or reflect only an administrative relationship between independent contracting parties.
(b) The Security Agent may perform any each of its duties under this Indenture, the Security Documents and/or the Intercreditor Agreement (as applicable) by or through receivers, agents, employees, attorneys-in-fact or with respect to any specified Person, such Person’s Affiliates, and the respective officers, directors, employees, agents, advisors and attorneys-in-fact of such Person and its Affiliates (a “Related Person”), and shall be entitled to advice of counsel concerning all matters pertaining to such duties, and shall be entitled to act upon, and shall be fully protected in taking action in reliance upon any advice or opinion given by legal counsel. The Security Agent shall not be responsible for the negligence or willful misconduct of any receiver, agent, employee, attorney-in-fact or Related Person that it selects as long as such selection was made in good faith and with due care. The exculpatory provisions of this Article X shall apply to any such sub-agent and to the Affiliates of the Security Agent and any such sub-agentcapacities thereunder.
(c) None of The Trustee has conducted no due diligence or investigation with respect to the Security Agent or any of its respective Related Persons shall (i) be liable for any action taken or omitted to be taken in good faith by any of them under or in connection with this Indenture or the transactions contemplated hereby (except for its own gross negligence or willful misconduct as determined by a court of competent jurisdiction by a final and non-appealable judgment) or under or in connection with any Security Document and/or Intercreditor Agreement or the transactions contemplated thereby (except for its own gross negligence or willful misconduct as determined by a court of competent jurisdiction by a final and non-appealable judgment), or (ii) be responsible in any manner to any of the Trustee or any holder for any recital, statement, representation, warranty, covenant or agreement made by the Issuer or any other Grantor or Affiliate of any Grantor, or any Officer or Related Person thereof, contained in this Indenture, the Security Documents and/or the Intercreditor Agreement or in any certificate, report, statement or other document referred to or provided for in, or received by the Security Agent under or in connection with, this Indenture, the Security Documents and/or the Intercreditor Agreement or the validity, effectiveness, genuineness, enforceability or sufficiency of this Indenture, the Security Documents and/or the Intercreditor Agreement or for any failure of any Grantor or any other party to this Indenture, the Security Documents and/or the Intercreditor Agreement ability to perform its obligations hereunder required duties and accepts no responsibility or thereunder (if any). None liability for any acts, omissions or defaults of the Security Agent or any of its Related Persons shall be under any obligation to the Trustee or any holder to ascertain or to inquire as to the observance or performance of any of the agreements contained in, or conditions of, this Indenture, the Security Documents and/or the Intercreditor Agreement, if any, or to inspect the properties, books, or records of any Grantor or any Grantor’s AffiliatesAgent.
(d) The Security Agent shall be entitled obligated to relyperform such duties and only such duties as are specifically set forth in this Indenture and the Security Documents, and no implied duties or obligation shall be fully protected in relying, upon any writing, resolution, notice, consent, certificate, affidavit, letter, telegram, facsimile, certification, telephone message, statement, or other communication, document or conversation (including those by telephone or e-mail) believed by it to be genuine read into this Indenture and correct and to have been signed, sent, or made by the proper Person or Persons, and upon advice and statements of legal counsel (including, without limitation, counsel to the Issuer or any other Grantor), independent accountants and other experts and advisors selected by Security Documents against the Security Agent. The Security Agent shall not be bound to make any investigation into the facts or matters stated in any resolution, certificate, statement, instrument, opinion, report, notice, request, direction, consent, order, bond, debenture, or other paper or document. Unless otherwise expressly required hereunder or pursuant to the Security Documents or the Intercreditor Agreement, the Security Agent shall be fully justified in failing or refusing to take any action under this Indenture, the Security Documents and/or the Intercreditor Agreement unless it shall first receive such written advice or concurrence of the Trustee or the holders of a majority in aggregate principal amount of the Notes as it determines and, if it so requests, it shall first be indemnified to its satisfaction by the holders against any and all liability and expense which may be incurred by it by reason of taking or continuing to take any such action. The Security Agent shall in all cases be fully protected in acting, or in refraining from acting, under this Indenture, the Security Documents and/or the Intercreditor Agreement in accordance with a request, direction, instruction or consent of the Trustee or the holders of a majority in aggregate principal amount of the then outstanding Notes and such request and any action taken or failure to act pursuant thereto shall be binding upon all of the holders.
(e) The Security Agent shall not be deemed to have knowledge or notice of the occurrence of any Default or Event of Default, unless a Responsible Officer of the Security Agent shall have received written notice from the Trustee or the Issuer referring to this Indenture, describing such Default or Event of Default and stating that such notice is a “notice of default” and such notice references the Notes, the Issuer and this Indenture. The Security Agent shall take such action with respect to such Default or Event of Default as may be requested by the Trustee in accordance with Article VI or the holders of a majority in aggregate principal amount of the Notes (subject to this Section 10.07).
(f) The Security Agent under this Indenture may resign at any time by ▇▇▇▇▇▇ (30) Business Days’ written notice to the Trustee and the Issuer, such resignation to be effective upon the acceptance of a successor agent to its appointment as Security Agent. If the Security Agent resigns under this Indenture, the Issuer shall appoint a successor collateral agent. If no successor collateral agent is appointed prior to the intended effective date of the resignation of the Security Agent (as stated in the notice of resignation), the Trustee, at the written direction of the holders of a majority of the aggregate principal amount of the Notes then outstanding, may appoint a successor collateral agent under this Indenture, subject to the consent of the Issuer (which consent shall not be unreasonably withheld and which shall not be required during a continuing Event of Default). If no successor collateral agent is appointed and consented to by the Issuer pursuant to the preceding sentence within 30 days after the intended effective date of resignation (as stated in the notice of resignation) the Security Agent shall be entitled to petition a court of competent jurisdiction to appoint a successor. Upon the acceptance of its appointment as successor collateral agent hereunder, such successor collateral agent shall succeed to all the rights, powers and duties of the retiring Security Agent, and the term “Security Agent” shall include such successor collateral agent, and the retiring Security Agent’s appointment, powers and duties as the Security Agent shall be terminated. After the retiring Security Agent’s resignation hereunder, the provisions of this Section 10.07 (and Section 7.07 hereof) shall continue to inure to its benefit and the retiring Security Agent shall not by reason of such resignation be deemed to be released from liability as to any actions taken or omitted to be taken by it while it was the Security Agent under this Indenture.
(g) Except as otherwise explicitly provided herein or in the Security Documents or the Intercreditor Agreement, neither Neither the Security Agent nor any of its respective officers, directors, employees or agents or other Related Persons shall be liable for failure obliged to:
(1) make any enquiry as to demand, collect any breach or realize upon default by the Company or any Subsidiary Guarantor in the performance or observance of any of the Collateral provisions of this Indenture or the Security Documents or as to the existence of a Default or an Event of Default; or
(2) do anything (including, without limitation, disclosing any document or information) which would, or might in its opinion, be contrary to any law or regulation or be a breach of any duty of confidentiality or otherwise be actionable or render it liable to any person; or
(3) account to any person for any delay in doing so sum or shall be under any obligation to sell or otherwise dispose the profit element of any Collateral upon the request of any other Person or to take any other action whatsoever with regard to the Collateral or any part thereof. sum received by it for its own account.
(f) The Security Agent shall be accountable only hold the relevant Collateral for amounts that it actually receives as a result and on behalf of the exercise Holders and not as an agent of such powersthe Trustee. Notwithstanding anything to the contrary in this Indenture, and neither there is no principal-agent, trustee-beneficiary or fiduciary relationship between the Security Agent and the Trustee and, for the avoidance of doubt, the Security Agent has no authority to enter into contractual obligations on behalf of the Trustee. Neither the Trustee nor any of its officers, directors, employees or agents shall the Security Agent will be responsible for and make any act representation or failure warranty as to act hereunderthe validity, except for legality or enforceability of the Note Guarantees or the Security Documents or as to the correctness of any statement or recital herein or any statement in the Note Guarantees or the Security Documents.
(g) The Security Agent may decline to foreclose on the Collateral or exercise remedies available if it does not receive indemnification and/or security to its own gross negligence or willful misconduct as determined by a court satisfaction. In addition, the Security Agent’s ability to foreclose on the Collateral may be subject to lack of competent jurisdiction by a final perfection, the consent of third parties, prior Liens and non-appealable judgmentpractical problems associated with the realization of the Security Agent’s Liens on the Collateral.
(h) The Security Agent shall be entitled to the benefit of the provisions affording protection to the Trustee and/or the Security Agent, as applicable, are hereby authorized and directed to, and hereby agree to, whether on or after the Issue Date contained in clauses (i) enter into and/or join the Security Documents to which it is party (and any joinders, supplements or amendments thereto contemplated herebyc), (iie) make any representations and (f) of Section 7.01, clauses (a), (b), (d), (e) and (f) of Section 7.02 and Section 7.07 (subject in each case to the holders limitations and qualifications related to such protection, and to the standard of care set forth in clause (c) of Section 7.01) as if references to “the Security Documents or the Intercreditor Agreement, (iii) bind the holders on the terms as set forth Indenture” in the Security Documents and the Intercreditor Agreement and (iv) perform and observe its obligations under the Security Documents and the Intercreditor Agreement. Any such action shall be at the direction and expense of the Issuer and shall be accompanied by an Officer’s Certificate and an Opinion of Counsel stating that the execution is authorized or permitted pursuant to this Indenture; provided that neither an Officer’s Certificate nor an Opinion of Counsel shall be required in connection with the entry into the any accession documents provisions were references to the Intercreditor Agreement by the Security Agent on the Issue Date.
(i) If applicable, the Security Agent is each holder’s agent for the purpose of perfecting the holders’ security interest in assets which, in accordance with Article 9 of the Uniform Commercial Code, can be perfected only by possession. Should the Trustee obtain possession of any such Collateral, upon written request from the Issuer, the Trustee shall notify the Security Agent thereof and promptly shall, subject to the Intercreditor Agreement, deliver such Collateral to the Security Agent or otherwise deal with such Collateral in accordance with the Security Agent’s instructions.
(j) The Security Agent shall have no obligation whatsoever to the Trustee or any of the holders to assure that the Collateral exists or is owned by any Grantor or is cared for, protected, or insured or has been encumbered, or that the Security Agent’s Liens have been properly or sufficiently or lawfully created, perfected, protected, maintained or enforced or are entitled to any particular priority, or to determine whether all or the Grantor’s property constituting Collateral intended to be subject to the Lien and security interest of the Security Documents has been properly and completely listed or delivered, as the case may be, or the genuineness, validity, marketability or sufficiency thereof or title thereto, or to exercise at all or in any particular manner or under any duty of care, disclosure, or fidelity, or to continue exercising, any of the rights, authorities, and powers granted or available to the Security Agent pursuant to this Indenture, any Security Document or the Intercreditor Agreement, other than pursuant to the instructions of the holders of a majority in aggregate principal amount of the Notes or as otherwise provided in Indenture and/or the Security Documents.
(k) No provision of this Indenture, any Security Document or the Intercreditor Agreement shall require the Security Agent (or the Trustee) to expend or risk its own funds or otherwise incur any financial liability in the performance of any of its duties hereunder or thereunder or to take or omit to take any action hereunder or thereunder or take any action at the request or direction of holders (or the Trustee in the case of the Security Agent), unless it shall have received indemnity and/or security satisfactory to the Security Agent and the Trustee against potential costs and liabilities incurred by the Security Agent and the Trustee relating thereto. Notwithstanding anything to the contrary contained in this Indenture, the Security Documents or the Intercreditor Agreement, in the event the Security 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 Security Agent shall not be required to commence any such action or exercise any remedy or to inspect or conduct any studies of any property under the mortgages or take any such other action if the Security Agent has determined that the Security 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 Security Agent shall at any time be entitled to cease taking any action described in this clause (k) if it no longer reasonably deems any indemnity, security or undertaking from the Issuer or the holders to be sufficient.
(l) The Security Agent (i) shall not be liable for any action taken or omitted to be taken by it in connection with this Indenture, the Security Documents and/or the Intercreditor Agreement 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 bad faith, gross negligence or willful misconduct as determined by a court of competen
Appears in 1 contract
Sources: Indenture (UTAC Holdings Ltd.)
Security Agent. (a) Each The Security Agent shall have all the rights, benefits, privileges, powers, protections, indemnities and immunities provided in the Security Documents and shall have all of the holders by acceptance of rights, benefits, privileges, powers, protections, indemnities and immunities provided to the Notes, and each beneficial owner of an interest in a Note, hereby designates and appoint the Security Agent as its agent Trustee under this Indenture, the Security Documents and the Intercreditor Agreement and each of the holders by acceptance of the Notes, and each beneficial owner of an interest in a Note, hereby irrevocably authorizes the Security Agent to take such action on its behalf including under the provisions of this Indenture, the Security Documents, the Intercreditor Agreement, if any, and to exercise such powers and perform such duties as are expressly delegated to the Security Agent by the terms of this Indenture, the Security Documents, the Intercreditor Agreement, if any, and consents and agrees to the terms of this Indenture, the Intercreditor Agreement and each Security Document (as applicable), as the same may be in effect or may be amended, restated, supplemented or otherwise modified from time to time in accordance with their respective terms. The Security Agent agrees to act as such on the express conditions contained in this Section 10.07. Each holder agrees that any action taken by the Security Agent in accordance with the provisions of this Indenture, the Intercreditor Agreement or the Security Documents (as applicable), and the exercise by the Security Agent of any rights or remedies set forth herein and therein shall be authorized and binding upon all holders. Notwithstanding any provision to the contrary contained elsewhere in this Indenture, the Security Documents or the Intercreditor Agreement (as applicable) the duties of the Security Agent shall be ministerial and administrative in nature, and the Security Agent shall not have any duties or responsibilities, except those expressly set forth herein and in the Security Documents and/or the Intercreditor Agreement (as applicable) to which the Security Agent is a party, nor shall the Security Agent have or be deemed to have any trust or other fiduciary relationship with the Trustee, any holder or any Grantor, and no implied covenants, functions, responsibilities, duties, obligations or liabilities shall be read into this Indenture, the Security Documents, the Intercreditor Agreement or otherwise exist against the Security Agent. Without limiting the generality of the foregoing sentence, the use of the term “agent” in this Indenture with reference to the Security Agent is not intended to connote any fiduciary or other implied (or express) obligations arising under agency doctrine of any applicable law. Instead, such term is used merely as a matter of market custom, and is intended to create or reflect only an administrative relationship between independent contracting partiesArticle VIII hereof.
(b) The None of the Security Agent may perform Agent, the Trustee, the Paying Agent, the Registrar or any of its duties under this Indenture, the Security Documents and/or the Intercreditor Agreement (as applicable) by or through receivers, agents, employees, attorneys-in-fact or with respect to any specified Person, such Person’s Affiliates, and the their respective officers, directors, employees, agentsattorneys or agents will be responsible or liable for the existence, advisors and attorneys-in-fact genuineness, value or protection of any Collateral, for the legality, enforceability, effectiveness or sufficiency of the Security Documents, for the creation, perfection, priority, sufficiency or protection of any Liens securing the Notes Obligations, or any defect or deficiency as to any such Person and its Affiliates (a “Related Person”)matters, and nor shall be entitled to advice of counsel concerning all matters pertaining to such duties, and shall be entitled to act upon, and shall be fully protected in taking action in reliance upon any advice the Trustee or opinion given by legal counsel. The the Security Agent shall not be responsible for the negligence or willful misconduct of any receiver, agent, employee, attorney-in-fact or Related Person that it selects as long as such selection was made in good faith and with due care. The exculpatory provisions of this Article X shall apply to any such sub-agent and to the Affiliates of the Security Agent and any such sub-agentfiling financing statements.
(c) None of Subject to the Security Documents, the Trustee shall direct the Security Agent from time to time. Subject to the Security Documents, except as directed by the Trustee as required or permitted by this Indenture and any of its respective Related Persons shall other representatives, the Holders acknowledge that the Security Agent will not be obligated:
(i) be liable for any action taken or omitted to act upon directions purported to be taken in good faith delivered to it by any of them under or in connection with this Indenture or the transactions contemplated hereby (except for its own gross negligence or willful misconduct as determined by a court of competent jurisdiction by a final and non-appealable judgment) or under or in connection with any Security Document and/or Intercreditor Agreement or the transactions contemplated thereby (except for its own gross negligence or willful misconduct as determined by a court of competent jurisdiction by a final and non-appealable judgment), or other Person;
(ii) be responsible in to foreclose upon or otherwise enforce any manner to any of Liens securing the Trustee or any holder for any recital, statement, representation, warranty, covenant or agreement made by the Issuer or any other Grantor or Affiliate of any Grantor, or any Officer or Related Person thereof, contained in this Indenture, the Security Documents and/or the Intercreditor Agreement or in any certificate, report, statement or other document referred to or provided for in, or received by the Security Agent under or in connection with, this Indenture, the Security Documents and/or the Intercreditor Agreement or the validity, effectiveness, genuineness, enforceability or sufficiency of this Indenture, the Security Documents and/or the Intercreditor Agreement or for any failure of any Grantor or any other party to this Indenture, the Security Documents and/or the Intercreditor Agreement to perform its obligations hereunder or thereunder (if any). None of the Security Agent or any of its Related Persons shall be under any obligation to the Trustee or any holder to ascertain or to inquire as to the observance or performance of any of the agreements contained in, or conditions of, this Indenture, the Security Documents and/or the Intercreditor Agreement, if any, or to inspect the properties, books, or records of any Grantor or any Grantor’s Affiliates.Notes Obligations; or
(diii) The Security Agent shall be entitled to rely, and shall be fully protected in relying, upon any writing, resolution, notice, consent, certificate, affidavit, letter, telegram, facsimile, certification, telephone message, statement, or other communication, document or conversation (including those by telephone or e-mail) believed by it to be genuine and correct and to have been signed, sent, or made by the proper Person or Persons, and upon advice and statements of legal counsel (including, without limitation, counsel to the Issuer or any other Grantor), independent accountants and other experts and advisors selected by the Security Agent. The Security Agent shall not be bound to make any investigation into the facts or matters stated in any resolution, certificate, statement, instrument, opinion, report, notice, request, direction, consent, order, bond, debenture, or other paper or document. Unless otherwise expressly required hereunder or pursuant to the Security Documents or the Intercreditor Agreement, the Security Agent shall be fully justified in failing or refusing to take any action under this Indenture, the Security Documents and/or the Intercreditor Agreement unless it shall first receive such written advice or concurrence of the Trustee or the holders of a majority in aggregate principal amount of the Notes as it determines and, if it so requests, it shall first be indemnified to its satisfaction by the holders against any and all liability and expense which may be incurred by it by reason of taking or continuing to take any such action. The Security Agent shall in all cases be fully protected in acting, or in refraining from acting, under this Indenture, the Security Documents and/or the Intercreditor Agreement in accordance with a request, direction, instruction or consent of the Trustee or the holders of a majority in aggregate principal amount of the then outstanding Notes and such request and any action taken or failure to act pursuant thereto shall be binding upon all of the holders.
(e) The Security Agent shall not be deemed to have knowledge or notice of the occurrence of any Default or Event of Default, unless a Responsible Officer of the Security Agent shall have received written notice from the Trustee or the Issuer referring to this Indenture, describing such Default or Event of Default and stating that such notice is a “notice of default” and such notice references the Notes, the Issuer and this Indenture. The Security Agent shall take such action with respect to such Default or Event of Default as may be requested by the Trustee in accordance with Article VI or the holders of a majority in aggregate principal amount of the Notes (subject to this Section 10.07).
(f) The Security Agent under this Indenture may resign at any time by ▇▇▇▇▇▇ (30) Business Days’ written notice to the Trustee and the Issuer, such resignation to be effective upon the acceptance of a successor agent to its appointment as Security Agent. If the Security Agent resigns under this Indenture, the Issuer shall appoint a successor collateral agent. If no successor collateral agent is appointed prior to the intended effective date of the resignation of the Security Agent (as stated in the notice of resignation), the Trustee, at the written direction of the holders of a majority of the aggregate principal amount of the Notes then outstanding, may appoint a successor collateral agent under this Indenture, subject to the consent of the Issuer (which consent shall not be unreasonably withheld and which shall not be required during a continuing Event of Default). If no successor collateral agent is appointed and consented to by the Issuer pursuant to the preceding sentence within 30 days after the intended effective date of resignation (as stated in the notice of resignation) the Security Agent shall be entitled to petition a court of competent jurisdiction to appoint a successor. Upon the acceptance of its appointment as successor collateral agent hereunder, such successor collateral agent shall succeed to all the rights, powers and duties of the retiring Security Agent, and the term “Security Agent” shall include such successor collateral agent, and the retiring Security Agent’s appointment, powers and duties as the Security Agent shall be terminated. After the retiring Security Agent’s resignation hereunder, the provisions of this Section 10.07 (and Section 7.07 hereof) shall continue to inure to its benefit and the retiring Security Agent shall not by reason of such resignation be deemed to be released from liability as to any actions taken or omitted to be taken by it while it was the Security Agent under this Indenture.
(g) Except as otherwise explicitly provided herein or in the Security Documents or the Intercreditor Agreement, neither the Security Agent nor any of its respective officers, directors, employees or agents or other Related Persons shall be liable for failure to demand, collect or realize upon any of the Collateral or for any delay in doing so or shall be under any obligation to sell or otherwise dispose of any Collateral upon the request of any other Person or to take any other action whatsoever with regard to any or all of the Collateral Liens securing the Notes Obligations, Security Documents or Collateral.
(d) If the Company (i) incurs any part thereof. ABL Obligations at any time when the ABL Intercreditor Agreement is not in effect or at any time when Debt constituting ABL Obligations entitled to the benefit of the ABL Intercreditor Agreement is concurrently retired, and (ii) at any time when the Trustee is not the Security Agent, directs the Trustee to deliver to the Security Agent an Officers’ Certificate so stating and requesting, or at any other time directs, that the Security Agent enter into an intercreditor agreement (on substantially the same terms as the ABL Intercreditor Agreement in effect on the Issue Date) with a designated agent or representative for the holders of the ABL Obligations so incurred, the Holders acknowledge that the Security Agent is hereby authorized and directed to enter into such intercreditor agreement, bind the Holders on the terms set forth therein and perform and observe its obligations thereunder.
(e) The Security Agent shall will be accountable only for amounts that it actually receives as a result of the exercise enforcement of such powers, and neither Liens securing the Notes Obligations or the Security Documents.
(f) The Holders of Notes agree that the Security Agent nor any shall be entitled to the rights, powers, privileges, protections, immunities, indemnities and benefits provided to the Security Agent by this Indenture and the Security Documents. Furthermore, each Holder of a Note, by accepting such Note, consents to the terms of and authorizes and directs each of the Trustee (in each of its officers, directors, employees or agents shall be responsible for any act or failure capacities) and the Security Agent to act hereunder, except for enter into and perform each of the ABL Intercreditor Agreement and Security Documents in each of its own gross negligence or willful misconduct as determined by a court of competent jurisdiction by a final and non-appealable judgmentcapacities thereunder.
(hg) The At all times when the Trustee and/or is not itself the Security Agent, as applicable, are hereby authorized and directed to, and hereby agree to, whether on or after the Issue Date (i) enter into and/or join Company will deliver to the Trustee copies of all Security Documents to which it is party (and any joinders, supplements or amendments thereto contemplated hereby), (ii) make any representations of the holders set forth in the Security Documents or the Intercreditor Agreement, (iii) bind the holders on the terms as set forth in the Security Documents and the Intercreditor Agreement and (iv) perform and observe its obligations under the Security Documents and the Intercreditor Agreement. Any such action shall be at the direction and expense of the Issuer and shall be accompanied by an Officer’s Certificate and an Opinion of Counsel stating that the execution is authorized or permitted pursuant to this Indenture; provided that neither an Officer’s Certificate nor an Opinion of Counsel shall be required in connection with the entry into the any accession documents to the Intercreditor Agreement by the Security Agent on the Issue Date.
(i) If applicable, the Security Agent is each holder’s agent for the purpose of perfecting the holders’ security interest in assets which, in accordance with Article 9 of the Uniform Commercial Code, can be perfected only by possession. Should the Trustee obtain possession of any such Collateral, upon written request from the Issuer, the Trustee shall notify the Security Agent thereof and promptly shall, subject to the Intercreditor Agreement, deliver such Collateral delivered to the Security Agent or otherwise deal with such Collateral in accordance with the Security Agent’s instructions.
(j) The Security Agent shall have no obligation whatsoever to the Trustee or any and copies 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 Security Agent’s Liens have been properly or sufficiently or lawfully created, perfected, protected, maintained or enforced or are entitled to any particular priority, or to determine whether all or the Grantor’s property constituting Collateral intended to be subject to the Lien and security interest of the Security Documents has been properly and completely listed or delivered, as the case may be, or the genuineness, validity, marketability or sufficiency thereof or title thereto, or to exercise at all or in any particular manner or under any duty of care, disclosure, or fidelity, or to continue exercising, any of the rights, authorities, and powers granted or available documents delivered to the Security Agent pursuant to this Indenture, any Security Document or the Intercreditor Agreement, other than pursuant to the instructions of the holders of a majority in aggregate principal amount of the Notes or as otherwise provided in Indenture and the Security Documents.
(k) No provision of this Indenture, any Security Document or the Intercreditor Agreement shall require the Security Agent (or the Trustee) to expend or risk its own funds or otherwise incur any financial liability in the performance of any of its duties hereunder or thereunder or to take or omit to take any action hereunder or thereunder or take any action at the request or direction of holders (or the Trustee in the case of the Security Agent), unless it shall have received indemnity and/or security satisfactory to the Security Agent and the Trustee against potential costs and liabilities incurred by the Security Agent and the Trustee relating thereto. Notwithstanding anything to the contrary contained in this Indenture, the Security Documents or the Intercreditor Agreement, in the event the Security 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 Security Agent shall not be required to commence any such action or exercise any remedy or to inspect or conduct any studies of any property under the mortgages or take any such other action if the Security Agent has determined that the Security 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 Security Agent shall at any time be entitled to cease taking any action described in this clause (k) if it no longer reasonably deems any indemnity, security or undertaking from the Issuer or the holders to be sufficient.
(l) The Security Agent (i) shall not be liable for any action taken or omitted to be taken by it in connection with this Indenture, the Security Documents and/or the Intercreditor Agreement 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 bad faith, gross negligence or willful misconduct as determined by a court of competen
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Security Agent. (a) Each The following provisions shall apply to the Offshore Security Agent in its capacity as trustee in relation to any of the holders by acceptance of the Notes, and each beneficial owner of an interest in a Note, hereby designates and appoint the Security Agent as its agent under this Indenture, the Offshore Security Documents and the Intercreditor Agreement and each of the holders by acceptance of the Notes, and each beneficial owner of an interest in a Note, hereby irrevocably authorizes the Security Agent to take such action on its behalf under the provisions of this Indenture, the Security Documents, the Intercreditor Agreement, if any, and to exercise such powers and perform such duties as are expressly delegated to the Security Agent by the terms of this Indenture, the Security Documents, the Intercreditor Agreement, if any, and consents and agrees to the terms of this Indenture, the Intercreditor Agreement and each Security Document (as applicable), as the same may be in effect or may be amended, restated, supplemented or otherwise modified from time to time in accordance with their respective terms. The Security Agent agrees to act as such on the express conditions contained in this Section 10.07. Each holder agrees that any action taken by the Onshore Security Agent in accordance with the provisions of this Indenture, the Intercreditor Agreement or the Security Documents (its capacity as applicable), and the exercise by the Security Agent of any rights or remedies set forth herein and therein shall be authorized and binding upon all holders. Notwithstanding any provision to the contrary contained elsewhere agent in this Indenture, the Security Documents or the Intercreditor Agreement (as applicable) the duties of the Security Agent shall be ministerial and administrative in nature, and the Security Agent shall not have any duties or responsibilities, except those expressly set forth herein and in the Security Documents and/or the Intercreditor Agreement (as applicable) to which the Security Agent is a party, nor shall the Security Agent have or be deemed to have any trust or other fiduciary relationship with the Trustee, any holder or any Grantor, and no implied covenants, functions, responsibilities, duties, obligations or liabilities shall be read into this Indenture, the Security Documents, the Intercreditor Agreement or otherwise exist against the Security Agent. Without limiting the generality of the foregoing sentence, the use of the term “agent” in this Indenture with reference to the Security Agent is not intended to connote any fiduciary or other implied (or express) obligations arising under agency doctrine of any applicable law. Instead, such term is used merely as a matter of market custom, and is intended to create or reflect only an administrative relationship between independent contracting parties.
(b) The Security Agent may perform any of its duties under this Indenture, the Security Documents and/or the Intercreditor Agreement (as applicable) by or through receivers, agents, employees, attorneys-in-fact or with respect to any specified Person, such Person’s Affiliates, and the respective officers, directors, employees, agents, advisors and attorneys-in-fact of such Person and its Affiliates (a “Related Person”), and shall be entitled to advice of counsel concerning all matters pertaining to such duties, and shall be entitled to act upon, and shall be fully protected in taking action in reliance upon any advice or opinion given by legal counsel. The Security Agent shall not be responsible for the negligence or willful misconduct of any receiver, agent, employee, attorney-in-fact or Related Person that it selects as long as such selection was made in good faith and with due care. The exculpatory provisions of this Article X shall apply to any such sub-agent and to the Affiliates of the Security Agent and any such sub-agent.
(c) None of the Security Agent or any of its respective Related Persons shall (i) be liable for any action taken or omitted to be taken in good faith by any of them under or in connection with this Indenture or the transactions contemplated hereby (except for its own gross negligence or willful misconduct as determined by a court of competent jurisdiction by a final and non-appealable judgment) or under or in connection with any Security Document and/or Intercreditor Agreement or the transactions contemplated thereby (except for its own gross negligence or willful misconduct as determined by a court of competent jurisdiction by a final and non-appealable judgment), or (ii) be responsible in any manner relation to any of the Trustee or any holder for any recital, statement, representation, warranty, covenant or agreement made by the Issuer or any other Grantor or Affiliate of any Grantor, or any Officer or Related Person thereof, contained in this Indenture, the Onshore Security Documents and/or the Intercreditor Agreement or in any certificate, report, statement or other document referred to or provided for in, or received by the Security Agent under or in connection with, this Indenture, the Security Documents and/or the Intercreditor Agreement or the validity, effectiveness, genuineness, enforceability or sufficiency of this Indenture, the Security Documents and/or the Intercreditor Agreement or for any failure of any Grantor or any other party to this Indenture, the Security Documents and/or the Intercreditor Agreement to perform its obligations hereunder or thereunder (if any). None of the Security Agent or any of its Related Persons shall be under any obligation to the Trustee or any holder to ascertain or to inquire as to the observance or performance of any of the agreements contained in, or conditions of, this Indenture, the Security Documents and/or the Intercreditor Agreement, if any, or to inspect the properties, books, or records of any Grantor or any Grantor’s AffiliatesDocuments.
(da) The each of the Offshore Security Agent shall be entitled to rely, and shall be fully protected in relying, upon any writing, resolution, notice, consent, certificate, affidavit, letter, telegram, facsimile, certification, telephone message, statement, or other communication, document or conversation (including those by telephone or e-mail) believed by it to be genuine and correct and to have been signed, sent, or made by the proper Person or Persons, and upon advice and statements of legal counsel (including, without limitation, counsel to the Issuer or any other Grantor), independent accountants and other experts and advisors selected by the Onshore Security Agent. The Security Agent shall not be bound to make any investigation into the facts or matters stated in any resolution, certificate, statement, instrument, opinion, report, notice, request, direction, consent, order, bond, debenture, or other paper or document. Unless otherwise expressly required hereunder or pursuant to the Security Documents or the Intercreditor Agreement, the Security Agent shall be fully justified in failing or refusing to take any action under this Indenture, the Security Documents and/or the Intercreditor Agreement unless it shall first receive such written advice or concurrence of the Trustee or the holders of a majority in aggregate principal amount of the Notes as it determines and, if it so requests, it shall first be indemnified to its satisfaction by the holders against any and all liability and expense which may be incurred by it by reason of taking or continuing to take any such action. The Security Agent shall in all cases be fully protected in acting, or in refraining from acting, under this Indenture, the Security Documents and/or the Intercreditor Agreement in accordance with a request, direction, instruction or consent of the Trustee or the holders of a majority in aggregate principal amount of the then outstanding Notes and such request and any action taken or failure to act pursuant thereto shall be binding upon all of the holders.:
(e) The Security Agent shall not be deemed to have knowledge or notice of the occurrence of any Default or Event of Default, unless a Responsible Officer of the Security Agent shall have received written notice from the Trustee or the Issuer referring to this Indenture, describing such Default or Event of Default and stating that such notice is a “notice of default” and such notice references the Notes, the Issuer and this Indenture. The Security Agent shall take such action with respect to such Default or Event of Default as may be requested by the Trustee in accordance with Article VI or the holders of a majority in aggregate principal amount of the Notes (subject to this Section 10.07).
(f) The Security Agent under this Indenture may resign at any time by ▇▇▇▇▇▇ (30) Business Days’ written notice to the Trustee and the Issuer, such resignation to be effective upon the acceptance of a successor agent to its appointment as Security Agent. If the Security Agent resigns under this Indenture, the Issuer shall appoint a successor collateral agent. If no successor collateral agent is appointed prior to the intended effective date of the resignation of the Security Agent (as stated in the notice of resignation), the Trustee, at the written direction of the holders of a majority of the aggregate principal amount of the Notes then outstanding, may appoint a successor collateral agent under this Indenture, subject to the consent of the Issuer (which consent shall not be unreasonably withheld and which shall not be required during a continuing Event of Default). If no successor collateral agent is appointed and consented to by the Issuer pursuant to the preceding sentence within 30 days after the intended effective date of resignation (as stated in the notice of resignation) the Security Agent shall be entitled to petition a court of competent jurisdiction to appoint a successor. Upon the acceptance of its appointment as successor collateral agent hereunder, such successor collateral agent shall succeed to all the rights, powers and duties of the retiring Security Agent, and the term “Security Agent” shall include such successor collateral agent, and the retiring Security Agent’s appointment, powers and duties as the Security Agent shall be terminated. After the retiring Security Agent’s resignation hereunder, the provisions of this Section 10.07 (and Section 7.07 hereof) shall continue to inure to its benefit and the retiring Security Agent shall not by reason of such resignation be deemed to be released from liability as to any actions taken or omitted to be taken by it while it was the Security Agent under this Indenture.
(g) Except as otherwise explicitly provided herein or in the Security Documents or the Intercreditor Agreement, neither the Security Agent nor any of its respective officers, directors, employees or agents or other Related Persons shall be liable for failure to demand, collect or realize upon any of the Collateral or for any delay in doing so or shall be under any obligation to sell or otherwise dispose of any Collateral upon the request of any other Person or to take any other action whatsoever with regard to the Collateral or any part thereof. The Security Agent shall be accountable only for amounts that it actually receives as a result of the exercise of such powers, and neither the Security Agent nor any of its officers, directors, employees or agents shall be responsible for any act or failure to act hereunder, except for its own gross negligence or willful misconduct as determined by a court of competent jurisdiction by a final and non-appealable judgment.
(h) The Trustee and/or the Security Agent, as applicable, are hereby authorized and directed to, and hereby agree to, whether on or after the Issue Date (i) enter into and/or join may accept without enquiry or objection such title as the Borrower or the relevant Security Provider may have to any assets which are subject to any of the Security Documents to which it is a party (and shall not be liable for any joinderslack of or defect in such title, supplements whether apparent or amendments thereto contemplated hereby), not and whether capable of remedy or not;
(ii) make may procure that any representations investment or all or any part of the holders set forth in the Security Documents property and assets charged or the Intercreditor Agreement, (iii) bind the holders on the terms as set forth in the Security Documents and the Intercreditor Agreement and (iv) perform and observe its obligations assigned under the Security Documents and to which it is a party, or the Intercreditor Agreement. Any such action shall be at proceeds thereof, is held and/or registered in the direction and expense name of its nominee;
(b) neither the Issuer and shall be accompanied by an Officer’s Certificate and an Opinion of Counsel stating that the execution is authorized or permitted pursuant to this Indenture; provided that neither an Officer’s Certificate nor an Opinion of Counsel shall be required in connection with the entry into the any accession documents to the Intercreditor Agreement by the Offshore Security Agent on nor the Issue Date.Onshore Security Agent:
(i) If applicableshall be liable for any omission or delay in giving notice to any third party, or effecting any filing or registration, or obtaining any authorisation, or otherwise perfecting the security constituted by any of the Security Documents to which it is a party;
(ii) shall be obliged to hold any share certificates, title or other documents relating to the assets charged under any of the Security Documents to which it is a party in its own possession or to take any steps to protect or preserve such documents, and may permit the Borrower or the relevant Security Provider (or its lawyers or representatives) to retain such documents in its possession if it is reasonable in the circumstances;
(c) unless provided otherwise in any Security Document to which it is a party, monies which are received by the Offshore Security Agent or the Onshore Security Agent and held by it as trustee in relation to any of the Security Documents to which it is a party may be invested in its name or under its control in any investment authorised by Hong Kong law for the investment of trust money by trustees or in any other investments which may be selected by it, and if not otherwise invested such monies may be placed on deposit in its name or under its control at such bank or institution (including the Offshore Security Agent or the Onshore Security Agent) and upon such terms as it may think fit;
(d) each holder’s of the Finance Parties (other than the Offshore Security Agent) authorises the Offshore Security Agent (by itself or by such person(s) as it may nominate) to execute and enforce the Security Documents to which it is a party as trustee, as agent or as otherwise provided, and confirms that the Offshore Security Agent shall have an independent right to release from any Security Document to which it is a party any asset permitted to be disposed of under this Agreement or the relevant Security Document and authorises the Offshore Security Agent to execute any document which is reasonably required to achieve the release of any property or asset subject to the relevant Security Document to which it is a party as permitted or required by the terms of this Agreement or the relevant Security Document;
(e) each of the Finance Parties (other than the Onshore Security Agent) authorises the Onshore Security Agent (by itself or by such person(s) as it may nominate) to execute and enforce the Security Documents to which it is a party as agent or as otherwise provided, and confirms that the Onshore Security Agent shall have an independent right to release from any Security Document to which it is a party any asset permitted to be disposed of under the relevant Security Document and authorises the Onshore Security Agent to execute any document which is reasonably required to achieve the release of any property or asset subject to the relevant Security Document as permitted or required by the terms of the relevant Security Document;
(f) each of the Offshore Security Agent and the Onshore Security Agent may appoint any person established or resident in any jurisdiction (whether a trust corporation or not) to act as a trustee or agent, either separately or jointly with it, in relation to any of the Security Documents to which it is a party if it considers that such an appointment is necessary or desirable for the purpose of perfecting the holders’ security interest conforming with any legal requirement in assets which, in accordance with Article 9 of the Uniform Commercial Code, can be perfected only by possession. Should the Trustee obtain possession of any such Collateral, upon written request from the Issuer, the Trustee shall notify the Security Agent thereof and promptly shall, subject to the Intercreditor Agreement, deliver such Collateral to the Security Agent relevant jurisdiction or otherwise deal with such Collateral in accordance with for the Security Agent’s instructions.
(j) The Security Agent shall have no obligation whatsoever to the Trustee purpose of holding, administering, protecting or enforcing 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 Security Agent’s Liens have been properly or sufficiently or lawfully created, perfected, protected, maintained or enforced or are entitled to any particular priority, or to determine whether all or the Grantor’s property constituting Collateral intended to be subject to the Lien and security interest of the Security Documents has been properly to which it is a party, and completely listed any such trustee or deliveredagent shall have such powers and discretions (not exceeding those conferred it) and such obligations as shall be conferred or imposed on it by it;
(g) in relation to any Security Document governed by a law other than Hong Kong or Chinese law, each Finance Party:
(i) shall execute and deliver any Security Document which, under applicable law, cannot be entered into by the Offshore Security Agent on its behalf, for example, because the security constituted by the Security Document must be entered into by it as creditor having a pro rata claim of the claims secured thereby;
(ii) shall grant the Offshore Security Agent power of representation in relation to the execution, enforcement and administration of the Security Documents; and
(iii) shall enter into such notarial deeds or other deeds or documents as are required under any applicable law relating to the security constituted by the Security Documents to enable the Offshore Security Agent or another attorney-in-fact to execute any Security Document on such Finance Party’s behalf and administer and enforce such security;
(h) Clauses 18.5 to 18.12 shall also apply to each of the Offshore Security Agent and the Onshore Security Agent as if references therein to the Offshore Security Agent or, 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 Security Agent pursuant to this Indenture, any Security Document or the Intercreditor Agreement, other than pursuant to the instructions of the holders of a majority in aggregate principal amount of the Notes or as otherwise provided in the Security Documents.
(k) No provision of this Indenture, any Security Document or the Intercreditor Agreement shall require the Security Agent (or the Trustee) to expend or risk its own funds or otherwise incur any financial liability in the performance of any of its duties hereunder or thereunder or to take or omit to take any action hereunder or thereunder or take any action at the request or direction of holders (or the Trustee in the case of the Onshore Security Agent), unless it shall have received indemnity and/or security satisfactory to the Security Agent and the Trustee against potential costs and liabilities incurred by the Security Agent and the Trustee relating thereto. Notwithstanding anything to the contrary contained in this Indenture, the Security Documents or the Intercreditor Agreement, in the event the Security 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 Security Agent shall not be required to commence any such action or exercise any remedy or to inspect or conduct any studies of any property under the mortgages or take any such other action if the Security Agent has determined that the Security 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 Security Agent shall at any time be entitled to cease taking any action described in this clause (k) if it no longer reasonably deems any indemnity, security or undertaking from the Issuer or the holders to be sufficient.
(l) The Security Agent (i) shall not be liable for any action taken or omitted to be taken by it in connection with this Indenture, the Security Documents and/or the Intercreditor Agreement 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 bad faith, gross negligence or willful misconduct as determined by a court of competen
Appears in 1 contract
Security Agent. (a) Each The Security Agent is hereby appointed for the benefit of the holders by acceptance Holders of the Notes, Notes and each beneficial owner of an interest in a Note, is hereby designates and appoint the Security Agent as its agent under this Indenture, authorized to enter into the Security Documents and the Intercreditor Agreement and each of the holders by acceptance of the Notes, and each beneficial owner of an interest in a Note, hereby irrevocably authorizes the Security Agent to take such action actions on its their behalf under the provisions of this Indenture, the Security Documents, the Intercreditor Agreement, if any, Documents and to exercise such powers and perform such duties as are expressly delegated to the Security Agent by the terms of this Indenture, Indenture and the Security Documents, together with such powers as are reasonably incidental thereto. Each Holder, by its acceptance of a Note, is deemed to have consented and agreed to the Intercreditor Agreementterms of each Security Document, if anyas originally in effect and as amended, restated, replaced, supplemented or modified from time to time in accordance with its terms and consents and agrees the terms of this Indenture.
(b) Subject to the terms of this Indenture, the Quota Pledge Agreements, and the Intercreditor Agreement and each Security Document (as applicable)Agreements, as the same may be in effect or may be amended, restated, supplemented or otherwise modified from time to time in accordance with their respective terms. The Security Agent agrees to act as such on the express conditions contained in this Section 10.07. Each holder agrees that any action taken by the Security Agent in accordance with the provisions of this Indenture, the Intercreditor Agreement or the Security Documents (as applicable), and the exercise by the Security Agent of any rights or remedies set forth herein and therein shall be authorized and binding upon all holders. Notwithstanding any provision to the contrary contained elsewhere in this Indenture, the Security Documents or the Intercreditor Agreement (as applicable) the duties of the Security Agent shall be ministerial and administrative in nature, and the Security Agent shall not have any duties or responsibilities, except those expressly set forth herein and in the Security Documents and/or the Intercreditor Agreement (as applicable) to which the Security Agent is a party, nor shall the Security Agent have or be deemed to have any trust or other fiduciary relationship with the Trustee, any holder or any Grantor, and no implied covenants, functions, responsibilities, duties, obligations or liabilities shall be read into this Indenture, the Security Documents, the Intercreditor Agreement or otherwise exist against the Security Agent. Without limiting the generality of the foregoing sentence, the use of the term “agent” in this Indenture with reference to the Security Agent is not intended to connote any fiduciary or other implied (or express) obligations arising under agency doctrine of any applicable law. Instead, such term is used merely as a matter of market custom, and is intended to create or reflect only an administrative relationship between independent contracting parties.
(b) The Security Agent may perform any of its duties under this Indenture, the Security Documents and/or the Intercreditor Agreement (as applicable) by directly or through receivers, agents, employees, attorneys-in-fact or with respect to any specified Person, such Person’s Affiliates, its subagents) shall hold and the respective officers, directors, employees, agents, advisors and attorneys-in-fact of such Person and its Affiliates (a “Related Person”), and shall be entitled to advice of counsel concerning all matters pertaining to such duties, and shall be entitled to act upon, and shall be fully protected in taking action in reliance upon any advice or opinion given by legal counsel. The Security Agent shall not be responsible for the negligence or willful misconduct of any receiver, agent, employee, attorney-in-fact or Related Person that it selects as long as such selection was made in good faith and with due care. The exculpatory provisions of this Article X shall apply to any such sub-agent and to the Affiliates enforce on behalf of the Security Agent and any such sub-agentHolders of Notes, all Liens on the Collateral.
(c) None All of the rights, protections, benefits, privileges, indemnities and immunities granted to the Trustee hereunder shall inure to the benefit of the Security Agent or any of its respective Related Persons shall (i) be liable for any action taken or omitted to be taken in good faith including each subagent duly appointed by any of them under or in connection with this Indenture or the transactions contemplated hereby (except for its own gross negligence or willful misconduct as determined by a court of competent jurisdiction by a final and non-appealable judgment) or under or in connection with any Security Document and/or Intercreditor Agreement or the transactions contemplated thereby (except for its own gross negligence or willful misconduct as determined by a court of competent jurisdiction by a final and non-appealable judgmentit), or (ii) be responsible in any manner to any of the Trustee or any holder for any recital, statement, representation, warranty, covenant or agreement made by the Issuer or any other Grantor or Affiliate of any Grantor, or any Officer or Related Person thereof, contained in this Indenture, the Security Documents and/or the Intercreditor Agreement or in any certificate, report, statement or other document referred to or provided for in, or received by the Security Agent under or in connection with, this Indenture, the Security Documents and/or the Intercreditor Agreement or the validity, effectiveness, genuineness, enforceability or sufficiency of this Indenture, the Security Documents and/or the Intercreditor Agreement or for any failure of any Grantor or any other party to this Indenture, the Security Documents and/or the Intercreditor Agreement to perform its obligations hereunder or thereunder (if any). None of the Security Agent or any of its Related Persons shall be under any obligation to the Trustee or any holder to ascertain or to inquire as to the observance or performance of any of the agreements contained in, or conditions of, this Indenture, the Security Documents and/or the Intercreditor Agreement, if any, or to inspect the properties, books, or records of any Grantor or any Grantor’s Affiliates.
(d) The Security Agent shall be entitled authorized to rely, appoint subagents as necessary in its sole discretion and any such appointment shall be fully protected reflected in relying, upon any writing, resolution, notice, consent, certificate, affidavit, letter, telegram, facsimile, certification, telephone message, statement, or other communication, document or conversation documentation (including those by telephone or e-mail) believed by it to be genuine and correct and to have been signed, sent, or made by the proper Person or Persons, and upon advice and statements of legal counsel (including, without limitation, counsel to the Issuer or any other Grantor), independent accountants and other experts and advisors selected by the Security Agent. The Security Agent shall not be bound to make any investigation into the facts or matters stated in any resolution, certificate, statement, instrument, opinion, report, notice, request, direction, consent, order, bond, debenture, or other paper or document. Unless otherwise expressly required hereunder or pursuant to the Security Documents or the Intercreditor Agreement, which the Security Agent shall be fully justified in failing or refusing is hereby authorized to take any action under this Indenture, the Security Documents and/or the Intercreditor Agreement unless it shall first receive such written advice or concurrence of the Trustee or the holders of a majority in aggregate principal amount of the Notes as it determines and, if it so requests, it shall first be indemnified to its satisfaction by the holders against any and all liability and expense which may be incurred by it by reason of taking or continuing to take any such action. The Security Agent shall in all cases be fully protected in acting, or in refraining from acting, under this Indenture, the Security Documents and/or the Intercreditor Agreement in accordance with a request, direction, instruction or consent of the Trustee or the holders of a majority in aggregate principal amount of the then outstanding Notes and such request and any action taken or failure to act pursuant thereto shall be binding upon all of the holders.
(e) The Security Agent shall not be deemed to have knowledge or notice of the occurrence of any Default or Event of Default, unless a Responsible Officer of the Security Agent shall have received written notice from the Trustee or the Issuer referring to this Indenture, describing such Default or Event of Default and stating that such notice is a “notice of default” and such notice references the Notes, the Issuer and this Indenture. The Security Agent shall take such action with respect to such Default or Event of Default as may be requested by the Trustee in accordance with Article VI or the holders of a majority in aggregate principal amount of the Notes (subject to this Section 10.07).
(f) The Security Agent under this Indenture may resign at any time by ▇▇▇▇▇▇ (30) Business Days’ written notice to the Trustee and the Issuer, such resignation to be effective upon the acceptance of a successor agent to its appointment as Security Agent. If the Security Agent resigns under this Indenture, the Issuer shall appoint a successor collateral agent. If no successor collateral agent is appointed prior to the intended effective date of the resignation of the Security Agent (as stated in the notice of resignation), the Trustee, at the written direction of the holders of a majority of the aggregate principal amount of the Notes then outstanding, may appoint a successor collateral agent under this Indenture, subject to the consent of the Issuer (which consent shall not be unreasonably withheld and which shall not be required during a continuing Event of Defaultenter into). If no successor collateral agent is appointed and consented to by the Issuer pursuant to the preceding sentence within 30 days after the intended effective date of resignation (as stated in the notice of resignation) the Security Agent shall be entitled to petition a court of competent jurisdiction to appoint a successor. Upon the acceptance of its appointment as successor collateral agent hereunder, such successor collateral agent shall succeed to all the rights, powers and duties of the retiring Security Agent, and the term “Security Agent” shall include such successor collateral agent, and the retiring Security Agent’s appointment, powers and duties as the Security Agent shall be terminated. After the retiring Security Agent’s resignation hereunder, the provisions of this Section 10.07 (and Section 7.07 hereof) shall continue to inure to its benefit and the retiring Security Agent shall not by reason of such resignation be deemed to be released from liability as to any actions taken or omitted to be taken by it while it was the Security Agent under this Indenture.
(g) Except as otherwise explicitly provided herein or in the Security Documents or the Intercreditor AgreementDocuments, neither the no Security Agent nor any of its respective officers, directors, employees or agents or other Related Persons related persons shall be liable for failure to demand, collect or realize upon any of the Collateral or for any delay in doing so or shall be under any obligation to sell or otherwise dispose of any Collateral upon the request of any other Person or to take any other action whatsoever with regard to the Collateral or any part thereof. The Each Security Agent shall be accountable only for amounts that it actually receives as a result of the exercise of such powers, and neither the Security Agent nor any of its respective officers, directors, employees or agents shall be responsible for any act or failure to act hereunderact, except for its own gross negligence or willful misconduct as determined by a court of competent jurisdiction by a final and non-appealable judgment.
(h) The Trustee and/or the Security Agent, as applicable, are hereby authorized and directed to, and hereby agree to, whether on or after the Issue Date (i) enter into and/or join the Security Documents to which it is party (and any joinders, supplements or amendments thereto contemplated hereby), (ii) make any representations of the holders set forth in the Security Documents or the Intercreditor Agreement, (iii) bind the holders on the terms as set forth in the Security Documents and the Intercreditor Agreement and (iv) perform and observe its obligations under the Security Documents and the Intercreditor Agreement. Any such action shall be at the direction and expense of the Issuer and shall be accompanied by an Officer’s Certificate and an Opinion of Counsel stating that the execution is authorized or permitted pursuant to this Indenture; provided that neither an Officer’s Certificate nor an Opinion of Counsel shall be required in connection with the entry into the any accession documents to the Intercreditor Agreement by the Security Agent on the Issue Date.
(i) If applicable, the Security Agent is each holder’s agent for the purpose of perfecting the holders’ security interest in assets which, in accordance with Article 9 of the Uniform Commercial Code, can be perfected only by possession. Should the Trustee obtain possession of any such Collateral, upon written request from the Issuer, the Trustee shall notify the Security Agent thereof and promptly shall, subject to the Intercreditor Agreement, deliver such Collateral to the Security Agent or otherwise deal with such Collateral in accordance with the Security Agent’s instructions.
(j) The Security Agent shall have no obligation whatsoever to the Trustee or any of the holders to assure that the Collateral exists or is owned by any Grantor or is cared for, protected, or insured or has been encumbered, or that the Security Agent’s Liens have been properly or sufficiently or lawfully created, perfected, protected, maintained or enforced or are entitled to any particular priority, or to determine whether all or the Grantor’s property constituting Collateral intended to be subject to the Lien and security interest of the Security Documents has been properly and completely listed or delivered, as the case may be, or the genuineness, validity, marketability or sufficiency thereof or title thereto, or to exercise at all or in any particular manner or under any duty of care, disclosure, or fidelity, or to continue exercising, any of the rights, authorities, and powers granted or available to the Security Agent pursuant to this Indenture, any Security Document or the Intercreditor Agreement, other than pursuant to the instructions of the holders of a majority in aggregate principal amount of the Notes or as otherwise provided in the Security Documents.
(k) No provision of this Indenture, any Security Document or the Intercreditor Agreement shall require the Security Agent (or the Trustee) to expend or risk its own funds or otherwise incur any financial liability in the performance of any of its duties hereunder or thereunder or to take or omit to take any action hereunder or thereunder or take any action at the request or direction of holders (or the Trustee in the case of the Security Agent), unless it shall have received indemnity and/or security satisfactory to the Security Agent and the Trustee against potential costs and liabilities incurred by the Security Agent and the Trustee relating thereto. Notwithstanding anything to the contrary contained in this Indenture, the Security Documents or the Intercreditor Agreement, in the event the Security 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 Security Agent shall not be required to commence any such action or exercise any remedy or to inspect or conduct any studies of any property under the mortgages or take any such other action if the Security Agent has determined that the Security 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 Security Agent shall at any time be entitled to cease taking any action described in this clause (k) if it no longer reasonably deems any indemnity, security or undertaking from the Issuer or the holders to be sufficient.
(l) The Security Agent (i) shall not be liable for any action taken or omitted to be taken by it in connection with this Indenture, the Security Documents and/or the Intercreditor Agreement or instrument referred to herein or therein, except to the extent that any of the foregoing are found by a final, non-appealable judgment decision.
(e) Without limiting the foregoing, in relation to Swiss law-governed Security Documents, including the Initial Quota Pledge Agreements and any Additional Quota Pledge Agreements governed by Swiss law (collectively, the “Swiss Security Documents”), each present and future Holder, by its acceptance of a court of competent jurisdiction Note, is deemed to have resulted from consented and agreed that:
(i) the Security Agent holds: (1) any security created or evidenced or expressed to be created or evidenced under or pursuant to a Swiss Security Document by way of a security assignment (Sicherungsabtretung) or transfer for security purposes (Sicherungsübereignung) or any other non-accessory (nicht akzessorische) security, and (2) any proceeds and other benefits of such security, as fiduciary (treuhänderisch) in its own bad faithname but for the account of all relevant Holders which have the benefit of such security in accordance with this Indenture and the respective Swiss Security Document; and each present and future Holder hereby agrees that the Security Agent enters into any such Swiss Security Document as fiduciary (treuhänderisch) in its own name for the benefit of the Holders; and
(ii) it authorizes the Security Agent: (1) to (A) accept and execute as its direct representative (direkter Stellvertreter) any Swiss law pledge or any other Swiss law accessory (akzessorische) security created or evidenced or expressed to be created or evidenced under or pursuant to a Swiss Security Document for the benefit of such Holder and (B) hold, gross negligence administer and, if necessary, enforce any such security as direct representative, (direkter Stellvertreter) on behalf of each relevant Holder which has the benefit of such security; (2) to agree as its direct representative (direkter Stellvertreter) to amendments and alterations to any Swiss Security Document which creates or willful misconduct evidences or expressed to create or evidence a pledge or any other Swiss law accessory (akzessorische) security; (3) to effect as determined by its direct representative (direkter Stellvertreter) any release of a court of competensecurity created or evidenced or expressed to be created or evidenced under a Swiss Security Document in accordance with this Indenture and the respective Swiss Security Document; and (4) to exercise as its direct representative (direkter Stellvertreter) such other rights granted to the Security Agent under this Indenture and under the relevant Swiss Security Document.
Appears in 1 contract
Sources: Indenture (Gran Tierra Energy Inc.)
Security Agent. (a) Each The parties hereto acknowledge that for purposes of the holders by acceptance of the Notesapplicable local law, and each beneficial owner of an interest in a Note, hereby designates and appoint the Security Agent as is required to execute certain Loan Documents in its agent under this Indentureindividual capacity, but always for the benefit of the Secured Parties. This notwithstanding, the parties hereto agree that with regard to such Loan Documents, the Security Documents Agent shall be subject to the duties and the Intercreditor Agreement and each responsibilities of the holders by acceptance of the Notes, and each beneficial owner of an interest in a Note, hereby irrevocably authorizes the Security Agent and shall be entitled to take such action on its behalf under the provisions of rights, protections, exculpations, benefits and indemnities set forth in this IndentureAgreement.
(b) In accordance with this Agreement, the Secured Parties have appointed MBL, not in its individual capacity, but solely as security agent, to act as Security Documents, the Intercreditor Agreement, if any, Agent hereunder and under each other Loan Document to exercise which it is or becomes a party with such powers and perform such duties as are expressly delegated to the Security Agent by the terms of this Indenture, Agreement and the Security other Loan Documents, the Intercreditor Agreement, if any, and consents and agrees to the terms of this Indenture, the Intercreditor Agreement and each Security Document (together with such other powers as applicable), as the same may be in effect or may be amended, restated, supplemented or otherwise modified from time to time in accordance with their respective termsare reasonably incidental thereto. The Security Agent agrees to act as such on the express conditions contained in this Section 10.07. Each holder agrees that any action taken by the Security Agent in accordance with the provisions of this Indenture, the Intercreditor Agreement or the Security Documents (as applicable), and the exercise by the Security Agent of any rights or remedies set forth herein and therein shall be authorized and binding upon all holders. Notwithstanding any provision to the contrary contained elsewhere in this Indenture, the Security Documents or the Intercreditor Agreement (as applicable) the duties of the Security Agent shall be ministerial and administrative in nature, and the Security Agent shall not have any duties or responsibilities, responsibilities except those expressly set forth herein and in the Security Documents and/or the Intercreditor Agreement (as applicable) to which the Security Agent is a party, nor shall the Security Agent have or be deemed to have any trust or other fiduciary relationship with the Trustee, any holder or any Grantorin, and no implied covenants, functions, responsibilities, duties, covenants or obligations or liabilities shall be read into into, this Indenture, the Security Documents, the Intercreditor Agreement or otherwise exist against the Security Agentother Loan Documents to which it is or becomes a party. Without limiting the generality of the foregoing sentenceMBL, the use of the term “agent” not in this Indenture with reference to the Security Agent is not intended to connote any fiduciary or other implied (or express) obligations arising under agency doctrine of any applicable law. Insteadits individual capacity, such term is used merely but solely as a matter of market custom, and is intended to create or reflect only an administrative relationship between independent contracting parties.
(b) The Security Agent may perform any of its duties under this Indenture, the Security Documents and/or the Intercreditor Agreement (as applicable) by or through receivers, agents, employees, attorneys-in-fact or with respect to any specified Person, such Person’s Affiliates, and the respective officers, directors, employees, agents, advisors and attorneys-in-fact of such Person and its Affiliates (a “Related Person”), and shall be entitled to advice of counsel concerning all matters pertaining to such duties, and shall be entitled to act upon, and shall be fully protected in taking action in reliance upon any advice or opinion given by legal counsel. The Security Agent shall not be responsible for the negligence or willful misconduct of any receiver, security agent, employee, attorney-in-fact or Related Person that it selects as long as hereby agrees to and accepts such selection was made in good faith and with due care. The exculpatory provisions of this Article X shall apply to any such sub-agent and to the Affiliates of the Security Agent and any such sub-agentappointment.
(c) None of In no event shall the Security Agent or any of its respective Related Persons shall be liable (i) be liable for acting in accordance with or conclusively relying upon any instruction, notice, demand, certificate or document from the Borrower and the Administrative Agent or any entity acting on behalf of the Borrower or the Administrative Agent given in accordance with the Loan Documents, (ii) for any indirect, consequential, punitive or special damages, regardless of the form of action taken and whether or omitted not any such damages were foreseeable or contemplated, (iii) for the acts or omissions of its nominees, correspondents, designees, agents, subagents or subcustodians appointed by it with due care except as related to be taken the Collateral and realization on the Collateral, (iv) for the investment or reinvestment of any cash held by it hereunder, in each case in good faith faith, in accordance with the terms hereof, including any liability for any delays in the investment or reinvestment of the Collateral, or any loss of interest or income incident to any such delays, or (v) for an amount in excess of the value of the Collateral except to the extent of direct money damages (the Security Agent hereby confirming that proceeds from Collateral in excess of the Obligations shall be refunded to the Borrower), and except in each case described in clause (i)-(v), if caused by any of them under or in connection with this Indenture or the transactions contemplated hereby (except for its own Security Agent’s gross negligence or willful misconduct as determined by a court of competent jurisdiction by a final and non-appealable judgment) or under or breach in connection with any Security Document and/or Intercreditor Agreement or the transactions contemplated thereby (except for its own gross negligence or willful misconduct as determined by a court of competent jurisdiction by a final and non-appealable judgment), or (ii) be responsible in any manner to any of the Trustee or any holder for any recital, statement, representation, warranty, covenant or agreement made by the Issuer or any other Grantor or Affiliate of any Grantor, or any Officer or Related Person thereof, contained in this Indenture, the Security Documents and/or the Intercreditor Agreement or in any certificate, report, statement or other document referred to or provided for in, or received by the Security Agent under or in connection with, this Indenture, the Security Documents and/or the Intercreditor Agreement or the validity, effectiveness, genuineness, enforceability or sufficiency of this Indenture, the Security Documents and/or the Intercreditor Agreement or for any failure of any Grantor or any other party to this Indenture, the Security Documents and/or the Intercreditor Agreement to perform its obligations hereunder or thereunder (if any). None of the Security Agent or any of its Related Persons shall be under any obligation to the Trustee or any holder to ascertain or to inquire as to the observance or performance of any of the agreements contained in, or conditions of, this Indenture, the Security Documents and/or the Intercreditor Agreement, if any, or to inspect the properties, books, or records of any Grantor or any Grantor’s Affiliatesbad faith.
(d) The Security Agent shall be entitled to relynot incur any liability for not performing any act or fulfilling any duty, and shall be fully protected in relying, upon obligation or responsibility hereunder by reason of any writing, resolution, notice, consent, certificate, affidavit, letter, telegram, facsimile, certification, telephone message, statement, or other communication, document or conversation (including those by telephone or e-mail) believed by it to be genuine and correct and to have been signed, sent, or made by occurrence beyond the proper Person or Persons, and upon advice and statements control of legal counsel (including, without limitation, counsel to the Issuer or any other Grantor), independent accountants and other experts and advisors selected by the Security Agent. The Security Agent shall not be bound to make any investigation into the facts or matters stated in any resolution, certificate, statement, instrument, opinion, report, notice, request, direction, consent, order, bond, debenture, or other paper or document. Unless otherwise expressly required hereunder or pursuant to the Security Documents or the Intercreditor Agreement, the Security Agent shall be fully justified in failing (including but not limited to any act or refusing to take provision of any action under this Indenturepresent or future law or regulation or governmental authority, any act of God or war, civil unrest, local or national disturbance or disaster, any act of terrorism, or the Security Documents and/or the Intercreditor Agreement unless it shall first receive such written advice or concurrence unavailability of the Trustee Federal Reserve Bank wire or the holders of a majority in aggregate principal amount of the Notes as it determines and, if it so requests, it shall first be indemnified to its satisfaction by the holders against any and all liability and expense which may be incurred by it by reason of taking facsimile or continuing to take any such action. The Security Agent shall in all cases be fully protected in acting, other wire or in refraining from acting, under this Indenture, the Security Documents and/or the Intercreditor Agreement in accordance with a request, direction, instruction or consent of the Trustee or the holders of a majority in aggregate principal amount of the then outstanding Notes and such request and any action taken or failure to act pursuant thereto shall be binding upon all of the holderscommunication facility).
(e) The Security Agent shall not be deemed to have knowledge responsible in any respect for the form, execution, validity, value or notice genuineness of documents or securities deposited under any Loan Document, or for any description therein, or for the occurrence identity or authority of any Default or Event of Default, unless a Responsible Officer of Persons (other than the Security Agent shall have received written notice from the Trustee or the Issuer referring anyone acting on its behalf) executing or delivering or purporting to this Indentureexecute or deliver any such document, describing such Default security or Event of Default and stating that such notice is a “notice of default” and such notice references the Notes, the Issuer and this Indentureendorsement. The Security Agent shall take such not be called upon to advise any party as to the wisdom in selling or retaining or taking or refraining from any action with respect to such Default any securities or Event of Default as may be requested by the Trustee in accordance with Article VI or the holders of a majority in aggregate principal amount of the Notes (subject to this Section 10.07)other property deposited under any Loan Document.
(f) The Security Agent under this Indenture may resign at any time by ▇▇▇▇▇▇ (30) Business Days’ written notice to the Trustee and the Issuer, such resignation to be effective upon the acceptance of a successor agent to its appointment as Security Agent. If the Security Agent resigns under this Indenture, the Issuer shall appoint a successor collateral agent. If no successor collateral agent is appointed prior to the intended effective date of the resignation of the Security Agent (as stated in the notice of resignation), the Trustee, at the written direction of the holders of a majority of the aggregate principal amount of the Notes then outstanding, may appoint a successor collateral agent under this Indenture, subject to the consent of the Issuer (which consent shall not be unreasonably withheld under any duty to give the Collateral held by it under the Loan Documents any greater degree of care than it gives its own similar property and which shall not be required during a continuing Event of Default). If no successor collateral agent is appointed and consented to invest any funds held by the Issuer pursuant it except to the preceding sentence within 30 days after the intended effective date of resignation (as stated in the notice of resignation) extent the Security Agent shall be entitled to petition a court would invest its own funds exercising the same degree of competent jurisdiction to appoint a successor. Upon the acceptance of its appointment as successor collateral agent hereunder, such successor collateral agent shall succeed to all the rights, powers and duties of the retiring Security Agent, and the term “Security Agent” shall include such successor collateral agent, and the retiring Security Agent’s appointment, powers and duties as care that the Security Agent shall be terminated. After holds toward the retiring Security Agent’s resignation hereunder, the provisions investment and management of this Section 10.07 (and Section 7.07 hereof) shall continue to inure to its benefit and the retiring Security Agent shall not by reason of such resignation be deemed to be released from liability as to any actions taken or omitted to be taken by it while it was the Security Agent under this Indentureown funds.
(g) Except as otherwise explicitly provided herein In the event of any ambiguity or uncertainty hereunder or in the Security Documents any notice, instruction or the Intercreditor Agreement, neither other communication received by the Security Agent nor any of its respective officers, directors, employees or agents or other Related Persons shall be liable for failure to demand, collect or realize upon any of the Collateral or for any delay in doing so or shall be under any obligation to sell or otherwise dispose of any Collateral upon the request of any other Person or to take any other action whatsoever with regard to the Collateral or any part thereof. The Security Agent shall be accountable only for amounts that it actually receives as a result of the exercise of such powersLoan Document, and neither the Security Agent nor may, in its sole discretion, refrain from taking any action other than to retain possession of its officersthe Collateral, directorsunless the Security Agent receives written instructions, employees signed by the Administrative Agent, which eliminates such ambiguity or agents shall be responsible for any act or failure to act hereunder, except for its own gross negligence or willful misconduct as determined by a court of competent jurisdiction by a final and non-appealable judgmentuncertainty.
(h) The Trustee and/or the Security Agent, as applicable, are hereby authorized and directed to, and hereby agree to, whether on or after the Issue Date (i) enter into and/or join the Security Documents to which it is party (and Notwithstanding any joinders, supplements or amendments thereto contemplated hereby), (ii) make other provision of any representations of the holders set forth in the Security Documents or the Intercreditor Agreement, (iii) bind the holders on the terms as set forth in the Security Documents and the Intercreditor Agreement and (iv) perform and observe its obligations under the Security Documents and the Intercreditor Agreement. Any such action shall be at the direction and expense of the Issuer and shall be accompanied by an Officer’s Certificate and an Opinion of Counsel stating that the execution is authorized or permitted pursuant to this Indenture; provided that neither an Officer’s Certificate nor an Opinion of Counsel shall be required in connection with the entry into the any accession documents Loan Document to the Intercreditor Agreement by contrary, the Security Agent on the Issue Dateis not obliged to do or omit to do anything if it would, or might in its reasonable opinion, constitute a breach of any law or regulation or a breach of a fiduciary duty or duty of confidentiality.
(i) If applicableNotwithstanding any provision of any Loan Document to the contrary, the Security Agent is each holder’s agent for the purpose of perfecting the holders’ security interest in assets which, in accordance with Article 9 of the Uniform Commercial Code, can be perfected only by possession. Should the Trustee obtain possession of any such Collateral, upon written request from the Issuer, the Trustee shall notify the Security Agent thereof and promptly shall, subject to the Intercreditor Agreement, deliver such Collateral to the Security Agent or otherwise deal with such Collateral in accordance with the Security Agent’s instructions.
(j) The Security Agent shall have no obligation whatsoever to the Trustee or any of the holders to assure that the Collateral exists or is owned by any Grantor or is cared for, protected, or insured or has been encumbered, or that the Security Agent’s Liens have been properly or sufficiently or lawfully created, perfected, protected, maintained or enforced or are entitled to any particular priority, or to determine whether all or the Grantor’s property constituting Collateral intended to be subject to the Lien and security interest of the Security Documents has been properly and completely listed or delivered, as the case may be, or the genuineness, validity, marketability or sufficiency thereof or title thereto, or to exercise at all or in any particular manner or under any duty of care, disclosure, or fidelity, or to continue exercising, any of the rights, authorities, and powers granted or available to the Security Agent pursuant to this Indenture, any Security Document or the Intercreditor Agreement, other than pursuant to the instructions of the holders of a majority in aggregate principal amount of the Notes or as otherwise provided in the Security Documents.
(k) No provision of this Indenture, any Security Document or the Intercreditor Agreement shall require the Security Agent (or the Trustee) not obliged to expend or risk its own funds or otherwise incur any financial liability in the performance of any of its duties hereunder duties, obligations or thereunder or to take or omit to take any action hereunder or thereunder or take any action at the request or direction of holders (responsibilities or the Trustee in the case of the Security Agent), unless it shall have received indemnity and/or security satisfactory to the Security Agent and the Trustee against potential costs and liabilities incurred by the Security Agent and the Trustee relating thereto. Notwithstanding anything to the contrary contained in this Indenture, the Security Documents or the Intercreditor Agreement, in the event the Security 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 Security Agent shall not be required to commence any such action or exercise any remedy or to inspect or conduct any studies of any property under right, power, authority or discretion if it has grounds for believing the mortgages repayment of such funds or take any such other action if the Security Agent has determined that the Security Agent may incur personal liability as a result of the presence atadequate indemnity against, or release on security for, such risk or from, the Collateral or such property, of any hazardous substances. The Security Agent shall at any time be entitled liability is not reasonably assured to cease taking any action described in this clause (k) if it no longer reasonably deems any indemnity, security or undertaking from the Issuer or the holders to be sufficientit.
(l) The Security Agent (i) shall not be liable for any action taken or omitted to be taken by it in connection with this Indenture, the Security Documents and/or the Intercreditor Agreement 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 bad faith, gross negligence or willful misconduct as determined by a court of competen
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Security Agent. (a) Each of the holders by acceptance of the Notes, and each beneficial owner of an interest in By accepting a Note, hereby designates and appoint each Holder will be deemed to have, authorized U.S. Bank Trustees Limited to serve as the Security Agent as for its agent benefit and to (i) perform the duties and rights, powers and discretions that are specifically given to it under this Indenturethe Intercreditor Agreement and the Security Documents securing such Indebtedness, together with any other incidental rights, power and discretions; and (ii) execute each relevant Security Document, waiver, modification, amendment, renewal or replacement expressed to be executed by the Security Agent in its name and on its behalf.
(b) Subject to the provisions of Article 7, the Security Documents and the Intercreditor Agreement and each Agreement, the Trustee, without the consent of the holders by acceptance Holders, on behalf of the NotesHolders, and each beneficial owner following the occurrence of an interest in a NoteEvent of Default that is continuing, hereby irrevocably authorizes may or may instruct the Security Agent in writing to take such action on its behalf all actions it reasonably determines are necessary in order to (i) enforce any of the terms of the Security Documents or the Intercreditor Agreement; and (ii) collect and receive any and all amounts payable in respect of the Obligations under the provisions of this Indenture. To the extent permitted by applicable law, only the Security Agent will have the right to enforce the Security Documents on behalf of the Trustee and the Holders.
(c) Except as provided in the Intercreditor Agreement or as otherwise directed by a First Lien Representative in accordance with the Intercreditor Agreement, the Security Agent will not be obligated (i) to act upon directions purported to be delivered to it by any Person, including any Holder; (ii) to foreclose upon or otherwise enforce any Lien; or (iii) to take any other action whatsoever with regard to any or all of the Security Documents, the Intercreditor Agreement, if any, and to exercise such powers and perform such duties as Liens created thereby or the Collateral
(d) The provisions of this Section 12.03 are expressly delegated to solely for the benefit of the Security Agent by and none of the terms Trustee, any of this Indenture, the Security Documents, Holders nor any of the Intercreditor Agreement, if any, and consents and agrees to Grantors shall have any rights as a third party beneficiary of any of the terms of this Indenture, the Intercreditor Agreement and each Security Document (as applicable), as the same may be in effect or may be amended, restated, supplemented or otherwise modified from time to time in accordance with their respective terms. The Security Agent agrees to act as such on the express conditions provisions contained in this Section 10.07herein. Each holder Holder agrees that any action taken by the Security Agent in accordance with the provisions provision of this Indenture, the Intercreditor Agreement or any Additional Intercreditor Agreement and/or the applicable Security Documents (as applicable)Documents, and the exercise by the Security Agent of any rights or remedies set forth herein and therein shall be authorized and binding upon all holdersHolders. Notwithstanding any provision to the contrary contained elsewhere in this Indenture, the Security Documents or Documents, the Intercreditor Agreement (as applicable) and any Additional Intercreditor Agreement, the duties of the Security Agent shall be ministerial and administrative in nature, and the Security Agent shall not have any duties or responsibilities, except those expressly set forth herein and in the Security other Notes Documents and/or the Intercreditor Agreement (as applicable) to which the Security Agent is a party, nor shall the Security Agent have or be deemed to have any trust or other fiduciary relationship with the Trustee, any holder Holder or any Grantor, and no implied covenants, functions, responsibilities, duties, obligations or liabilities shall be read into this Indenture, the Security Documents, the Intercreditor Agreement or any Additional Intercreditor Agreement or otherwise exist against the Security Agent. Without limiting the generality of the foregoing sentence, the use of the term “agent” in this Indenture with reference to the Security Agent is not intended to connote any fiduciary or other implied (or express) obligations arising under agency doctrine of any applicable law. Instead, such term is used merely as a matter of market custom, and is intended to create or reflect only an administrative relationship between independent contracting parties.
(be) The Security Agent may perform any of its duties under this Indenture, the Security Documents and/or or the Intercreditor Agreement (as applicable) by or through receivers, agents, employees, attorneys-in-fact or with respect to any specified Person, such Person’s Affiliates, and the respective officers, directors, employees, agents, advisors and attorneys-in-fact of such Person and its Affiliates (a “Related Person”), and shall be entitled to advice of counsel concerning all matters pertaining to such duties, and shall be entitled to act upon, and shall be fully protected in taking action in reliance upon any advice or opinion given by legal counsel. The Security Agent shall not be responsible for the negligence or willful misconduct of any receiver, agent, employee, attorney-in-fact or Related Person that it selects as long as such selection was made in good faith and with due care. The exculpatory provisions of this Article X shall apply to any such sub-agent and to the Affiliates of faith.
(f) Neither the Security Agent and any such sub-agent.
(c) None of the Security Agent or nor any of its respective Related Persons shall (i) be liable for any action taken or omitted to be taken in good faith by any of them under or in connection with this Indenture or the transactions contemplated hereby (except for its own gross negligence or willful misconduct as determined by a court of competent jurisdiction by a final and non-appealable judgmentmisconduct) or under or in connection with any Security Document and/or or the Intercreditor Agreement or any Additional Intercreditor Agreement or the transactions contemplated thereby (except for its own gross negligence or willful misconduct as determined by a court of competent jurisdiction by a final and non-appealable judgmentmisconduct), or (ii) be responsible in any manner to any of the Trustee or any holder Holder for any recital, statement, representation, warranty, covenant or agreement made by the Issuer or any other Grantor or Affiliate of any Grantor, or any Officer or Related Person thereof, contained in this Indenture, the Security Documents and/or the Intercreditor Agreement or any other Notes Documents, or in any certificate, report, statement or other document referred to or provided for in, or received by the Security Agent under or in connection with, this Indenture, the Security Documents and/or or the Intercreditor Agreement Agreement, or the validity, effectiveness, genuineness, enforceability or sufficiency of this Indenture, the Security Documents and/or Documents, the Intercreditor Agreement or any Additional Intercreditor Agreement, or for any failure of any Grantor or any other party to this Indenture, the Security Documents and/or Documents, the Intercreditor Agreement or any Additional Intercreditor Agreement to perform its obligations hereunder or thereunder (if any)thereunder. None of Neither the Security Agent or nor any of its Related Persons shall be under any obligation to the Trustee or any holder Holder to ascertain or to inquire as to the observance or performance of any of the agreements contained in, or conditions of, this Indenture, the Security Documents and/or Documents, the Intercreditor Agreement, if any, Agreement or any Additional Intercreditor Agreement or to inspect the properties, books, or records of any Grantor or any Grantor’s Affiliates.
(dg) The Security Agent shall be entitled (in the absence of bad faith) to rely, and shall be fully protected in relying, upon any writing, resolution, notice, consent, certificate, affidavit, letter, telegram, facsimile, certification, telephone message, statement, or other communication, document or conversation (including those by telephone or e-mail) believed by it to be genuine and correct and to have been signed, sent, or made by the proper Person or Persons, and upon advice and statements of legal counsel (including, without limitation, counsel to the Issuer or any other Grantor), independent accountants and and/or other experts and advisors selected by the Security Agent. The Security Agent shall not be bound to make any investigation into the facts or matters stated in any resolution, certificate, statement, instrument, opinion, report, notice, request, direction, consent, order, bond, debenture, or other paper or document. Unless otherwise expressly required hereunder or pursuant to the any Security Documents or the Intercreditor AgreementDocument, the Security Agent shall be fully justified in failing or refusing to take any action under this Indenture, the Security Documents and/or or the Intercreditor Agreement unless it shall first receive such written advice or concurrence of the Trustee or the holders Holders of a majority in aggregate principal amount of the Notes as it determines and, if it so requests, it shall first be indemnified and/or secured to its satisfaction by the holders Holders against any and all liability and expense which may be incurred by it by reason of taking or continuing to take any such action. The Security Agent shall in all cases be fully protected from claims by any Holders in acting, or in refraining from acting, under this Indenture, the Security Documents and/or or the Intercreditor Agreement in accordance with a request, direction, instruction or consent of the Trustee or the holders Holders of a majority in aggregate principal amount of the then outstanding Notes and such request and any action taken or failure to act pursuant thereto shall be binding upon all of the holdersHolders.
(eh) The No Security Agent shall not be deemed to have knowledge or notice of the occurrence of any Default or Event of Default, unless a Responsible Officer of the Security Agent shall have received written notice from the Trustee or the Issuer referring to this Indenture, describing such Default or Event of Default and stating that such notice is a “notice of default.” and such notice references the Notes, the Issuer and this Indenture. The Security Agent shall take such action with respect to such Default or Event of Default as may be requested by the Trustee in accordance with Article VI or the holders Holders of a majority in aggregate principal amount of the Notes (subject to this Section 10.0712.03).
(fi) The Security Agent under this Indenture may resign at any time by ▇▇▇▇▇▇ (30) Business Days’ written notice to the Trustee and the Issuer, such resignation to be effective upon the acceptance of a successor agent to its appointment as Security Agent. If the Security Agent resigns under this Indenture, the Issuer shall appoint a successor collateral security agent. If no successor collateral security agent is appointed prior to the intended effective date of the resignation of the Security Agent (as stated in the notice of resignation), the Security Agent may appoint, after consulting with the Trustee, at the written direction of the holders of a majority of the aggregate principal amount of the Notes then outstanding, may appoint a successor collateral agent under this Indenture, subject to the consent of the Issuer (which consent shall not be unreasonably withheld and which shall not be required during a continuing Event of Default), a successor security agent. If no successor collateral security agent is appointed and consented to by the Issuer pursuant to the preceding sentence within 30 thirty (30) days after the intended effective date of resignation (as stated in the notice of resignation) the Security Agent shall be entitled to petition a court of competent jurisdiction to appoint a successor. Upon the acceptance of its appointment as successor collateral security agent hereunder, such successor collateral security agent shall succeed to all the rights, powers and duties of the retiring Security Agent, and the term “Security Agent” shall include mean such successor collateral security agent, and the retiring Security Agent’s appointment, powers and duties as the Security Agent shall be terminated. After the retiring Security Agent’s resignation hereunder, the provisions of this Section 10.07 (and Section 7.07 hereof) 12.03 shall continue to inure to its benefit and the retiring Security Agent shall not by reason of such resignation be deemed to be released from liability as to any actions taken or omitted to be taken by it while it was the Security Agent under this Indenture.
(g) Except as otherwise explicitly provided herein or in the Security Documents or the Intercreditor Agreement, neither the Security Agent nor any of its respective officers, directors, employees or agents or other Related Persons shall be liable for failure to demand, collect or realize upon any of the Collateral or for any delay in doing so or shall be under any obligation to sell or otherwise dispose of any Collateral upon the request of any other Person or to take any other action whatsoever with regard to the Collateral or any part thereof. The Security Agent shall be accountable only for amounts that it actually receives as a result of the exercise of such powers, and neither the Security Agent nor any of its officers, directors, employees or agents shall be responsible for any act or failure to act hereunder, except for its own gross negligence or willful misconduct as determined by a court of competent jurisdiction by a final and non-appealable judgment.
(h) The Trustee and/or the Security Agent, as applicable, are hereby authorized and directed to, and hereby agree to, whether on or after the Issue Date (i) enter into and/or join the Security Documents to which it is party (and any joinders, supplements or amendments thereto contemplated hereby), (ii) make any representations of the holders set forth in the Security Documents or the Intercreditor Agreement, (iii) bind the holders on the terms as set forth in the Security Documents and the Intercreditor Agreement and (iv) perform and observe its obligations under the Security Documents and the Intercreditor Agreement. Any such action shall be at the direction and expense of the Issuer and shall be accompanied by an Officer’s Certificate and an Opinion of Counsel stating that the execution is authorized or permitted pursuant to this Indenture; provided that neither an Officer’s Certificate nor an Opinion of Counsel shall be required in connection with the entry into the any accession documents to the Intercreditor Agreement by the Security Agent on the Issue Date.
(i) If applicable, the Security Agent is each holder’s agent for the purpose of perfecting the holders’ security interest in assets which, in accordance with Article 9 of the Uniform Commercial Code, can be perfected only by possession. Should the Trustee obtain possession of any such Collateral, upon written request from the Issuer, the Trustee shall notify the Security Agent thereof and promptly shall, subject to the Intercreditor Agreement, deliver such Collateral to the Security Agent or otherwise deal with such Collateral in accordance with the Security Agent’s instructions.
(j) The Security Agent shall have no obligation whatsoever to the Trustee or any of the holders to assure that the Collateral exists or is owned by any Grantor or is cared for, protected, or insured or has been encumbered, or that the Security Agent’s Liens have been properly or sufficiently or lawfully created, perfected, protected, maintained or enforced or are entitled to any particular priority, or to determine whether all or the Grantor’s property constituting Collateral intended to be subject to the Lien and security interest of the Security Documents has been properly and completely listed or delivered, as the case may be, or the genuineness, validity, marketability or sufficiency thereof or title thereto, or to exercise at all or in any particular manner or under any duty of care, disclosure, or fidelity, or to continue exercising, any of the rights, authorities, and powers granted or available to the Security Agent pursuant to this Indenture, any Security Document or the Intercreditor Agreement, other than pursuant to the instructions of the holders of a majority in aggregate principal amount of the Notes or as otherwise provided in the Security Documents.
(k) No provision of this Indenture, any Security Document or the Intercreditor Agreement shall require the Security Agent (or the Trustee) to expend or risk its own funds or otherwise incur any financial liability in the performance of any of its duties hereunder or thereunder or to take or omit to take any action hereunder or thereunder or take any action at the request or direction of holders (or the Trustee in the case of the Security Agent), unless it shall have received indemnity and/or security satisfactory to the Security Agent and the Trustee against potential costs and liabilities incurred by the Security Agent and the Trustee relating thereto. Notwithstanding anything to the contrary contained in this Indenture, the Security Documents or the Intercreditor Agreement, in the event the Security 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 Security Agent shall not be required to commence any such action or exercise any remedy or to inspect or conduct any studies of any property under the mortgages or take any such other action if the Security Agent has determined that the Security 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 Security Agent shall at any time be entitled to cease taking any action described in this clause (k) if it no longer reasonably deems any indemnity, security or undertaking from the Issuer or the holders to be sufficient.
(l) The Security Agent (i) shall not be liable for any action taken or omitted to be taken by it in connection with this Indenture, the Security Documents and/or the Intercreditor Agreement 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 bad faith, gross negligence or willful misconduct as determined by a court of competen
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Security Agent. (a) Each of the holders by acceptance of the Notes, and each beneficial owner of an interest in a Note, hereby designates and appoint the Security Agent as its agent under this Indenture, the Security Documents and the Intercreditor Agreement and each of the holders by acceptance of the Notes, and each beneficial owner of an interest in a Note, hereby irrevocably authorizes the Security Agent to take such action on its behalf under the provisions of this Indenture, the Security Documents, the Intercreditor Agreement, if any, and to exercise such powers and perform such duties as are expressly delegated to the Security Agent by the terms of this Indenture, the Security Documents, the Intercreditor Agreement, if any, and consents and agrees to the terms of this Indenture, the Intercreditor Agreement and each Security Document (as applicable), as the same may be in effect or may be amended, restated, supplemented or otherwise modified from time to time in accordance with their respective terms. The Security Agent agrees and every Receiver and Delegate may, in priority to act as such any payment to the Secured Parties, indemnify itself out of the Collateral in respect of, and pay and retain, all sums necessary to give effect to the indemnity in this Clause 11.4 and shall have a lien on the express conditions contained in this Section 10.07. Each holder agrees that any action taken by the Transaction Security Agent in accordance with the provisions of this Indenture, the Intercreditor Agreement or the Security Documents (as applicable), and the exercise by the Security Agent of any rights or remedies set forth herein and therein shall be authorized and binding upon all holders. Notwithstanding any provision to the contrary contained elsewhere in this Indenture, the Security Documents or the Intercreditor Agreement (as applicable) the duties proceeds of the Security Agent shall be ministerial and administrative in nature, and the Security Agent shall not have any duties or responsibilities, except those expressly set forth herein and in the Security Documents and/or the Intercreditor Agreement (as applicable) to which the Security Agent is a party, nor shall the Security Agent have or be deemed to have any trust or other fiduciary relationship with the Trustee, any holder or any Grantor, and no implied covenants, functions, responsibilities, duties, obligations or liabilities shall be read into this Indenture, the Security Documents, the Intercreditor Agreement or otherwise exist against the Security Agent. Without limiting the generality enforcement of the foregoing sentence, the use of the term “agent” in this Indenture with reference Transaction Security for all moneys payable to the Security Agent is not intended to connote any fiduciary or other implied (or express) obligations arising under agency doctrine of any applicable law. Instead, such term is used merely as a matter of market custom, and is intended to create or reflect only an administrative relationship between independent contracting partiesit.
(b) The Chargor shall promptly on demand pay or reimburse the Security Agent may perform the amount of all costs and expenses (including legal fees) reasonably incurred by it and which are properly documented in connection with:
(i) the negotiation, preparation, printing and execution of this Debenture and any other documents referred to in this Debenture;
(ii) its responding to, evaluating, negotiating or complying with any request or requirement to amend this Debenture;
(iii) acting or relying on any notice, request or instruction which it reasonably believes to be genuine, correct and appropriately authorised;
(iv) the taking, holding, protection or enforcement of the Transaction Security, the exercise of any of its duties under this Indenturethe rights, the Security Documents and/or the Intercreditor Agreement (as applicable) by or through receiverspowers, agentsdiscretions, employees, attorneys-in-fact or with respect to any specified Person, such Person’s Affiliates, authorities and the respective officers, directors, employees, agents, advisors and attorneys-in-fact of such Person and its Affiliates (a “Related Person”), and shall be entitled to advice of counsel concerning all matters pertaining to such duties, and shall be entitled to act upon, and shall be fully protected remedies vested in taking action in reliance upon any advice or opinion given by legal counsel. The Security Agent shall not be responsible for the negligence or willful misconduct of any receiver, agent, employee, attorney-in-fact or Related Person that it selects as long as such selection was made in good faith and with due care. The exculpatory provisions of this Article X shall apply to any such sub-agent and to the Affiliates of the Security Agent and each Receiver and Delegate by the Finance Documents or by law;
(v) any such sub-agentdefault by the Chargor in the performance of any of the obligations expressed to be assumed by it in the Finance Documents;
(vi) the administration or release of any Security created pursuant to this Debenture; and
(vii) acting as Security Agent, Receiver or Delegate under the Finance Documents or which otherwise relates to any of the Collateral (otherwise, in each case, than by reason of the relevant Security Agent's, Receiver's or Delegate's gross negligence or wilful misconduct).
(c) None of the Security Agent or any of its respective Related Persons shall (i) be liable for any action taken or omitted Any amount payable to be taken in good faith by any of them under or in connection with this Indenture or the transactions contemplated hereby (except for its own gross negligence or willful misconduct as determined by a court of competent jurisdiction by a final and non-appealable judgment) or under or in connection with any Security Document and/or Intercreditor Agreement or the transactions contemplated thereby (except for its own gross negligence or willful misconduct as determined by a court of competent jurisdiction by a final and non-appealable judgment), or (ii) be responsible in any manner to any of the Trustee or any holder for any recital, statement, representation, warranty, covenant or agreement made by the Issuer or any other Grantor or Affiliate of any Grantor, or any Officer or Related Person thereof, contained in this Indenture, the Security Documents and/or the Intercreditor Agreement or in any certificate, report, statement or other document referred to or provided for in, or received by the Security Agent under this Clause 11.4 (Security Agent) or as set out in connection withthis Debenture shall include the cost of utilising its management time or other resources and will be calculated on the basis of such reasonable daily or hourly rates as it may notify to the Chargor, this Indenture, the Security Documents and/or the Intercreditor Agreement or the validity, effectiveness, genuineness, enforceability or sufficiency of this Indenture, the Security Documents and/or the Intercreditor Agreement or for any failure of any Grantor or and is in addition to any other party fee paid or payable to this Indenture, the Security Documents and/or the Intercreditor Agreement to perform its obligations hereunder or thereunder (if any). None of the Security Agent or any of its Related Persons shall be under any obligation to the Trustee or any holder to ascertain or to inquire as to the observance or performance of any of the agreements contained in, or conditions of, this Indenture, the Security Documents and/or the Intercreditor Agreement, if any, or to inspect the properties, books, or records of any Grantor or any Grantor’s Affiliatesit.
(d) The Security Agent Chargor shall be entitled to rely, and shall be fully protected in relying, upon any writing, resolution, notice, consent, certificate, affidavit, letter, telegram, facsimile, certification, telephone message, statement, or other communication, document or conversation (including those by telephone or e-mail) believed by it to be genuine and correct and to have been signed, sent, or made by the proper Person or Persons, and upon advice and statements of legal counsel (including, without limitation, counsel to the Issuer or any other Grantor), independent accountants and other experts and advisors selected by the Security Agent. The Security Agent shall not be bound to make any investigation into the facts or matters stated in any resolution, certificate, statement, instrument, opinion, report, notice, request, direction, consent, order, bond, debenture, or other paper or document. Unless otherwise expressly required hereunder or pursuant supply to the Security Documents or the Intercreditor Agreement, Agent such information as the Security Agent shall be fully justified in failing or refusing to take any action under this Indenture, may reasonably require about the Security Documents and/or the Intercreditor Agreement unless it shall first receive such written advice or concurrence Collateral and compliance of the Trustee or Chargor with the holders terms of a majority in aggregate principal amount of the Notes as it determines and, if it so requests, it shall first be indemnified to its satisfaction by the holders against any and all liability and expense which may be incurred by it by reason of taking or continuing to take any such action. The Security Agent shall in all cases be fully protected in acting, or in refraining from acting, under this Indenture, the Security Documents and/or the Intercreditor Agreement in accordance with a request, direction, instruction or consent of the Trustee or the holders of a majority in aggregate principal amount of the then outstanding Notes and such request and any action taken or failure to act pursuant thereto shall be binding upon all of the holdersDebenture.
(e) The Security Agent shall not be deemed An amendment or waiver which relates to have knowledge the rights or notice of the occurrence of any Default or Event of Default, unless a Responsible Officer obligations of the Security Agent shall have received written notice from the Trustee or the Issuer referring to this Indenture, describing such Default or Event of Default and stating that such notice is a “notice of default” and such notice references the Notes, the Issuer and this Indenture. The Security Agent shall take such action with respect to such Default or Event of Default as under any Finance Document may not be requested by the Trustee in accordance with Article VI or the holders of a majority in aggregate principal amount of the Notes (subject to this Section 10.07).
(f) The Security Agent under this Indenture may resign at any time by ▇▇▇▇▇▇ (30) Business Days’ written notice to the Trustee and the Issuer, such resignation to be effective upon the acceptance of a successor agent to its appointment as Security Agent. If the Security Agent resigns under this Indenture, the Issuer shall appoint a successor collateral agent. If no successor collateral agent is appointed prior to the intended effective date of the resignation of the Security Agent (as stated in the notice of resignation), the Trustee, at the written direction of the holders of a majority of the aggregate principal amount of the Notes then outstanding, may appoint a successor collateral agent under this Indenture, subject to effected without the consent of the Issuer (which consent shall not be unreasonably withheld and which shall not be required during a continuing Event of Default). If no successor collateral agent is appointed and consented to by the Issuer pursuant to the preceding sentence within 30 days after the intended effective date of resignation (as stated in the notice of resignation) the Security Agent shall be entitled to petition a court of competent jurisdiction to appoint a successor. Upon the acceptance of its appointment as successor collateral agent hereunder, such successor collateral agent shall succeed to all the rights, powers and duties of the retiring Security Agent, and the term “Security Agent” shall include such successor collateral agent, and the retiring Security Agent’s appointment, powers and duties as the Security Agent shall be terminated. After the retiring Security Agent’s resignation hereunder, the provisions of this Section 10.07 (and Section 7.07 hereof) shall continue to inure to its benefit and the retiring Security Agent shall not by reason of such resignation be deemed to be released from liability as to any actions taken or omitted to be taken by it while it was the Security Agent under this Indenture.
(g) Except as otherwise explicitly provided herein or in the Security Documents or the Intercreditor Agreement, neither the Security Agent nor any of its respective officers, directors, employees or agents or other Related Persons shall be liable for failure to demand, collect or realize upon any of the Collateral or for any delay in doing so or shall be under any obligation to sell or otherwise dispose of any Collateral upon the request of any other Person or to take any other action whatsoever with regard to the Collateral or any part thereof. The Security Agent shall be accountable only for amounts that it actually receives as a result of the exercise of such powers, and neither the Security Agent nor any of its officers, directors, employees or agents shall be responsible for any act or failure to act hereunder, except for its own gross negligence or willful misconduct as determined by a court of competent jurisdiction by a final and non-appealable judgment.
(h) The Trustee and/or the Security Agent, as applicable, are hereby authorized and directed to, and hereby agree to, whether on or after the Issue Date (i) enter into and/or join the Security Documents to which it is party (and any joinders, supplements or amendments thereto contemplated hereby), (ii) make any representations of the holders set forth in the Security Documents or the Intercreditor Agreement, (iii) bind the holders on the terms as set forth in the Security Documents and the Intercreditor Agreement and (iv) perform and observe its obligations under the Security Documents and the Intercreditor Agreement. Any such action shall be at the direction and expense of the Issuer and shall be accompanied by an Officer’s Certificate and an Opinion of Counsel stating that the execution is authorized or permitted pursuant to this Indenture; provided that neither an Officer’s Certificate nor an Opinion of Counsel shall be required in connection with the entry into the any accession documents to the Intercreditor Agreement by the Security Agent on the Issue Date.
(i) If applicable, the Security Agent is each holder’s agent for the purpose of perfecting the holders’ security interest in assets which, in accordance with Article 9 of the Uniform Commercial Code, can be perfected only by possession. Should the Trustee obtain possession of any such Collateral, upon written request from the Issuer, the Trustee shall notify the Security Agent thereof and promptly shall, subject to the Intercreditor Agreement, deliver such Collateral to the Security Agent or otherwise deal with such Collateral in accordance with the Security Agent’s instructions.
(j) The Security Agent shall have no obligation whatsoever to the Trustee or any of the holders to assure that the Collateral exists or is owned by any Grantor or is cared for, protected, or insured or has been encumbered, or that the Security Agent’s Liens have been properly or sufficiently or lawfully created, perfected, protected, maintained or enforced or are entitled to any particular priority, or to determine whether all or the Grantor’s property constituting Collateral intended to be subject to the Lien and security interest of the Security Documents has been properly and completely listed or delivered, as the case may be, or the genuineness, validity, marketability or sufficiency thereof or title thereto, or to exercise at all or in any particular manner or under any duty of care, disclosure, or fidelity, or to continue exercising, any of the rights, authorities, and powers granted or available to the Security Agent pursuant to this Indenture, any Security Document or the Intercreditor Agreement, other than pursuant to the instructions of the holders of a majority in aggregate principal amount of the Notes or as otherwise provided in the Security Documents.
(k) No provision of this Indenture, any Security Document or the Intercreditor Agreement shall require the Security Agent (or the Trustee) to expend or risk its own funds or otherwise incur any financial liability in the performance of any of its duties hereunder or thereunder or to take or omit to take any action hereunder or thereunder or take any action at the request or direction of holders (or the Trustee in the case of the Security Agent), unless it shall have received indemnity and/or security satisfactory to the Security Agent and the Trustee against potential costs and liabilities incurred by the Security Agent and the Trustee relating thereto. Notwithstanding anything to the contrary contained in this Indenture, the Security Documents or the Intercreditor Agreement, in the event the Security 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 Security Agent shall not be required to commence any such action or exercise any remedy or to inspect or conduct any studies of any property under the mortgages or take any such other action if the Security Agent has determined that the Security 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 Security Agent shall at any time be entitled to cease taking any action described in this clause (k) if it no longer reasonably deems any indemnity, security or undertaking from the Issuer or the holders to be sufficient.
(l) The Security Agent (i) shall not be liable for any action taken or omitted to be taken by it in connection with this Indenture, the Security Documents and/or the Intercreditor Agreement 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 bad faith, gross negligence or willful misconduct as determined by a court of competen
Appears in 1 contract
Security Agent. (a) Each of Unless expressly provided to the holders by acceptance of the Notescontrary, and each beneficial owner of an interest in to the extent that under applicable law it is able to hold security created by a NoteTransaction Security Document as trustee, hereby designates and appoint the Security Agent as its agent under this Indenture, holds the security created by the Transaction Security Documents and on trust for the Intercreditor Agreement and each of the holders Relevant Creditors. If under applicable law it is not able to hold any security created by acceptance of the Notes, and each beneficial owner of an interest in a Note, hereby irrevocably authorizes the Security Agent to take such action on its behalf under the provisions of this Indenture, the Security Documents, the Intercreditor Agreement, if any, and to exercise such powers and perform such duties as are expressly delegated to the Security Agent by the terms of this Indenture, the Security Documents, the Intercreditor Agreement, if any, and consents and agrees to the terms of this Indenture, the Intercreditor Agreement and each Transaction Security Document (as applicable)trustee, as the same may be in effect or may be amended, restated, supplemented or otherwise modified from time to time in accordance with their respective terms. The Security Agent agrees to act as such on the express conditions contained in this Section 10.07. Each holder agrees that any action taken by the Security Agent in accordance with the provisions of this Indenture, the Intercreditor Agreement or the Security Documents (as applicable), and the exercise by the Security Agent of any rights or remedies set forth herein and therein shall be authorized and binding upon all holders. Notwithstanding any provision to the contrary contained elsewhere in this Indenture, the Security Documents or the Intercreditor Agreement (as applicable) the duties of the Security Agent shall be ministerial accept and administrative hold that part in nature, its own name (but on behalf of the Relevant Creditors) to deal with that part in accordance with this Agreement and the Security Agent shall not have any duties or responsibilities, except those expressly undertakes to apply that part as set forth herein and in the Security Documents and/or the Intercreditor Agreement (as applicable) to which the Security Agent is a party, nor shall the Security Agent have or be deemed to have any trust or other fiduciary relationship with the Trustee, any holder or any Grantor, and no implied covenants, functions, responsibilities, duties, obligations or liabilities shall be read into this Indenture, the Security Documents, the Intercreditor Agreement or otherwise exist against the Security Agent. Without limiting the generality of the foregoing sentence, the use of the term “agent” out in this Indenture with reference to the Security Agent is not intended to connote any fiduciary or other implied (or express) obligations arising under agency doctrine of any applicable law. Instead, such term is used merely as a matter of market custom, and is intended to create or reflect only an administrative relationship between independent contracting partiesAgreement.
(b) The Security Agent may perform is not liable for:
(i) any of its duties under this Indenture, failure in perfecting or protecting the security constituted by any relevant Transaction Security Documents and/or the Intercreditor Agreement Document; or
(as applicableii) any other action taken or not taken by or through receivers, agents, employees, attorneys-in-fact or it in connection with respect to any specified Person, such Person’s Affiliates, and the respective officers, directors, employees, agents, advisors and attorneys-in-fact of such Person and its Affiliates a relevant Transaction Security Document.
(a “Related Person”), and shall be entitled to advice of counsel concerning all matters pertaining to such duties, and shall be entitled to act upon, and shall be fully protected in taking action in reliance upon any advice or opinion given by legal counsel. i) The Security Agent shall not be responsible for may accept, without enquiry, the negligence or willful misconduct of any receiver, agent, employee, attorney-in-fact or Related Person that it selects as long as such selection was made in good faith and with due care. The exculpatory provisions of this Article X shall apply title (if any) which an Obligor may have to any such sub-agent and asset over which security is intended to the Affiliates of the be created by any relevant Transaction Security Agent and any such sub-agentDocument.
(cii) None The Security Agent has no obligation to insure any such asset or the interests of the Security Agent or any of its respective Related Persons shall (i) be liable for any action taken or omitted to be taken in good faith by any of them under or in connection with this Indenture or the transactions contemplated hereby (except for its own gross negligence or willful misconduct as determined by a court of competent jurisdiction by a final and non-appealable judgment) or under or in connection with any Security Document and/or Intercreditor Agreement or the transactions contemplated thereby (except for its own gross negligence or willful misconduct as determined by a court of competent jurisdiction by a final and non-appealable judgment), or (ii) be responsible Relevant Creditors in any manner to any of the Trustee or any holder for any recital, statement, representation, warranty, covenant or agreement made by the Issuer or any other Grantor or Affiliate of any Grantor, or any Officer or Related Person thereof, contained in this Indenture, the Security Documents and/or the Intercreditor Agreement or in any certificate, report, statement or other document referred to or provided for in, or received by the Security Agent under or in connection with, this Indenture, the Security Documents and/or the Intercreditor Agreement or the validity, effectiveness, genuineness, enforceability or sufficiency of this Indenture, the Security Documents and/or the Intercreditor Agreement or for any failure of any Grantor or any other party to this Indenture, the Security Documents and/or the Intercreditor Agreement to perform its obligations hereunder or thereunder (if any). None of the Security Agent or any of its Related Persons shall be under any obligation to the Trustee or any holder to ascertain or to inquire as to the observance or performance of any of the agreements contained in, or conditions of, this Indenture, the Security Documents and/or the Intercreditor Agreement, if any, or to inspect the properties, books, or records of any Grantor or any Grantor’s Affiliatessuch asset.
(d) The Security Agent shall be entitled is not obliged to relyhold in its own possession any relevant Transaction Security Document, and shall be fully protected in relying, upon any writing, resolution, notice, consent, certificate, affidavit, letter, telegram, facsimile, certification, telephone message, statement, title deed or other communication, document or conversation (including those by telephone or e-mail) believed by it in connection with any asset over which security is intended to be genuine and correct and to have been signed, sent, created or made evidenced by the proper Person or Persons, and upon advice and statements of legal counsel (including, without limitation, counsel a relevant Transaction Security Document. Without prejudice to the Issuer or any other Grantor), independent accountants and other experts and advisors selected by the Security Agent. The Security Agent shall not be bound to make any investigation into the facts or matters stated in any resolution, certificate, statement, instrument, opinion, report, notice, request, direction, consent, order, bond, debenture, or other paper or document. Unless otherwise expressly required hereunder or pursuant to the Security Documents or the Intercreditor Agreementabove, the Security Agent shall be fully justified in failing may allow any bank providing safe custody services or refusing any professional advisers to take any action under this Indenture, the Security Documents and/or the Intercreditor Agreement unless it shall first receive such written advice or concurrence Agent to retain any of the Trustee or the holders of a majority those documents in aggregate principal amount of the Notes as it determines and, if it so requests, it shall first be indemnified to its satisfaction by the holders against any and all liability and expense which may be incurred by it by reason of taking or continuing to take any such action. The Security Agent shall in all cases be fully protected in acting, or in refraining from acting, under this Indenture, the Security Documents and/or the Intercreditor Agreement in accordance with a request, direction, instruction or consent of the Trustee or the holders of a majority in aggregate principal amount of the then outstanding Notes and such request and any action taken or failure to act pursuant thereto shall be binding upon all of the holderspossession.
(e) The Except as otherwise provided in any relevant Transaction Security Agent shall not be deemed to have knowledge or notice of the occurrence of any Default or Event of DefaultDocument, unless a Responsible Officer of all moneys received by the Security Agent shall have received written notice from under the Trustee Relevant Finance Documents may be:
(i) invested in the name of, or under the Issuer referring to this Indenture, describing such Default or Event of Default and stating that such notice is a “notice of default” and such notice references the Notescontrol of, the Issuer and this Indenture. The Security Agent shall take such action with respect to such Default in any investment for the time being authorised by English law for the investment by trustees of trust money or Event of Default as in any other investments which may be requested selected by the Trustee in accordance Security Agent with Article VI or the holders of a majority in aggregate principal amount consent of the Notes Agent; or
(subject to this Section 10.07)ii) placed on deposit in the name of, or under the control of, the Security Agent at such bank or institution (including any other Relevant Creditor) and upon such terms as the Security Agent may think fit.
(f) The Each Relevant Creditor confirms its approval of each relevant Transaction Security Agent under this Indenture may resign at any time by ▇▇▇▇▇▇ (30) Business Days’ written notice Document of which it is to have the Trustee benefit and the Issuer, such resignation to be effective upon the acceptance of a successor agent to its appointment as Security Agent. If the Security Agent resigns under this Indenture, the Issuer shall appoint a successor collateral agent. If no successor collateral agent is appointed prior to the intended effective date of the resignation of authorises and directs the Security Agent (by itself or by such person(s) as stated it may nominate) to execute and enforce the same as trustee (or agent) or as otherwise provided (and whether or not expressly in the notice of resignation), the Trustee, at the written direction names of the holders of a majority of the aggregate principal amount of the Notes then outstanding, may appoint a successor collateral agent under this Indenture, subject to the consent of the Issuer (which consent shall not be unreasonably withheld and which shall not be required during a continuing Event of Default). If no successor collateral agent is appointed and consented to by the Issuer pursuant to the preceding sentence within 30 days after the intended effective date of resignation (as stated in the notice of resignationRelevant Creditors) the Security Agent shall be entitled to petition a court of competent jurisdiction to appoint a successor. Upon the acceptance of on its appointment as successor collateral agent hereunder, such successor collateral agent shall succeed to all the rights, powers and duties of the retiring Security Agent, and the term “Security Agent” shall include such successor collateral agent, and the retiring Security Agent’s appointment, powers and duties as the Security Agent shall be terminated. After the retiring Security Agent’s resignation hereunder, the provisions of this Section 10.07 (and Section 7.07 hereof) shall continue to inure to its benefit and the retiring Security Agent shall not by reason of such resignation be deemed to be released from liability as to any actions taken or omitted to be taken by it while it was the Security Agent under this Indenturebehalf.
(g) Except In exercising any discretion to exercise a right, power or authority under this Agreement where either:
(i) it has not received any instructions from the Majority Creditors as otherwise explicitly provided herein or in to the Security Documents or exercise of that discretion; or
(ii) the Intercreditor Agreementexercise of that discretion is subject to clause 18.5(g)(iv) above, neither the Security Agent nor any of its respective officers, directors, employees or agents or other Related Persons shall be liable for failure to demand, collect or realize upon any of the Collateral or for any delay in doing may do so or shall be under any obligation to sell or otherwise dispose of any Collateral upon the request of any other Person or to take any other action whatsoever with having regard to the Collateral or any part thereof. The Security Agent shall be accountable only for amounts that it actually receives as a result interests of all the exercise of such powers, and neither the Security Agent nor any of its officers, directors, employees or agents shall be responsible for any act or failure to act hereunder, except for its own gross negligence or willful misconduct as determined by a court of competent jurisdiction by a final and non-appealable judgmentRelevant Creditors.
(h) The Trustee and/or the Security Agent, as applicable, are hereby authorized and directed Agent may (but shall not be obliged to, and hereby agree to, whether on or after the Issue Date (i) enter into and/or join the Security Documents to which it is party (and any joinders, supplements or amendments thereto contemplated hereby), (ii) make any representations of the holders set forth in the Security Documents or absence of any instructions to the Intercreditor contrary and/or any relevant contrary requirement contained in this Agreement, (iii) bind the holders on the terms as set forth take or refrain from taking such action in the Security Documents and the Intercreditor Agreement and (iv) perform and observe its obligations under the Security Documents and the Intercreditor Agreement. Any such action shall be at the direction and expense of the Issuer and shall be accompanied by an Officer’s Certificate and an Opinion of Counsel stating that the execution is authorized or permitted pursuant to this Indenture; provided that neither an Officer’s Certificate nor an Opinion of Counsel shall be required in connection with the entry into the any accession documents to the Intercreditor Agreement by the Security Agent on the Issue Date.
(i) If applicable, the Security Agent is each holder’s agent for the purpose of perfecting the holders’ security interest in assets which, in accordance with Article 9 of the Uniform Commercial Code, can be perfected only by possession. Should the Trustee obtain possession of any such Collateral, upon written request from the Issuer, the Trustee shall notify the Security Agent thereof and promptly shall, subject to the Intercreditor Agreement, deliver such Collateral to the Security Agent or otherwise deal with such Collateral in accordance with the Security Agent’s instructions.
(j) The Security Agent shall have no obligation whatsoever to the Trustee or any of the holders to assure that the Collateral exists or is owned by any Grantor or is cared for, protected, or insured or has been encumbered, or that the Security Agent’s Liens have been properly or sufficiently or lawfully created, perfected, protected, maintained or enforced or are entitled to any particular priority, or to determine whether all or the Grantor’s property constituting Collateral intended to be subject to the Lien and security interest of the Security Documents has been properly and completely listed or delivered, as the case may be, or the genuineness, validity, marketability or sufficiency thereof or title thereto, or to exercise at all or in any particular manner or under any duty of care, disclosure, or fidelity, or to continue exercising, any of the rights, authorities, and powers granted or available to the Security Agent pursuant to this Indenture, any Security Document or the Intercreditor Agreement, other than pursuant to the instructions of the holders of a majority in aggregate principal amount of the Notes or as otherwise provided in the Security Documents.
(k) No provision of this Indenture, any Security Document or the Intercreditor Agreement shall require the Security Agent (or the Trustee) to expend or risk its own funds or otherwise incur any financial liability in the performance of any of its rights, powers and duties hereunder or thereunder or under the Finance Documents as it considers in its discretion to take or omit to take any action hereunder or thereunder or take any action at the request or direction of holders (or the Trustee in the case of the Security Agent), unless it shall have received indemnity and/or security satisfactory to be appropriate and the Security Agent and the Trustee against potential costs and liabilities incurred by the Security Agent and the Trustee relating thereto. Notwithstanding anything to the contrary contained in this Indenture, the Security Documents or the Intercreditor Agreement, in the event the Security 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 Security Agent shall not be required to commence any such action or exercise any remedy or to inspect or conduct any studies of any property under the mortgages or take any such other action if the Security Agent has determined that the Security 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 Security Agent shall at any time be entitled to cease taking any action described in this clause (k) if it no longer reasonably deems any indemnity, security or undertaking from the Issuer or the holders to be sufficient.
(l) The Security Agent (i) shall will not be liable for any action taken or omitted to be not taken in by it under or in connection with any Finance Document.
(i) Notwithstanding any other provision in this IndentureAgreement, the Security Documents and/or the Intercreditor Agent may refrain from acting in accordance with instructions given in accordance with this Agreement or instrument referred to herein or therein, except to taking any action in the extent that exercise of any of its rights, powers and duties under the foregoing are found Finance Documents until it has received such security as it may require for any cost, loss or liability (together with any associated VAT or other taxes) which it may incur in complying with such instructions or taking such action.
(j) Any consent or approval of the Security Agent may be given by a final, non-appealable judgment of a court of competent jurisdiction it on such terms and subject to have resulted from its own bad faith, gross negligence or willful misconduct such conditions as determined by a court of competenthe Security Agent sees fit.
Appears in 1 contract
Sources: Intercreditor Agreement (Central European Media Enterprises LTD)
Security Agent. (aA) Each The Lenders appoint DEUTSCHE PFANDBRIEFBANK AG (as identified in the list of parties herein), which accepts such appointment, to represent them for the holders by acceptance purposes of the Notesany documents, notices and each beneficial owner of an interest in a Note, hereby designates and appoint formalities relating to the Security Agent as its agent under this Indenture, the Security Documents Interests and the Intercreditor Agreement and each of the holders by acceptance of the Notes, and each beneficial owner of an interest in a Note, hereby irrevocably authorizes the Security Agent to take such action on its behalf under the provisions of this Indenture, the Security Documents, .
(B) The Lenders acknowledge that the Intercreditor Agreement, if any, and to exercise such powers and perform such duties as are expressly delegated Security Interests pursuant to the Security Agent by Finance Documents shall be granted on behalf of the terms of this Indenture, the Security Documents, the Intercreditor Agreement, if any, and consents and agrees to the terms of this Indenture, the Intercreditor Agreement and each Security Document (as applicable)Lenders, as the same may be in effect or may be amended, restated, supplemented or otherwise modified from time to time in accordance with their respective terms. The Security Agent agrees to act as such on the express conditions contained in this Section 10.07. Each holder agrees that any action taken represented by the Security Agent in accordance with the provisions of this Indenture, the Intercreditor Agreement or the Security Documents (as applicable), and the exercise by the Security Agent of any rights or remedies set forth herein and therein shall be authorized and binding upon all holders. Notwithstanding any provision to the contrary contained elsewhere in this Indenture, the Security Documents or the Intercreditor Agreement (as applicable) the duties of the Security Agent shall be ministerial and administrative in nature, and the Security Agent shall not have any duties or responsibilities, except those expressly set forth herein and in the Security Documents and/or the Intercreditor Agreement (as applicable) to which the Security Agent is a party, nor shall the Security Agent have or be deemed to have any trust or other fiduciary relationship with the Trustee, any holder or any Grantor, and no implied covenants, functions, responsibilities, duties, obligations or liabilities shall be read into this Indenture, the Security Documents, the Intercreditor Agreement or otherwise exist against the Security Agent. Without limiting the generality of the foregoing sentence, the use of the term “agent” in this Indenture with reference to the Security Agent is not intended to connote any fiduciary or other implied (or express) obligations arising under agency doctrine of any applicable law. Instead, such term is used merely as a matter of market custom, and is intended to create or reflect only an administrative relationship between independent contracting parties.
(b) The Security Agent may perform any of its duties under this Indenture, the Security Documents and/or the Intercreditor Agreement (as applicable) by or through receivers, agents, employees, attorneys-in-fact or with respect to any specified Person, such Person’s Affiliates, and the respective officers, directors, employees, agents, advisors and attorneys-in-fact of such Person and its Affiliates (a “Related Person”), and shall be entitled to advice of counsel concerning all matters pertaining to such duties, and shall be entitled to act upon, and shall be fully protected in taking action in reliance upon any advice or opinion given by legal counsel. The Security Agent shall not be responsible for the negligence or willful misconduct of any receiver, agent, employee, attorney-in-fact or Related Person that it selects as long as such selection was made in good faith and with due care. The exculpatory provisions of this Article X shall apply to any such sub-agent and to the Affiliates of the Security Agent and any such sub-agent.
(c) None of the Security Agent or any of its respective Related Persons shall (i) be liable for any action taken or omitted to be taken in good faith by any of them under or in connection with this Indenture or the transactions contemplated hereby (except for its own gross negligence or willful misconduct as determined by a court of competent jurisdiction by a final and non-appealable judgment) or under or in connection with any Security Document and/or Intercreditor Agreement or the transactions contemplated thereby (except for its own gross negligence or willful misconduct as determined by a court of competent jurisdiction by a final and non-appealable judgment), or (ii) be responsible in any manner to any of the Trustee or any holder for any recital, statement, representation, warranty, covenant or agreement made by the Issuer or any other Grantor or Affiliate of any Grantor, or any Officer or Related Person thereof, contained in this Indenture, the Security Documents and/or the Intercreditor Agreement or in any certificate, report, statement or other document referred to or provided for in, or received by the Security Agent under or in connection with, this Indenture, the Security Documents and/or the Intercreditor Agreement or the validity, effectiveness, genuineness, enforceability or sufficiency of this Indenture, the Security Documents and/or the Intercreditor Agreement or for any failure of any Grantor or any other party to this Indenture, the Security Documents and/or the Intercreditor Agreement to perform its obligations hereunder or thereunder (if any). None of the Security Agent or any of its Related Persons shall be under any obligation to the Trustee or any holder to ascertain or to inquire as to the observance or performance of any of the agreements contained in, or conditions of, this Indenture, the Security Documents and/or the Intercreditor Agreement, if any, or to inspect the properties, books, or records of any Grantor or any Grantor’s Affiliates.
(dC) The Security Agent shall be entitled to rely, and shall be fully protected in relying, upon any writing, resolution, notice, consent, certificate, affidavit, letter, telegram, facsimile, certification, telephone message, statement, or other communication, document or conversation (including those by telephone or e-mail) believed by it to be genuine and correct and to have been signed, sent, or made by charged with the proper Person or Persons, and upon advice and statements administration of legal counsel (including, without limitation, counsel to the Issuer or any other Grantor), independent accountants and other experts and advisors selected by the Security Agent. The Security Agent shall not Interests that are or may be bound to make any investigation into the facts or matters stated in any resolution, certificate, statement, instrument, opinion, report, notice, request, direction, consent, order, bond, debenture, or other paper or document. Unless otherwise expressly required hereunder or granted pursuant to the Security Documents or the Intercreditor Agreement, the Security Agent shall be fully justified in failing or refusing to take any action under this Indenture, the Security Documents and/or the Intercreditor Agreement unless it shall first receive such written advice or concurrence of the Trustee or the holders of a majority in aggregate principal amount of the Notes as it determines and, if it so requests, it shall first be indemnified to its satisfaction by the holders against any and all liability and expense which may be incurred by it by reason of taking or continuing to take any such action. The Security Agent shall in all cases be fully protected in acting, or in refraining from acting, under this Indenture, the Security Documents and/or the Intercreditor Agreement in accordance with a request, direction, instruction or consent of the Trustee or the holders of a majority in aggregate principal amount of the then outstanding Notes and such request and any action taken or failure to act pursuant thereto shall be binding upon all of the holdersFinance Documents.
(eD) The Security Agent shall not be deemed to have knowledge liable (in the absence of gross or notice of intentional misconduct on its part) for any failure, omission or error affecting the occurrence enforceability of any Default Security Interest including inter alia:(i) any failure to make any registration or Event filing in connection with any Security Interest; (ii) any failure to procure or maintain the registration of Defaultany Security Interest pursuant to any applicable law governing registration; (iii) any failure to notify to any person the signature of any Security Interest or the procurement of any permission, unless consent or other power for the purposes of granting any Security Interest.
(E) The Security Agent may accept without investigation the title of any Group Company or any Affiliate to any Asset constituting the subject-matter of a Responsible Officer Security Interest.
(F) Each Lender hereby confirms its approval of the Security Interests and hereby authorises, empowers and instructs the Security Agent (acting either personally or through any persons whom it may instruct to do so) to sign and perform the Security Documents on its behalf, subject in all circumstances to the terms of the Agreement and the Security Documents (as the case may be).
(G) The Security Agent shall have received written notice from administer the Trustee or Security Interests on its own behalf (should it be a beneficiary thereof) and on behalf of the Issuer referring to this Indenture, describing such Default or Event of Default and stating that such notice is a “notice of default” and such notice references the Notes, the Issuer and this Indenturerelevant beneficiaries. The Security Agent shall take such action with respect to such Default or Event of Default as may be requested by the Trustee in accordance with Article VI or the holders of a majority in aggregate principal amount sign, which each one of the Notes relevant beneficiaries (subject to this Section 10.07).
(f) The Security Agent under this Indenture may resign at any time by ▇▇▇▇▇▇ (30) Business Days’ written notice and to the Trustee and the Issuerextent that it may have an interest therein, such resignation any other Party hereto) hereby authorises it to do, on its own behalf (should it be effective upon the acceptance of a successor agent to its appointment as Security Agent. If the Security Agent resigns under this Indenture, the Issuer shall appoint a successor collateral agent. If no successor collateral agent is appointed prior to the intended effective date beneficiary of the resignation relevant Security Interest) and on behalf of each one of the Security Agent (as stated in the notice of resignation), the Trustee, at the written direction of the holders of a majority of the aggregate principal amount of the Notes then outstanding, may appoint a successor collateral agent under this Indenture, subject to the consent of the Issuer (which consent shall not be unreasonably withheld relevant beneficiaries and which shall not be required during a continuing Event of Default). If no successor collateral agent is appointed and consented to by the Issuer pursuant to the preceding sentence within 30 days after the intended effective date of resignation (as stated in the notice of resignation) the Security Agent shall be entitled to petition a court of competent jurisdiction to appoint a successor. Upon the acceptance of its appointment as successor collateral agent hereunder, such successor collateral agent shall succeed to all the rights, powers and duties of the retiring Security Agent, and the term “Security Agent” shall include such successor collateral agent, and the retiring Security Agent’s appointment, powers and duties as the Security Agent shall be terminated. After the retiring Security Agent’s resignation hereunder, the provisions of this Section 10.07 (and Section 7.07 hereof) shall continue to inure to its benefit and the retiring Security Agent shall not by reason of such resignation be deemed to be released from liability as to any actions taken or omitted to be taken by it while it was the Security Agent under this Indenture.
(g) Except as otherwise explicitly provided herein or in the Security Documents or the Intercreditor Agreement, neither the Security Agent nor any of its respective officers, directors, employees or agents or other Related Persons shall be liable for failure to demand, collect or realize upon any of the Collateral or for any delay in doing so or shall be under any obligation to sell or otherwise dispose of any Collateral upon the request of any other Person or to take any other action whatsoever with regard to the Collateral or any part thereof. The Security Agent shall be accountable only for amounts that it actually receives as a result of the exercise of such powers, and neither the Security Agent nor any of its officers, directors, employees or agents shall be responsible for any act or failure to act hereunder, except for its own gross negligence or willful misconduct as determined by a court of competent jurisdiction by a final and non-appealable judgment.
(h) The Trustee and/or the Security Agent, as applicable, are hereby authorized and directed to, and hereby agree to, whether on or after the Issue Date (i) enter into and/or join the Security Documents to which it is party (and any joinders, supplements or amendments thereto contemplated hereby), (ii) make any representations of the holders set forth in the Security Documents or the Intercreditor Agreement, (iii) bind the holders on the terms as set forth in the Security Documents and the Intercreditor Agreement and (iv) perform and observe its obligations under the Security Documents and the Intercreditor Agreement. Any such action shall be at the direction and expense of the Issuer and shall be accompanied by an Officer’s Certificate and an Opinion of Counsel stating that the execution is authorized or permitted pursuant to this Indenture; provided that neither an Officer’s Certificate nor an Opinion of Counsel shall be required in connection with the entry into the any accession documents to the Intercreditor Agreement by the Security Agent on the Issue Date.
(i) If applicable, the Security Agent is each holder’s agent for the purpose of perfecting the holders’ security interest in assets which, in accordance with Article 9 of the Uniform Commercial Code, can be perfected only by possession. Should the Trustee obtain possession of any such Collateral, upon written request from the Issuer, the Trustee shall notify the Security Agent thereof and promptly shall, subject to the Intercreditor Agreement, deliver such Collateral to the Security Agent or otherwise deal with such Collateral in accordance with the Security Agent’s instructions.
(j) The Security Agent shall have no obligation whatsoever to the Trustee or any of the holders to assure that the Collateral exists or is owned by any Grantor or is cared for, protected, or insured or has been encumbered, or that the Security Agent’s Liens have been properly or sufficiently or lawfully created, perfected, protected, maintained or enforced or are entitled to any particular priority, or to determine whether all or the Grantor’s property constituting Collateral intended to be subject to the Lien and security interest of the Security Documents has been properly and completely listed or deliveredParty hereto, as the case may be, or without it being necessary for the genuineness, validity, marketability or sufficiency thereof or title thereto, Security Agent to again consult with or to exercise at all obtain from any beneficiary or any other Party hereto any power of attorney or any releases in connection with the Security Interests (other than those in connection with the Security Interests In Rem) granted pursuant to any particular manner Security Document that the Security Agent is authorised or under any duty of care, disclosure, or fidelity, or obliged to continue exercising, any grant in accordance with the terms of the rightsAgreement.
(H) The Security Agent shall hold, authoritiesin the name and on behalf of the relevant beneficiaries, and powers each one of the Security Documents (including in particular the documents relating to any notifications to be made to the insurance company or companies pursuant to the provisions of the Agreement), other than those documents relating to the Security Interests In Rem granted to the Lenders.
(I) The Security Agent shall retain the Security Documents until the repayment in full of the sums owed pursuant to the Agreement, it being specified that if, for the purposes of the Pfandbriefen, one or available more of the documents held must be physically delivered to an authorised third party (the Treuhänder), the relevant Lender(s) undertake to return the relevant document(s) to the Security Agent pursuant when first requested to this Indenturedo so, for the purposes of the inclusion of any Security Document or the Intercreditor Agreement, other than pursuant required information and/or with a view to the instructions repayment of the holders of a majority Facility in aggregate principal amount full or in part, or, more generally, for the purposes of the Notes or as otherwise provided in Agreement and the Security Finance Documents.
(kJ) No provision In the event of this Indenture, any Security Document or a conflict between the Intercreditor provisions of the Agreement shall require and/or the Security Agent (or Documents pertaining to the Trustee) to expend or risk its own funds or otherwise incur any financial liability in the performance of any of its duties hereunder or thereunder or to take or omit to take any action hereunder or thereunder or take any action at the request or direction of holders (or the Trustee in the case of the Security Agent), unless it shall have received indemnity and/or security satisfactory instructions given to the Security Agent and or any matter affecting the Trustee against potential costs and liabilities incurred by the Security Agent and the Trustee relating thereto. Notwithstanding anything to the contrary contained in this Indenturelatter, the Security Documents or the Intercreditor Agreement, in the event the Security 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 Security Agent Agreement 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 Security Agent has determined that the Security 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 Security Agent shall at any time be entitled to cease taking any action described in this clause (k) if it no longer reasonably deems any indemnity, security or undertaking from the Issuer or the holders to be sufficientprecedence.
(lK) The Security Agent (i) provisions of Clauses 21.1 to 21.10 above shall not be liable for any action taken or omitted apply mutatis mutandis to be taken by it in connection with this Indenture, the Security Documents and/or the Intercreditor Agreement 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 bad faith, gross negligence or willful misconduct as determined by a court of competenAgent.
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Sources: Credit Agreement (American Realty Capital Global Trust II, Inc.)