Appears in 7 contracts

Sources: Financing Agreement (Funko, Inc.), Financing Agreement (Funko, Inc.), Financing Agreement (Funko, Inc.)

Collateral Matters. (a) The Administrative Agent may, in its discretion and without the consent of the Required Lenders, voluntarily permit the outstanding Revolving Loans at any time to exceed the Borrowing Base at such time. If the Administrative Agent is willing in its sole and absolute discretion to permit such overadvances, such overadvances shall be payable on demand and shall bear interest at the Post-Default Rate; provided that, notwithstanding the funding by the Revolving Loan Lenders of such overadvances, neither the Administrative Agent nor the Lenders shall be deemed thereby to have changed the limits of Section 2.01(a)(i). (b) Each Agent may from time to time make such disbursements and advances (“"Agent Advances”") which such Agent, in its sole discretion, deems necessary or desirable to preserve, protect, prepare for sale or lease or dispose of the Collateral or any portion thereof, to enhance the likelihood or maximize the amount of repayment by the ~~Borrowers~~ Borrower of the Loans, Reimbursement Obligations, Letter of Credit Obligations and other Obligations or to pay any other amount chargeable to the ~~Borrowers~~ Borrower pursuant to the terms of this Agreement, including, without limitation, costs, fees and expenses as described in Section 12.04. The Agent Advances shall be repayable on demand and be secured by the Collateral and shall bear interest at a rate per annum equal to the rate then applicable to Revolving Loans that are Reference Rate Loans. The Agent Advances shall constitute Obligations hereunder which may be charged to the Loan Account in accordance with Section 4.01. The Agent making any Agent Advances shall notify the other Agent, each Lender and the ~~Administrative~~ Borrower in writing of each such Agent Advance, which notice shall include a description of the purpose of such Agent Advance. Without limitation to its obligations pursuant to Section 10.05, each Lender agrees that it shall make available to the Agent making any Agent Advances, upon such Agent’s 's demand, in ~~the currency in which the respective Agent Advance was made~~ Dollars in immediately available funds, the amount equal to such Lender’s 's Pro Rata Share of each such Agent ~~Advance subject to the terms of, the Agreement Among Lenders, provided that any such amount advanced by a Lender shall be deemed a Loan hereunder~~Advance. If such funds are not made available to such Agent by such Lender, such Agent shall be entitled to recover such funds on demand from such Lender, together with interest thereon for each day from the date such payment was due until the date such amount is paid to such Agent, at the Federal Funds Effective Rate for three Business Days and thereafter at the Reference Rate. (bc) The Lenders hereby irrevocably authorize the Collateral Agent, at its option and in its discretion, to release any Lien granted to or held by the Collateral Agent upon any Collateral upon ~~termination of~~ the ~~Total Commitment and Payment in Full of the Obligations~~Discharge Date; or constituting property being sold or disposed of in the ordinary course of any Loan Party’s 's business or otherwise in compliance with the terms of this Agreement and the other Loan Documents; or constituting property in which the Loan Parties owned no interest at the time the Lien was granted or at any time thereafter; or if approved, authorized or ratified in writing by the ~~applicable Lenders required pursuant to Section 12.02~~Lenders. Upon request by the Collateral Agent at any time, the Lenders will confirm in writing the Collateral Agent’s 's authority to release particular types or items of Collateral pursuant to this Section ~~10.08(b~~10.08(c). (cd) Without in any manner limiting the Collateral Agent’s 's authority to act without any specific or further authorization or consent by the Lenders (as set forth in Section ~~10.08(b~~10.08(c)), each Lender agrees to confirm in writing, upon request by the Collateral Agent, the authority to release Collateral conferred upon the Collateral Agent under Section ~~10.08(b~~10.08(c). Upon receipt by the Collateral Agent of confirmation from the Lenders of its authority to release any particular item or types of Collateral, and upon prior written request by any Loan Party, the Collateral Agent shall (and is hereby irrevocably authorized by the Lenders to) execute such documents as may be necessary ~~or reasonably requested by any Loan Party~~ to evidence the release of the Liens granted to the Collateral Agent for the benefit of the Agents and the Lenders upon such Collateral; provided, however, that (i) the Collateral Agent shall not be required to execute any such document on terms which, in the Collateral Agent’s 's opinion, would expose the Collateral Agent to liability or create any obligations or entail any consequence other than the release of such Liens without recourse or warranty, and (ii) such release shall not in any manner discharge, affect or impair the Obligations or any Lien upon (or obligations of any Loan Party in respect of) all interests in the Collateral retained by any Loan Party. (de) Anything contained in any of the Loan Documents to the contrary ~~notwithstanding but subject to the Agreement Among Lenders~~notwithstanding, the Loan Parties, each Agent and each Lender hereby agree that (i) no Lender shall have any right individually to realize upon any of the Collateral under any Loan Document or to enforce any Guaranty, it being understood and agreed that all powers, rights and remedies under the Loan Documents may be exercised solely by the Collateral Agent for the benefit of the Lenders in accordance with the terms thereof, (ii) in the event of a foreclosure by the Collateral Agent on any of the Collateral pursuant to a public or private sale, the Administrative Agent, the Collateral Agent or any Lender may be the purchaser of any or all of such Collateral at any such sale and (iii) the Collateral Agent, as agent for and representative of the Agents and the Lenders (but not any other Agent or any Lender or Lenders in its or their respective individual capacities unless the Required Lenders shall otherwise agree in writing) ~~shall~~ shall, with the consent of the Administrative Agent, be entitled (either directly or through one or more acquisition vehicles) for the purpose of bidding and making settlement or payment of the purchase price for all or any portion of the Collateral to be sold (A) at any public or private sale, (B) at any sale conducted by the Collateral Agent under the provisions of the Uniform Commercial Code (including pursuant to Sections 9-610 or 9-620 of the Uniform Commercial Code), (C) at any sale or foreclosure conducted by the Collateral Agent (whether by judicial action or otherwise) in accordance with applicable law or (D) any sale conducted pursuant to the provisions of any Debtor Relief Law (including Section 363 of the Bankruptcy Code), to use and apply all or any of the Obligations as a credit on account of the purchase price for any Collateral payable by the Collateral Agent at such sale. (ef) The Collateral Agent shall have no obligation whatsoever to any Lender to assure that the Collateral exists or is owned by the Loan Parties or is cared for, protected or insured or has been encumbered or that the Lien granted to the Collateral Agent pursuant to this Agreement or any other Loan Document has been properly or sufficiently or lawfully created, perfected, protected or enforced or is entitled to any particular priority, or to exercise at all or in any particular manner or under any duty of care, disclosure or fidelity, or to continue exercising, any of the rights, authorities and powers granted or available to the Collateral Agent in this Section 10.08 or in any other Loan Document, it being understood and agreed that in respect of the Collateral, or any act, omission or event related thereto, the Collateral Agent may act in any manner it may deem appropriate, in its sole discretion, given the Collateral Agent’s 's own interest in the Collateral as one of the Lenders and that the Collateral Agent shall have no duty or liability whatsoever to any other Lender, except as otherwise provided ~~herein and in the Agreement Among Lenders~~herein.

Appears in 4 contracts

Sources: Financing Agreement (Motorcar Parts America Inc), Financing Agreement (Motorcar Parts America Inc), Financing Agreement (Motorcar Parts America Inc)

Appears in 3 contracts

Sources: Credit Agreement (Funko, Inc.), Credit Agreement (Funko, Inc.), Credit Agreement (Funko, Inc.)

Collateral Matters. ~~(a) Each~~ The Administrative Agent may from time to time make such disbursements and advances (“Agent Advances”) ~~which such~~ that the Administrative Agent, in its sole discretion, deems necessary or desirable to preserve, protect, prepare for sale or lease or dispose of the Collateral or any portion thereof, to enhance the likelihood or maximize the amount of repayment by the ~~Borrowers~~ Borrower of the Loans, ~~Reimbursement Obligations~~Letters of Credit, ~~Letter of Credit Obligations~~ and other Obligations or to pay any other amount chargeable to the ~~Borrowers~~ Borrower or the other Credit Parties pursuant to the terms of this Agreement, including, without limitation, costs, fees and expenses as described in Section ~~12.04~~11.01. The Agent Advances shall constitute Obligations hereunder, shall be repayable on ~~demand and~~ demand, shall be secured by the Collateral and shall bear interest at a rate per annum equal to the rate then applicable to Revolving Loans that are ~~Reference~~ Base Rate Loans. The Administrative Agent ~~making any Agent Advances~~ shall notify ~~the other Agent,~~ each Lender and the ~~Administrative~~ Borrower in writing of each such Agent Advance, which notice shall include a description of the purpose of such Agent Advance. Without limitation to its obligations pursuant to Section ~~10.05~~9.09, each Lender agrees that it shall make available to the ~~Agent making any Agent Advances~~Administrative Agent, upon ~~such~~ the Administrative Agent’s demand, in ~~the currency in which the respective Agent Advance was made~~ Dollars in immediately available funds, the amount equal to such Lender’s ~~Pro Rata Share~~ pro rata share of each such Agent ~~Advance subject to the terms of, the Agreement Among Lenders, provided that any such amount advanced by a Lender shall be deemed a Loan hereunder~~Advance. If such funds are not made available to ~~such~~ the Administrative Agent by such Lender, ~~such~~ the Administrative Agent shall be entitled to recover such funds on demand from such Lender, together with interest thereon for each day from the date such payment was due until the date such amount is paid to ~~such~~ the Administrative Agent, at the Federal Funds Effective Rate for three Business Days and thereafter at the ~~Reference~~ Base Rate. (b) The Lenders hereby irrevocably authorize the Collateral Agent, at its option and in its discretion, to release any Lien granted to or held by the Collateral Agent upon any Collateral upon termination of the Total Commitment and Payment in Full of the Obligations; or constituting property being sold or disposed of in the ordinary course of any Loan Party’s business or otherwise in compliance with the terms of this Agreement and the other Loan Documents; or constituting property in which the Loan Parties owned no interest at the time the Lien was granted or at any time thereafter; or if approved, authorized or ratified in writing by the applicable Lenders required pursuant to Section 12.02. Upon request by the Collateral Agent at any time, the Lenders will confirm in writing the Collateral Agent’s authority to release particular types or items of Collateral pursuant to this Section 10.08(b). (c) Without in any manner limiting the Collateral Agent’s authority to act without any specific or further authorization or consent by the Lenders (as set forth in Section 10.08(b)), each Lender agrees to confirm in writing, upon request by the Collateral Agent, the authority to release Collateral conferred upon the Collateral Agent under Section 10.08(b). Upon the prior written request by any Loan Party, the Collateral Agent shall (and is hereby irrevocably authorized by the Lenders to) execute such documents as may be necessary or reasonably requested by any Loan Party to evidence the release of the Liens granted to the Collateral Agent for the benefit of the Agents and the Lenders upon such Collateral; provided, however, that (i) the Collateral Agent shall not be required to execute any such document on terms which, in the Collateral Agent’s opinion, would expose the Collateral Agent to liability or create any obligations or entail any consequence other than the release of such Liens without recourse or warranty, and (ii) such release shall not in any manner discharge, affect or impair the Obligations or any Lien upon (or obligations of any Loan Party in respect of) all interests in the Collateral retained by any Loan Party. (d) Anything contained in any of the Loan Documents to the contrary notwithstanding but subject to the Agreement Among Lenders, the Loan Parties, each Agent and each Lender hereby agree that (i) no Lender shall have any right individually to realize upon any of the Collateral under any Loan Document or to enforce any Guaranty, it being understood and agreed that all powers, rights and remedies under the Loan Documents may be exercised solely by the Collateral Agent for the benefit of the Lenders in accordance with the terms thereof, (ii) in the event of a foreclosure by the Collateral Agent on any of the Collateral pursuant to a public or private sale, the Administrative Agent, the Collateral Agent or any Lender may be the purchaser of any or all of such Collateral at any such sale and (iii) the Collateral Agent, as agent for and representative of the Agents and the Lenders (but not any other Agent or any Lender or Lenders in its or their respective individual capacities unless the Required Lenders shall otherwise agree in writing) shall be entitled (either directly or through one or more acquisition vehicles) for the purpose of bidding and making settlement or payment of the purchase price for all or any portion of the Collateral to be sold (A) at any public or private sale, (B) at any sale conducted by the Collateral Agent under the provisions of the Uniform Commercial Code (including pursuant to Sections 9-610 or 9-620 of the Uniform Commercial Code), (C) at any sale or foreclosure conducted by the Collateral Agent (whether by judicial action or otherwise) in accordance with applicable law or (D) any sale conducted pursuant to the provisions of any Debtor Relief Law (including Section 363 of the Bankruptcy Code), to use and apply all or any of the Obligations as a credit on account of the purchase price for any Collateral payable by the Collateral Agent at such sale. (e) The Collateral Agent shall have no obligation whatsoever to any Lender to assure that the Collateral exists or is owned by the Loan Parties or is cared for, protected or insured or has been encumbered or that the Lien granted to the Collateral Agent pursuant to this Agreement or any other Loan Document has been properly or sufficiently or lawfully created, perfected, protected or enforced or is entitled to any particular priority, or to exercise at all or in any particular manner or under any duty of care, disclosure or fidelity, or to continue exercising, any of the rights, authorities and powers granted or available to the Collateral Agent in this Section 10.08 or in any other Loan Document, it being understood and agreed that in respect of the Collateral, or any act, omission or event related thereto, the Collateral Agent may act in any manner it may deem appropriate, in its sole discretion, given the Collateral Agent’s own interest in the Collateral as one of the Lenders and that the Collateral Agent shall have no duty or liability whatsoever to any other Lender, except as otherwise provided herein and in the Agreement Among Lenders.

Appears in 3 contracts

Sources: Credit Agreement (Eastern Co), Credit Agreement (Kona Grill Inc), Credit Agreement (Kona Grill Inc)

Collateral Matters. (a) ~~Each~~ The Administrative Agent may from time to time make such disbursements and advances (“Administrative Agent Advances”) which ~~such~~ the Administrative Agent, in its sole discretion, deems necessary or desirable to preserve, protect, prepare for sale or lease or dispose of the Collateral or any portion thereof, to enhance the likelihood or maximize the amount of repayment by the Borrowers of the Loans, Reimbursement Obligations, Letter of Credit Obligations and other Obligations or to pay any other amount chargeable to the Borrowers pursuant to the terms of this Agreement, including, without limitation, costs, fees and expenses as described in Section ~~12.04~~11.03 and costs and expenses incurred by Administrative Agent in performing any covenant or agreement in accordance with the provisions of this Agreement and the other Loan Documents required to be performed by Borrowers which Borrowers has failed to perform, provided that the aggregate amount of Administrative Agent Advances not reimbursed by Borrower shall not exceed $2,500,000 without the consent of Required Lenders. The Administrative Agent Advances shall be repayable on demand and be secured by the ~~Collateral and shall bear interest at a rate per annum equal to the rate then applicable to Revolving Loans that are Reference Rate Loans~~Collateral. The ~~Agent making any~~ Administrative Agent Advances shall constitute Obligations hereunder which may be charged to the Loan Account in accordance with Section 4.01. The Administrative Agent shall notify ~~the other Agent,~~ each Lender and the Administrative Borrower in writing of each such Administrative Agent Advance, which notice shall include a description of the purpose of such Administrative Agent Advance. Without limitation to its obligations pursuant to Section ~~10.05~~9.05, each Lender agrees that it shall make available to the ~~Agent making any Agent Advances~~Administrative Agent, upon ~~such~~ the Administrative Agent’s demand, in ~~the currency in which the respective Agent Advance was made~~ Dollars in immediately available funds, the amount equal to such Lender’s Pro Rata Share of each such Administrative Agent ~~Advance subject to the terms of, the Agreement Among Lenders, provided that any such amount advanced by a Lender shall be deemed a Loan hereunder~~Advance. If such funds are not made available to ~~such~~ the Administrative Agent by such Lender, ~~such~~ the Administrative Agent shall be entitled to recover such funds on demand from such Lender, together with interest thereon for each day from the date such payment was due until the date such amount is paid to ~~such~~ the Administrative Agent, at the Federal Funds ~~Effective~~ Rate for three (3) Business Days and thereafter at the ~~Reference~~ Base Rate. (b) The Lenders hereby irrevocably authorize the ~~Collateral~~ Administrative Agent, at its option and in its discretion, to release any Lien granted to or held by the ~~Collateral~~ Administrative Agent upon any Collateral upon termination of the Total Commitment and ~~Payment~~ payment and satisfaction of all Loans, Reimbursement Obligations, Letter of Credit Obligations, and all other Obligations which have matured and which the Administrative Agent has been notified in ~~Full of the Obligations~~writing are then due and payable; or constituting property being sold or disposed of ~~in the ordinary course of any Loan Party’s business or otherwise~~ in compliance with the terms of this Agreement and the other Loan Documents; or constituting property in which the Loan Parties owned no interest at the time the Lien was granted or at any time thereafter; or if approved, authorized or ratified in writing by the ~~applicable~~ Required Lenders or all Lenders if required pursuant to Section 12.02. Upon request by the Collateral Agent at any time, the Lenders will confirm in writing the Collateral Agent’s authority to release particular types or items of Collateral pursuant to this Section 10.08(b)hereunder. (c) Without in any manner limiting the ~~Collateral~~ Administrative Agent’s authority to act without any specific or further authorization or consent by the Lenders (as set forth in Section ~~10.08(b~~9.08(b)), each Lender agrees to confirm in writing, upon request by the ~~Collateral~~ Administrative Agent, the authority to release Collateral conferred upon the ~~Collateral~~ Administrative Agent under Section ~~10.08(b~~9.08(b). Upon receipt by the Administrative Agent of confirmation from the Lenders of its authority to release any particular item or types of Collateral, and upon prior written request by any Loan Party, the ~~Collateral~~ Administrative Agent shall (and is hereby irrevocably authorized by the Lenders to) execute such documents as may be necessary ~~or reasonably requested by any Loan Party~~ to evidence the release of the Liens granted to the ~~Collateral~~ Administrative Agent for the benefit of the ~~Agents~~ Administrative Agent and the Lenders upon such Collateral; provided, however, that (i) the ~~Collateral~~ Administrative Agent shall not be required to execute any such document on terms which, in the ~~Collateral~~ Administrative Agent’s opinion, would expose the ~~Collateral~~ Administrative Agent to liability or create any obligations or entail any consequence other than the release of such Liens without recourse or warranty, and (ii) such release shall not in any manner discharge, affect or impair the Obligations or any Lien upon (or obligations of any Loan Party in respect of) all interests in the Collateral retained by any Loan Party. (d) Anything contained in any of the Loan Documents to the contrary notwithstanding but subject to the Agreement Among Lenders, the Loan Parties, each Agent and each Lender hereby agree that (i) no Lender shall have any right individually to realize upon any of the Collateral under any Loan Document or to enforce any Guaranty, it being understood and agreed that all powers, rights and remedies under the Loan Documents may be exercised solely by the Collateral Agent for the benefit of the Lenders in accordance with the terms thereof, (ii) in the event of a foreclosure by the Collateral Agent on any of the Collateral pursuant to a public or private sale, the The Administrative Agent, the Collateral Agent or any Lender may be the purchaser of any or all of such Collateral at any such sale and (iii) the Collateral Agent, as agent for and representative of the Agents and the Lenders (but not any other Agent or any Lender or Lenders in its or their respective individual capacities unless the Required Lenders shall otherwise agree in writing) shall be entitled (either directly or through one or more acquisition vehicles) for the purpose of bidding and making settlement or payment of the purchase price for all or any portion of the Collateral to be sold (A) at any public or private sale, (B) at any sale conducted by the Collateral Agent under the provisions of the Uniform Commercial Code (including pursuant to Sections 9-610 or 9-620 of the Uniform Commercial Code), (C) at any sale or foreclosure conducted by the Collateral Agent (whether by judicial action or otherwise) in accordance with applicable law or (D) any sale conducted pursuant to the provisions of any Debtor Relief Law (including Section 363 of the Bankruptcy Code), to use and apply all or any of the Obligations as a credit on account of the purchase price for any Collateral payable by the Collateral Agent at such sale. (e) The Collateral Agent shall have no obligation whatsoever to any Lender to assure that the Collateral exists or is owned by the Loan Parties or is cared for, protected or insured or has been encumbered or that the Lien granted to the ~~Collateral~~ Administrative Agent pursuant to this Agreement or any other Loan Document has been properly or sufficiently or lawfully created, perfected, protected or enforced or is entitled to any particular priority, or to exercise at all or in any particular manner or under any duty of care, disclosure or fidelity, or to continue exercising, any of the rights, authorities and powers granted or available to the ~~Collateral~~ Administrative Agent in this Section ~~10.08~~ 9.08, elsewhere in this Agreement or in any other Loan Document, it being understood and agreed that in respect of the Collateral, or any act, omission or event related thereto, the ~~Collateral~~ Administrative Agent may act in any manner it may deem appropriate, in its sole discretion, given the ~~Collateral~~ Administrative Agent’s own interest in the Collateral as one of the Lenders and that the ~~Collateral~~ Administrative Agent shall have no duty or liability whatsoever to any other Lender, except as otherwise provided ~~herein and in the Agreement Among Lenders~~herein.

Appears in 3 contracts

Sources: Financing Agreement (Body Central Acquisition Corp), Financing Agreement (Body Central Acquisition Corp), Financing Agreement (Body Central Acquisition Corp)

Collateral Matters. ~~(a) Each~~ The Administrative Agent may from time to time make such disbursements and advances (“Agent Advances”) ~~which such~~ that the Administrative Agent, in its sole discretion, deems necessary or desirable to preserve, protect, prepare for sale or lease or dispose of the Collateral or any portion thereof, to enhance the likelihood or maximize the amount of repayment by the ~~Borrowers~~ Borrower of the ~~Loans, Reimbursement Obligations, Letter of Credit Obligations~~ Loans and other Obligations or to pay any other amount chargeable to the ~~Borrowers~~ Borrower or the other Credit Parties pursuant to the terms of this Agreement, including, without limitation, costs, fees and expenses as described in Section ~~12.04~~11.01. The Agent Advances shall constitute Obligations hereunder, shall be repayable on ~~demand and~~ demand, shall be secured by the Collateral and shall bear interest at a rate per annum equal to the rate then applicable to Revolving Loans that are ~~Reference~~ Base Rate Loans. The Administrative Agent ~~making any Agent Advances~~ shall notify ~~the other Agent,~~ each Lender and the ~~Administrative~~ Borrower in writing of each such Agent Advance, which notice shall include a description of the purpose of such Agent Advance. Without limitation to its obligations pursuant to Section ~~10.05~~9.09, each Lender agrees that it shall make available to the ~~Agent making any Agent Advances~~Administrative Agent, upon ~~such~~ the Administrative Agent’s 's demand, in ~~the currency in which the respective Agent Advance was made~~ Dollars in immediately available funds, the amount equal to such Lender~~’s Pro Rata Share~~ 's pro rata share of each such Agent ~~Advance subject to the terms of, the Agreement Among Lenders, provided that any such amount advanced by a Lender shall be deemed a Loan hereunder~~Advance. If such funds are not made available to ~~such~~ the Administrative Agent by such Lender, ~~such~~ the Administrative Agent shall be entitled to recover such funds on demand from such Lender, together with interest thereon for each day from the date such payment was due until the date such amount is paid to ~~such~~ the Administrative Agent, at the Federal Funds Effective Rate for three Business Days and thereafter at the ~~Reference~~ Base Rate. (b) The Lenders hereby irrevocably authorize the Collateral Agent, at its option and in its discretion, to release any Lien granted to or held by the Collateral Agent upon any Collateral upon termination of the Total Commitment and Payment in Full of the Obligations; or constituting property being sold or disposed of in the ordinary course of any Loan Party’s business or otherwise in compliance with the terms of this Agreement and the other Loan Documents; or constituting property in which the Loan Parties owned no interest at the time the Lien was granted or at any time thereafter; or if approved, authorized or ratified in writing by the applicable Lenders required pursuant to Section 12.02. Upon request by the Collateral Agent at any time, the Lenders will confirm in writing the Collateral Agent’s authority to release particular types or items of Collateral pursuant to this Section 10.08(b). (c) Without in any manner limiting the Collateral Agent’s authority to act without any specific or further authorization or consent by the Lenders (as set forth in Section 10.08(b)), each Lender agrees to confirm in writing, upon request by the Collateral Agent, the authority to release Collateral conferred upon the Collateral Agent under Section 10.08(b). Upon the prior written request by any Loan Party, the Collateral Agent shall (and is hereby irrevocably authorized by the Lenders to) execute such documents as may be necessary or reasonably requested by any Loan Party to evidence the release of the Liens granted to the Collateral Agent for the benefit of the Agents and the Lenders upon such Collateral; provided, however, that (i) the Collateral Agent shall not be required to execute any such document on terms which, in the Collateral Agent’s opinion, would expose the Collateral Agent to liability or create any obligations or entail any consequence other than the release of such Liens without recourse or warranty, and (ii) such release shall not in any manner discharge, affect or impair the Obligations or any Lien upon (or obligations of any Loan Party in respect of) all interests in the Collateral retained by any Loan Party. (d) Anything contained in any of the Loan Documents to the contrary notwithstanding but subject to the Agreement Among Lenders, the Loan Parties, each Agent and each Lender hereby agree that (i) no Lender shall have any right individually to realize upon any of the Collateral under any Loan Document or to enforce any Guaranty, it being understood and agreed that all powers, rights and remedies under the Loan Documents may be exercised solely by the Collateral Agent for the benefit of the Lenders in accordance with the terms thereof, (ii) in the event of a foreclosure by the Collateral Agent on any of the Collateral pursuant to a public or private sale, the Administrative Agent, the Collateral Agent or any Lender may be the purchaser of any or all of such Collateral at any such sale and (iii) the Collateral Agent, as agent for and representative of the Agents and the Lenders (but not any other Agent or any Lender or Lenders in its or their respective individual capacities unless the Required Lenders shall otherwise agree in writing) shall be entitled (either directly or through one or more acquisition vehicles) for the purpose of bidding and making settlement or payment of the purchase price for all or any portion of the Collateral to be sold (A) at any public or private sale, (B) at any sale conducted by the Collateral Agent under the provisions of the Uniform Commercial Code (including pursuant to Sections 9-610 or 9-620 of the Uniform Commercial Code), (C) at any sale or foreclosure conducted by the Collateral Agent (whether by judicial action or otherwise) in accordance with applicable law or (D) any sale conducted pursuant to the provisions of any Debtor Relief Law (including Section 363 of the Bankruptcy Code), to use and apply all or any of the Obligations as a credit on account of the purchase price for any Collateral payable by the Collateral Agent at such sale. (e) The Collateral Agent shall have no obligation whatsoever to any Lender to assure that the Collateral exists or is owned by the Loan Parties or is cared for, protected or insured or has been encumbered or that the Lien granted to the Collateral Agent pursuant to this Agreement or any other Loan Document has been properly or sufficiently or lawfully created, perfected, protected or enforced or is entitled to any particular priority, or to exercise at all or in any particular manner or under any duty of care, disclosure or fidelity, or to continue exercising, any of the rights, authorities and powers granted or available to the Collateral Agent in this Section 10.08 or in any other Loan Document, it being understood and agreed that in respect of the Collateral, or any act, omission or event related thereto, the Collateral Agent may act in any manner it may deem appropriate, in its sole discretion, given the Collateral Agent’s own interest in the Collateral as one of the Lenders and that the Collateral Agent shall have no duty or liability whatsoever to any other Lender, except as otherwise provided herein and in the Agreement Among Lenders.

Appears in 3 contracts

Sources: Credit Agreement (Preferred Apartment Communities Inc), Credit Agreement (Preferred Apartment Communities Inc), Credit Agreement (Preferred Apartment Communities Inc)

Collateral Matters. (a) ~~Each~~ The Collateral Agent may from time to time make such disbursements and advances (“Collateral Agent Advances”) which ~~such~~ the Collateral Agent, in its sole discretion, deems necessary or desirable to preserve, protect, prepare for sale or lease or dispose of the Collateral or any portion thereof, to enhance the likelihood or maximize the amount of repayment by the Borrowers of the ~~Loans, Reimbursement Obligations, Letter of Credit Obligations~~ Loans and other Obligations or to pay any other amount chargeable to the Borrowers pursuant to the terms of this Agreement, including, without limitation, costs, fees and expenses as described in Section 12.04. The Collateral Agent Advances shall be repayable on demand and be secured by the Collateral and shall bear interest at a rate per annum equal to the rate then applicable to ~~Revolving~~ Loans that are Reference Rate Loans. The ~~Agent making any~~ Collateral Agent Advances shall constitute Obligations hereunder which may be charged to the Loan Account in accordance with Section 4.01. The Collateral Agent shall notify ~~the other Agent,~~ each Lender and the Administrative Borrower in writing of each such Collateral Agent Advance, which notice shall include a description of the purpose of such Collateral Agent Advance. Without limitation to its obligations pursuant to Section 10.05, each Lender agrees that it shall make available to the ~~Agent making any Agent Advances~~Collateral Agent, upon ~~such~~ the Collateral Agent’s demand, in ~~the currency in which the respective Agent Advance was made~~ Dollars in immediately available funds, the amount equal to such Lender’s Pro Rata Share of each such Collateral Agent ~~Advance subject to the terms of, the Agreement Among Lenders, provided that any such amount advanced by a Lender shall be deemed a Loan hereunder~~Advance. If such funds are not made available to ~~such~~ the Collateral Agent by such Lender, ~~such~~ the Collateral Agent shall be entitled to recover such funds on demand from such Lender, together with interest thereon for each day from the date such payment was due until the date such amount is paid to ~~such~~ the Collateral Agent, at the Federal Funds ~~Effective~~ Rate for three Business Days and thereafter at the Reference Rate. (b) The Lenders hereby irrevocably authorize the Collateral Agent, at its option and in its discretion, to release any Lien granted to or held by the Collateral Agent upon any Collateral upon termination of the Total Commitment and ~~Payment~~ payment and satisfaction of all Loans and all other Obligations (other than Contingent Indemnification Obligations) in ~~Full of~~ accordance with the ~~Obligations~~terms hereof; or constituting property being sold or disposed of in the ordinary course of any Loan Party’s business or otherwise in compliance with the terms of this Agreement and the other Loan Documents; or constituting property in which the Loan Parties owned no interest at the time the Lien was granted or at any time thereafter; or if approved, authorized or ratified in writing by the ~~applicable~~ Lenders ~~required pursuant to~~ in accordance with Section 12.02. Upon request by the Collateral Agent at any time, the Lenders will confirm in writing the Collateral Agent’s authority to release particular types or items of Collateral pursuant to this Section 10.08(b). (c) Without in any manner limiting the Collateral Agent’s authority to act without any specific or further authorization or consent by the Lenders (as set forth in Section 10.08(b)), each Lender agrees to confirm in writing, upon request by the Collateral Agent, the authority to release Collateral conferred upon the Collateral Agent under Section 10.08(b). Upon receipt by the Collateral Agent of confirmation from the Lenders of its authority to release any particular item or types of Collateral, and upon prior written request by any Loan Party, the Collateral Agent shall (and is hereby irrevocably authorized by the Lenders to) execute such documents as may be necessary ~~or reasonably requested by any Loan Party~~ to evidence the release of the Liens granted to the Collateral Agent for the benefit of the Agents and the Lenders upon such Collateral; provided, however, that (i) the Collateral Agent shall not be required to execute any such document on terms which, in the Collateral Agent’s opinion, would expose the Collateral Agent to liability or create any obligations or entail any consequence other than the release of such Liens without recourse or warranty, and (ii) such release shall not in any manner discharge, affect or impair the Obligations or any Lien upon (or obligations of any Loan Party in respect of) all interests in the Collateral retained by any Loan Party. (d) Anything contained in any of the Loan Documents to the contrary ~~notwithstanding but subject to the Agreement Among Lenders~~notwithstanding, the Loan Parties, each Agent and each Lender hereby agree that (i) no Lender shall have any right individually to realize upon any of the Collateral under any Loan Document or to enforce any Guaranty, it being understood and agreed that all powers, rights and remedies under the Loan Documents may be exercised solely by the Collateral Agent for the benefit of the Lenders in accordance with the terms thereof, (ii) in the event of a foreclosure by the Collateral Agent on any of the Collateral pursuant to a public or private sale, the Administrative Agent, the Collateral Agent or any Lender may be the purchaser of any or all of such Collateral at any such sale and (iii) the Collateral Agent, as agent for and representative of the Agents and the Lenders (but not any other Agent or any Lender or Lenders in its or their respective individual capacities unless the Required Lenders shall otherwise agree in writing) shall be entitled (either directly or through one or more acquisition vehicles) for the purpose of bidding and making settlement or payment of the purchase price for all or any portion of the Collateral to be sold (A) at any public or private sale, (B) at any sale conducted by the Collateral Agent under the provisions of the Uniform Commercial Code (including pursuant to Sections 9-610 or 9-620 of the Uniform Commercial Code), (C) at any sale or foreclosure conducted by the Collateral Agent (whether by judicial action or otherwise) in accordance with applicable law or (D) any sale conducted pursuant to the provisions of any Debtor Relief Law (including Section 363 of the Bankruptcy Code), to use and apply all or any of the Obligations as a credit on account of the purchase price for any Collateral payable by the Collateral Agent at such sale. (e) The Collateral Agent shall have no obligation whatsoever to any Lender to assure that the Collateral exists or is owned by the Loan Parties or is cared for, protected or insured or has been encumbered or that the Lien granted to the Collateral Agent pursuant to this Agreement or any other Loan Document has been properly or sufficiently or lawfully created, perfected, protected or enforced or is entitled to any particular priority, or to exercise at all or in any particular manner or under any duty of care, disclosure or fidelity, or to continue exercising, any of the rights, authorities and powers granted or available to the Collateral Agent in this Section 10.08 or in any other Loan Document, it being understood and agreed that in respect of the Collateral, or any act, omission or event related thereto, the Collateral Agent may act in any manner it may deem appropriate, in its sole discretion, given the Collateral Agent’s own interest in the Collateral as one of the Lenders and that the Collateral Agent shall have no duty or liability whatsoever to any other Lender, except as otherwise provided ~~herein~~ herein. (f) The Collateral Agent shall not be responsible or liable for the environmental condition or any contamination of any property secured by any mortgage or deed of trust or for any diminution in value of any such property as a result of any contamination of the property by any hazardous substance, hazardous material, pollutant or contaminant. The Collateral Agent shall not be liable for any claims by or on behalf of the Lenders or any other person or entity arising from contamination of the property by any hazardous substance, hazardous material, pollutant or contaminant, and shall have no duty or obligation to assess the environmental condition of any such property or with respect to compliance of any such property under state or federal laws pertaining to the transport, storage, treatment or disposal of, hazardous substances, hazardous materials, pollutants, or contaminants or regulations, permits or licenses issued under such laws. (g) The Collateral Agent shall be under no obligation to effect or maintain insurance or to renew any policies of insurance or to inquire as to the sufficiency of any policies of insurance carried by the Loan Parties, or to report, or make or file claims or proof of loss for, any loss or damage insured against or that may occur, or to keep itself informed or advised as to the payment of any taxes or assessments, or to require any such payment to be made. (h) The Collateral Agent shall not be obligated to acquire possession of or take any action with respect to any property secured by a mortgage or deed of trust, if as a result of such action, the Collateral Agent would be considered to hold title to, to be a “mortgagee in possession of”, or to be an “owner” or “operator” of such property within the meaning of the Comprehensive Environmental Responsibility Cleanup and Liability Act of 1980, as amended from time to time, unless the Collateral Agent has previously determined, based upon a report prepared by a person who regularly conducts environmental audits, that (i) the such property is in compliance with applicable environmental laws or, if not, that it would be in the ~~Agreement Among Lenders~~interest of the Lenders to take such actions as are necessary for such property to comply therewith and (ii) there are not circumstances present at such property relating to the use, management or disposal of any hazardous wastes for which investigation, testing, monitoring, containment, clean-up or remediation could be required under any federal, state or local law or regulation or that if any such materials are present for which such action could be required, that it would be in the economic interest of the Lenders to take such actions with respect to such property. Notwithstanding the foregoing, before taking any such action, the Collateral Agent may require that a satisfactory indemnity bond or environmental impairment insurance be furnished to it for the payment or reimbursement of all expenses to which it may be put and to protect it against all liability resulting from any claims, judgments, damages, losses, fees, penalties or expenses which may result from such action.

Appears in 3 contracts

Sources: Financing Agreement (Tpi Composites, Inc), Financing Agreement (Tpi Composites, Inc), Financing Agreement (Tpi Composites, Inc)

Collateral Matters. (a) ~~Each~~ During the existence of any Event of Default, the Collateral Agent may from time to time make such disbursements and advances (“"Collateral Agent Advances”") which ~~such~~ the Collateral Agent, in its sole discretion, deems necessary ~~or desirable~~ to preserve, protect, prepare for sale or lease or dispose of the Collateral or any portion thereof, to enhance the likelihood or maximize the amount of repayment by the Borrowers of the ~~Loans, Reimbursement Obligations, Letter of Credit Obligations~~ Loans and other Obligations or to pay any other amount chargeable to the Borrowers pursuant to the terms of this Agreement, including, without limitation, costs, fees and expenses as described in Section 12.04. The Collateral Agent Advances shall be repayable on demand and be secured by the Collateral and shall bear interest at a rate per annum equal to the rate then applicable to ~~Revolving Loans that are~~ Reference Rate Loans. The ~~Agent making any~~ Collateral Agent Advances shall constitute Obligations hereunder which may be charged to the Loan Account in accordance with Section 4.01. The Collateral Agent shall notify ~~the other Agent,~~ each Lender and the Administrative Borrower in writing of each such Collateral Agent Advance, which notice shall include a description of the purpose of such Collateral Agent Advance. Without limitation to its obligations pursuant to Section 10.05, each Lender agrees that it shall make available to the ~~Agent making any Agent Advances~~Collateral Agent, upon ~~such~~ the Collateral Agent’s 's demand, in ~~the currency in which the respective Agent Advance was made~~ Dollars in immediately available funds, the amount equal to such Lender’s 's Pro Rata Share of each such Collateral Agent ~~Advance subject to the terms of, the Agreement Among Lenders, provided that any such amount advanced by a Lender shall be deemed a Loan hereunder~~Advance. If such funds are not made available to ~~such~~ the Collateral Agent by such Lender, ~~such~~ the Collateral Agent shall be entitled to recover such funds on demand from such Lender, together with interest thereon for each day from the date such payment was due until the date such amount is paid to ~~such~~ the Collateral Agent, at the Federal Funds ~~Effective~~ Rate for three Business Days and thereafter at the Reference Rate. (b) The Lenders hereby irrevocably authorize the Collateral Agent, at its option and in its discretion, to release any Lien granted to or held by the Collateral Agent upon any Collateral upon termination of the ~~Total~~ Commitment and ~~Payment~~ payment and satisfaction of all Loans and all other Obligations in ~~Full of~~ accordance with the ~~Obligations~~terms hereof; or constituting property being sold or disposed of in the ordinary course of any Loan Party’s 's business or otherwise in compliance with the terms of this Agreement and the other Loan Documents; or constituting property in which the Loan Parties owned no interest at the time the Lien was granted or at any time thereafter; or if approved, authorized or ratified in writing by the ~~applicable Lenders required pursuant to Section 12.02~~Lenders. Upon request by the Collateral Agent at any time, the Lenders will confirm in writing the Collateral Agent’s 's authority to release particular types or items of Collateral pursuant to this Section 10.08(b). (c) Without in any manner limiting the Collateral Agent’s 's authority to act without any specific or further authorization or consent by the Lenders (as set forth in Section 10.08(b)), each Lender agrees to confirm in writing, upon request by the Collateral Agent, the authority to release Collateral conferred upon the Collateral Agent under Section 10.08(b). Upon receipt by the Collateral Agent of confirmation from the Lenders of its authority to release any particular item or types of Collateral, and upon prior written request by any Loan Party, the Collateral Agent shall (and is hereby irrevocably authorized by the Lenders to) execute such documents as may be necessary ~~or reasonably requested by any Loan Party~~ to evidence the release of the Liens granted to the Collateral Agent for the benefit of the Agents and the Lenders upon such Collateral; provided, however, that (i) the Collateral Agent shall not be required to execute any such document on terms which, in the Collateral Agent’s 's opinion, would expose the Collateral Agent to liability or create any obligations or entail any consequence other than the release of such Liens without recourse or warranty, and (ii) such release shall not in any manner discharge, affect or impair the Obligations or any Lien upon (or obligations of any Loan Party in respect of) all interests in the Collateral retained by any Loan Party. (d) Anything contained in any of the Loan Documents to the contrary ~~notwithstanding but subject to the Agreement Among Lenders~~notwithstanding, the Loan Parties, each Agent and each Lender hereby agree that (i) no Lender shall have any right individually to realize upon any of the Collateral under any Loan Document or to enforce any Guaranty, it being understood and agreed that all powers, rights and remedies under the Loan Documents may be exercised solely by the Collateral Agent for the benefit of the Lenders in accordance with the terms thereof, (ii) in the event of a foreclosure by the Collateral Agent on any of the Collateral pursuant to a public or private sale, the Administrative Agent, the Collateral Agent or any Lender may be the purchaser of any or all of such Collateral at any such sale and (iii) the Collateral Agent, as agent for and representative of the Agents and the Lenders (but not any other Agent or any Lender or Lenders in its or their respective individual capacities unless the Required Lenders shall otherwise agree in writing) shall be entitled (either directly or through one or more acquisition vehicles) for the purpose of bidding and making settlement or payment of the purchase price for all or any portion of the Collateral to be sold (A) at any public or private sale, (B) at any sale conducted by the Collateral Agent under the provisions of the Uniform Commercial Code (including pursuant to Sections 9-610 or 9-620 of the Uniform Commercial Code), (C) at any sale or foreclosure conducted by the Collateral Agent (whether by judicial action or otherwise) in accordance with applicable law or (D) any sale conducted pursuant to the provisions of any Debtor Relief Law (including Section 363 of the Bankruptcy Code), to use and apply all or any of the Obligations as a credit on account of the purchase price for any Collateral payable by the Collateral Agent at such sale. (e) The Collateral Agent shall have no obligation whatsoever to any Lender to assure that the Collateral exists or is owned by the Loan Parties or is cared for, protected or insured or has been encumbered or that the Lien granted to the Collateral Agent pursuant to this Agreement or any other Loan Document has been properly or sufficiently or lawfully created, perfected, protected or enforced or is entitled to any particular priority, or to exercise at all or in any particular manner or under any duty of care, disclosure or fidelity, or to continue exercising, any of the rights, authorities and powers granted or available to the Collateral Agent in this Section 10.08 or in any other Loan Document, it being understood and agreed that in respect of the Collateral, or any act, omission or event related thereto, the Collateral Agent may act in any manner it may deem appropriate, in its sole discretion, given the Collateral Agent’s 's own interest in the Collateral as one of the Lenders and that the Collateral Agent shall have no duty or liability whatsoever to any other Lender, except as otherwise provided ~~herein and in the Agreement Among Lenders~~herein.

Appears in 3 contracts

Sources: Financing Agreement (Angie's List, Inc.), Financing Agreement (Angie's List, Inc.), Financing Agreement (Lifevantage Corp)

Collateral Matters. ~~(a) Each~~ At any time after the occurrence and during the continuance of an Event of Default, the Administrative Agent may from time to time make such disbursements and advances (“Agent Advances”) ~~which such~~ that the Administrative Agent, in its sole discretion, reasonably deems necessary or desirable to preserve, protect, prepare for sale or lease or dispose of the Collateral or any portion thereof, to enhance the likelihood or maximize the amount of repayment by the ~~Borrowers~~ Borrower of the Loans, ~~Reimbursement Obligations~~Letters of Credit, ~~Letter of Credit Obligations~~ and other Obligations or to pay any other amount chargeable to the ~~Borrowers~~ Borrower or the other Credit Parties pursuant to the terms of this Agreement, including, without limitation, costs, fees and expenses as described in Section ~~12.04~~11.01. The Agent Advances shall constitute Obligations hereunder, shall be repayable ~~on demand and~~ within ten (10) Business Days of demand, shall be secured by the Collateral and shall bear interest at a rate per annum equal to the rate then applicable to Revolving Loans that are ~~Reference~~ Base Rate Loans. The Administrative Agent ~~making any Agent Advances~~ shall notify ~~the other Agent,~~ each Lender and the ~~Administrative~~ Borrower in writing of each such Agent Advance, which notice shall include a description of the purpose of such Agent Advance. Without limitation to of its obligations pursuant to Section ~~10.05~~9.09, each Lender agrees that it shall make available to the ~~Agent making any Agent Advances~~Administrative Agent, upon ~~such~~ the Administrative Agent’s demand, in ~~the currency in which the respective Agent Advance was made~~ Dollars in immediately available funds, the amount equal to such Lender’s ~~Pro Rata Share~~ pro rata share of each such Agent ~~Advance subject to the terms of, the Agreement Among Lenders, provided that any such amount advanced by a Lender shall be deemed a Loan hereunder~~Advance. If such funds are not made available to ~~such~~ the Administrative Agent by such Lender, ~~such~~ the Administrative Agent shall be entitled to recover such funds on demand from such Lender, together with interest thereon for each day from the date such payment was due until the date such amount is paid to ~~such~~ the Administrative Agent, at the Federal Funds Effective Rate for three Business Days and thereafter at the ~~Reference~~ Base Rate. (b) The Lenders hereby irrevocably authorize the Collateral Agent, at its option and in its discretion, to release any Lien granted to or held by the Collateral Agent upon any Collateral upon termination of the Total Commitment and Payment in Full of the Obligations; or constituting property being sold or disposed of in the ordinary course of any Loan Party’s business or otherwise in compliance with the terms of this Agreement and the other Loan Documents; or constituting property in which the Loan Parties owned no interest at the time the Lien was granted or at any time thereafter; or if approved, authorized or ratified in writing by the applicable Lenders required pursuant to Section 12.02. Upon request by the Collateral Agent at any time, the Lenders will confirm in writing the Collateral Agent’s authority to release particular types or items of Collateral pursuant to this Section 10.08(b). (c) Without in any manner limiting the Collateral Agent’s authority to act without any specific or further authorization or consent by the Lenders (as set forth in Section 10.08(b)), each Lender agrees to confirm in writing, upon request by the Collateral Agent, the authority to release Collateral conferred upon the Collateral Agent under Section 10.08(b). Upon the prior written request by any Loan Party, the Collateral Agent shall (and is hereby irrevocably authorized by the Lenders to) execute such documents as may be necessary or reasonably requested by any Loan Party to evidence the release of the Liens granted to the Collateral Agent for the benefit of the Agents and the Lenders upon such Collateral; provided, however, that (i) the Collateral Agent shall not be required to execute any such document on terms which, in the Collateral Agent’s opinion, would expose the Collateral Agent to liability or create any obligations or entail any consequence other than the release of such Liens without recourse or warranty, and (ii) such release shall not in any manner discharge, affect or impair the Obligations or any Lien upon (or obligations of any Loan Party in respect of) all interests in the Collateral retained by any Loan Party. (d) Anything contained in any of the Loan Documents to the contrary notwithstanding but subject to the Agreement Among Lenders, the Loan Parties, each Agent and each Lender hereby agree that (i) no Lender shall have any right individually to realize upon any of the Collateral under any Loan Document or to enforce any Guaranty, it being understood and agreed that all powers, rights and remedies under the Loan Documents may be exercised solely by the Collateral Agent for the benefit of the Lenders in accordance with the terms thereof, (ii) in the event of a foreclosure by the Collateral Agent on any of the Collateral pursuant to a public or private sale, the Administrative Agent, the Collateral Agent or any Lender may be the purchaser of any or all of such Collateral at any such sale and (iii) the Collateral Agent, as agent for and representative of the Agents and the Lenders (but not any other Agent or any Lender or Lenders in its or their respective individual capacities unless the Required Lenders shall otherwise agree in writing) shall be entitled (either directly or through one or more acquisition vehicles) for the purpose of bidding and making settlement or payment of the purchase price for all or any portion of the Collateral to be sold (A) at any public or private sale, (B) at any sale conducted by the Collateral Agent under the provisions of the Uniform Commercial Code (including pursuant to Sections 9-610 or 9-620 of the Uniform Commercial Code), (C) at any sale or foreclosure conducted by the Collateral Agent (whether by judicial action or otherwise) in accordance with applicable law or (D) any sale conducted pursuant to the provisions of any Debtor Relief Law (including Section 363 of the Bankruptcy Code), to use and apply all or any of the Obligations as a credit on account of the purchase price for any Collateral payable by the Collateral Agent at such sale. (e) The Collateral Agent shall have no obligation whatsoever to any Lender to assure that the Collateral exists or is owned by the Loan Parties or is cared for, protected or insured or has been encumbered or that the Lien granted to the Collateral Agent pursuant to this Agreement or any other Loan Document has been properly or sufficiently or lawfully created, perfected, protected or enforced or is entitled to any particular priority, or to exercise at all or in any particular manner or under any duty of care, disclosure or fidelity, or to continue exercising, any of the rights, authorities and powers granted or available to the Collateral Agent in this Section 10.08 or in any other Loan Document, it being understood and agreed that in respect of the Collateral, or any act, omission or event related thereto, the Collateral Agent may act in any manner it may deem appropriate, in its sole discretion, given the Collateral Agent’s own interest in the Collateral as one of the Lenders and that the Collateral Agent shall have no duty or liability whatsoever to any other Lender, except as otherwise provided herein and in the Agreement Among Lenders.

Appears in 2 contracts

Sources: Credit Agreement (TRC Companies Inc /De/), Credit Agreement (TRC Companies Inc /De/)

Appears in 2 contracts

Sources: Financing Agreement (AgileThought, Inc.), Financing Agreement (AgileThought, Inc.)

Appears in 2 contracts

Sources: Financing Agreement (Accuray Inc), Financing Agreement (Accuray Inc)

Collateral Matters. (a) ~~Each~~ The Collateral Agent may from time to time make such disbursements and advances (“Collateral Agent Advances”) which ~~such~~ the Collateral Agent, in its sole discretion, deems necessary or desirable to preserve, protect, prepare for sale or lease or dispose of the Collateral or any portion thereof, to enhance the likelihood or maximize the amount of repayment by the Borrowers of the Loans, Reimbursement Obligations, Letter of Credit Obligations and other Obligations or to pay any other amount chargeable to the Borrowers pursuant to the terms of this Agreement, including, without limitation, costs, fees and expenses as described in Section 12.04; provided, that, without the prior written consent of the Lenders, such Collateral Agent Advances shall not exceed $10,000,000 in the aggregate at any time outstanding. The Collateral Agent Advances shall be repayable on demand and be secured by the Collateral and shall bear interest at a rate per annum equal to the rate then applicable to ~~Revolving~~ Loans that are Reference Rate Loans. The ~~Agent making any~~ Collateral Agent Advances shall constitute Obligations hereunder which may be charged to the Loan Account in accordance with Section 4.01. The Collateral Agent shall notify ~~the other Agent,~~ each Lender and the Administrative Borrower in writing of each such Collateral Agent Advance, which notice shall include a description of the purpose of such Collateral Agent Advance. Without limitation to its obligations pursuant to Section 10.05, each Lender agrees that it shall make available to the ~~Agent making any Agent Advances~~Collateral Agent, upon ~~such~~ the Collateral Agent’s demand, in ~~the currency in which the respective Agent Advance was made~~ Dollars in immediately available funds, the amount equal to such Lender’s Pro Rata Share of each such Collateral Agent ~~Advance subject to the terms of, the Agreement Among Lenders, provided that any such amount advanced by a Lender shall be deemed a Loan hereunder~~Advance. If such funds are not made available to ~~such~~ the Collateral Agent by such Lender, ~~such~~ the Collateral Agent shall be entitled to recover such funds on demand from such Lender, together with interest thereon for each day from the date such payment was due until the date such amount is paid to ~~such~~ the Collateral Agent, at the Federal Funds ~~Effective~~ Rate for three Business Days and thereafter at the Reference Rate. (b) The ~~Lenders~~ Lenders, the Revolving Loan Representative and the L/C Issuer hereby irrevocably authorize the Collateral Agent, at its option and in its discretion, to release any Lien granted to or held by the Collateral Agent upon any Collateral upon termination of the Total Commitment and ~~Payment~~ payment and satisfaction of all Loans, Reimbursement Obligations, Letter of Credit Obligations and all other Obligations (other than Contingent Indemnification Obligations) in ~~Full of~~ accordance with the ~~Obligations~~terms hereof; or constituting property being sold or disposed of in the ordinary course of any Loan Party’s business or otherwise in compliance with the terms of this Agreement and the other Loan Documents; or constituting property in which the Loan Parties owned no interest at the time the Lien was granted or at any time thereafter; or if approved, authorized or ratified in writing by the ~~applicable~~ Lenders ~~required pursuant to~~ in accordance with Section 12.02. Upon request by the Collateral Agent at any time, the Lenders will confirm in writing the Collateral Agent’s authority to release particular types or items of Collateral pursuant to this Section 10.08(b). (c) Without in any manner limiting the Collateral Agent’s authority to act without any specific or further authorization or consent by the Lenders (as set forth in Section 10.08(b)), each Lender agrees to confirm in writing, upon request by the Collateral Agent, the authority to release Collateral conferred upon the Collateral Agent under Section 10.08(b). Upon receipt by the Collateral Agent of confirmation from the Lenders of its authority to release any particular item or types of Collateral, and upon prior written request by any Loan Party, the Collateral Agent shall (and is hereby irrevocably authorized by the Lenders to) execute such documents as may be necessary ~~or reasonably requested by any Loan Party~~ to evidence the release of the Liens granted to the Collateral Agent for the benefit of the Agents and the ~~Lenders~~ Secured Parties upon such Collateral; provided, however, that (i) the Collateral Agent shall not be required to execute any such document on terms which, in the Collateral Agent’s opinion, would expose the Collateral Agent to liability or create any obligations or entail any consequence other than the release of such Liens without recourse or warranty, and (ii) such release shall not in any manner discharge, affect or impair the Obligations or any Lien upon (or obligations of any Loan Party in respect of) all interests in the Collateral retained by any Loan Party. (d) Anything contained in any of the Loan Documents to the contrary ~~notwithstanding but subject to the Agreement Among Lenders~~notwithstanding, the Loan Parties, each ~~Agent~~ Agent, the Revolving Loan Representative and each Lender hereby agree that (i) no Lender shall have any right individually to realize upon any of the Collateral under any Loan Document or to enforce any Guaranty, it being understood and agreed that all powers, rights and remedies under the Loan Documents may be exercised solely by the Collateral Agent for the benefit of the ~~Lenders~~ Secured Parties in accordance with the terms thereof, (ii) in the event of a foreclosure by the Collateral Agent on any of the Collateral pursuant to a public or private sale, the Administrative Agent, the Collateral Agent or any Lender may be the purchaser of any or all of such Collateral at any such sale and (iii) the Collateral Agent, as agent for and representative of the ~~Agents~~ Agents, the Revolving Loan Representative and the Lenders (but not any other ~~Agent~~ Agent, the Revolving Loan Representative or any Lender or Lenders in its or their respective individual capacities unless the Required Lenders shall otherwise agree in writing) shall be entitled (either directly or through one or more acquisition vehicles) for the purpose of bidding and making settlement or payment of the purchase price for all or any portion of the Collateral to be sold (A) at any public or private sale, (B) at any sale conducted by the Collateral Agent under the provisions of the Uniform Commercial Code (including pursuant to Sections 9-610 or 9-620 of the Uniform Commercial Code), (C) at any sale or foreclosure conducted by the Collateral Agent (whether by judicial action or otherwise) in accordance with applicable law or (D) any sale conducted pursuant to the provisions of any Debtor Relief Law (including Section 363 of the Bankruptcy Code), to use and apply all or any of the Obligations as a credit on account of the purchase price for any Collateral payable by the Collateral Agent at such sale. (e) The Collateral Agent shall have no obligation whatsoever to any Lender to assure that the Collateral exists or is owned by the Loan Parties or is cared for, protected or insured or has been encumbered or that the Lien granted to the Collateral Agent pursuant to this Agreement or any other Loan Document has been properly or sufficiently or lawfully created, perfected, protected or enforced or is entitled to any particular priority, or to exercise at all or in any particular manner or under any duty of care, disclosure or fidelity, or to continue exercising, any of the rights, authorities and powers granted or available to the Collateral Agent in this Section 10.08 or in any other Loan Document, it being understood and agreed that in respect of the Collateral, or any act, omission or event related thereto, the Collateral Agent may act in any manner it may deem appropriate, in its sole discretion, given the Collateral Agent’s own interest in the Collateral as one of the Lenders and that the Collateral Agent shall have no duty or liability whatsoever to any other Lender, except as otherwise provided ~~herein~~ herein. (f) The Collateral Agent shall not be responsible or liable for the environmental condition or any contamination of any property secured by any mortgage or deed of trust or for any diminution in value of any such property as a result of any contamination of the property by any hazardous substance, hazardous material, pollutant or contaminant. The Collateral Agent shall not be liable for any claims by or on behalf of the Lenders or any other person or entity arising from contamination of the property by any hazardous substance, hazardous material, pollutant or contaminant, and shall have no duty or obligation to assess the environmental condition of any such property or with respect to compliance of any such property under state or federal laws pertaining to the transport, storage, treatment or disposal of, hazardous substances, hazardous materials, pollutants, or contaminants or regulations, permits or licenses issued under such laws. (g) The Collateral Agent shall be under no obligation to effect or maintain insurance or to renew any policies of insurance or to inquire as to the sufficiency of any policies of insurance carried by the Loan Parties, or to report, or make or file claims or proof of loss for, any loss or damage insured against or that may occur, or to keep itself informed or advised as to the payment of any taxes or assessments, or to require any such payment to be made. (h) The Collateral Agent shall not be obligated to acquire possession of or take any action with respect to any property secured by a mortgage or deed of trust, if as a result of such action, the Collateral Agent would be considered to hold title to, to be a “mortgagee in possession of”, or to be an “owner” or “operator” of such property within the meaning of the Comprehensive Environmental Responsibility Cleanup and Liability Act of 1980, as amended from time to time, unless the Collateral Agent has previously determined, based upon a report prepared by a person who regularly conducts environmental audits, that (i) the such property is in compliance with applicable environmental laws or, if not, that it would be in the ~~Agreement Among Lenders~~interest of the Lenders to take such actions as are necessary for such property to comply therewith and (ii) there are not circumstances present at such property relating to the use, management or disposal of any hazardous wastes for which investigation, testing, monitoring, containment, clean-up or remediation could be required under any federal, state or local law or regulation or that if any such materials are present for which such action could be required, that it would be in the economic interest of the Lenders to take such actions with respect to such property. Notwithstanding the foregoing, before taking any such action, the Collateral Agent may require that a satisfactory indemnity bond or environmental impairment insurance be furnished to it for the payment or reimbursement of all expenses to which it may be put and to protect it against all liability resulting from any claims, judgments, damages, losses, fees, penalties or expenses which may result from such action.

Appears in 2 contracts

Sources: Financing Agreement (Tpi Composites, Inc), Financing Agreement (Tpi Composites, Inc)

Collateral Matters. (a) ~~Each~~ Agent ~~may~~ may, at its option, from time to time, at any time on or after an Event of Default and for so long as the same is continuing or upon any other failure of a condition precedent to the Loans and Letters of Credit hereunder, make such disbursements and advances (“Special Agent Advances”) which ~~such~~ Agent, in its sole discretion, (i) deems necessary or desirable either to ~~preserve, protect, prepare for sale~~ preserve or ~~lease or dispose of~~ protect the Collateral or any portion ~~thereof,~~ thereof or (ii) to enhance the likelihood or maximize the amount of repayment by Borrowers and Guarantors of the ~~Borrowers~~ Loans and other Obligations, provided, that, (A) the aggregate principal amount of the Special Agent Advances pursuant to this clause (ii) outstanding at any time, plus the then outstanding principal amount of the additional Loans and Letters of Credit which Agent may make or provide as set forth in Section 12.8 hereof, shall not exceed the amount equal to ten (10%) percent of the Maximum Credit and (B) the aggregate principal amount of the Special Agent Advances pursuant to this clause (ii) outstanding at any time, plus the then outstanding principal amount of the Loans, ~~Reimbursement Obligations~~shall not exceed the Maximum Credit, ~~Letter of Credit Obligations and other Obligations~~ or (iii) to pay any other amount chargeable to ~~the Borrowers~~ any Borrower or Guarantor pursuant to the terms of this ~~Agreement, including, without limitation,~~ Agreement or any of the other Financing Agreements consisting of (A) costs, fees and expenses ~~as described~~ and (B) payments to Issuing Bank in ~~Section 12.04~~respect of any Letter of Credit. The Special Agent Advances shall be repayable on demand and be together with all interest thereon shall constitute Obligations secured by the ~~Collateral and~~ Collateral. Special Agent Advances shall ~~bear interest~~ not constitute Loans but shall otherwise constitute Obligations hereunder. Interest on Special Agent Advances shall be payable at ~~a rate per annum equal to~~ the ~~rate~~ Interest Rate then applicable to ~~Revolving~~ Prime Rate Loans ~~that are Reference Rate Loans. The Agent making any Agent Advances~~ and shall ~~notify the other Agent, each Lender and the Administrative Borrower in writing of each such Agent Advance, which notice shall include a description of the purpose of such Agent Advance~~be payable on demand. Without limitation to of its obligations pursuant to Section ~~10.05~~6.11, each Lender agrees that it shall make available to ~~the Agent making any Agent Advances~~Agent, upon ~~such~~ Agent’s demand, ~~in the currency in which the respective Agent Advance was made~~ in immediately available funds, the amount equal to such Lender’s Pro Rata Share of each such Special Agent ~~Advance subject to the terms of, the Agreement Among Lenders, provided that any such amount advanced by a Lender shall be deemed a Loan hereunder~~Advance. If such funds are not made available to ~~such~~ Agent by such Lender, such Lender shall be deemed a Defaulting Lender and Agent shall be entitled to recover such ~~funds~~ funds, on demand from such ~~Lender,~~ Lender together with interest thereon for each day from the date such payment was due until the date such amount is paid to ~~such Agent,~~ Agent at the Federal Funds ~~Effective~~ Rate for each day during such period (as published by the Federal Reserve Bank of New York or at Agent’s option based on the arithmetic mean determined by Agent of the rates for the last transaction in overnight Federal funds arranged prior to 9:00 a.m. (Eastern time) on that day by each of the three ~~Business Days~~ leading brokers of Federal funds transactions in New York City selected by Agent) and ~~thereafter~~ if such amounts are not paid within three (3) days of Agent’s demand, at the ~~Reference Rate~~highest Interest Rate provided for in Section 3.1 hereof applicable to Prime Rate Loans. (b) ~~The~~ Lenders hereby irrevocably authorize ~~the Collateral~~ Agent, at its option and in its ~~discretion,~~ discretion to release any ~~Lien granted to~~ security interest in, mortgage or ~~held by~~ lien upon, any of the Collateral ~~Agent upon any Collateral~~ (i) upon termination of the ~~Total Commitment~~ Commitments and ~~Payment in Full~~ payment and satisfaction of all of the ~~Obligations;~~ Obligations and delivery of cash collateral to the extent required under Section 13.1 below, or (ii) constituting property being sold or disposed of in if Administrative Borrower or any Borrower or Guarantor certifies to Agent that the ~~ordinary course of any Loan Party’s business~~ sale or ~~otherwise~~ disposition is made in compliance with ~~the terms of this Agreement~~ Section 9.7 hereof (and ~~the other Loan Documents;~~ Agent may rely conclusively on any such certificate, without further inquiry), or (iii) constituting property in which ~~the Loan Parties owned no~~ any Borrower or Guarantor did not own an interest at the time the ~~Lien~~ security interest, mortgage or lien was granted or at any time thereafter; , or (iv) having a value in the aggregate in any twelve (12) month period of less than $5,000,000, and to the extent Agent may release its security interest in and lien upon any such Collateral pursuant to the sale or other disposition thereof, such sale or other disposition shall be deemed consented to by Lenders, or (v) if required or permitted under the terms of any of the other Financing Agreements, including any intercreditor agreement, or (vi) approved, authorized or ratified in writing by all of Lenders. Except as provided above, Agent will not release any security interest in, mortgage or lien upon, any of the ~~applicable Lenders required pursuant to Section 12.02~~Collateral without the prior written authorization of all of Lenders. Upon request by ~~the Collateral~~ Agent at any time, ~~the~~ Lenders will promptly confirm in writing ~~the Collateral~~ Agent’s authority to release particular types or items of Collateral pursuant to this Section. In no event shall the consent or approval of Issuing Bank to any release of Collateral be required. Except as provided in Section ~~10.08(b~~11.3(f), nothing contained herein shall be construed to require the consent of any Bank Product Provider to any release of any Collateral or termination of security interests in any Collateral. (c) Without in any manner limiting ~~the Collateral~~ Agent’s authority to act without any specific or further authorization or consent by the ~~Lenders (as set forth in Section 10.08(b))~~Required Lenders, each Lender agrees to confirm in writing, upon request by ~~the Collateral~~ Agent, the authority to release Collateral conferred upon ~~the Collateral~~ Agent under ~~Section 10.08(b)~~this Section. ~~Upon the prior written request by any Loan Party, the Collateral~~ Agent shall (and is hereby irrevocably authorized by ~~the~~ Lenders to) execute such documents as may be necessary ~~or reasonably requested by any Loan Party~~ to evidence the release of the ~~Liens~~ security interest, mortgage or liens granted to Agent upon any Collateral to the ~~Collateral Agent for the benefit of the Agents and the Lenders upon such Collateral~~extent set forth above; provided, ~~however~~that, ~~that~~ (i) ~~the Collateral~~ Agent shall not be required to execute any such document on terms which, in ~~the Collateral~~ Agent’s opinion, would expose ~~the Collateral~~ Agent to liability or create any obligations or entail any consequence other than the release of such ~~Liens~~ security interest, mortgage or liens without recourse or ~~warranty,~~ warranty and (ii) such release shall not in any manner discharge, affect or impair the Obligations or any ~~Lien~~ security interest, mortgage or lien upon (or obligations of any ~~Loan Party~~ Borrower or Guarantor in respect of) ~~all interests in~~ the Collateral retained by ~~any Loan Party~~such Borrower or Guarantor. (d) Anything contained in any of the Loan Documents to the contrary notwithstanding but subject to the Agreement Among Lenders, the Loan Parties, each Agent and each Lender hereby agree that (i) no Lender shall have any right individually to realize upon any of the Collateral under any Loan Document or to enforce any Guaranty, it being understood and agreed that all powers, rights and remedies under the Loan Documents may be exercised solely by the Collateral Agent for the benefit of the Lenders in accordance with the terms thereof, (ii) in the event of a foreclosure by the Collateral Agent on any of the Collateral pursuant to a public or private sale, the Administrative Agent, the Collateral Agent or any Lender may be the purchaser of any or all of such Collateral at any such sale and (iii) the Collateral Agent, as agent for and representative of the Agents and the Lenders (but not any other Agent or any Lender or Lenders in its or their respective individual capacities unless the Required Lenders shall otherwise agree in writing) shall be entitled (either directly or through one or more acquisition vehicles) for the purpose of bidding and making settlement or payment of the purchase price for all or any portion of the Collateral to be sold (A) at any public or private sale, (B) at any sale conducted by the Collateral Agent under the provisions of the Uniform Commercial Code (including pursuant to Sections 9-610 or 9-620 of the Uniform Commercial Code), (C) at any sale or foreclosure conducted by the Collateral Agent (whether by judicial action or otherwise) in accordance with applicable law or (D) any sale conducted pursuant to the provisions of any Debtor Relief Law (including Section 363 of the Bankruptcy Code), to use and apply all or any of the Obligations as a credit on account of the purchase price for any Collateral payable by the Collateral Agent at such sale. (e) The Collateral Agent shall have no obligation whatsoever to any ~~Lender~~ Lender, Issuing Bank or any other Person to investigate, confirm or assure that the Collateral exists or is owned by ~~the Loan Parties~~ any Borrower or Guarantor or is cared for, protected or insured or has been ~~encumbered~~ encumbered, or that any particular items of Collateral meet the eligibility criteria applicable in respect of the Loans or Letters of Credit hereunder, or whether any particular reserves are appropriate, or that the ~~Lien~~ liens and security interests granted to ~~the Collateral~~ Agent pursuant ~~to this Agreement~~ hereto or any ~~other Loan Document has~~ of the Financing Agreements or otherwise have been properly or sufficiently or lawfully created, perfected, protected or enforced or is are entitled to any particular priority, or to exercise at all or in any particular manner or under any duty of care, disclosure or fidelity, or to continue exercising, any of the rights, authorities and powers granted or available to ~~the Collateral~~ Agent in this ~~Section 10.08~~ Agreement or in any of the other ~~Loan Document~~Financing Agreements, it being understood and agreed that in respect of the Collateral, or any act, omission or event related thereto, subject to the ~~Collateral~~ other terms and conditions contained herein, Agent may act in any manner it may deem appropriate, in its ~~sole~~ discretion, given ~~the Collateral~~ Agent’s own interest in the Collateral as ~~one of the Lenders~~ a Lender and that ~~the Collateral~~ Agent shall have no duty or liability whatsoever to any other ~~Lender, except as otherwise provided herein and in the Agreement Among Lenders~~Lender or Issuing Bank.

Appears in 2 contracts

Sources: Loan and Security Agreement (Hancock Fabrics Inc), Loan and Security Agreement (Hancock Fabrics Inc)

Collateral Matters. (a) ~~Each~~ The Collateral Agent ~~may~~ may, but shall be under no obligation to, from time to time make such disbursements and advances (“Collateral Agent Advances”) which ~~such~~ the Collateral Agent, in its sole discretion, deems necessary or desirable to preserve, protect, prepare for sale or lease or dispose of the Collateral or any portion thereof, to enhance the likelihood or maximize the amount of repayment by the Borrowers of the ~~Loans, Reimbursement Obligations, Letter of Credit Obligations~~ Term Loans and other Obligations or to pay any other amount chargeable to the Borrowers pursuant to the terms of this Agreement, including, without limitation, costs, fees and expenses as described in Section 12.04. The Collateral Agent Advances shall be repayable on demand and be secured by the Collateral and shall bear interest at a rate per annum equal to the rate then applicable to ~~Revolving Loans that are Reference~~ Base Rate Loans. The ~~Agent making any~~ Collateral Agent Advances shall constitute Obligations hereunder. The Collateral Agent shall notify ~~the other Agent,~~ each Lender and the Administrative Borrower in writing of each such Collateral Agent Advance, which notice shall include a description of the purpose of such Collateral Agent Advance. Without limitation to its obligations pursuant to Section 10.05, each Lender agrees that it shall make available to the ~~Agent making any Agent Advances~~Collateral Agent, upon ~~such~~ the Collateral Agent’s demand, in ~~the currency in which the respective Agent Advance was made~~ Dollars in immediately available funds, the amount equal to such ~~Lender~~L▇▇▇▇▇’s Pro Rata Share of each such Collateral Agent ~~Advance subject to the terms of, the Agreement Among Lenders, provided that any such amount advanced by a Lender shall be deemed a Loan hereunder~~Advance. If such funds are not made available to ~~such~~ the Collateral Agent by such Lender, ~~such~~ the Collateral Agent shall be entitled to recover such funds on demand from such Lender, together with interest thereon for each day from the date such payment was due until the date such amount is paid to ~~such~~ the Collateral Agent, at the Federal Funds ~~Effective~~ Rate for three Business Days and thereafter at the ~~Reference~~ Base Rate. (b) The Lenders hereby irrevocably authorize the Collateral Agent, at its option and in its discretion, to release any Lien granted to or held by the Collateral Agent upon any Collateral upon termination of the Total Term Loan Commitment and ~~Payment~~ payment and satisfaction of all Term Loans and all other Obligations (other than Contingent Indemnity Obligations) in ~~Full of~~ accordance with the ~~Obligations~~terms hereof; or constituting property being sold or disposed of in the ordinary course of any Loan Party’s business or otherwise in compliance with the terms of this Agreement and the other Loan Documents; or constituting property in which the Loan Parties owned no interest at the time the Lien was granted or at any time thereafter; or if approved, authorized or ratified in writing by the ~~applicable~~ Lenders ~~required pursuant to~~ in accordance with Section 12.02. Upon request by the Collateral Agent at any time, the Lenders will confirm in writing the Collateral Agent’s authority to release particular types or items of Collateral pursuant to this Section 10.08(b)) and the Collateral Agent shall be entitled to refrain from taking any such action until it receives such written confirmation from the Required Lenders. (c) Without in any manner limiting the Collateral Agent’s authority to act without any specific or further authorization or consent by the Lenders (as set forth in Section 10.08(b)), each Lender agrees to confirm in writing, upon request by the Collateral Agent, the authority to release Collateral conferred upon the Collateral Agent under Section 10.08(b). Upon receipt by the Collateral Agent of confirmation from the Lenders of its authority to release any particular item or types of Collateral, and upon prior written request by any Loan Party, the Collateral Agent shall (and is hereby irrevocably authorized by the Lenders to) execute such documents as may be necessary ~~or reasonably requested by any Loan Party~~ to evidence the release of the Liens granted to the Collateral Agent for the benefit of the Agents and the Lenders upon such Collateral; provided, however, that (i) the Collateral Agent shall not be required to execute any such document on terms which, in the Collateral Agent’s opinion, would expose the Collateral Agent to liability or create any obligations or entail any consequence other than the release of such Liens without recourse or warranty, and (ii) such release shall not in any manner discharge, affect or impair the Obligations or any Lien upon (or obligations of any Loan Party in respect of) all interests in the Collateral retained by any Loan Party. (d) Anything contained in any of the Loan Documents to the contrary ~~notwithstanding but subject to the Agreement Among Lenders~~notwithstanding, the Loan Parties, each Agent and each Lender hereby agree that (i) no Lender shall have any right individually to realize upon any of the Collateral under any Loan Document or to enforce any Guaranty, it being understood and agreed that all powers, rights and remedies under the Loan Documents may be exercised solely by the Collateral Agent for the benefit of the Lenders in accordance with the terms thereof, (ii) in the event of a foreclosure by the Collateral Agent on any of the Collateral pursuant to a public or private sale, the Administrative Agent, the Collateral Agent or any Lender may be the purchaser of any or all of such Collateral at any such sale and (iii) the Collateral Agent, as agent for and representative of the Agents and the Lenders (but not any other Agent or any Lender or Lenders in its or their respective individual capacities unless the Required Lenders shall otherwise agree in writing) shall be entitled (either directly or through one or more acquisition vehicles) for the purpose of bidding and making settlement or payment of the purchase price for all or any portion of the Collateral to be sold (A) at any public or private sale, (B) at any sale conducted by the Collateral Agent under the provisions of the Uniform Commercial Code (including pursuant to Sections 9-610 or 9-620 of the Uniform Commercial Code), (C) at any sale or foreclosure conducted by the Collateral Agent (whether by judicial action or otherwise) in accordance with applicable law or (D) any sale conducted pursuant to the provisions of any Debtor Relief Law (including Section 363 of the Bankruptcy Code), to use and apply all or any of the Obligations as a credit on account of the purchase price for any Collateral payable by the Collateral Agent at such sale. (e) The Collateral Agent shall have no obligation whatsoever to any Lender to assure that the Collateral exists or is owned by the Loan Parties or is cared for, protected or insured or has been encumbered or that the Lien granted to the Collateral Agent pursuant to this Agreement or any other Loan Document has been properly or sufficiently or lawfully created, perfected, protected or enforced or is entitled to any particular priority, or to exercise at all or in any particular manner or under any duty of care, disclosure or fidelity, or to continue exercising, any of the rights, authorities and powers granted or available to the Collateral Agent in this Section 10.08 or in any other Loan Document, it being understood and agreed that in respect of the Collateral, or any act, omission or event related thereto, the Collateral Agent may act in any manner it may deem appropriate, in its sole discretion, given the Collateral Agent’s own interest in the Collateral as one of the Lenders and that the Collateral Agent shall have no duty or liability whatsoever to any other Lender, except as otherwise provided ~~herein and in the Agreement Among Lenders~~herein.

Appears in 2 contracts

Sources: Financing Agreement (Unique Logistics International, Inc.), Financing Agreement (Unique Logistics International, Inc.)

Collateral Matters. ~~(a) Each~~ 1. The Administrative Agent may from time to time make such disbursements and advances (“Agent Advances”) which ~~such~~ the Administrative Agent, in its sole discretion, deems necessary or desirable to preserve, protect, prepare for sale or lease or dispose of the Collateral or any portion thereof, to enhance the likelihood or maximize the amount of repayment by the Borrowers of the ~~Loans, Reimbursement Obligations, Letter of Credit Obligations~~ Loans and other Obligations or to pay any other amount chargeable to the Borrowers pursuant to the terms of this Agreement, including, without limitation, costs, fees and expenses as described in Section 12.04. The Agent Advances shall be repayable on demand and be secured by the Collateral and shall bear interest at a rate per annum equal to the rate then applicable to ~~Revolving~~ Loans that are Reference Rate Loans. The Agent ~~making any Agent~~ Advances shall constitute Obligations hereunder which may be charged to the Loan Account in accordance with Section 4.01. The Administrative Agent shall notify ~~the other Agent,~~ each Lender and the Administrative Borrower in writing of each such Agent Advance, which notice shall include a description of the purpose of such Agent Advance. Without limitation to its obligations pursuant to Section 10.05, each ~~Lender~~ ▇▇▇▇▇▇ agrees that it shall make available to the ~~Agent making any Agent Advances, upon such~~ Administrative Agent’s 's demand, in ~~the currency in which the respective Agent Advance was made~~ Dollars in immediately available funds, the amount equal to such ~~Lender’s~~ ▇▇▇▇▇▇'s Pro Rata Share of each such Agent ~~Advance subject to the terms of, the Agreement Among Lenders, provided that any such amount advanced by a Lender shall be deemed a Loan hereunder~~Advance. If such funds are not made available to ~~such~~ the Administrative Agent by such ~~Lender~~▇▇▇▇▇▇, ~~such~~ the Administrative Agent shall be entitled to recover such funds on demand from such Lender, together with interest thereon for each day from the date such payment was due until the date such amount is paid to ~~such~~ the Administrative Agent, at the Federal Funds ~~Effective~~ Rate for three Business Days and thereafter at the Reference Rate. ~~(b)~~ 2. The Lenders hereby irrevocably authorize the ~~Collateral~~ Administrative Agent, at its option and in its discretion, to release any Lien granted to or held by the ~~Collateral~~ Administrative Agent upon any Collateral upon termination of the Total Commitment and ~~Payment~~ payment and satisfaction of all Loans and all other Obligations (other than Contingent Indemnification Obligations) in ~~Full of~~ accordance with the ~~Obligations~~terms hereof; or constituting property being sold or disposed of ~~in the ordinary course of any Loan Party’s business or otherwise~~ in compliance with the terms of this Agreement and the other Loan Documents; or constituting property in which the Loan Parties owned no interest at the time the Lien was granted or at any time thereafter; or if approved, authorized or ratified in writing by the ~~applicable~~ Lenders ~~required pursuant to~~ in accordance with Section 12.02. Upon request by the ~~Collateral~~ Administrative Agent at any time, the Lenders will confirm in writing the ~~Collateral~~ Administrative Agent’s 's authority to release particular types or items of Collateral pursuant to this Section 10.08(b). ~~(c)~~ 3. Without in any manner limiting the ~~Collateral~~ Administrative Agent’s 's authority to act without any specific or further authorization or consent by the Lenders (as set forth in Section 10.08(b)), each Lender agrees to confirm in writing, upon request by the ~~Collateral~~ Administrative Agent, the authority to release Collateral conferred upon the ~~Collateral~~ Administrative Agent under Section 10.08(b). Upon receipt by the Administrative Agent of confirmation from the Lenders of its authority to release any particular item or types of Collateral, and upon prior written request by any Loan Party, the ~~Collateral~~ Administrative Agent shall (and is hereby irrevocably authorized by the Lenders to) execute such documents as may be necessary ~~or reasonably requested by any Loan Party~~ to evidence the release of the Liens granted to the ~~Collateral~~ Administrative Agent for the benefit of the ~~Agents and the Lenders~~ Secured Parties upon such Collateral; provided, however, that (i) the ~~Collateral~~ Administrative Agent shall not be required to execute any such document on terms which, in ~~the Collateral~~ any Agent’s 's opinion, would expose ~~the Collateral~~ any Agent to liability or create any obligations or entail any consequence other than the release of such Liens without recourse or warranty, and (ii) such release shall not in any manner discharge, affect or impair the Obligations or any Lien upon (or obligations of any Loan Party in respect of) all interests in the Collateral retained by any Loan Party. ~~(d)~~ 4. Anything contained in any of the Loan Documents to the contrary ~~notwithstanding but subject to the Agreement Among Lenders~~notwithstanding, the Loan Parties, each Agent and each Lender hereby agree that (i) no Lender shall have any right individually to realize upon any of the Collateral under any Loan Document or to enforce any Guaranty, it being understood and agreed that all powers, rights and remedies under the Loan Documents may be exercised solely by the ~~Collateral~~ Administrative Agent for the benefit of the ~~Lenders~~ Secured Parties in accordance with the terms thereof, (ii) in the event of a foreclosure by the ~~Collateral~~ Administrative Agent on any of the Collateral pursuant to a public or private sale, the Administrative ~~Agent, the Collateral~~ Agent or any Lender may be the purchaser of any or all of such Collateral at any such sale and (iii) the ~~Collateral~~ Administrative Agent, as agent for and representative of the ~~Agents and the Lenders~~ Secured Parties (but not any other Agent or any Lender or Lenders in its or their respective individual capacities unless the Required Lenders shall otherwise agree in writing) shall be entitled (either directly or through one or more acquisition vehicles) for the purpose of bidding and making settlement or payment of the purchase price for all or any portion of the Collateral to be sold (A) at any public or private sale, (B) at any sale conducted by the ~~Collateral~~ Administrative Agent under the provisions of the Uniform Commercial Code (including pursuant to Sections 9-610 or 9-620 of the Uniform Commercial Code), (C) at any sale or foreclosure conducted by the ~~Collateral~~ Administrative Agent (whether by judicial action or otherwise) in accordance with applicable law or (D) any sale conducted pursuant to the provisions of any Debtor Relief Law (including Section 363 of the Bankruptcy Code), to use and apply all or any of the Obligations as a credit on account of the purchase price for any Collateral payable by the ~~Collateral~~ Administrative Agent at such sale. ~~(e)~~ 5. The ~~Collateral~~ Administrative Agent shall have no obligation whatsoever to any Lender to assure that the Collateral exists or is owned by the Loan Parties or is cared for, protected or insured or has been encumbered or that the Lien granted to the ~~Collateral~~ Administrative Agent pursuant to this Agreement or any other Loan Document has been properly or sufficiently or lawfully created, perfected, protected or enforced or is entitled to any particular priority, or to exercise at all or in any particular manner or under any duty of care, disclosure or fidelity, or to continue exercising, any of the rights, authorities and powers granted or available to the ~~Collateral~~ Administrative Agent in this Section 10.08 or in any other Loan Document, it being understood and agreed that in respect of the Collateral, or any act, omission or event related thereto, the ~~Collateral~~ Administrative Agent may act in any manner it may deem appropriate, in its sole discretion, given the ~~Collateral~~ Administrative Agent’s 's own interest in the Collateral as one of the Lenders and that the ~~Collateral~~ Administrative Agent shall have no duty or liability whatsoever to any other Lender, except as otherwise provided ~~herein and in the Agreement Among Lenders~~herein.

Appears in 2 contracts

Sources: Financing Agreement (Mondee Holdings, Inc.), Financing Agreement (Mondee Holdings, Inc.)

Collateral Matters. ~~(a) Each~~ Administrative Agent ~~may~~ may, at its option, from time to time, at any time on or after an Event of Default and for so long as the same is continuing or upon any other failure of a condition precedent to the Loans and Letter of Credit Accommodations hereunder, make such disbursements and advances (“Special Administrative Agent Advances”) which ~~such~~ Administrative Agent, in its sole discretion, (i) deems necessary or desirable either to ~~preserve, protect, prepare for sale~~ preserve or ~~lease or dispose of~~ protect the Collateral or any portion ~~thereof,~~ thereof or (ii) to enhance the likelihood or maximize the amount of repayment by ~~the~~ Borrowers and Guarantors of the ~~Loans, Reimbursement~~ Loans and other Obligations, provided, that, the aggregate principal amount of the Special Administrative Agent Advances pursuant to clauses (i) and (ii) above, plus the then outstanding principal amount of the additional Loans and Letter of Credit ~~Obligations and other Obligations~~ Accommodations which Administrative Agent may make or provide as set forth in Section 12.8 hereof, shall not exceed the aggregate amount of $75,000,000 or (iii) to pay any other amount chargeable to ~~the Borrowers~~ any Borrower or Guarantor pursuant to the terms of this ~~Agreement, including, without limitation,~~ Agreement or any of the other Financing Agreements consisting of (A) costs, fees and expenses ~~as described in Section 12.04~~and (B) payments to any issuer of Letter of Credit Accommodations. ~~The~~ Special Administrative Agent Advances shall be repayable on demand and be together with all interest thereon shall constitute Obligations secured by the ~~Collateral and~~ Collateral. Special Administrative Agent Advances shall ~~bear interest~~ not constitute Loans but shall otherwise constitute Obligations hereunder. Interest on Special Administrative Agent Advances shall be payable at ~~a rate per annum equal to~~ the ~~rate~~ Interest Rate then applicable to ~~Revolving~~ Base Rate Loans ~~that are Reference Rate Loans~~and shall be payable on demand. ~~The Agent making any~~ Special Administrative Agent Advances shall ~~notify~~ not cause the ~~other Agent, each Lender and the Administrative Borrower in writing of each such Agent Advance, which notice shall include a description~~ total principal amount of the ~~purpose~~ Loans and Letter of ~~such Agent Advance~~Credit Accommodations to exceed the Maximum Credit. Without limitation to of its obligations pursuant to Section ~~10.05~~6.10, each Lender agrees that it shall make available to ~~the Agent making any Agent Advances~~Administrative Agent, upon ~~such~~ Administrative Agent’s demand, ~~in the currency in which the respective Agent Advance was made~~ in immediately available funds, the amount equal to such Lender’s Pro Rata Share of each such Special Administrative Agent ~~Advance subject to the terms of, the Agreement Among Lenders, provided that any such amount advanced by a Lender shall be deemed a Loan hereunder~~Advance. If such funds are not made available to ~~such~~ Administrative Agent by such Lender, such Lender shall be deemed a Defaulting Lender and Administrative Agent shall be entitled to recover such ~~funds~~ funds, on demand from such ~~Lender,~~ Lender together with interest thereon for each day from the date such payment was due until the date such amount is paid to ~~such Agent,~~ Administrative Agent at the Federal Funds ~~Effective~~ Rate for each day during such period (as published by the Federal Reserve Bank of New York or at Administrative Agent’s option based on the arithmetic mean determined by Administrative Agent of the rates for the last transaction in overnight Federal funds arranged prior to 9:00 a.m. (New York City time) on that day by each of the three ~~Business Days~~ leading brokers of Federal funds transactions in New York City selected by Administrative Agent) and ~~thereafter~~ if such amounts are not paid within three (3) days of Administrative Agent’s demand, at the Reference Rate. (b) The Lenders hereby irrevocably authorize the Collateral Agent, at its option and in its discretion, to release any Lien granted to or held by the Collateral Agent upon any Collateral upon termination of the Total Commitment and Payment in Full of the Obligations; or constituting property being sold or disposed of in the ordinary course of any Loan Party’s business or otherwise in compliance with the terms of this Agreement and the other Loan Documents; or constituting property in which the Loan Parties owned no interest at the time the Lien was granted or at any time thereafter; or if approved, authorized or ratified in writing by the applicable Lenders required pursuant to Section 12.02. Upon request by the Collateral Agent at any time, the Lenders will confirm in writing the Collateral Agent’s authority to release particular types or items of Collateral pursuant to this Section 10.08(b). (c) Without in any manner limiting the Collateral Agent’s authority to act without any specific or further authorization or consent by the Lenders (as set forth highest Interest Rate provided for in Section ~~10.08(b)), each Lender agrees~~ 3.1 hereof applicable to confirm in writing, upon request by the Collateral Agent, the authority to release Collateral conferred upon the Collateral Agent under Section 10.08(b). Upon the prior written request by any Loan Party, the Collateral Agent shall (and is hereby irrevocably authorized by the Lenders to) execute such documents as may be necessary or reasonably requested by any Loan Party to evidence the release of the Liens granted to the Collateral Agent for the benefit of the Agents and the Lenders upon such Collateral; provided, however, that (i) the Collateral Agent shall not be required to execute any such document on terms which, in the Collateral Agent’s opinion, would expose the Collateral Agent to liability or create any obligations or entail any consequence other than the release of such Liens without recourse or warranty, and (ii) such release shall not in any manner discharge, affect or impair the Obligations or any Lien upon (or obligations of any Loan Party in respect of) all interests in the Collateral retained by any Loan PartyBase Rate Loans. (d) Anything contained in any of the Loan Documents to the contrary notwithstanding but subject to the Agreement Among Lenders, the Loan Parties, each Agent and each Lender hereby agree that (i) no Lender shall have any right individually to realize upon any of the Collateral under any Loan Document or to enforce any Guaranty, it being understood and agreed that all powers, rights and remedies under the Loan Documents may be exercised solely by the Collateral Agent for the benefit of the Lenders in accordance with the terms thereof, (ii) in the event of a foreclosure by the Collateral Agent on any of the Collateral pursuant to a public or private sale, the Administrative Agent, the Collateral Agent or any Lender may be the purchaser of any or all of such Collateral at any such sale and (iii) the Collateral Agent, as agent for and representative of the Agents and the Lenders (but not any other Agent or any Lender or Lenders in its or their respective individual capacities unless the Required Lenders shall otherwise agree in writing) shall be entitled (either directly or through one or more acquisition vehicles) for the purpose of bidding and making settlement or payment of the purchase price for all or any portion of the Collateral to be sold (A) at any public or private sale, (B) at any sale conducted by the Collateral Agent under the provisions of the Uniform Commercial Code (including pursuant to Sections 9-610 or 9-620 of the Uniform Commercial Code), (C) at any sale or foreclosure conducted by the Collateral Agent (whether by judicial action or otherwise) in accordance with applicable law or (D) any sale conducted pursuant to the provisions of any Debtor Relief Law (including Section 363 of the Bankruptcy Code), to use and apply all or any of the Obligations as a credit on account of the purchase price for any Collateral payable by the Collateral Agent at such sale. (e) The Collateral Agent shall have no obligation whatsoever to any Lender to assure that the Collateral exists or is owned by the Loan Parties or is cared for, protected or insured or has been encumbered or that the Lien granted to the Collateral Agent pursuant to this Agreement or any other Loan Document has been properly or sufficiently or lawfully created, perfected, protected or enforced or is entitled to any particular priority, or to exercise at all or in any particular manner or under any duty of care, disclosure or fidelity, or to continue exercising, any of the rights, authorities and powers granted or available to the Collateral Agent in this Section 10.08 or in any other Loan Document, it being understood and agreed that in respect of the Collateral, or any act, omission or event related thereto, the Collateral Agent may act in any manner it may deem appropriate, in its sole discretion, given the Collateral Agent’s own interest in the Collateral as one of the Lenders and that the Collateral Agent shall have no duty or liability whatsoever to any other Lender, except as otherwise provided herein and in the Agreement Among Lenders.

Appears in 2 contracts

Sources: Loan and Security Agreement (SpartanNash Co), Loan and Security Agreement (Spartan Stores Inc)

Collateral Matters. (a) ~~Each~~ Agent ~~may~~ may, at its option, from time to time, at any time on or after an Event of Default and for so long as the same is continuing or upon any other failure of a condition precedent to the Revolving Loans and Letter of Credit Accommodations hereunder, make such disbursements and advances (“Special Agent Advances”) which ~~such~~ Agent, in its sole discretion, (i) deems necessary or desirable either to ~~preserve, protect, prepare for sale~~ preserve or ~~lease or dispose of~~ protect the Collateral or any portion ~~thereof,~~ thereof or (ii) to enhance the likelihood or maximize the amount of repayment by ~~the~~ Borrowers and Guarantors of the ~~Loans, Reimbursement~~ Revolving Loans and other Obligations, provided, that, the aggregate principal amount of the Special Agent Advances pursuant to this clause (ii), plus the then outstanding principal amount of the additional Loans and Letter of Credit ~~Obligations and other Obligations~~ Accommodations which Agent may make or provide as set forth in Section 12.8 hereof, shall not exceed the aggregate amount of the lesser of $10,000,000 or ten (10%) percent of the Maximum Credit outstanding at any time or (iii) to pay any other amount chargeable to ~~the Borrowers~~ any Borrower or Guarantor pursuant to the terms of this ~~Agreement, including, without limitation,~~ Agreement or any of the other Financing Agreements consisting of (A) costs, fees and expenses ~~as described in Section 12.04~~and (B) payments to any issuer of Letter of Credit Accommodations. ~~The~~ Special Agent Advances shall be repayable on demand and be secured by the ~~Collateral and shall bear interest at a rate per annum equal to the rate then applicable to Revolving Loans that are Reference Rate Loans~~Collateral. ~~The Agent making any~~ Special Agent Advances shall ~~notify the other Agent, each Lender and the Administrative Borrower in writing of each such Agent Advance, which notice~~ not constitute Revolving Loans but shall ~~include a description of the purpose of such Agent Advance~~otherwise constitute Obligations hereunder. Without limitation to of its obligations pursuant to Section ~~10.05~~6.10, each Lender agrees that it shall make available to ~~the Agent making any Agent Advances~~Agent, upon ~~such~~ Agent’s demand, ~~in the currency in which the respective Agent Advance was made~~ in immediately available funds, the amount equal to such Lender’s Pro Rata Share of each such Special Agent ~~Advance subject to the terms of, the Agreement Among Lenders, provided that any such amount advanced by a Lender shall be deemed a Loan hereunder~~Advance. If such funds are not made available to ~~such~~ Agent by such Lender, such Lender shall be deemed a Defaulting Lender and Agent shall be entitled to recover such ~~funds~~ funds, on demand from such ~~Lender,~~ Lender together with interest thereon for each day from the date such payment was due until the date such amount is paid to ~~such Agent,~~ Agent at the Federal Funds ~~Effective~~ Rate for each day during such period (as published by the Federal Reserve Bank of New York or at Agent’s option based on the arithmetic mean determined by Agent of the rates for the last transaction in overnight Federal funds arranged prior to 9:00 a.m. (New York City time) on that day by each of the three ~~Business Days~~ leading brokers of Federal funds transactions in New York City selected by Agent) and ~~thereafter~~ if such amounts are not paid within three (3) days of Agent’s demand, at the ~~Reference Rate~~highest Interest Rate provided for in Section 3.1 hereof applicable to Prime Rate Loans. (b) ~~The~~ Lenders hereby irrevocably authorize ~~the Collateral~~ Agent, at its option and in its ~~discretion,~~ discretion to release any ~~Lien granted to~~ security interest in, mortgage or ~~held by~~ lien upon, any of the Collateral ~~Agent upon any Collateral~~ (i) upon termination of the ~~Total Commitment~~ Commitments and ~~Payment in Full~~ payment and satisfaction of all of the ~~Obligations;~~ Obligations and delivery of cash collateral to the extent required under Section 14.1 below, or (ii) constituting property being sold or disposed of in if Borrower Agent or any Borrower or Guarantor certifies to Agent that the ~~ordinary course of any Loan Party’s business~~ sale or ~~otherwise~~ disposition is made in compliance with ~~the terms of this Agreement~~ Section 9.7 hereof (and ~~the other Loan Documents;~~ Agent may rely conclusively on any such certificate, without further inquiry), or (iii) constituting property in which ~~the Loan Parties owned no~~ any Borrower or Guarantor did not own an interest at the time the ~~Lien~~ security interest, mortgage or lien was granted or at any time thereafter; , or (iv) having a value in the aggregate in any twelve (12) month period of less than $5,000,000, or (v) if required or permitted under the terms of any of the other Financing Agreements, including any intercreditor agreement, or (vi) approved, authorized or ratified in writing by all of Lenders. Except as provided above, Agent will not release any security interest in, mortgage or lien upon, any of the ~~applicable Lenders required pursuant to Section 12.02~~Collateral without the prior written authorization of all of Lenders. Upon request by ~~the Collateral~~ Agent at any time, ~~the~~ Lenders will promptly confirm in writing ~~the Collateral~~ Agent’s authority to release particular types or items of Collateral pursuant to this ~~Section 10.08(b)~~Section. (c) Without in any manner limiting ~~the Collateral~~ Agent’s authority to act without any specific or further authorization or consent by the ~~Lenders (as set forth in Section 10.08(b))~~Required Lenders, each Lender agrees to confirm in writing, upon request by ~~the Collateral~~ Agent, the authority to release Collateral conferred upon ~~the Collateral~~ Agent under ~~Section 10.08(b)~~this Section. ~~Upon the prior written request by any Loan Party, the Collateral~~ Agent shall (and is hereby irrevocably authorized by ~~the~~ Lenders to) execute such documents as may be necessary ~~or reasonably requested by any Loan Party~~ to evidence the release of the ~~Liens~~ security interest, mortgage or liens granted to Agent upon any Collateral to the ~~Collateral Agent for the benefit of the Agents and the Lenders upon such Collateral~~extent set forth above; provided, ~~however~~that, ~~that~~ (i) ~~the Collateral~~ Agent shall not be required to execute any such document on terms which, in ~~the Collateral~~ Agent’s opinion, would expose ~~the Collateral~~ Agent to liability or create any obligations or entail any consequence other than the release of such ~~Liens~~ security interest, mortgage or liens without recourse or ~~warranty,~~ warranty and (ii) such release shall not in any manner discharge, affect or impair the Obligations or any ~~Lien~~ security interest, mortgage or lien upon (or obligations of any ~~Loan Party~~ Borrower or Guarantor in respect of) ~~all interests in~~ the Collateral retained by ~~any Loan Party~~such Borrower or Guarantor. (d) Anything contained in any of the Loan Documents to the contrary notwithstanding but subject to the Agreement Among Lenders, the Loan Parties, each Agent and each Lender hereby agree that (i) no Lender shall have any right individually to realize upon any of the Collateral under any Loan Document or to enforce any Guaranty, it being understood and agreed that all powers, rights and remedies under the Loan Documents may be exercised solely by the Collateral Agent for the benefit of the Lenders in accordance with the terms thereof, (ii) in the event of a foreclosure by the Collateral Agent on any of the Collateral pursuant to a public or private sale, the Administrative Agent, the Collateral Agent or any Lender may be the purchaser of any or all of such Collateral at any such sale and (iii) the Collateral Agent, as agent for and representative of the Agents and the Lenders (but not any other Agent or any Lender or Lenders in its or their respective individual capacities unless the Required Lenders shall otherwise agree in writing) shall be entitled (either directly or through one or more acquisition vehicles) for the purpose of bidding and making settlement or payment of the purchase price for all or any portion of the Collateral to be sold (A) at any public or private sale, (B) at any sale conducted by the Collateral Agent under the provisions of the Uniform Commercial Code (including pursuant to Sections 9-610 or 9-620 of the Uniform Commercial Code), (C) at any sale or foreclosure conducted by the Collateral Agent (whether by judicial action or otherwise) in accordance with applicable law or (D) any sale conducted pursuant to the provisions of any Debtor Relief Law (including Section 363 of the Bankruptcy Code), to use and apply all or any of the Obligations as a credit on account of the purchase price for any Collateral payable by the Collateral Agent at such sale. (e) The Collateral Agent shall have no obligation whatsoever to any Lender or any other Person to investigate, confirm or assure that the Collateral exists or is owned by ~~the Loan Parties~~ any Borrower or Guarantor or is cared for, protected or insured or has been ~~encumbered~~ encumbered, or that any particular items of Collateral meet the eligibility criteria applicable in respect of the Revolving Loans or Letter of Credit Accommodations hereunder, or whether any particular reserves are appropriate, or that the ~~Lien~~ liens and security interests granted to ~~the Collateral~~ Agent pursuant ~~to this Agreement~~ hereto or any ~~other Loan Document has~~ of the Financing Agreements or otherwise have been properly or sufficiently or lawfully created, perfected, protected or enforced or is are entitled to any particular priority, or to exercise at all or in any particular manner or under any duty of care, disclosure or fidelity, or to continue exercising, any of the rights, authorities and powers granted or available to ~~the Collateral~~ Agent in this ~~Section 10.08~~ Agreement or in any of the other ~~Loan Document~~Financing Agreements, it being understood and agreed that in respect of the Collateral, or any act, omission or event related thereto, ~~the Collateral~~ Agent may act in any manner it may deem appropriate, in its ~~sole~~ discretion, given ~~the Collateral~~ Agent’s own interest in the Collateral as ~~one of the Lenders~~ a Lender and that ~~the Collateral~~ Agent shall have no duty or liability whatsoever to any other Lender~~, except as otherwise provided herein and in the Agreement Among Lenders~~.

Appears in 2 contracts

Sources: Loan and Security Agreement (J Crew Group Inc), Loan and Security Agreement (J Crew Group Inc)

Collateral Matters. (a) ~~Each~~ Administrative and Collateral Agent ~~may~~ may, at its option, from time to time, at any time on or after an Event of Default and for so long as the same is continuing or upon any other failure of a condition precedent to the Loans hereunder, make such disbursements and advances (“Special Agent Advances”) which ~~such~~ Administrative and Collateral Agent, in its ~~sole discretion~~reasonable credit judgment, deems necessary or desirable either (i) to ~~preserve, protect, prepare for sale~~ preserve or ~~lease or dispose of~~ protect the Collateral or any portion ~~thereof, to enhance the likelihood~~ thereof or ~~maximize the amount of repayment by the Borrowers of the Loans, Reimbursement Obligations, Letter of Credit Obligations and other Obligations or~~ (ii) to pay any other amount chargeable to ~~the~~ Borrowers or Guarantors pursuant to the terms of this ~~Agreement, including, without limitation,~~ Agreement consisting of costs, fees and expenses ~~as described~~ and payments to any issuer of Letter of Credit Accommodations; provided that, without the consent of the Required Super-Majority Lenders, in no event shall the aggregate amount of Special Agent Advances, together with the Revolving Loans and Letter of Credit Accommodations made pursuant to Section ~~12.04~~12.8 hereof, exceed an amount equal to ten percent (10%) of the Borrowing Base at any time or cause the total principal amount of the Revolving Loans and Letter of Credit Accommodations to exceed the Revolving Loan Limit. ~~The~~ Special Agent Advances shall be repayable on demand and be secured by the Collateral. Administrative and Collateral ~~and shall bear interest at a rate per annum equal to the rate then applicable to Revolving Loans that are Reference Rate Loans. The~~ Agent ~~making any Agent Advances~~ shall notify ~~the other Agent,~~ each Lender and ~~the~~ Administrative Borrower in writing of each such Special Agent Advance, which notice shall include a description of the purpose of such Special Agent Advance. Without limitation to of its obligations pursuant to Section ~~10.05~~6.10, each Lender agrees that it shall make available to ~~the Agent making any Agent Advances~~Administrative and Collateral Agent, upon ~~such~~ Administrative and Collateral Agent’s demand, ~~in the currency in which the respective Agent Advance was made~~ in immediately available funds, the amount equal to such Lender’s Pro Rata Share of each such Special Agent ~~Advance subject to the terms of, the Agreement Among Lenders, provided that any such amount advanced by a Lender shall be deemed a Loan hereunder~~Advance. If such funds are not made available to ~~such~~ Administrative and Collateral Agent by such Lender, ~~such~~ Administrative and Collateral Agent shall be entitled to recover such ~~funds~~ funds, on demand from such ~~Lender,~~ Lender together with interest ~~thereon~~ thereon, for each day from the date such payment was due until the date such amount is paid to ~~such Agent,~~ Administrative and Collateral Agent at the ~~Federal Funds Effective~~ Interest Rate ~~for three Business Days and thereafter at~~ then payable by Borrowers in respect of the ~~Reference Rate~~Revolving Loans as set forth in Section 3.1 hereof. (b) ~~The~~ Lenders hereby irrevocably authorize ~~the~~ Administrative and Collateral Agent, at its option and in its ~~discretion,~~ discretion to release any ~~Lien granted to~~ security interest in, mortgage or ~~held by~~ lien upon, any of the ~~Collateral Agent upon any Collateral~~ Collateral: (i) upon termination of the ~~Total Commitment~~ Revolving Loan Commitments and ~~Payment in Full~~ payment and satisfaction of all of the ~~Obligations; or~~ Obligations and delivery of cash collateral to the extent required under Section 13.1 hereof, (ii) constituting property being sold or disposed of in ~~the ordinary course of any Loan Party’s business or otherwise in~~ compliance with the applicable terms of this Agreement ~~and the other Loan Documents;~~ or any consent granted in connection with this Agreement, (iii) constituting property in which ~~the Loan Parties~~ no Borrower or any Guarantor owned no an interest at the time the ~~Lien~~ security interest, mortgage or lien was granted or at any time thereafter; , (iv) having a value of less than $25,000,000 or ~~if approved~~(v) in accordance with the terms of Sections 11.3(a)(i)(E) or 11.3(a)(ii)(B). Except as provided above, ~~authorized~~ Administrative and Collateral Agent will not release any security interest in, mortgage or ~~ratified~~ lien upon, any of the Collateral without the prior written authorization of all of Lenders (and any Lender may require that the proceeds from any sale or other disposition of the Collateral to be so released be applied to the Obligations in ~~writing by the applicable Lenders required pursuant~~ a manner satisfactory to ~~Section 12.02~~such Lender). Upon request by ~~the~~ Administrative and Collateral Agent at any time, ~~the~~ Lenders will promptly confirm in writing ~~the~~ Administrative and Collateral Agent’s authority to release particular types or items of Collateral pursuant to this ~~Section 10.08(b)~~Section. (c) Without in any manner limiting ~~the~~ Administrative and Collateral Agent’s authority to act without any specific or further authorization or consent by the ~~Lenders (as set forth in Section 10.08(b))~~Required Lenders, each Lender agrees to confirm in writing, upon request by ~~the~~ Administrative and Collateral Agent, the authority to release Collateral conferred upon ~~the~~ Administrative and Collateral Agent under ~~Section 10.08(b)~~this Section. ~~Upon the prior written request by any Loan Party, the~~ Administrative and Collateral Agent shall (and is hereby irrevocably authorized by ~~the~~ Lenders to) execute such documents as may be necessary ~~or reasonably requested by any Loan Party~~ to evidence the release of the ~~Liens~~ security interest, mortgage or liens granted to Administrative and Collateral Agent, for itself and the ~~Collateral Agent for the~~ ratable benefit of the ~~Agents~~ Lenders and the ~~Lenders~~ Bank Product Providers, upon ~~such Collateral~~any Collateral to the extent set forth above; provided, ~~however~~that, ~~that~~ (i) ~~the~~ Administrative and Collateral Agent shall not be required to execute any such document on terms which, in ~~the~~ Administrative and Collateral Agent’s opinion, would expose ~~the~~ Administrative and Collateral Agent to liability or create any obligations or entail any consequence other than the release of such ~~Liens~~ security interest, mortgage or liens without recourse or ~~warranty,~~ warranty and (ii) such release shall not in any manner discharge, affect or impair the Obligations or any ~~Lien~~ security interest, mortgage or lien upon (or obligations of any ~~Loan Party~~ Borrower or any Guarantor in respect of) ~~all interests in~~ the Collateral retained by ~~any Loan Party~~such Borrower or such Guarantor. (d) Anything contained in any of the Loan Documents to the contrary notwithstanding but subject to the Agreement Among Lenders, the Loan Parties, each Agent and each Lender hereby agree that (i) no Lender shall have any right individually to realize upon any of the Collateral under any Loan Document or to enforce any Guaranty, it being understood and agreed that all powers, rights and remedies Except as expressly required under the ~~Loan Documents may be exercised solely by the Collateral Agent for the benefit~~ terms of ~~the Lenders in accordance with the terms thereof~~this Agreement, ~~(ii) in the event of a foreclosure by the Collateral Agent on any of the Collateral pursuant to a public or private sale, the~~ Administrative ~~Agent, the Collateral Agent or any Lender may be the purchaser of any or all of such Collateral at any such sale~~ and (iii) the Collateral Agent, as agent for and representative of the Agents and the Lenders (but not any other Agent or any Lender or Lenders in its or their respective individual capacities unless the Required Lenders shall otherwise agree in writing) shall be entitled (either directly or through one or more acquisition vehicles) for the purpose of bidding and making settlement or payment of the purchase price for all or any portion of the Collateral to be sold (A) at any public or private sale, (B) at any sale conducted by the Collateral Agent under the provisions of the Uniform Commercial Code (including pursuant to Sections 9-610 or 9-620 of the Uniform Commercial Code), (C) at any sale or foreclosure conducted by the Collateral Agent (whether by judicial action or otherwise) in accordance with applicable law or (D) any sale conducted pursuant to the provisions of any Debtor Relief Law (including Section 363 of the Bankruptcy Code), to use and apply all or any of the Obligations as a credit on account of the purchase price for any Collateral payable by the Collateral Agent at such sale. (e) The Collateral Agent shall have no obligation whatsoever to any Lender or any other Person to investigate, confirm or assure that the Collateral exists or is owned by ~~the Loan Parties~~ any Borrower or any Guarantor or is cared for, protected or insured or has been ~~encumbered~~ encumbered, or that any particular items of Collateral meet the eligibility criteria applicable in respect of the Loans hereunder, or whether any particular reserves are appropriate, or that the ~~Lien~~ liens and security interests granted to ~~the~~ Administrative and Collateral Agent herein or pursuant ~~to this Agreement~~ hereto or ~~any other Loan Document has~~ otherwise have been properly or sufficiently or lawfully created, perfected, protected or enforced or is are entitled to any particular priority, 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~~ Administrative and Collateral Agent in this ~~Section 10.08~~ Agreement or in any of the other ~~Loan Document~~Financing Agreements, it being understood and agreed that in respect of the Collateral, or any act, omission or event related thereto, ~~the~~ Administrative and Collateral Agent may act in any manner it may deem appropriate, in its ~~sole~~ discretion, given ~~the~~ Administrative and Collateral Agent’s own interest in the Collateral as ~~one of the Lenders~~ a Lender and that ~~the~~ Administrative and Collateral Agent shall have no duty or liability whatsoever to any other Lender~~, except as otherwise provided herein and in the Agreement Among Lenders~~.

Appears in 2 contracts

Sources: Loan and Security Agreement (BlueLinx Holdings Inc.), Loan and Security Agreement (BlueLinx Holdings Inc.)

Collateral Matters. ~~(a) Each~~ a. The Collateral Agent may from time to time make such disbursements and advances (“Collateral Agent Advances”) which ~~such~~ the Collateral Agent, in its sole discretion, deems necessary or desirable to preserve, protect, prepare for sale or lease or dispose of the Collateral or any portion thereof, to enhance the likelihood or maximize the amount of repayment by the ~~Borrowers~~ Borrower of the ~~Loans, Reimbursement Obligations, Letter of Credit Obligations~~ Loans and other Obligations or to pay any other amount chargeable to the ~~Borrowers~~ Borrower pursuant to the terms of this Agreement, including, without limitation, costs, fees and expenses as described in Section 10.18 and Section 12.04. The Collateral Agent Advances shall be repayable on demand and be secured by the Collateral and shall bear interest at a rate per annum equal to the rate then applicable to Revolving Loans that are Reference Rate Loans. The ~~Agent making any~~ Collateral Agent Advances shall constitute Obligations hereunder which may be charged to the Loan Account in accordance with Section 4.01. The Collateral Agent shall notify ~~the other Agent,~~ each Lender and the ~~Administrative~~ Borrower in writing of each such Collateral Agent Advance, which notice shall include a description of the purpose of such Collateral Agent Advance. Without limitation to its obligations pursuant to Section 10.05, each Lender agrees that it shall make available to the ~~Agent making any Agent Advances~~Collateral Agent, upon ~~such~~ the Collateral Agent’s demand, in ~~the currency in which the respective Agent Advance was made~~ Dollars in immediately available funds, the amount equal to such ~~Lender~~▇▇▇▇▇▇’s Pro Rata Share of each such Collateral Agent ~~Advance subject to the terms of, the Agreement Among Lenders, provided that any such amount advanced by a Lender shall be deemed a Loan hereunder~~Advance. If such funds are not made available to ~~such~~ the Collateral Agent by such Lender, ~~such~~ the Collateral Agent shall be entitled to recover such funds on demand from such Lender, together with interest thereon for each day from the date such payment was due until the date such amount is paid to ~~such~~ the Collateral Agent, at the Federal Funds ~~Effective~~ Rate for three (3) Business Days and thereafter at the Reference Rate. ~~(b)~~ b. The Lenders hereby irrevocably authorize the Collateral Agent, at its option and in its discretion, to release any Lien granted to or held by the Collateral Agent upon any Collateral upon termination of the Total Commitment and ~~Payment~~ payment and satisfaction of all Loans and all other Obligations (other than Contingent Indemnity Obligations) in ~~Full of~~ accordance with the ~~Obligations~~terms hereof; or constituting property being sold or disposed of in the ordinary course of any Loan Party’s business or otherwise in compliance with the terms of this Agreement and the other Loan Documents; or constituting property in which the Loan Parties owned no interest at the time the Lien was granted or at any time thereafter; or if approved, authorized or ratified in writing by the ~~applicable~~ Lenders ~~required pursuant to~~ in accordance with Section 12.02. Upon request by the Collateral Agent at any time, the Lenders will confirm in writing the Collateral Agent’s authority to release particular types or items of Collateral pursuant to this Section 10.08(b). ~~(c)~~ c. Without in any manner limiting the Collateral Agent’s authority to act without any specific or further authorization or consent by the Lenders (as set forth in Section 10.08(b)), each Lender agrees to confirm in writing, upon request by the Collateral Agent, the authority to release Collateral conferred upon the Collateral Agent under Section 10.08(b). Upon receipt by the Collateral Agent of confirmation from the Lenders of its authority to release any particular item or types of Collateral, and upon prior written request by any Loan Party, the Collateral Agent shall (and is hereby irrevocably authorized by the Lenders to) execute such documents as may be necessary ~~or reasonably requested by any Loan Party~~ to evidence the release of the Liens granted to the Collateral Agent for the benefit of the Agents and the Lenders upon such Collateral; provided, however, that (i) the Collateral Agent shall not be required to execute any such document on terms which, in the Collateral Agent’s opinion, would expose the Collateral Agent to liability or create any obligations or entail any consequence other than the release of such Liens without recourse or warranty, and (ii) such release shall not in any manner discharge, affect or impair the Obligations or any Lien upon (or obligations of any Loan Party in respect of) all interests in the Collateral retained by any Loan Party. ~~(d)~~ d. Anything contained in any of the Loan Documents to the contrary ~~notwithstanding but subject to the Agreement Among Lenders~~notwithstanding, the Loan Parties, each Agent and each Lender hereby agree that (i) no Lender shall have any right individually to realize upon any of the Collateral under any Loan Document or to enforce any Guaranty, it being understood and agreed that all powers, rights and remedies under the Loan Documents may be exercised solely by the Collateral Agent for the benefit of the Lenders in accordance with the terms thereof, (ii) in the event of a foreclosure by the Collateral Agent on any of the Collateral pursuant to a public or private sale, the Administrative Agent, the Collateral Agent or any Lender may be the purchaser of any or all of such Collateral at any such sale and (iii) the Collateral Agent, as agent for and representative of the Agents and the Lenders (but not any other Agent or any Lender or Lenders in its or their respective individual capacities unless the Required Lenders shall otherwise agree in writing) shall be entitled (either directly or through one or more acquisition vehicles) for the purpose of bidding and making settlement or payment of the purchase price for all or any portion of the Collateral to be sold (A) at any public or private sale, (B) at any sale conducted by the Collateral Agent under the provisions of the Uniform Commercial Code (including pursuant to Sections 9-610 or 9-620 of the Uniform Commercial Code), (C) at any sale or foreclosure conducted by the Collateral Agent (whether by judicial action or otherwise) in accordance with applicable law or (D) any sale conducted pursuant to the provisions of any Debtor Relief Law (including Section 363 of the Bankruptcy Code), to use and apply all or any of the Obligations as a credit on account of the purchase price for any Collateral payable by the Collateral Agent at such sale. ~~(e)~~ e. The Collateral Agent shall have no obligation whatsoever to any Lender to assure that the Collateral exists or is owned by the Loan Parties or is cared for, protected or insured or has been encumbered or that the Lien granted to the Collateral Agent pursuant to this Agreement or any other Loan Document has been properly or sufficiently or lawfully created, perfected, protected or enforced or is entitled to any particular priority, or to exercise at all or in any particular manner or under any duty of care, disclosure or fidelity, or to continue exercising, any of the rights, authorities and powers granted or available to the Collateral Agent in this Section 10.08 or in any other Loan Document, it being understood and agreed that in respect of the Collateral, or any act, omission or event related thereto, the Collateral Agent may act in any manner it may deem appropriate, in its sole discretion, given the Collateral Agent’s own interest in the Collateral as one of the Lenders and that the Collateral Agent shall have no duty or liability whatsoever to any other Lender, except as otherwise provided ~~herein and in the Agreement Among Lenders~~herein.

Appears in 2 contracts

Sources: Financing Agreement (AgileThought, Inc.), Financing Agreement (AgileThought, Inc.)

Collateral Matters. (a) ~~Each~~ The Agent may from time to time make such disbursements and advances (“"Agent Advances”") which ~~such~~ the Agent, in its sole discretion, deems reasonably necessary or desirable to preserve, protect, prepare for sale or lease or dispose of the Collateral or any portion thereof, to enhance the likelihood or maximize the amount of repayment by the ~~Borrowers~~ Borrower of the ~~Loans, Reimbursement Obligations, Letter of Credit Obligations~~ Loan and other Obligations or to pay any other amount chargeable to the ~~Borrowers~~ Key Loan Parties pursuant to the terms of this Agreement, including, without limitation, costs, fees and expenses as described in Section 12.04. The Agent Advances shall be repayable on demand and be secured by the ~~Collateral and shall bear interest at a rate per annum equal to the rate then applicable to Revolving Loans that are Reference Rate Loans~~Collateral. The Agent ~~making any Agent~~ Advances shall constitute Obligations hereunder. The Agent shall notify ~~the other Agent,~~ each Lender and the ~~Administrative~~ Borrower in writing of each such Agent Advance, which notice shall include a description of the purpose of such Agent Advance. Without limitation to its obligations pursuant to Section 10.05, each Lender agrees that it shall make available to the ~~Agent making any Agent Advances~~Agent, upon ~~such~~ the Agent’s 's demand, in ~~the currency in which the respective Agent Advance was made~~ Dollars in immediately available funds, the amount equal to such Lender’s 's Pro Rata Share of each such Agent ~~Advance subject to the terms of, the Agreement Among Lenders, provided that any such amount advanced by a Lender shall be deemed a Loan hereunder~~Advance. If such funds are not made available to ~~such~~ the Agent by such Lender, ~~such~~ the Agent shall be entitled to recover such funds on demand from such Lender, together with interest thereon for each day from the date such payment was due until the date such amount is paid to ~~such~~ the Agent, at the Federal Funds ~~Effective~~ Rate for three Business Days and thereafter at the Reference Rate. (b) The Lenders hereby irrevocably authorize the ~~Collateral~~ Agent, at its option and in its discretion, to release any Lien granted to or held by the ~~Collateral~~ Agent upon any Collateral upon ~~termination~~ payment and satisfaction of the ~~Total Commitment~~ Loan and ~~Payment~~ all other Obligations which have matured and which the Agent has been notified in ~~Full of the Obligations~~writing are then due and payable; or constituting property being sold or disposed of ~~in the ordinary course of any Loan Party’s business or otherwise~~ in compliance with the terms of this Agreement and the other Loan Documents; or constituting property in which the Loan Parties owned no interest at the time the Lien was granted or at any time thereafter; or if approved, authorized or ratified in writing by the ~~applicable Lenders required pursuant to Section 12.02~~Lenders. Upon request by the ~~Collateral~~ Agent at any time, the Lenders will confirm in writing the ~~Collateral~~ Agent’s 's authority to release particular types or items of Collateral pursuant to this Section 10.08(b). (c) Without in any manner limiting the ~~Collateral~~ Agent’s 's authority to act without any specific or further authorization or consent by the Lenders (as set forth in Section 10.08(b)), each Lender agrees to confirm in writing, upon request by the ~~Collateral~~ Agent, the authority to release Collateral conferred upon the ~~Collateral~~ Agent under Section 10.08(b). Upon receipt by the Agent of confirmation from the Lenders of its authority to release any particular item or types of Collateral, and upon prior written request by any Loan Party, the ~~Collateral~~ Agent shall (and is hereby irrevocably authorized by the Lenders to) execute such documents as may be necessary ~~or reasonably requested by any Loan Party~~ to evidence the release of the Liens granted to the ~~Collateral~~ Agent for the benefit of ~~the Agents and~~ the Lenders upon such Collateral; provided, however, that (i) the ~~Collateral~~ Agent shall not be required to execute any such document on terms which, in the ~~Collateral~~ Agent’s 's opinion, would expose the ~~Collateral~~ Agent to liability or create any obligations or entail any consequence other than the release of such Liens without recourse or warranty, and (ii) such release shall not in any manner discharge, affect or impair the Obligations or any Lien upon (or obligations of any Loan Party in respect of) all interests in the Collateral retained by any Loan Party. (d) Anything contained in any of the Loan Documents to the contrary notwithstanding but subject to the Agreement Among Lenders, the Loan Parties, each Agent and each Lender hereby agree that (i) no Lender shall have any right individually to realize upon any of the Collateral under any Loan Document or to enforce any Guaranty, it being understood and agreed that all powers, rights and remedies under the Loan Documents may be exercised solely by the Collateral Agent for the benefit of the Lenders in accordance with the terms thereof, (ii) in the event of a foreclosure by the Collateral Agent on any of the Collateral pursuant to a public or private sale, the Administrative Agent, the Collateral Agent or any Lender may be the purchaser of any or all of such Collateral at any such sale and (iii) the Collateral Agent, as agent for and representative of the Agents and the Lenders (but not any other Agent or any Lender or Lenders in its or their respective individual capacities unless the Required Lenders shall otherwise agree in writing) shall be entitled (either directly or through one or more acquisition vehicles) for the purpose of bidding and making settlement or payment of the purchase price for all or any portion of the Collateral to be sold (A) at any public or private sale, (B) at any sale conducted by the Collateral Agent under the provisions of the Uniform Commercial Code (including pursuant to Sections 9-610 or 9-620 of the Uniform Commercial Code), (C) at any sale or foreclosure conducted by the Collateral Agent (whether by judicial action or otherwise) in accordance with applicable law or (D) any sale conducted pursuant to the provisions of any Debtor Relief Law (including Section 363 of the Bankruptcy Code), to use and apply all or any of the Obligations as a credit on account of the purchase price for any Collateral payable by the Collateral Agent at such sale. (e) The ~~Collateral~~ Agent shall have no obligation whatsoever to any Lender to assure that the Collateral exists or is owned by the Loan Parties or is cared for, protected or insured or has been encumbered or that the Lien granted to the ~~Collateral~~ Agent pursuant to this Agreement or any other Loan Document has been properly or sufficiently or lawfully created, perfected, protected or enforced or is entitled to any particular priority, or to exercise at all or in any particular manner or under any duty of care, disclosure or fidelity, or to continue exercising, any of the rights, authorities and powers granted or available to the ~~Collateral~~ Agent in this Section 10.08 or in any other Loan Document, it being understood and agreed that in respect of the Collateral, or any act, omission or event related thereto, the ~~Collateral~~ Agent may act in any manner it may deem appropriate, in its sole discretion, given the ~~Collateral~~ Agent’s 's own interest in the Collateral as one of the Lenders and that the ~~Collateral~~ Agent shall have no duty or liability whatsoever to any other Lender, except as otherwise provided ~~herein and in the Agreement Among Lenders~~herein.

Appears in 2 contracts

Sources: Senior Loan Agreement (DSW Inc.), Senior Loan Agreement (Retail Ventures Inc)

Collateral Matters. (a) Each Agent may from time to time make such disbursements and advances (“Agent Advances”) which such Agent, in its sole discretion, deems necessary or desirable to preserve, protect, prepare for sale or lease or dispose of the Collateral or any portion thereof, to enhance the likelihood or maximize the amount of repayment by the Borrowers of the Loans, Reimbursement Obligations, Letter of Credit Obligations and other Obligations or to pay any other amount chargeable to the Borrowers pursuant to the terms of this Agreement, including, without limitation, costs, fees and expenses as described in Section 12.04. The Agent Advances shall be repayable on demand and be secured by the Collateral and shall bear interest at a rate per annum equal to the rate then applicable to Revolving Loans that are Reference Rate Loans. The Agent making any Agent Advances shall notify the other Agent, each Lender and the Administrative Borrower in writing of each such Agent Advance, which notice shall include a description of the purpose of such Agent Advance. Without limitation to its obligations pursuant to Section 10.05, each Lender agrees that it shall make available to the Agent making any Agent Advances, upon such Agent’s demand, in the currency in which the respective Agent Advance was made in immediately available funds, the amount equal to such Lender’s Pro Rata Share of each such Agent Advance subject to the terms of, the Agreement Among Lenders, provided that any such amount advanced by a Lender shall be deemed a Loan hereunder. If such funds are not made available to such Agent by such Lender, such Agent shall be entitled to recover such funds on demand from such Lender, together with interest thereon for each day from the date such payment was due until the date such amount is paid to such Agent, at the Federal Funds Effective Rate for three Business Days and thereafter at the Reference Rate. (b) The Lenders hereby BANKS irrevocably authorize the ~~Collateral Agent~~COLLATERAL AGENT, ~~at its option and in its discretion~~upon the direction of the ADMINISTRATIVE AGENT, to release any ~~Lien~~ mortgage, deed of trust, pledge, lien, security interest or other charge or encumbrance of any nature on any property granted to or held by the ~~Collateral Agent~~ COLLATERAL AGENT under any LOAN DOCUMENT upon ~~any Collateral upon termination~~ BORROWER’s full and final satisfaction of the Total Commitment and Payment in Full of the Obligations; or constituting property being sold or disposed of in the ordinary course of any Loan Party’s business or otherwise in compliance with the terms of this Agreement and the other Loan Documents; or constituting property in which the Loan Parties owned no interest at the time the Lien was granted or at any time thereafter; or if approved, authorized or ratified in writing by the applicable Lenders required pursuant to Section 12.02OBLIGATIONS. Upon request by the ~~Collateral Agent~~ COLLATERAL AGENT at any time, the ~~Lenders~~ BANKS will confirm in writing the ~~Collateral Agent~~COLLATERAL AGENT’s authority to release its interest in particular types or items of ~~Collateral~~ property pursuant to this Section ~~10.08(b). (c) Without~~ 9.10. In each case as specified in ~~any manner limiting the Collateral Agent’s authority to act without any specific or further authorization or consent by the Lenders (as set forth in~~ this Section ~~10.08(b)), each Lender agrees to confirm in writing, upon request by the Collateral Agent~~9.10, the ~~authority~~ COLLATERAL AGENT will, at BORROWER’s expense, execute and deliver to release Collateral conferred upon the Collateral Agent under Section 10.08(b). Upon the prior written request by any Loan Party, the Collateral Agent shall (and is hereby irrevocably authorized by the Lenders to) execute BORROWER such documents as BORROWER may ~~be necessary or~~ reasonably ~~requested by any Loan Party~~ request to evidence the release of such item of collateral from the ~~Liens~~ assignment and security interest granted under the LOAN DOCUMENTS in accordance with the terms of the LOANS DOCUMENTS and this Section 9.10. Notwithstanding anything to the ~~Collateral Agent~~ contrary in any LOAN DOCUMENT, the powers conferred on the COLLATERAL AGENT under the LOAN DOCUMENTS are solely to protect its interest (on behalf of the BANKS) in the collateral securing the LOANS and shall not impose any duty upon it to exercise any such powers. Except for the ~~benefit~~ reasonable care of ~~the Agents~~ any such collateral in its possession and the ~~Lenders upon~~ accounting for moneys actually received by it under the LOAN DOCUMENTS, the COLLATERAL AGENT shall have no duty as to any such ~~Collateral; provided~~collateral, ~~however~~or responsibility, ~~that~~ for (i) ascertaining or taking action with respect to calls, conversions, exchanges, maturities, tenders or other matters relative to any investment property constituting collateral, whether or not the ~~Collateral Agent~~ COLLATERAL AGENT has or is deemed to have knowledge of such matters, or (ii) taking any necessary steps to preserve rights against prior parties or any other rights pertaining to any such collateral. The COLLATERAL AGENT shall be deemed to have exercised reasonable care in the custody and preservation of any collateral in its possession if such collateral is accorded treatment substantially equal to that which it accords its own property. The COLLATERAL AGENT shall not be liable for interest on any money or assets received by it. Assets held in trust by the COLLATERAL AGENT need not be segregated from other assets except to the extent required by law. Before the COLLATERAL AGENT acts or refrains from acting, it may require a certificate of an appropriate officer of BORROWER at the expense of BORROWER. The COLLATERAL AGENT shall not be liable for any action it takes or omits to take in good faith in reliance on such officer’s certificate. The COLLATERAL AGENT shall not be liable for any action that it takes or omits to take in good faith that it reasonably believes to be authorized or within its rights or powers under the LOAN DOCUMENTS. The COLLATERAL AGENT shall not be bound to make any investigation into the facts or matters stated in any resolution, certificate, statement, instrument, opinion, notice, request, direction, consent, order, bond, debenture, or other paper or document, but the COLLATERAL AGENT, in its discretion, may make such further inquiry or investigation into such facts or matters as it may see fit and, if the COLLATERAL AGENT shall determine to make such further inquiry or investigation, it shall be entitled, upon reasonable notice to BORROWER, to examine the books, records and premises of BORROWER, personally or by agent or attorney and to consult with the officers and representatives of BORROWER, including BORROWER’s accountants and attorneys. The COLLATERAL AGENT shall be under no obligation to exercise any of the rights or powers vested in it by the LOAN DOCUMENTS at the request, order or direction of the BANKS unless such BANKS have offered to the COLLATERAL AGENT security or indemnity reasonably satisfactory to the COLLATERAL AGENT against the costs, expenses and liabilities that may be incurred by it in compliance with such request, order or direction. The COLLATERAL AGENT shall not be required to ~~execute~~ give any ~~such document on terms which, in the Collateral Agent’s opinion, would expose the Collateral Agent to liability~~ bond or create any obligations or entail any consequence other than the release of such Liens without recourse or warranty, and (ii) such release shall not in any manner discharge, affect or impair the Obligations or any Lien upon (or obligations of any Loan Party in respect of) all interests in the Collateral retained by any Loan Party. (d) Anything contained in any of the Loan Documents to the contrary notwithstanding but subject to the Agreement Among Lenders, the Loan Parties, each Agent and each Lender hereby agree that (i) no Lender shall have any right individually to realize upon any of the Collateral under any Loan Document or to enforce any Guaranty, it being understood and agreed that all powers, rights and remedies under the Loan Documents may be exercised solely by the Collateral Agent for the benefit of the Lenders in accordance with the terms thereof, (ii) in the event of a foreclosure by the Collateral Agent on any of the Collateral pursuant to a public or private sale, the Administrative Agent, the Collateral Agent or any Lender may be the purchaser of any or all of such Collateral at any such sale and (iii) the Collateral Agent, as agent for and representative of the Agents and the Lenders (but not any other Agent or any Lender or Lenders in its or their respective individual capacities unless the Required Lenders shall otherwise agree in writing) shall be entitled (either directly or through one or more acquisition vehicles) for the purpose of bidding and making settlement or payment of the purchase price for all or any portion of the Collateral to be sold (A) at any public or private sale, (B) at any sale conducted by the Collateral Agent under the provisions of the Uniform Commercial Code (including pursuant to Sections 9-610 or 9-620 of the Uniform Commercial Code), (C) at any sale or foreclosure conducted by the Collateral Agent (whether by judicial action or otherwise) in accordance with applicable law or (D) any sale conducted pursuant to the provisions of any Debtor Relief Law (including Section 363 of the Bankruptcy Code), to use and apply all or any of the Obligations as a credit on account of the purchase price for any Collateral payable by the Collateral Agent at such sale. (e) The Collateral Agent shall have no obligation whatsoever to any Lender to assure that the Collateral exists or is owned by the Loan Parties or is cared for, protected or insured or has been encumbered or that the Lien granted to the Collateral Agent pursuant to this Agreement or any other Loan Document has been properly or sufficiently or lawfully created, perfected, protected or enforced or is entitled to any particular priority, or to exercise at all or in any particular manner or under any duty of care, disclosure or fidelity, or to continue exercising, any of the rights, authorities and powers granted or available to the Collateral Agent in this Section 10.08 or in any other Loan Document, it being understood and agreed that surety in respect of the ~~Collateral~~performance of its powers and duties under the LOAN DOCUMENTS. The COLLATERAL AGENT may from time to time, at its option, perform any act that BORROWER agrees hereunder or under any ~~act~~LOAN DOCUMENT to perform and that BORROWER shall fail to perform after being requested in writing so to perform (it being understood that no such request need be given after the occurrence of an EVENT OF DEFAULT) and the COLLATERAL AGENT may from time to time take any other action that the COLLATERAL AGENT reasonably deems necessary for the maintenance, ~~omission~~ preservation or ~~event related thereto,~~ protection of any of the ~~Collateral Agent may act in any manner it may deem appropriate~~collateral for the LOANS or of its security interest therein. The COLLATERAL AGENT is authorized to endorse, in ~~its sole discretion~~the name of BORROWER, ~~given~~ any item, howsoever received by the ~~Collateral Agent’s own interest in the Collateral as one~~ COLLATERAL AGENT, representing any payment on or other proceeds of any of the ~~Lenders and that~~ collateral for the ~~Collateral Agent shall have no duty or liability whatsoever to any other Lender, except as otherwise provided herein and in the Agreement Among Lenders~~LOANS.

Appears in 2 contracts

Sources: Construction Loan Agreement (One Earth Energy LLC), Construction Loan Agreement (Rex Stores Corp)

Appears in 2 contracts

Sources: Financing Agreement (AgileThought, Inc.), Financing Agreement (AgileThought, Inc.)

Collateral Matters. (a) ~~Each~~ Agent ~~may~~ may, at its option, from time to time, at any time on or after an Event of Default and for so long as the same is continuing or upon any other failure of a condition precedent to the Loans and Letter of Credit Accommodations hereunder, make such disbursements and advances (“Special Agent Advances”) which ~~such~~ Agent, in its sole discretion, (i) deems necessary or desirable either to ~~preserve, protect, prepare for sale~~ preserve or ~~lease or dispose of~~ protect the Collateral or any portion ~~thereof,~~ thereof or (ii) to enhance the likelihood or maximize the amount of repayment by ~~the Borrowers~~ Borrower and Guarantor of the ~~Loans, Reimbursement~~ Loans and other Obligations, provided, that, the aggregate principal amount of the Special Agent Advances pursuant to this clause (ii), plus the then outstanding principal amount of the additional Loans and Letter of Credit ~~Obligations and other Obligations~~ Accommodations which Agent may make or provide as set forth in Section 12.8 hereof, shall not exceed the aggregate amount of ten (10%) percent of the Maximum Credit or (iii) to pay any other amount chargeable to ~~the Borrowers~~ Borrower or Guarantor pursuant to the terms of this ~~Agreement, including, without limitation,~~ Agreement or any of the other Financing Agreements consisting of (A) costs, fees and expenses ~~as described in Section 12.04~~and (B) payments to any issuer of Letter of Credit Accommodations. ~~The~~ Special Agent Advances shall be repayable on demand and be together with all interest thereon shall constitute Obligations secured by the ~~Collateral and~~ Collateral. Special Agent Advances shall ~~bear interest~~ not constitute Loans but shall otherwise constitute Obligations hereunder. Interest on Special Agent Advances shall be payable at ~~a rate per annum equal to~~ the ~~rate~~ Interest Rate then applicable to ~~Revolving~~ Prime Rate Loans ~~that are Reference Rate Loans. The Agent making any Agent Advances~~ and shall ~~notify the other Agent, each Lender and the Administrative Borrower in writing of each such Agent Advance, which notice shall include a description of the purpose of such Agent Advance~~be payable on demand. Without limitation to of its obligations pursuant to Section ~~10.05~~6.10, each Lender agrees that it shall make available to ~~the Agent making any Agent Advances~~Agent, upon ~~such~~ Agent’s demand, ~~in the currency in which the respective Agent Advance was made~~ in immediately available funds, the amount equal to such Lender’s Pro Rata Share of each such Special Agent ~~Advance subject to the terms of, the Agreement Among Lenders, provided that any such amount advanced by a Lender shall be deemed a Loan hereunder~~Advance. If such funds are not made available to ~~such~~ Agent by such Lender, such Lender shall be deemed a Defaulting Lender and Agent shall be entitled to recover such ~~funds~~ funds, on demand from such ~~Lender,~~ Lender together with interest thereon for each day from the date such payment was due until the date such amount is paid to ~~such Agent,~~ Agent at the Federal Funds ~~Effective~~ Rate for each day during such period (as published by the Federal Reserve Bank of New York or at Agent’s option based on the arithmetic mean determined by Agent of the rates for the last transaction in overnight Federal funds arranged prior to 9:00 a.m. (New York City time) on that day by each of the three ~~Business Days~~ leading brokers of Federal funds transactions in New York City selected by Agent) and ~~thereafter~~ if such amounts are not paid within three (3) days of Agent’s demand, at the ~~Reference Rate~~highest Interest Rate provided for in Section 3.1 hereof applicable to Prime Rate Loans. (b) ~~The~~ Lenders hereby irrevocably authorize ~~the Collateral~~ Agent, at its option and in its ~~discretion~~discretion to release, ~~to release~~ or in the case of clause (v) of this subsection (b), subordinate, any ~~Lien granted to~~ security interest in, mortgage or ~~held by~~ lien upon, any of the Collateral ~~Agent upon any Collateral~~ (i) upon termination of the ~~Total Commitment~~ Commitments and ~~Payment in Full~~ payment and satisfaction of all of the ~~Obligations;~~ Obligations and delivery of cash collateral to the extent required under Section 13.1 below, or (ii) constituting property being sold or disposed of in if Borrower certifies to Agent that the ~~ordinary course of any Loan Party’s business~~ sale or ~~otherwise~~ disposition is made in compliance with ~~the terms of this Agreement~~ Section 9.7 hereof (and ~~the other Loan Documents;~~ Agent may rely conclusively on any such certificate, without further inquiry), or (iii) constituting property in which ~~the Loan Parties owned no~~ Borrower or Guarantor did not own an interest at the time the ~~Lien~~ security interest, mortgage or lien was granted or at any time thereafter; , or (iv) having a value in the aggregate in any twelve (12) month period of less than $5,000,000, and to the extent Agent may release its security interest in and lien upon any such Collateral pursuant to the sale or other disposition thereof, such sale or other disposition shall be deemed consented to by Lenders, or (v) constituting property to be subject to Liens permitted by Section 9.8(b) to secure financing permitted by Section 9.9(b) (or subordinate if permitted by the Person providing such financing) or (vi) if required or permitted under the terms of any of the other Financing Agreements, including any intercreditor agreement, or (vii) approved, authorized or ratified in writing by all of Lenders. Except as provided above, Agent will not release any security interest in, mortgage or lien upon, any of the ~~applicable Lenders required pursuant to Section 12.02~~Collateral without the prior written authorization of all of Lenders. Upon request by ~~the Collateral~~ Agent at any time, ~~the~~ Lenders will promptly confirm in writing ~~the Collateral~~ Agent’s authority to release particular types or items of Collateral pursuant to this ~~Section 10.08(b)~~Section. (c) Without in any manner limiting ~~the Collateral~~ Agent’s authority to act without any specific or further authorization or consent by the ~~Lenders (as set forth in Section 10.08(b))~~Required Lenders, each Lender agrees to confirm in writing, upon request by ~~the Collateral~~ Agent, the authority to release Collateral conferred upon ~~the Collateral~~ Agent under ~~Section 10.08(b)~~this Section. ~~Upon the prior written request by any Loan Party, the Collateral~~ Agent shall (and is hereby irrevocably authorized by ~~the~~ Lenders to) execute such documents as may be necessary ~~or reasonably requested by any Loan Party~~ to evidence the release of the ~~Liens~~ security interest, mortgage or liens granted to Agent upon any Collateral to the ~~Collateral Agent for the benefit of the Agents and the Lenders upon such Collateral~~extent set forth above; provided, ~~however~~that, ~~that~~ (i) ~~the Collateral~~ Agent shall not be required to execute any such document on terms which, in ~~the Collateral~~ Agent’s opinion, would expose ~~the Collateral~~ Agent to liability or create any obligations or entail any consequence other than the release of such ~~Liens~~ security interest, mortgage or liens without recourse or ~~warranty,~~ warranty and (ii) such release shall not in any manner discharge, affect or impair the Obligations or any ~~Lien~~ security interest, mortgage or lien upon (or obligations of ~~any Loan Party~~ Borrower or Guarantor in respect of) ~~all interests in~~ the Collateral retained by ~~any Loan Party~~Borrower or Guarantor. (d) Anything contained in any of the Loan Documents to the contrary notwithstanding but subject to the Agreement Among Lenders, the Loan Parties, each Agent and each Lender hereby agree that (i) no Lender shall have any right individually to realize upon any of the Collateral under any Loan Document or to enforce any Guaranty, it being understood and agreed that all powers, rights and remedies under the Loan Documents may be exercised solely by the Collateral Agent for the benefit of the Lenders in accordance with the terms thereof, (ii) in the event of a foreclosure by the Collateral Agent on any of the Collateral pursuant to a public or private sale, the Administrative Agent, the Collateral Agent or any Lender may be the purchaser of any or all of such Collateral at any such sale and (iii) the Collateral Agent, as agent for and representative of the Agents and the Lenders (but not any other Agent or any Lender or Lenders in its or their respective individual capacities unless the Required Lenders shall otherwise agree in writing) shall be entitled (either directly or through one or more acquisition vehicles) for the purpose of bidding and making settlement or payment of the purchase price for all or any portion of the Collateral to be sold (A) at any public or private sale, (B) at any sale conducted by the Collateral Agent under the provisions of the Uniform Commercial Code (including pursuant to Sections 9-610 or 9-620 of the Uniform Commercial Code), (C) at any sale or foreclosure conducted by the Collateral Agent (whether by judicial action or otherwise) in accordance with applicable law or (D) any sale conducted pursuant to the provisions of any Debtor Relief Law (including Section 363 of the Bankruptcy Code), to use and apply all or any of the Obligations as a credit on account of the purchase price for any Collateral payable by the Collateral Agent at such sale. (e) The Collateral Agent shall have no obligation whatsoever to any Lender or any other Person to investigate, confirm or assure that the Collateral exists or is owned by ~~the Loan Parties~~ Borrower or Guarantor or is cared for, protected or insured or has been ~~encumbered~~ encumbered, or that any particular items of Collateral meet the eligibility criteria applicable in respect of the Loans or Letter of Credit Accommodations hereunder, or whether any particular reserves are appropriate, or that the ~~Lien~~ liens and security interests granted to ~~the Collateral~~ Agent pursuant ~~to this Agreement~~ hereto or any ~~other Loan Document has~~ of the Financing Agreements or otherwise have been properly or sufficiently or lawfully created, perfected, protected or enforced or is are entitled to any particular priority, or to exercise at all or in any particular manner or under any duty of care, disclosure or fidelity, or to continue exercising, any of the rights, authorities and powers granted or available to ~~the Collateral~~ Agent in this ~~Section 10.08~~ Agreement or in any of the other ~~Loan Document~~Financing Agreements, it being understood and agreed that in respect of the Collateral, or any act, omission or event related thereto, subject to the ~~Collateral~~ other terms and conditions contained herein, Agent may act in any manner it may deem appropriate, in its ~~sole~~ discretion, given ~~the Collateral~~ Agent’s own interest in the Collateral as ~~one of the Lenders~~ a Lender and that ~~the Collateral~~ Agent shall have no duty or liability whatsoever to any other Lender. (e) Without limiting the generality of the foregoing, ~~except~~ each Lender agrees that it is and will be bound (as ~~otherwise provided herein~~ a Lender) by the terms and in conditions of the Frigidaire Intercreditor Agreement ~~Among Lenders~~and the Wholesale Financing Intercreditor Agreement, whether or not such Lender executes such Intercreditor Agreements.

Appears in 2 contracts

Sources: Loan and Security Agreement (Hhgregg, Inc.), Loan and Security Agreement (HHG Distributing, LLC)

Collateral Matters. (a) ~~Each~~ The Collateral Agent may from time to time make such disbursements and advances up to an aggregate principal amount not to exceed at any time $1,000,000 (“Collateral Agent Advances”) which ~~such~~ the Collateral Agent, in its ~~sole~~ reasonable discretion, deems necessary or desirable to preserve, protect, prepare for sale or lease or dispose of the Collateral or any portion thereof, to enhance the likelihood or maximize the amount of repayment by the Borrowers of the ~~Loans, Reimbursement Obligations, Letter of Credit Obligations~~ Loans and other Obligations or to pay any other amount chargeable to the Borrowers pursuant to the terms of this Agreement, including, without limitation, costs, fees and expenses as described in Section 12.04. The Collateral Agent Advances shall be repayable immediately on demand and be secured by the Collateral and shall bear interest at a rate per annum equal to the rate then applicable to ~~Revolving Loans that are Reference Rate~~ the Loans. The ~~Agent making any~~ Collateral Agent Advances shall constitute Obligations hereunder. The Collateral Agent shall notify ~~the other Agent,~~ each Lender and the Administrative Borrower in writing of each such Collateral Agent Advance, which notice shall include a description of the purpose of such Collateral Agent Advance. Without limitation to its obligations pursuant to Section 10.05, each Lender agrees that it shall make available to the ~~Agent making any Agent Advances~~Collateral Agent, upon ~~such~~ the Collateral Agent’s demand, in ~~the currency in which the respective Agent Advance was made~~ Dollars in immediately available funds, the amount equal to such Lender’s Pro Rata Share of each such Collateral Agent ~~Advance subject to the terms of, the Agreement Among Lenders, provided that any such amount advanced by a Lender shall be deemed a Loan hereunder~~Advance. If such funds are not made available to ~~such~~ the Collateral Agent by such Lender, ~~such~~ the Collateral Agent shall be entitled to recover such funds on demand from such Lender, together with interest thereon for each day from the date such payment was due until the date such amount is paid to ~~such~~ the Collateral Agent, at the greater of the Federal Funds ~~Effective~~ Rate ~~for three Business Days~~ and ~~thereafter at~~ a rate determined by the ~~Reference Rate~~Agent in accordance with banking industry rules on interbank compensation. (b) The Lenders hereby irrevocably authorize the Collateral Agent, at its option and in its discretion, to release any Lien granted to or held by the Collateral Agent upon any Collateral upon ~~termination~~ payment and satisfaction of all Loans and all other Obligations (other than Contingent Indemnity Obligations) in accordance with the ~~Total Commitment and Payment in Full of the Obligations~~terms hereof; or constituting property being sold or disposed of in ~~the ordinary course of any Loan Party’s business or otherwise~~ in compliance with the terms of this Agreement and the other Loan Documents; or constituting property in which the Loan Parties owned no interest at the time the Lien was granted or at any time thereafter; or if approved, authorized or ratified in writing by the ~~applicable~~ Lenders ~~required pursuant to~~ in accordance with Section 12.02. Upon request by the Collateral Agent at any time, the Lenders will confirm in writing the Collateral Agent’s authority to release particular types or items of Collateral pursuant to this Section 10.08(b). (c) Without in any manner limiting the Collateral Agent’s authority to act without any specific or further authorization or consent by the Lenders (as set forth in Section 10.08(b)), each Lender agrees to confirm in writing, upon request by the Collateral Agent, the authority to release Collateral conferred upon the Collateral Agent under Section 10.08(b). Upon receipt by the Collateral Agent of confirmation from the Lenders of its authority to release any particular item or types of Collateral, and upon prior written request by any Loan Party, the Collateral Agent shall (and is hereby irrevocably authorized by the Lenders to) execute such documents as may be necessary ~~or reasonably requested by any Loan Party~~ to evidence the release of the Liens granted to the Collateral ~~Agent~~ Agent, for the benefit of the ~~Agents and the Lenders~~ Secured Parties, upon such Collateral; provided, however, that (i) the Collateral Agent shall not be required to execute any such document on terms which, in the Collateral Agent’s reasonable opinion, would expose the Collateral Agent to liability or create any obligations or entail any consequence other than the release of such Liens without recourse or warranty, and (ii) such release shall not in any manner discharge, affect or impair the Obligations or any Lien upon (or obligations of any Loan Party in respect of) all interests in the Collateral retained by any Loan Party. (d) Anything contained in any of the Loan Documents to the contrary ~~notwithstanding but subject to the Agreement Among Lenders~~notwithstanding, the Loan Parties, each Agent and each Lender hereby agree that (i) no Lender shall have any right individually to realize upon any of the Collateral under any Loan Document or to enforce any Guaranty, it being understood and agreed that all powers, rights and remedies under the Loan Documents may be exercised solely by the Collateral Agent for the benefit of the Lenders in accordance with the terms thereof, (ii) in the event of a foreclosure by the Collateral Agent on any of the Collateral pursuant to a public or private sale, the Administrative Agent, the Collateral Agent or any Lender may be the purchaser of any or all of such Collateral at any such sale and (iii) the Collateral Agent, as agent for and representative of the Agents and the Lenders (but not any other Agent or any Lender or Lenders in its or their respective individual capacities unless the Required Lenders shall otherwise agree in writing) shall be entitled (either directly or through one or more acquisition vehicles) for the purpose of bidding and making settlement or payment of the purchase price for all or any portion of the Collateral to be sold (A) at any public or private sale, (B) at any sale conducted by the Collateral Agent under the provisions of the Uniform Commercial Code (including pursuant to Sections 9-610 or 9-620 of the Uniform Commercial Code), (C) at any sale or foreclosure conducted by the Collateral Agent (whether by judicial action or otherwise) in accordance with applicable law or (D) any sale conducted pursuant to the provisions of any Debtor Relief Law (including Section 363 of the Bankruptcy Code), to use and apply all or any of the Obligations as a credit on account of the purchase price for any Collateral payable by the Collateral Agent at such sale. (e) The Collateral Agent shall have no obligation whatsoever to any Lender to assure that the Collateral exists or is owned by the Loan Parties or is cared for, protected or insured or has been encumbered or that the Lien granted to the Collateral Agent pursuant to this Agreement or any other Loan Document has been properly or sufficiently or lawfully created, perfected, protected or enforced or is entitled to any particular priority, or to exercise at all or in any particular manner or under any duty of care, disclosure or fidelity, or to continue exercising, any of the rights, authorities and powers granted or available to the Collateral Agent in this Section 10.08 or in any other Loan Document, it being understood and agreed that in respect of the Collateral, or any act, omission or event related thereto, the Collateral Agent may act in any manner it may deem appropriate, in its sole discretion, given the Collateral Agent’s own interest in the Collateral as one of the Lenders and that the Collateral Agent shall have no duty or liability whatsoever to any other Lender, except as otherwise provided ~~herein and in the Agreement Among Lenders~~herein.

Appears in 2 contracts

Sources: Financing Agreement (Cherokee Inc), Financing Agreement (Cherokee Inc)

Appears in 2 contracts

Sources: Financing Agreement (Regis Corp), Financing Agreement (Regis Corp)

Appears in 2 contracts

Sources: Financing Agreement (Comscore, Inc.), Financing Agreement (Comscore, Inc.)

Collateral Matters. ~~(a) Each~~ Agent ~~may~~ may, at its option, from time to time, at any time on or after an Event of Default and for so long as the same is continuing or upon any other failure of a condition precedent to the Loans and Letter of Credit Accommodations hereunder, make such 127 disbursements and advances (“"Special Agent Advances”") which ~~such~~ Agent, in its sole discretion, (i) deems necessary or desirable either to ~~preserve, protect, prepare for sale~~ preserve or ~~lease or dispose of~~ protect the Collateral or any portion ~~thereof,~~ thereof or (ii) to enhance the likelihood or maximize the amount of repayment by ~~the~~ Borrowers and Guarantors of the ~~Loans, Reimbursement~~ Loans and other Obligations, provided, that, the aggregate principal amount of the Special Agent Advances pursuant to this clause (ii), plus the then outstanding principal amount of the additional Loans and Letter of Credit ~~Obligations and other Obligations~~ Accommodations which Agent may make or provide as set forth in Section 12.8 hereof, shall not exceed the aggregate amount of $5,000,000 or (iii) to pay any other amount chargeable to ~~the Borrowers~~ any Borrower or Guarantor pursuant to the terms of this ~~Agreement, including, without limitation,~~ Agreement or any of the other Financing Agreements consisting of (A) costs, fees and expenses ~~as described in Section 12.04~~and (B) payments to any issuer of Letter of Credit Accommodations. ~~The~~ Special Agent Advances shall be repayable on demand and be together with all interest thereon shall constitute Obligations secured by the ~~Collateral and~~ Collateral. Special Agent Advances shall ~~bear interest~~ not constitute Loans but shall otherwise constitute Obligations hereunder. Interest on Special Agent Advances shall be payable at ~~a rate per annum equal to~~ the ~~rate~~ Interest Rate then applicable to ~~Revolving~~ Prime Rate Loans ~~that are Reference Rate Loans. The Agent making any Agent Advances~~ and shall ~~notify the other Agent, each Lender and the Administrative Borrower in writing of each such Agent Advance, which notice shall include a description of the purpose of such Agent Advance~~be payable on demand. Without limitation to of its obligations pursuant to Section ~~10.05~~6.10, each Lender agrees that it shall make available to ~~the Agent making any Agent Advances~~Agent, upon ~~such~~ Agent’s 's demand, ~~in the currency in which the respective Agent Advance was made~~ in immediately available funds, the amount equal to such Lender’s 's Pro Rata Share of each such Special Agent ~~Advance subject to the terms of, the Agreement Among Lenders, provided that any such amount advanced by a Lender shall be deemed a Loan hereunder~~Advance. If such funds are not made available to ~~such~~ Agent by such Lender, such Lender shall be deemed a Defaulting Lender and Agent shall be entitled to recover such ~~funds~~ funds, on demand from such ~~Lender,~~ Lender together with interest thereon for each day from the date such payment was due until the date such amount is paid to ~~such Agent,~~ Agent at the Federal Funds ~~Effective~~ Rate for each day during such period (as published by the Federal Reserve Bank of New York or at Agent's option based on the arithmetic mean determined by Agent of the rates for the last transaction in overnight Federal funds arranged prior to 9:00 a.m. (New York City time) on that day by each of the three ~~Business Days~~ leading brokers of Federal funds transactions in New York City selected by Agent) and ~~thereafter~~ if such amounts are not paid within three (3) days of Agent's demand, at the Reference Rate. (b) The Lenders hereby irrevocably authorize the Collateral Agent, at its option and in its discretion, to release any Lien granted to or held by the Collateral Agent upon any Collateral upon termination of the Total Commitment and Payment in Full of the Obligations; or constituting property being sold or disposed of in the ordinary course of any Loan Party’s business or otherwise in compliance with the terms of this Agreement and the other Loan Documents; or constituting property in which the Loan Parties owned no interest at the time the Lien was granted or at any time thereafter; or if approved, authorized or ratified in writing by the applicable Lenders required pursuant to Section 12.02. Upon request by the Collateral Agent at any time, the Lenders will confirm in writing the Collateral Agent’s authority to release particular types or items of Collateral pursuant to this Section 10.08(b). (c) Without in any manner limiting the Collateral Agent’s authority to act without any specific or further authorization or consent by the Lenders (as set forth highest Interest Rate provided for in Section ~~10.08(b)), each Lender agrees~~ 3.1 hereof applicable to confirm in writing, upon request by the Collateral Agent, the authority to release Collateral conferred upon the Collateral Agent under Section 10.08(b). Upon the prior written request by any Loan Party, the Collateral Agent shall (and is hereby irrevocably authorized by the Lenders to) execute such documents as may be necessary or reasonably requested by any Loan Party to evidence the release of the Liens granted to the Collateral Agent for the benefit of the Agents and the Lenders upon such Collateral; provided, however, that (i) the Collateral Agent shall not be required to execute any such document on terms which, in the Collateral Agent’s opinion, would expose the Collateral Agent to liability or create any obligations or entail any consequence other than the release of such Liens without recourse or warranty, and (ii) such release shall not in any manner discharge, affect or impair the Obligations or any Lien upon (or obligations of any Loan Party in respect of) all interests in the Collateral retained by any Loan PartyPrime Rate Loans. (d) Anything contained in any of the Loan Documents to the contrary notwithstanding but subject to the Agreement Among Lenders, the Loan Parties, each Agent and each Lender hereby agree that (i) no Lender shall have any right individually to realize upon any of the Collateral under any Loan Document or to enforce any Guaranty, it being understood and agreed that all powers, rights and remedies under the Loan Documents may be exercised solely by the Collateral Agent for the benefit of the Lenders in accordance with the terms thereof, (ii) in the event of a foreclosure by the Collateral Agent on any of the Collateral pursuant to a public or private sale, the Administrative Agent, the Collateral Agent or any Lender may be the purchaser of any or all of such Collateral at any such sale and (iii) the Collateral Agent, as agent for and representative of the Agents and the Lenders (but not any other Agent or any Lender or Lenders in its or their respective individual capacities unless the Required Lenders shall otherwise agree in writing) shall be entitled (either directly or through one or more acquisition vehicles) for the purpose of bidding and making settlement or payment of the purchase price for all or any portion of the Collateral to be sold (A) at any public or private sale, (B) at any sale conducted by the Collateral Agent under the provisions of the Uniform Commercial Code (including pursuant to Sections 9-610 or 9-620 of the Uniform Commercial Code), (C) at any sale or foreclosure conducted by the Collateral Agent (whether by judicial action or otherwise) in accordance with applicable law or (D) any sale conducted pursuant to the provisions of any Debtor Relief Law (including Section 363 of the Bankruptcy Code), to use and apply all or any of the Obligations as a credit on account of the purchase price for any Collateral payable by the Collateral Agent at such sale. (e) The Collateral Agent shall have no obligation whatsoever to any Lender to assure that the Collateral exists or is owned by the Loan Parties or is cared for, protected or insured or has been encumbered or that the Lien granted to the Collateral Agent pursuant to this Agreement or any other Loan Document has been properly or sufficiently or lawfully created, perfected, protected or enforced or is entitled to any particular priority, or to exercise at all or in any particular manner or under any duty of care, disclosure or fidelity, or to continue exercising, any of the rights, authorities and powers granted or available to the Collateral Agent in this Section 10.08 or in any other Loan Document, it being understood and agreed that in respect of the Collateral, or any act, omission or event related thereto, the Collateral Agent may act in any manner it may deem appropriate, in its sole discretion, given the Collateral Agent’s own interest in the Collateral as one of the Lenders and that the Collateral Agent shall have no duty or liability whatsoever to any other Lender, except as otherwise provided herein and in the Agreement Among Lenders.

Appears in 2 contracts

Sources: Loan and Security Agreement (Spartan Stores Inc), Loan and Security Agreement (Spartan Stores Inc)

Collateral Matters. (a) ~~Each~~ The Agent may from time to ~~time~~ time, during the occurrence and continuance of an Event of Default, make such disbursements and advances (“Agent Advances”) which ~~such~~ the Agent, in its sole discretion, deems necessary or desirable to ~~preserve, protect, prepare for sale~~ preserve or ~~lease or dispose of~~ protect the Collateral or any portion thereof, to enhance the likelihood or maximize the amount of repayment by the Borrowers of the Revolving Loans, Reimbursement Obligations, Letter of Credit Obligations and other Obligations (other than the Bank Product Obligations) or to pay any other amount chargeable to the Borrowers pursuant to the terms of this Agreement, including, without limitation, costs, fees and expenses as described in Section 12.04. The Agent Advances shall be repayable on demand and be secured by the ~~Collateral and shall bear interest at a rate per annum equal to the rate then applicable to Revolving Loans that are Reference Rate Loans~~Collateral. The Agent ~~making any Agent~~ Advances shall not constitute Revolving Loans but shall otherwise constitute Obligations hereunder. The Agent shall notify ~~the other Agent,~~ each Lender and ~~the~~ Administrative Borrower in writing of each ~~such~~ Agent Advance, which notice shall include a description of the purpose of such Agent Advance. Without limitation to its obligations pursuant to Section 10.05, each Lender agrees that it shall make available to the ~~Agent making any Agent Advances~~Agent, upon ~~such~~ the Agent’s demand, in ~~the currency in which the respective Agent Advance was made~~ Dollars in immediately available funds, the amount equal to such Lender’s Pro Rata Share of ~~each~~ such Agent ~~Advance subject to the terms of, the Agreement Among Lenders, provided that any such amount advanced by a Lender shall be deemed a Loan hereunder~~Advance. If such funds are not made available to ~~such~~ the Agent by such Lender, ~~such~~ the Agent shall be entitled to recover such funds on demand from such Lender, together with interest ~~thereon~~ thereon, for each day from the date such payment was due until the date such amount is paid to ~~such~~ the Agent, at the Federal Funds ~~Effective~~ Rate for three Business Days and thereafter at the ~~Reference~~ Base Rate. (b) The Lenders hereby irrevocably authorize the ~~Collateral~~ Agent, at its option and in its discretion, to release any Lien granted to or held by the ~~Collateral~~ Agent upon any Collateral upon termination of the Total Revolving Credit Commitment and ~~Payment~~ payment and satisfaction of all Revolving Loans, Reimbursement Obligations, Letter of Credit Obligations and all other Obligations which have matured and which the Agent has been notified in ~~Full of the Obligations~~writing are then due and payable; or constituting property being sold or disposed of in the ordinary course of any Loan Party’s business ~~or otherwise~~ and in compliance with the terms of this Agreement and the other Loan Documents; or constituting property in which the Loan Parties owned no interest at the time the Lien was granted or at any time thereafter; or if approved, authorized or ratified in writing by the ~~applicable Lenders required pursuant to Section 12.02~~Lenders. Upon request by the ~~Collateral~~ Agent at any time, the Lenders will confirm in writing the ~~Collateral~~ Agent’s authority to release particular types or items of Collateral pursuant to this Section 10.08(b). (c) Without in any manner limiting the ~~Collateral~~ Agent’s authority to act without any specific or further authorization or consent by the Lenders (as set forth in Section 10.08(b)), each Lender agrees to confirm in writing, upon request by the ~~Collateral~~ Agent, the authority to release Collateral conferred upon the ~~Collateral~~ Agent under Section 10.08(b). Upon receipt by the Agent of confirmation from the Lenders of its authority to release any particular item or types of Collateral, and upon prior written request by any Loan Party, the ~~Collateral~~ Agent shall (and is hereby irrevocably authorized by the Lenders to) execute such documents as may be necessary ~~or reasonably requested by any Loan Party~~ to evidence the release of the Liens granted to the ~~Collateral~~ Agent for the benefit of ~~the Agents and~~ the Lenders upon such Collateral; provided, however, that (i) the ~~Collateral~~ Agent shall not be required to execute any such document on terms which, in the ~~Collateral~~ Agent’s opinion, would expose the ~~Collateral~~ Agent to liability or create any obligations or entail any consequence other than the release of such Liens without recourse or warranty, and (ii) such release shall not in any manner discharge, affect or impair the Obligations or any Lien upon (or obligations of any Loan Party in respect of) all interests in the Collateral retained by any Loan Party. (d) Anything contained in any of the Loan Documents to the contrary notwithstanding but subject to the Agreement Among Lenders, the Loan Parties, each Agent and each Lender hereby agree that (i) no Lender shall have any right individually to realize upon any of the Collateral under any Loan Document or to enforce any Guaranty, it being understood and agreed that all powers, rights and remedies under the Loan Documents may be exercised solely by the Collateral Agent for the benefit of the Lenders in accordance with the terms thereof, (ii) in the event of a foreclosure by the Collateral Agent on any of the Collateral pursuant to a public or private sale, the Administrative Agent, the Collateral Agent or any Lender may be the purchaser of any or all of such Collateral at any such sale and (iii) the Collateral Agent, as agent for and representative of the Agents and the Lenders (but not any other Agent or any Lender or Lenders in its or their respective individual capacities unless the Required Lenders shall otherwise agree in writing) shall be entitled (either directly or through one or more acquisition vehicles) for the purpose of bidding and making settlement or payment of the purchase price for all or any portion of the Collateral to be sold (A) at any public or private sale, (B) at any sale conducted by the Collateral Agent under the provisions of the Uniform Commercial Code (including pursuant to Sections 9-610 or 9-620 of the Uniform Commercial Code), (C) at any sale or foreclosure conducted by the Collateral Agent (whether by judicial action or otherwise) in accordance with applicable law or (D) any sale conducted pursuant to the provisions of any Debtor Relief Law (including Section 363 of the Bankruptcy Code), to use and apply all or any of the Obligations as a credit on account of the purchase price for any Collateral payable by the Collateral Agent at such sale. (e) The ~~Collateral~~ Agent shall have no obligation whatsoever to any ~~Lender~~ Lenders to assure that the Collateral exists or is owned by the Loan Parties or is cared for, protected or insured or has been encumbered or that the Lien granted to the ~~Collateral~~ Agent pursuant to this Agreement ~~or any other Loan Document~~ has been properly or sufficiently or lawfully created, perfected, protected or enforced or is entitled to any particular priority, or to exercise at all or in any particular manner or under any duty of care, disclosure or fidelity, or to continue exercising, any of the rights, authorities and powers granted or available to the ~~Collateral~~ Agent in this Section 10.08 or in any ~~other~~ of the Loan ~~Document~~Documents, it being understood and agreed that in respect of the Collateral, or any act, omission or event related thereto, the ~~Collateral~~ Agent may act in any manner it may deem appropriate, in its sole discretion, given the ~~Collateral~~ Agent’s own interest in the Collateral as one of the Lenders and that the ~~Collateral~~ Agent shall have no duty or liability whatsoever to any other Lender~~, except as otherwise provided herein and in the Agreement Among Lenders~~.

Appears in 2 contracts

Sources: Financing Agreement (Frederick's of Hollywood Group Inc /Ny/), Financing Agreement (Movie Star Inc /Ny/)

Collateral Matters. ~~(a) Each~~ Administrative Agent ~~may~~ may, at its option, from time to time, at any time on or after an Event of Default and for so long as the same is continuing or upon any other failure of a condition precedent to the making of Loans hereunder, make such disbursements and advances (“Special Agent Advances”) which ~~such~~ Administrative Agent, in its sole discretion, deems necessary or desirable either (i) to ~~preserve, protect, prepare for sale~~ preserve or ~~lease or dispose of~~ protect the Collateral or any portion ~~thereof, to enhance the likelihood~~ thereof or ~~maximize the amount of repayment by the Borrowers of the Loans, Reimbursement Obligations, Letter of Credit Obligations and other Obligations or~~ (ii) to pay any other amount chargeable to ~~the Borrowers~~ Borrower pursuant to the terms of this ~~Agreement, including, without limitation,~~ Agreement or any of the other Loan Documents consisting of costs, fees and expenses ~~as described~~ and payments to any Issuing Bank (provided, that in no event shall (i) Special Agent Advances for such purpose exceed the amount equal to $7.5 million in the aggregate outstanding at any time less the then outstanding Overadvances under Section ~~12.04~~10.10 hereof and (ii) Special Agent Advances plus the Revolving Exposure exceed the Lenders’ Commitment at the time of such Event of Default or cause any Lender’s Revolving Exposure to exceed such Lender’s Revolving Loan Commitment at the time of such Event of Default). ~~The~~ Special Agent Advances shall be repayable on demand and be secured by the ~~Collateral and shall bear interest at a rate per annum equal to the rate then applicable to Revolving Loans that are Reference Rate Loans~~Collateral. ~~The Agent making any~~ Special Agent Advances shall not constitute Loans but shall otherwise constitute Obligations hereunder. Administrative Agent shall notify ~~the other Agent,~~ each Lender and ~~the Administrative~~ Borrower in writing of each such Special Agent Advance, which notice shall include a description of the purpose of such Special Agent Advance. ~~Without limitation to its obligations pursuant to Section 10.05, each~~ Each Lender agrees that it shall make available to ~~the Agent making any Agent Advances~~Administrative Agent, upon ~~such~~ Administrative Agent’s demand, ~~in the currency in which the respective Agent Advance was made~~ in immediately available funds, the amount equal to such Lender’s Pro Rata ~~Share~~ Percentage of each such Special Agent ~~Advance subject to the terms of, the Agreement Among Lenders, provided that any such amount advanced by a Lender shall be deemed a Loan hereunder~~Advance. If such funds are not made available to ~~such~~ Administrative Agent by such Lender, ~~such~~ Administrative Agent shall be entitled to recover such ~~funds~~ funds, on demand from such ~~Lender,~~ Lender together with interest thereon for each day from the date such payment was due until the date such amount is paid to ~~such Agent,~~ Administrative Agent at the Federal Funds ~~Effective~~ Rate for each day during such period (as published by the Federal Reserve Bank of New York or at Administrative Agent’s option based on the arithmetic mean determined by Administrative Agent of the rates for the last transaction in overnight Federal funds arranged prior to 9:00 a.m. (New York City time) on that day by each of the three ~~Business Days~~ leading brokers of Federal funds transactions in New York City selected by Administrative Agent) and ~~thereafter~~ if such amounts are not paid within three (3) days of Administrative Agent’s demand, at the ~~Reference Rate. (b) The Lenders hereby irrevocably authorize the Collateral Agent, at its option and~~ highest interest rate provided for in its discretion, to release any Lien granted to or held by the Collateral Agent upon any Collateral upon termination of the Total Commitment and Payment in Full of the Obligations; or constituting property being sold or disposed of in the ordinary course of any Loan Party’s business or otherwise in compliance with the terms of this Agreement and the other Loan Documents; or constituting property in which the Loan Parties owned no interest at the time the Lien was granted or at any time thereafter; or if approved, authorized or ratified in writing by the applicable Lenders required pursuant to Section 12.02. Upon request by the Collateral Agent at any time, the Lenders will confirm in writing the Collateral Agent’s authority to release particular types or items of Collateral pursuant to this Section 10.08(b2.06(a). (c) Without in any manner limiting the Collateral Agent’s authority to act without any specific or further authorization or consent by the Lenders (as set forth in Section 10.08(b)), each Lender agrees to confirm in writing, upon request by the Collateral Agent, the authority to release Collateral conferred upon the Collateral Agent under Section 10.08(b). Upon the prior written request by any Loan Party, the Collateral Agent shall (and is hereby irrevocably authorized by the Lenders to) execute such documents as may be necessary or reasonably requested by any Loan Party to evidence the release of the Liens granted to the Collateral Agent for the benefit of the Agents and the Lenders upon such Collateral; provided, however, that (i) the Collateral Agent shall not be required to execute any such document on terms which, in the Collateral Agent’s opinion, would expose the Collateral Agent to liability or create any obligations or entail any consequence other than the release of such Liens without recourse or warranty, and (ii) such release shall not in any manner discharge, affect or impair the Obligations or any Lien upon (or obligations of any Loan Party in respect of) all interests in the Collateral retained by any Loan Party. (d) Anything contained in any of the Loan Documents to the contrary notwithstanding but subject to the Agreement Among Lenders, the Loan Parties, each Agent and each Lender hereby agree that (i) no Lender shall have any right individually to realize upon any of the Collateral under any Loan Document or to enforce any Guaranty, it being understood and agreed that all powers, rights and remedies under the Loan Documents may be exercised solely by the Collateral Agent for the benefit of the Lenders in accordance with the terms thereof, (ii) in the event of a foreclosure by the Collateral Agent on any of the Collateral pursuant to a public or private sale, the Administrative Agent, the Collateral Agent or any Lender may be the purchaser of any or all of such Collateral at any such sale and (iii) the Collateral Agent, as agent for and representative of the Agents and the Lenders (but not any other Agent or any Lender or Lenders in its or their respective individual capacities unless the Required Lenders shall otherwise agree in writing) shall be entitled (either directly or through one or more acquisition vehicles) for the purpose of bidding and making settlement or payment of the purchase price for all or any portion of the Collateral to be sold (A) at any public or private sale, (B) at any sale conducted by the Collateral Agent under the provisions of the Uniform Commercial Code (including pursuant to Sections 9-610 or 9-620 of the Uniform Commercial Code), (C) at any sale or foreclosure conducted by the Collateral Agent (whether by judicial action or otherwise) in accordance with applicable law or (D) any sale conducted pursuant to the provisions of any Debtor Relief Law (including Section 363 of the Bankruptcy Code), to use and apply all or any of the Obligations as a credit on account of the purchase price for any Collateral payable by the Collateral Agent at such sale. (e) The Collateral Agent shall have no obligation whatsoever to any Lender to assure that the Collateral exists or is owned by the Loan Parties or is cared for, protected or insured or has been encumbered or that the Lien granted to the Collateral Agent pursuant to this Agreement or any other Loan Document has been properly or sufficiently or lawfully created, perfected, protected or enforced or is entitled to any particular priority, or to exercise at all or in any particular manner or under any duty of care, disclosure or fidelity, or to continue exercising, any of the rights, authorities and powers granted or available to the Collateral Agent in this Section 10.08 or in any other Loan Document, it being understood and agreed that in respect of the Collateral, or any act, omission or event related thereto, the Collateral Agent may act in any manner it may deem appropriate, in its sole discretion, given the Collateral Agent’s own interest in the Collateral as one of the Lenders and that the Collateral Agent shall have no duty or liability whatsoever to any other Lender, except as otherwise provided herein and in the Agreement Among Lenders.

Appears in 2 contracts

Sources: Credit Agreement (Harry & David Holdings, Inc.), Credit Agreement (Harry & David Holdings, Inc.)

Collateral Matters. (a) ~~Each~~ The Collateral Agent may from time to time on or after the Term Loan Commitment Termination Date make such disbursements and advances (“Collateral Agent Advances”) which ~~such~~ the Collateral Agent, in its sole discretion, deems necessary or desirable to preserve, protect, prepare for sale or lease or dispose of the Collateral or any portion thereof, to enhance the likelihood or maximize the amount of repayment by the ~~Borrowers~~ Borrower of the ~~Loans, Reimbursement Obligations, Letter of Credit Obligations~~ Loans and other Obligations or to pay any other amount chargeable to the ~~Borrowers~~ Borrower pursuant to the terms of this Agreement, including, without limitation, costs, fees and expenses as described in Section 12.04. Without limiting the foregoing, the Collateral Agent shall be permitted at anytime to make Collateral Agent Advances to pay insurance premiums due under the Life Insurance Policies. The Collateral Agent Advances shall be repayable on demand and be secured by the ~~Collateral and shall bear interest at a rate per annum equal to the rate then applicable to Revolving Loans that are Reference Rate Loans~~Collateral. The ~~Agent making any~~ Collateral Agent Advances shall constitute Obligations hereunder which may be charged to the Loan Account in accordance with Section 4.01. The Collateral Agent shall notify ~~the other Agent,~~ each Lender and the ~~Administrative~~ Borrower in writing of each such Collateral Agent Advance, which notice shall include a description of the purpose of such Collateral Agent Advance. Without limitation to its obligations pursuant to Section 10.05, each Lender agrees that it shall make available to the ~~Agent making any Agent Advances~~Collateral Agent, upon ~~such~~ the Collateral Agent’s demand, in ~~the currency in which the respective Agent Advance was made~~ Dollars in immediately available funds, the amount equal to such Lender’s Pro Rata Share of each such Collateral Agent ~~Advance subject to the terms of, the Agreement Among Lenders, provided that any such amount advanced by a Lender shall be deemed a Loan hereunder~~Advance. If such funds are not made available to ~~such~~ the Collateral Agent by such Lender, ~~such~~ the Collateral Agent shall be entitled to recover such funds on demand from such Lender, together with interest thereon for each day from the date such payment was due until the date such amount is paid to ~~such~~ the Collateral Agent, at the Federal Funds ~~Effective~~ Rate for three Business Days and thereafter at the ~~Reference Rate~~interest rate per annum equal to 20%. (b) The Lenders hereby irrevocably authorize the Collateral Agent, at its option and in its discretion, to release any Lien granted to or held by the Collateral Agent upon any Collateral upon termination of the Total Commitment and ~~Payment~~ payment and satisfaction of all Loans, Reimbursement Obligations, Letter of Credit Obligations, and all other Obligations in ~~Full of~~ accordance with the ~~Obligations~~terms hereof; or constituting property being sold or disposed of in the ordinary course of ~~any Loan Party~~the Borrower’s business or otherwise in compliance with the terms of this Agreement and the other Loan Documents; or constituting property in which the ~~Loan Parties~~ Borrower owned no interest at the time the Lien was granted or at any time thereafter; or if approved, authorized or ratified in writing by the ~~applicable Lenders required pursuant to Section 12.02~~Lenders. Upon request by the Collateral Agent at any time, the Lenders will confirm in writing the Collateral Agent’s authority to release particular types or items of Collateral pursuant to this Section 10.08(b). (c) Without in any manner limiting the Collateral Agent’s authority to act without any specific or further authorization or consent by the Lenders (as set forth in Section 10.08(b)), each Lender agrees to confirm in writing, upon request by the Collateral Agent, the authority to release Collateral conferred upon the Collateral Agent under Section 10.08(b). Upon receipt by the Collateral Agent of confirmation from the Lenders of its authority to release any particular item or types of Collateral, and upon prior written request by ~~any Loan Party~~the Borrower, the Collateral Agent shall (and is hereby irrevocably authorized by the Lenders to) execute such documents as may be necessary ~~or reasonably requested by any Loan Party~~ to evidence the release of the Liens granted to the Collateral Agent for the benefit of the Agents and the Lenders upon such Collateral; provided, however, that (i) the Collateral Agent shall not be required to execute any such document on terms which, in the Collateral Agent’s opinion, would expose the Collateral Agent to liability or create any obligations or entail any consequence other than the release of such Liens without recourse or warranty, and (ii) such release shall not in any manner discharge, affect or impair the Obligations or any Lien upon (or obligations of ~~any Loan Party~~ the Borrower in respect of) all interests in the Collateral retained by ~~any Loan Party~~the Borrower. (d) Anything contained in any of the Loan Documents to the contrary notwithstanding but subject to the Agreement Among Lenders, the Loan Parties, each Agent and each Lender hereby agree that (i) no Lender shall have any right individually to realize upon any of the Collateral under any Loan Document or to enforce any Guaranty, it being understood and agreed that all powers, rights and remedies under the Loan Documents may be exercised solely by the Collateral Agent for the benefit of the Lenders in accordance with the terms thereof, (ii) in the event of a foreclosure by the Collateral Agent on any of the Collateral pursuant to a public or private sale, the Administrative Agent, the Collateral Agent or any Lender may be the purchaser of any or all of such Collateral at any such sale and (iii) the Collateral Agent, as agent for and representative of the Agents and the Lenders (but not any other Agent or any Lender or Lenders in its or their respective individual capacities unless the Required Lenders shall otherwise agree in writing) shall be entitled (either directly or through one or more acquisition vehicles) for the purpose of bidding and making settlement or payment of the purchase price for all or any portion of the Collateral to be sold (A) at any public or private sale, (B) at any sale conducted by the Collateral Agent under the provisions of the Uniform Commercial Code (including pursuant to Sections 9-610 or 9-620 of the Uniform Commercial Code), (C) at any sale or foreclosure conducted by the Collateral Agent (whether by judicial action or otherwise) in accordance with applicable law or (D) any sale conducted pursuant to the provisions of any Debtor Relief Law (including Section 363 of the Bankruptcy Code), to use and apply all or any of the Obligations as a credit on account of the purchase price for any Collateral payable by the Collateral Agent at such sale. (e) The Collateral Agent shall have no obligation whatsoever to any Lender to assure that the Collateral exists or is owned by the ~~Loan Parties~~ Borrower or is cared for, protected or insured or has been encumbered or that the Lien granted to the Collateral Agent pursuant to this Agreement or any other Loan Document has been properly or sufficiently or lawfully created, perfected, protected or enforced or is entitled to any particular priority, or to exercise at all or in any particular manner or under any duty of care, disclosure or fidelity, or to continue exercising, any of the rights, authorities and powers granted or available to the Collateral Agent in this Section 10.08 or in any other Loan Document, it being understood and agreed that in respect of the Collateral, or any act, omission or event related thereto, the Collateral Agent may act in any manner it may deem appropriate, in its sole discretion, given the Collateral Agent’s own interest in the Collateral as one of the Lenders and that the Collateral Agent shall have no duty or liability whatsoever to any other Lender, except as otherwise provided ~~herein and in the Agreement Among Lenders~~herein.

Appears in 2 contracts

Sources: Financing Agreement (Imperial Holdings, LLC), Financing Agreement (Imperial Holdings, LLC)

Collateral Matters. ~~(a) Each~~ Administrative Agent ~~may~~ may, at its option, from time to time, at any time on or after an Event of Default and for so long as the same is continuing or upon any other failure of a condition precedent to the Revolving Loans and Letter of Credit Accommodations hereunder, make such disbursements and advances (“Special Agent Advances”) which ~~such~~ Administrative Agent, in its sole discretion, deems necessary or desirable either (i) to ~~preserve, protect, prepare for sale~~ preserve or ~~lease or dispose of~~ protect the Collateral or any portion ~~thereof, to enhance the likelihood or maximize~~ thereof (provided that in no event shall Special Agent Advances for such purpose exceed the amount ~~of repayment by~~ equal to $10,000,000 in the ~~Borrowers of~~ aggregate outstanding at any time less the ~~Loans, Reimbursement Obligations, Letter of Credit Obligations and other Obligations~~ then outstanding Revolving Loans under Section 12.8 hereof) or (ii) to pay any other amount chargeable to ~~the Borrowers~~ Borrower pursuant to the terms of this ~~Agreement, including, without limitation,~~ Agreement or any of the other Financing Agreements consisting of costs, fees and expenses ~~as described in Section 12.04~~and payments to any LC Issuer of Letter of Credit Accommodations. ~~The~~ Special Agent Advances shall be repayable on ~~demand~~ demand, shall bear interest at the Interest Rate for Prime Rate Loans in effect after the occurrence of an Event of Default, and be secured by the ~~Collateral and shall bear interest at a rate per annum equal to the rate then applicable to Revolving Loans that are Reference Rate Loans~~Collateral. ~~The Agent making any~~ Special Agent Advances shall not constitute Loans but shall otherwise constitute Obligations hereunder. Administrative Agent shall notify ~~the other Agent,~~ each Lender and ~~the Administrative~~ Borrower in writing of each such Special Agent Advance, which notice shall include a description of the purpose of such Special Agent Advance. Without limitation to of its obligations pursuant to Section ~~10.05~~6.9, each Lender agrees that it shall make available to ~~the Agent making any Agent Advances~~Administrative Agent, upon ~~such~~ Administrative Agent’s demand, ~~in the currency in which the respective Agent Advance was made~~ in immediately available funds, the amount equal to such Lender’s Pro Rata Share of each such Special Agent ~~Advance subject to the terms of, the Agreement Among Lenders, provided that any such amount advanced by a Lender shall be deemed a Loan hereunder~~Advance. If such funds are not made available to ~~such~~ Administrative Agent by such Lender, ~~such~~ Administrative Agent shall be entitled to recover such ~~funds~~ funds, on demand from such ~~Lender,~~ Lender together with interest thereon for each day from the date such payment was due until the date such amount is paid to ~~such Agent,~~ Administrative Agent at the Federal Funds ~~Effective~~ Rate for each day during such period and if such amounts are not paid within three ~~Business Days and thereafter~~ (3) days of Administrative Agent’s demand, at the Reference Rate. (b) The Lenders hereby irrevocably authorize the Collateral Agent, at its option and in its discretion, to release any Lien granted to or held by the Collateral Agent upon any Collateral upon termination of the Total Commitment and Payment in Full of the Obligations; or constituting property being sold or disposed of in the ordinary course of any Loan Party’s business or otherwise in compliance with the terms of this Agreement and the other Loan Documents; or constituting property in which the Loan Parties owned no interest at the time the Lien was granted or at any time thereafter; or if approved, authorized or ratified in writing by the applicable Lenders required pursuant to Section 12.02. Upon request by the Collateral Agent at any time, the Lenders will confirm in writing the Collateral Agent’s authority to release particular types or items of Collateral pursuant to this Section 10.08(b). (c) Without in any manner limiting the Collateral Agent’s authority to act without any specific or further authorization or consent by the Lenders (as set forth highest Interest Rate provided for in Section ~~10.08(b)), each Lender agrees~~ 3.1 hereof applicable to confirm in writing, upon request by the Collateral Agent, the authority to release Collateral conferred upon the Collateral Agent under Section 10.08(b). Upon the prior written request by any Loan Party, the Collateral Agent shall (and is hereby irrevocably authorized by the Lenders to) execute such documents as may be necessary or reasonably requested by any Loan Party to evidence the release of the Liens granted to the Collateral Agent for the benefit of the Agents and the Lenders upon such Collateral; provided, however, that (i) the Collateral Agent shall not be required to execute any such document on terms which, in the Collateral Agent’s opinion, would expose the Collateral Agent to liability or create any obligations or entail any consequence other than the release of such Liens without recourse or warranty, and (ii) such release shall not in any manner discharge, affect or impair the Obligations or any Lien upon (or obligations of any Loan Party in respect of) all interests in the Collateral retained by any Loan PartyPrime Rate Loans. (d) Anything contained in any of the Loan Documents to the contrary notwithstanding but subject to the Agreement Among Lenders, the Loan Parties, each Agent and each Lender hereby agree that (i) no Lender shall have any right individually to realize upon any of the Collateral under any Loan Document or to enforce any Guaranty, it being understood and agreed that all powers, rights and remedies under the Loan Documents may be exercised solely by the Collateral Agent for the benefit of the Lenders in accordance with the terms thereof, (ii) in the event of a foreclosure by the Collateral Agent on any of the Collateral pursuant to a public or private sale, the Administrative Agent, the Collateral Agent or any Lender may be the purchaser of any or all of such Collateral at any such sale and (iii) the Collateral Agent, as agent for and representative of the Agents and the Lenders (but not any other Agent or any Lender or Lenders in its or their respective individual capacities unless the Required Lenders shall otherwise agree in writing) shall be entitled (either directly or through one or more acquisition vehicles) for the purpose of bidding and making settlement or payment of the purchase price for all or any portion of the Collateral to be sold (A) at any public or private sale, (B) at any sale conducted by the Collateral Agent under the provisions of the Uniform Commercial Code (including pursuant to Sections 9-610 or 9-620 of the Uniform Commercial Code), (C) at any sale or foreclosure conducted by the Collateral Agent (whether by judicial action or otherwise) in accordance with applicable law or (D) any sale conducted pursuant to the provisions of any Debtor Relief Law (including Section 363 of the Bankruptcy Code), to use and apply all or any of the Obligations as a credit on account of the purchase price for any Collateral payable by the Collateral Agent at such sale. (e) The Collateral Agent shall have no obligation whatsoever to any Lender to assure that the Collateral exists or is owned by the Loan Parties or is cared for, protected or insured or has been encumbered or that the Lien granted to the Collateral Agent pursuant to this Agreement or any other Loan Document has been properly or sufficiently or lawfully created, perfected, protected or enforced or is entitled to any particular priority, or to exercise at all or in any particular manner or under any duty of care, disclosure or fidelity, or to continue exercising, any of the rights, authorities and powers granted or available to the Collateral Agent in this Section 10.08 or in any other Loan Document, it being understood and agreed that in respect of the Collateral, or any act, omission or event related thereto, the Collateral Agent may act in any manner it may deem appropriate, in its sole discretion, given the Collateral Agent’s own interest in the Collateral as one of the Lenders and that the Collateral Agent shall have no duty or liability whatsoever to any other Lender, except as otherwise provided herein and in the Agreement Among Lenders.

Appears in 2 contracts

Sources: Loan and Security Agreement (Ulta Salon, Cosmetics & Fragrance, Inc.), Loan and Security Agreement (Ulta Salon, Cosmetics & Fragrance, Inc.)

Appears in 2 contracts

Sources: Financing Agreement (Imperial Holdings, LLC), Financing Agreement (Imperial Holdings, LLC)

Collateral Matters. (a) ~~Each~~ The Collateral Agent may from time to time make such disbursements and advances (“Collateral Agent Advances”) which ~~such~~ the Collateral Agent, in its sole discretion, deems necessary or desirable to preserve, protect, prepare for sale or lease or dispose of the Collateral or any portion thereof, to enhance the likelihood or maximize the amount of repayment by the Borrowers of the ~~Loans, Reimbursement Obligations, Letter of Credit Obligations~~ Loans and other Obligations or to pay any other amount chargeable to the Borrowers pursuant to the terms of this Agreement, including, without limitation, costs, fees and expenses as described in Section 12.04. The Collateral Agent Advances shall be repayable on demand and be secured by the Collateral and shall bear interest at a rate per annum equal to the rate then applicable to ~~Revolving~~ Loans that are Reference Rate Loans. The ~~Agent making any~~ Collateral Agent Advances shall constitute Obligations hereunder which may be charged to the Loan Account in accordance with Section 4.01. The Collateral Agent shall notify ~~the other Agent,~~ each Lender and the Administrative Borrower in writing of each such Collateral Agent Advance, which notice shall include a description of the purpose of such Collateral Agent Advance. Without limitation to its obligations pursuant to Section 10.05, each Lender agrees that it shall make available to the ~~Agent making any Agent Advances~~Collateral Agent, upon ~~such~~ the Collateral Agent’s demand, in ~~the currency in which the respective Agent Advance was made~~ Dollars in immediately available funds, the amount equal to such ~~Lender~~▇▇▇▇▇▇’s Pro Rata Share of each such Collateral Agent ~~Advance subject to the terms of, the Agreement Among Lenders, provided that any such amount advanced by a Lender shall be deemed a Loan hereunder~~Advance. If such funds are not made available to ~~such~~ the Collateral Agent by such Lender, ~~such~~ the Collateral Agent shall be entitled to recover such funds on demand from such Lender, together with interest thereon for each day from the date such payment was due until the date such amount is paid to ~~such~~ the Collateral Agent, at the Federal Funds ~~Effective~~ Rate for three Business Days and thereafter at the Reference Rate. (b) The Lenders hereby irrevocably authorize the Collateral Agent, at its option and in its discretion, to release any Lien granted to or held by the Collateral Agent upon any Collateral upon ~~termination~~ the occurrence of the ~~Total Commitment and Payment~~ Termination Date in ~~Full of~~ accordance with the ~~Obligations~~terms hereof; or constituting property being sold or disposed of in the ordinary course of any Loan Party’s business or otherwise in compliance with the terms of this Agreement and the other Loan Documents; or constituting property in which the Loan Parties owned no interest at the time the Lien was granted or at any time thereafter; or if approved, authorized or ratified in writing by the ~~applicable~~ Lenders ~~required pursuant to~~ in accordance with Section 12.02. Upon request by the Collateral Agent at any time, the Lenders will confirm in writing the Collateral Agent’s authority to release particular types or items of Collateral pursuant to this Section 10.08(b). (c) Without in any manner limiting the Collateral Agent’s authority to act without any specific or further authorization or consent by the Lenders (as set forth in Section 10.08(b)), each Lender agrees to confirm in writing, upon request by the Collateral Agent, the authority to release Collateral conferred upon the Collateral Agent under Section 10.08(b). Upon receipt by the Collateral Agent of confirmation from the Lenders of its authority to release any particular item or types of Collateral, and upon prior written request by any Loan Party, the Collateral Agent shall (and is hereby irrevocably authorized by the Lenders to) execute such documents as may be necessary ~~or reasonably requested by any Loan Party~~ to evidence the release of the Liens granted to the Collateral Agent for the benefit of the Agents and the Lenders upon such Collateral; provided, however, that (i) the Collateral Agent shall not be required to execute any such document on terms which, in the Collateral Agent’s opinion, would expose the Collateral Agent to liability or create any obligations or entail any consequence other than the release of such Liens without recourse or warranty, and (ii) such release shall not in any manner discharge, affect or impair the Obligations or any Lien upon (or obligations of any Loan Party in respect of) all interests in the Collateral retained by any Loan Party. (d) Anything contained in any of the Loan Documents to the contrary ~~notwithstanding but subject to the Agreement Among Lenders~~notwithstanding, the Loan Parties, each Agent and each Lender hereby agree that ~~(i)~~ no Lender shall have any right individually to realize upon any of the Collateral under any Loan Document or to enforce any Guaranty, it being understood and agreed that all powers, rights and remedies under the Loan Documents may be exercised solely by the Collateral Agent for the benefit of the Lenders in accordance with the terms thereof, . (iie) in The Agents and the event of a foreclosure by the Collateral Agent on any of the Collateral pursuant to a public or private sale, the Administrative Agent, the Collateral Agent or any Lender may be the purchaser of any or all of such Collateral at any such sale and (iii) Lenders hereby irrevocably authorize the Collateral Agent, as agent for and representative of the Agents and the Lenders (but not any other Agent or any Lender or Lenders in its or their respective individual capacities unless the Required Lenders shall otherwise agree in writing), to credit bid all or any portion of the Obligations (including by accepting some or all of the Collateral in satisfaction of some or all of the Obligations pursuant to a deed in lieu of foreclosure or otherwise) ~~shall be entitled~~ and in such manner purchase (either directly or through one or more acquisition vehicles) ~~for the purpose of bidding and making settlement or payment of the purchase price for~~ all or any portion of the Collateral ~~to be sold~~ (~~A) at any public or private sale, (B~~i) at any sale thereof conducted ~~by the Collateral Agent~~ under the provisions of the ~~Uniform Commercial Code (~~Bankruptcy Code, including ~~pursuant to Sections 9-610~~ under Section 363, 1123 or ~~9-620~~ 1129 of the ~~Uniform Commercial~~ Bankruptcy Code), or any similar laws in any other jurisdictions to which a Loan Party is subject, or (Cii) at any ~~sale~~ other sale, foreclosure or ~~foreclosure~~ acceptance of collateral in lieu of debt conducted by (or with the consent or at the direction of) the Collateral Agent (whether by judicial action or otherwise) in accordance with any applicable ~~law~~ law. In connection with any such credit bid and purchase, the Obligations owed to the Agents and the Lenders shall be entitled to be, and shall be, credit bid by the Collateral Agent (but not any other Agent or any Lender or Lenders in its or their respective individual capacities unless the Required Lenders shall otherwise agree in writing) on a ratable basis (with Obligations with respect to contingent or unliquidated claims receiving contingent interests in the acquired assets on a ratable basis that shall vest upon the liquidation of such claims in an amount proportional to the liquidated portion of the contingent claim amount used in allocating the contingent interests) for the asset or assets so purchased (or for the equity interests or debt instruments of the acquisition vehicle or vehicles that are issued in connection with such purchase). In connection with any such bid (A) the Collateral Agent shall be authorized to form one or more acquisition vehicles and to assign any successful credit bid to such acquisition vehicle or vehicles, (B) each of the Agents’ and the Lenders’ ratable interests in the Obligations which were credit bid shall be deemed without any further action under this Agreement to be assigned to such vehicle or vehicles for the purpose of closing such sale, (C) the Collateral Agent shall be authorized to adopt documents providing for the governance of the acquisition vehicle or vehicles (provided that any actions by the Collateral Agent with respect to such acquisition vehicle or vehicles, including any disposition of the assets or equity interests thereof, shall be governed, directly or indirectly, by, and the governing documents shall provide for, control by the vote of the Required Lenders or their permitted assignees under the terms of this Agreement or the governing documents of the applicable acquisition vehicle or vehicles, as the case may be, irrespective of the termination of this Agreement and without giving effect to the limitations on actions by the Required Lenders contained in Section 12.02), (D) ~~any sale conducted pursuant~~ the Collateral Agent, on behalf of such acquisition vehicle or vehicles, shall be authorized to ~~the provisions of any Debtor Relief Law (including Section 363~~ issue to each of the ~~Bankruptcy Code)~~Agents and the Lenders, ~~to use and apply all or any of the Obligations as a credit~~ ratably on account of the ~~purchase price~~ relevant Obligations which were credit bid, interests, whether as equity, partnership interests, limited partnership interests or membership interests, in any such acquisition vehicle and/or debt instruments issued by such acquisition vehicle, all without the need for any Agent, any Lender or any acquisition vehicle to take any further action, and (E) to the extent that Obligations that are assigned to an acquisition vehicle are not used to acquire Collateral ~~payable~~ for any reason (as a result of another bid being higher or better, because the amount of Obligations assigned to the acquisition vehicle exceeds the amount of Obligations credit bid by the acquisition vehicle or otherwise), such Obligations shall automatically be reassigned to the Agents and the Lenders pro rata with their original interest in such Obligations and the equity interests and/or debt instruments issued by any acquisition vehicle on account of such Obligations shall automatically be cancelled, without the need for any Agent, any Lender or any acquisition vehicle to take any further action. Notwithstanding that the ratable portion of the Obligations of each Agent and each Lender are deemed assigned to the acquisition vehicle or vehicles as set forth in clause (B) above, each Agent and each Lender shall execute such documents and provide such information regarding such Person (and/or any designee of such Person that will receive interests in or debt instruments issued by such acquisition vehicle) as the Collateral Agent at may reasonably request in connection with the formation of any acquisition vehicle, the formulation or submission of any credit bid or the consummation of the transactions contemplated by such ~~sale~~credit bid. (ef) The Collateral Agent shall have no obligation whatsoever to any Lender to assure that the Collateral exists or is owned by the Loan Parties or is cared for, protected or insured or has been encumbered or that the Lien granted to the Collateral Agent pursuant to this Agreement or any other Loan Document has been properly or sufficiently or lawfully created, perfected, protected or enforced or is entitled to any particular priority, or to exercise at all or in any particular manner or under any duty of care, disclosure or fidelity, or to continue exercising, any of the rights, authorities and powers granted or available to the Collateral Agent in this Section 10.08 or in any other Loan Document, it being understood and agreed that in respect of the Collateral, or any act, omission or event related thereto, the Collateral Agent may act in any manner it may deem appropriate, in its sole discretion, given the Collateral Agent’s own interest in the Collateral as one of the Lenders and that the Collateral Agent shall have no duty or liability whatsoever to any other Lender, except as otherwise provided ~~herein and in the Agreement Among Lenders~~herein.

Appears in 2 contracts

Sources: Financing Agreement (FiscalNote Holdings, Inc.), Financing Agreement (FiscalNote Holdings, Inc.)

Appears in 2 contracts

Sources: Loan and Guaranty Agreement (Safeguard Scientifics Inc), Loan and Guaranty Agreement (Safeguard Scientifics Inc)

Collateral Matters. ~~(a) Each~~ Any Agent may from time to time make such disbursements and advances (“"Agent Advances”") which such Agent, in its sole discretion, deems necessary or desirable to preserve, protect, prepare for sale or lease or dispose of the Collateral or any portion thereof, to enhance the likelihood or maximize the amount of repayment by the Borrowers of the Loans, Reimbursement Obligations, Letter of Credit Obligations and other Obligations or to pay any other amount chargeable to the Borrowers pursuant to the terms of this Agreement, including, without limitation, costs, fees and expenses as described in Section 12.04. The Agent Advances shall be repayable on demand and be secured by the Collateral and shall bear interest at a rate per annum equal to the rate then applicable to ~~Revolving~~ Loans that are Reference Rate Loans. The Agent Advances shall constitute Obligations hereunder which may be charged to the Loan Account in accordance with Section 4.01. The Agent making ~~any~~ the Agent ~~Advances~~ Advance shall notify the other ~~Agent,~~ Agent and each Lender and the Administrative Borrower in writing of each such Agent Advance, which notice shall include a description of the purpose of such Agent Advance. Without limitation to its obligations pursuant to Section 10.05, each Lender agrees that it shall make available to the Agent making ~~any~~ the Agent ~~Advances~~Advance, upon such Agent’s 's demand, in ~~the currency in which the respective Agent Advance was made~~ Dollars in immediately available funds, the amount equal to such Lender’s 's Pro Rata Share of each such Agent ~~Advance subject to the terms of, the Agreement Among Lenders, provided that any such amount advanced by a Lender shall be deemed a Loan hereunder~~Advance. If such funds are not made available to the Agent making such Agent Advance by such Lender, such Agent shall be entitled to recover such funds on demand from such Lender, together with interest thereon for each day from the date such payment was due until the date such amount is paid to such Agent, at the Federal Funds Effective Rate for three Business Days and thereafter at the Reference Rate. (b) The Lenders hereby irrevocably authorize the Collateral Agent, at its option and in its discretion, to release any Lien granted to or held by the Collateral Agent upon any Collateral upon termination of the Total Commitment and Payment in Full of the Obligations; or constituting property being sold or disposed of in the ordinary course of any Loan Party’s business or otherwise in compliance with the terms of this Agreement and the other Loan Documents; or constituting property in which the Loan Parties owned no interest at the time the Lien was granted or at any time thereafter; or if approved, authorized or ratified in writing by the applicable Lenders required pursuant to Section 12.02. Upon request by the Collateral Agent at any time, the Lenders will confirm in writing the Collateral Agent’s authority to release particular types or items of Collateral pursuant to this Section 10.08(b). (c) Without in any manner limiting the Collateral Agent’s authority to act without any specific or further authorization or consent by the Lenders (as set forth in Section 10.08(b)), each Lender agrees to confirm in writing, upon request by the Collateral Agent, the authority to release Collateral conferred upon the Collateral Agent under Section 10.08(b). Upon the prior written request by any Loan Party, the Collateral Agent shall (and is hereby irrevocably authorized by the Lenders to) execute such documents as may be necessary or reasonably requested by any Loan Party to evidence the release of the Liens granted to the Collateral Agent for the benefit of the Agents and the Lenders upon such Collateral; provided, however, that (i) the Collateral Agent shall not be required to execute any such document on terms which, in the Collateral Agent’s opinion, would expose the Collateral Agent to liability or create any obligations or entail any consequence other than the release of such Liens without recourse or warranty, and (ii) such release shall not in any manner discharge, affect or impair the Obligations or any Lien upon (or obligations of any Loan Party in respect of) all interests in the Collateral retained by any Loan Party. (d) Anything contained in any of the Loan Documents to the contrary notwithstanding but subject to the Agreement Among Lenders, the Loan Parties, each Agent and each Lender hereby agree that (i) no Lender shall have any right individually to realize upon any of the Collateral under any Loan Document or to enforce any Guaranty, it being understood and agreed that all powers, rights and remedies under the Loan Documents may be exercised solely by the Collateral Agent for the benefit of the Lenders in accordance with the terms thereof, (ii) in the event of a foreclosure by the Collateral Agent on any of the Collateral pursuant to a public or private sale, the Administrative Agent, the Collateral Agent or any Lender may be the purchaser of any or all of such Collateral at any such sale and (iii) the Collateral Agent, as agent for and representative of the Agents and the Lenders (but not any other Agent or any Lender or Lenders in its or their respective individual capacities unless the Required Lenders shall otherwise agree in writing) shall be entitled (either directly or through one or more acquisition vehicles) for the purpose of bidding and making settlement or payment of the purchase price for all or any portion of the Collateral to be sold (A) at any public or private sale, (B) at any sale conducted by the Collateral Agent under the provisions of the Uniform Commercial Code (including pursuant to Sections 9-610 or 9-620 of the Uniform Commercial Code), (C) at any sale or foreclosure conducted by the Collateral Agent (whether by judicial action or otherwise) in accordance with applicable law or (D) any sale conducted pursuant to the provisions of any Debtor Relief Law (including Section 363 of the Bankruptcy Code), to use and apply all or any of the Obligations as a credit on account of the purchase price for any Collateral payable by the Collateral Agent at such sale. (e) The Collateral Agent shall have no obligation whatsoever to any Lender to assure that the Collateral exists or is owned by the Loan Parties or is cared for, protected or insured or has been encumbered or that the Lien granted to the Collateral Agent pursuant to this Agreement or any other Loan Document has been properly or sufficiently or lawfully created, perfected, protected or enforced or is entitled to any particular priority, or to exercise at all or in any particular manner or under any duty of care, disclosure or fidelity, or to continue exercising, any of the rights, authorities and powers granted or available to the Collateral Agent in this Section 10.08 or in any other Loan Document, it being understood and agreed that in respect of the Collateral, or any act, omission or event related thereto, the Collateral Agent may act in any manner it may deem appropriate, in its sole discretion, given the Collateral Agent’s own interest in the Collateral as one of the Lenders and that the Collateral Agent shall have no duty or liability whatsoever to any other Lender, except as otherwise provided herein and in the Agreement Among Lenders.

Appears in 2 contracts

Sources: Financing Agreement (Alj Regional Holdings Inc), Financing Agreement (Alj Regional Holdings Inc)

Collateral Matters. (a) ~~Each~~ The Collateral Agent may from time to time make such disbursements and advances (“"Collateral Agent Advances”") which ~~such~~ the Collateral Agent, in its sole discretion, deems necessary or desirable to preserve, protect, prepare for sale or lease or dispose of the Collateral or any portion thereof, to enhance the likelihood or maximize the amount of repayment by the Borrowers of the ~~Loans, Reimbursement Obligations, Letter of Credit Obligations~~ Loans and other Obligations or to pay any other amount chargeable to the Borrowers pursuant to the terms of this Agreement, including, without limitation, costs, fees and expenses as described in Section 12.04. The Collateral Agent Advances shall be repayable on demand and be secured by the Collateral and shall bear interest at a rate per annum equal to the rate then applicable to ~~Revolving Loans that are~~ Reference Rate Loans. The ~~Agent making any~~ Collateral Agent Advances shall constitute Obligations hereunder which may be charged to the Loan Account in accordance with Section 4.01. The Collateral Agent shall notify ~~the other Agent,~~ each Lender and the Administrative Borrower in writing of each such Collateral Agent Advance, which notice shall include a description of the purpose of such Collateral Agent Advance. Without limitation to its obligations pursuant to Section 10.05, each Lender agrees that it shall make available to the ~~Agent making any Agent Advances~~Collateral Agent, upon ~~such~~ the Collateral Agent’s 's demand, in ~~the currency in which the respective Agent Advance was made~~ Dollars in immediately available funds, the amount equal to such Lender’s 's Pro Rata Share of each such Collateral Agent ~~Advance subject to the terms of, the Agreement Among Lenders, provided that any such amount advanced by a Lender shall be deemed a Loan hereunder~~Advance. If such funds are not made available to ~~such~~ the Collateral Agent by such Lender, ~~such~~ the Collateral Agent shall be entitled to recover such funds on demand from such Lender, together with interest thereon for each day from the date such payment was due until the date such amount is paid to ~~such~~ the Collateral Agent, at the Federal Funds ~~Effective~~ Rate for three Business Days and thereafter at the Reference Rate. (b) The Lenders hereby irrevocably authorize the Collateral Agent, at its option and in its discretion, to release any Lien granted to or held by the Collateral Agent upon any 120535197v14 Collateral upon termination of the Total Term Loan Commitment and ~~Payment~~ payment and satisfaction of all Loans and all other Obligations (other than Contingent Indemnity Obligations) in ~~Full of~~ accordance with the ~~Obligations~~terms hereof; or constituting property being sold or disposed of in the ordinary course of any Loan Party’s 's business or otherwise in compliance with the terms of this Agreement and the other Loan Documents; or constituting property in which the Loan Parties owned no interest at the time the Lien was granted or at any time thereafter; or if approved, authorized or ratified in writing by the ~~applicable~~ Lenders ~~required pursuant to~~ in accordance with Section 12.02. Upon request by the Collateral Agent at any time, the Lenders will confirm in writing the Collateral Agent’s 's authority to release particular types or items of Collateral pursuant to this Section 10.08(b). (c) Without in any manner limiting the Collateral Agent’s 's authority to act without any specific or further authorization or consent by the Lenders (as set forth in Section 10.08(b)), each Lender agrees to confirm in writing, upon request by the Collateral Agent, the authority to release Collateral conferred upon the Collateral Agent under Section 10.08(b). Upon receipt by the Collateral Agent of confirmation from the Lenders of its authority to release any particular item or types of Collateral, and upon prior written request by any Loan Party, the Collateral Agent shall (and is hereby irrevocably authorized by the Lenders to) execute such documents as may be necessary ~~or reasonably requested by any Loan Party~~ to evidence the release of the Liens granted to the Collateral Agent for the benefit of the Agents and the Lenders upon such Collateral; provided, however, that (i) the Collateral Agent shall not be required to execute any such document on terms which, in the Collateral Agent’s 's opinion, would expose the Collateral Agent to liability or create any obligations or entail any consequence other than the release of such Liens without recourse or warranty, and (ii) such release shall not in any manner discharge, affect or impair the Obligations or any Lien upon (or obligations of any Loan Party in respect of) all interests in the Collateral retained by any Loan Party. (d) Anything contained in any of the Loan Documents to the contrary ~~notwithstanding but subject to the Agreement Among Lenders~~notwithstanding, the Loan Parties, each Agent and each Lender hereby agree that (i) no Lender shall have any right individually to realize upon any of the Collateral under any Loan Document or to enforce any Guaranty, it being understood and agreed that all powers, rights and remedies under the Loan Documents may be exercised solely by the Collateral Agent for the benefit of the Lenders in accordance with the terms thereof, (ii) in the event of a foreclosure by the Collateral Agent on any of the Collateral pursuant to a public or private sale, the Administrative Agent, the Collateral Agent or any Lender may be the purchaser of any or all of such Collateral at any such sale and (iii) the Collateral Agent, as agent for and representative of the Agents and the Lenders (but not any other Agent or any Lender or Lenders in its or their respective individual capacities unless the Required Lenders shall otherwise agree in writing) shall be entitled (either directly or through one or more acquisition vehicles) for the purpose of bidding and making settlement or payment of the purchase price for all or any portion of the Collateral to be sold (A) at any public or private sale, (B) at any sale conducted by the Collateral Agent under the provisions of the Uniform Commercial Code (including pursuant to Sections 9-610 or 9-620 of the Uniform Commercial Code), (C) at any sale or foreclosure conducted by the Collateral Agent (whether by judicial action or otherwise) in accordance with applicable law or (D) any sale conducted pursuant to the provisions of any Debtor Relief Law (including Section 363 of the Bankruptcy Code), to use and apply all or any of the Obligations as a credit on account of the purchase price for any Collateral payable by the Collateral Agent at such sale.. 120535197v14 (e) The Collateral Agent shall have no obligation whatsoever to any Lender to assure that the Collateral exists or is owned by the Loan Parties or is cared for, protected or insured or has been encumbered or that the Lien granted to the Collateral Agent pursuant to this Agreement or any other Loan Document has been properly or sufficiently or lawfully created, perfected, protected or enforced or is entitled to any particular priority, or to exercise at all or in any particular manner or under any duty of care, disclosure or fidelity, or to continue exercising, any of the rights, authorities and powers granted or available to the Collateral Agent in this Section 10.08 or in any other Loan Document, it being understood and agreed that in respect of the Collateral, or any act, omission or event related thereto, the Collateral Agent may act in any manner it may deem appropriate, in its sole discretion, given the Collateral Agent’s 's own interest in the Collateral as one of the Lenders and that the Collateral Agent shall have no duty or liability whatsoever to any other Lender, except as otherwise provided ~~herein and in the Agreement Among Lenders~~herein.

Appears in 1 contract

Sources: Financing Agreement (SMTC Corp)

Appears in 1 contract

Sources: Financing Agreement (FreightCar America, Inc.)

Collateral Matters. (a) ~~Each~~ Agent may from time to ~~time~~ time, before or after the occurrence of an Event of Default, make such disbursements and advances to the Collateral Agent (“Agent Advances”) which ~~such~~ Agent, in its sole discretion, deems necessary or desirable to ~~preserve, protect, prepare for sale~~ preserve or ~~lease or dispose of~~ protect the Collateral or any portion thereof, to enhance the likelihood or maximize the amount of repayment ~~by the Borrowers~~ of the ~~Loans, Reimbursement Obligations, Letter of Credit Obligations and other~~ Obligations or to pay any other amount chargeable to ~~the Borrowers~~ Borrower or any Guarantor pursuant to the terms of this ~~Agreement~~Agreement or any Collateral Document, including, without limitation, costs, fees and expenses as described in Section ~~12.04~~9.06; provided, however, that the Agent Advances shall not exceed Two Hundred Fifty Thousand Dollars ($250,000) without the prior written consent of Majority Lenders. The Agent Advances shall be repayable on demand and be secured by the ~~Collateral and shall bear interest at a rate per annum equal to the rate then applicable to Revolving Loans that are Reference Rate Loans~~Collateral. The Agent ~~making any Agent~~ Advances shall not constitute Advances but shall otherwise constitute Obligations hereunder. Agent shall notify ~~the other Agent,~~ each Lender ~~and the Administrative Borrower~~ in writing of each such Agent Advance, which notice shall include a description of the purpose of such Agent Advance. Without limitation to its obligations pursuant to Section ~~10.05~~10.09, each Lender agrees that it shall make available to ~~the Agent making any Agent Advances~~Agent, upon ~~such~~ Agent’s demand, ~~in the currency in which the respective Agent Advance was made~~ in immediately available funds, the amount equal to such Lender’s ~~Pro Rata Share~~ Commitment Percentage of each such Agent ~~Advance subject to the terms of, the Agreement Among Lenders, provided that any such amount advanced by a Lender shall be deemed a Loan hereunder~~Advance. If such funds are not made available to ~~such~~ Agent by such ~~Lender~~Lender within one (1) Banking Day after Agent’s demand therefor, ~~such~~ Agent ~~shall~~ will be entitled to recover any such ~~funds on demand~~ amount from such ~~Lender,~~ Lender together with interest thereon at the Federal Funds Rate for each day ~~from~~ during the period commencing the date of such ~~payment was due until~~ demand and ending on the date such amount is ~~paid to such Agent, at the Federal Funds Effective Rate for three Business Days and thereafter at the Reference Rate~~received. (b) ~~The~~ Lenders acknowledge that the Borrower and its Subsidiaries have created and will create Liens permitted by this Agreement on a substantial portion of their property, including Collateral, to secure obligations owed to Persons other than the Secured Creditors and that the Borrower and its Subsidiaries from time to time have requested and will request the Agent and Collateral Agent to execute and deliver releases and subordinations with respect to Liens on the Collateral created by the Collateral Documents in connection with transactions permitted by this Agreement (such as the Borrower and its Subsidiaries obtaining financing on equipment and other property secured by Liens described in clause (iv) of the definition of “Permitted Liens” and financing pursuant to Permitted Real Estate Financing Transactions). Lenders hereby irrevocably authorize ~~the Collateral~~ Agent, at its option and in its discretion, to direct the Collateral Agent to release or subordinate on terms satisfactory to the Collateral Agent any Lien granted to or held by the Collateral Agent upon any Collateral (i) upon termination of the ~~Total Commitment~~ Revolving Credit Commitments and ~~Payment~~ indefeasible payment in ~~Full~~ full and satisfaction of all of the 101 Obligations; or (ii) constituting property being sold or disposed of in if the ~~ordinary course of any Loan Party’s business~~ sale or ~~otherwise in compliance~~ disposition is permitted hereunder (including with ~~the terms of this Agreement and the other Loan Documents~~respect to Receivables Assets); or (iii) constituting property in which ~~the Loan Parties~~ neither Borrower nor any Guarantor owned no an interest at the time the Lien was granted or at any time thereafter; or (iv) constituting property leased to Borrower or any Guarantor; or (v) if approved, authorized or ratified in writing by the ~~applicable Lenders required pursuant~~ Majority Lenders; or (vi) subject to a Permitted Lien or other Lien permitted by Section ~~12.02~~7.03; or (vii) not owned by the Borrower or any Guarantor. Upon request by ~~the Collateral~~ Agent at any time, ~~the~~ Lenders will confirm in writing ~~the Collateral~~ Agent’s authority to so direct the release of particular types or items of Collateral pursuant to this Section ~~10.08(b~~10.13(b). Without limitation of the foregoing, the Lenders approve the form of, and authorize the Agent and the Collateral Agent to enter into at the request of the Borrower, subordination agreements substantially in the form of Exhibit N hereto. The Lenders hereby irrevocably authorize Agent, at its option and discretion (1) to direct the Collateral Agent to release and subordinate, on terms satisfactory to the Collateral Agent, Liens on Collateral which is also subject to Permitted Liens, (2) to execute any release, subordination or acknowledgement documents requested by the Borrower in order to effect any release or subordination described in this paragraph (b) and (3) to execute acknowledgements with respect to leases to the effect that the Property subject to such leases is not subject to the Liens created by the Credit Documents or Collateral, and the Agent and the Collateral Agent shall have no liability to the Secured Creditors for actions taken pursuant to this paragraph (b). This paragraph (b) is intended as an authorization by the Lenders to permit the Agent and the Collateral Agent to take the actions described herein and neither the Borrower nor any of its Subsidiaries or any other Person shall be entitled to the benefits hereof. (c) Without in any manner limiting ~~the Collateral~~ Agent’s authority to act without any specific or further authorization or consent by the Majority Lenders (as set forth in Section ~~10.08(b)~~10.13(b) above), each Lender agrees to confirm in writing, upon request by ~~the Collateral Agent~~Borrower, the authority to direct the release of Collateral conferred upon the ~~Collateral~~ Agent under clauses (i) through (vii) of Section ~~10.08(b)~~10.13(b) above. Upon receipt by Agent of confirmation from the ~~prior written request by~~ Majority Lenders of its authority to direct the release of any ~~Loan Party~~particular item or types of Collateral, ~~the Collateral~~ Agent shall (and is hereby irrevocably authorized by ~~the~~ Lenders to) direct the Collateral Agent to execute such documents as may be necessary ~~or reasonably requested by any Loan Party~~ to evidence the release of the Liens granted to the Collateral Agent for the benefit of the ~~Agents and the Lenders~~ Secured Creditors herein or pursuant hereto upon such Collateral; provided, however, that (i) ~~the Collateral~~ Agent shall not be required to direct the Collateral Agent to execute any such document on terms which, in ~~the Collateral~~ Agent’s opinion, would expose Agent or the Collateral Agent to liability or create any ~~obligations~~ obligation or entail any consequence other than the release of such Liens without recourse or warranty, and (ii) such release shall not in any manner discharge, affect or impair the Obligations or any ~~Lien~~ Liens upon (or obligations of ~~any Loan Party~~ Borrower and its Subsidiaries in respect of) all interests ~~in the Collateral~~ retained by Borrower and its Subsidiaries, including (without limitation) the proceeds of any ~~Loan Party~~sale, all of which shall continue to constitute part of the Collateral. (d) ~~Anything contained in any of the Loan Documents to the contrary notwithstanding but subject to the Agreement Among Lenders, the Loan Parties, each~~ Neither Agent and each Lender hereby agree that (i) no Lender shall have any right individually to realize upon any of the Collateral under any Loan Document or to enforce any Guaranty, it being understood and agreed that all powers, rights and remedies under the Loan Documents may be exercised solely by the Collateral Agent for the benefit of the Lenders in accordance with the terms thereof, (ii) in the event of a foreclosure by the Collateral Agent on any of the Collateral pursuant to a public or private sale, the Administrative Agent, the Collateral Agent or any Lender may be the purchaser of any or all of such Collateral at any such sale and (iii) the Collateral Agent, as agent for and representative of the Agents and the Lenders (but not any other Agent or any Lender or Lenders in its or their respective individual capacities unless the Required Lenders shall otherwise agree in writing) shall be entitled (either directly or through one or more acquisition vehicles) for the purpose of bidding and making settlement or payment of the purchase price for all or any portion of the Collateral to be sold (A) at any public or private sale, (B) at any sale conducted by the Collateral Agent under the provisions of the Uniform Commercial Code (including pursuant to Sections 9-610 or 9-620 of the Uniform Commercial Code), (C) at any sale or foreclosure conducted by the Collateral Agent (whether by judicial action or otherwise) in accordance with applicable law or (D) any sale conducted pursuant to the provisions of any Debtor Relief Law (including Section 363 of the Bankruptcy Code), to use and apply all or any of the Obligations as a credit on account of the purchase price for any Collateral payable by the Collateral Agent at such sale. (e) The nor Collateral Agent shall have no any obligation whatsoever to any Lender to assure that the Collateral exists or is owned by ~~the Loan Parties~~ Borrower or any of its Subsidiaries or is cared for, protected or insured or has been encumbered or that the ~~Lien~~ Liens granted to the Agent or the Collateral Agent pursuant to ~~this Agreement or~~ any ~~other Loan~~ Collateral Document ~~has~~ have been properly or sufficiently or lawfully created, perfected, protected or enforced or is are entitled to any particular priority, or to exercise at all or in any particular manner or under any duty of care, disclosure or 102 fidelity, or to continue exercising, any of the rights, authorities and powers granted or available to ~~the~~ Agent or Collateral Agent in this Section ~~10.08~~ 10.13 or in any ~~other Loan Document~~of the Collateral Documents, it being understood and agreed that in respect of the Collateral, or any act, omission or event related thereto, ~~the~~ each of Agent and Collateral Agent may act in any manner it may deem appropriate, in its sole discretion, given ~~the~~ Agent’s and Collateral Agent’s own interest in the Collateral as one of the Lenders and that ~~the~~ Agent and Collateral Agent shall have no duty or liability whatsoever to any ~~other Lender,~~ Lender (except as ~~otherwise~~ specifically provided ~~herein~~ in this Agreement and the Collateral Documents). EACH LENDER FURTHER ACKNOWLEDGES AND AGREES THAT AGENT AND COLLATERAL AGENT SHALL NOT BE RESPONSIBLE FOR, AND SHALL HAVE NO LIABILITY OR OBLIGATION WITH RESPECT TO, THE VALIDITY, EFFECTIVENESS, GENUINENESS, ENFORCEABILITY OR SUFFICIENCY OF THIS AGREEMENT, THE NOTES, THE COLLATERAL DOCUMENTS, ANY OTHER INSTRUMENT OR AGREEMENT CONTEMPLATED HEREUNDER OR THEREUNDER, ANY ACTION TAKEN OR NOT TAKEN OR ANY DECISION MADE BY ANY PERSON (OTHER THAN AGENT, OR COLLATERAL AGENT, AS THE CASE MAY BE) WITH RESPECT TO ANY THEREOF OR WITH RESPECT TO THE COLLATERAL, THE FAILURE OF THE BORROWER OR ANY SUBSIDIARY TO PERFORM ITS OBLIGATIONS HEREUNDER OR THEREUNDER, ANY MISREPRESENTATION BY BORROWER OR ANY SUBSIDIARY HEREUNDER OR THEREUNDER, OR THE VALUE OF ANY COLLATERAL OR THE CREATION, ATTACHMENT, PERFECTION OR PRIORITY OF ANY SECURITY INTEREST OR LIEN PURPORTED TO BE CREATED BY THE COLLATERAL DOCUMENTS, THIS AGREEMENT OR SUCH OTHER INSTRUMENTS OR AGREEMENTS AND THAT AGENT, AS COLLATERAL AGENT AND AGENT, HAS UNDERTAKEN NO INDEPENDENT REVIEW OR ANALYSIS WITH RESPECT TO ANY OF THE FOREGOING. (e) The benefit of the Collateral Documents and of the provisions of this Agreement relating to the Collateral shall extend to and be available in respect of the Secured Obligations (as defined in the Collateral Agency Agreement) solely on the condition and understanding, as among Agent and Lenders, that (i) the Secured Obligations shall be entitled to the benefit of the Collateral to the extent expressly set forth in the Collateral Documents, and to such extent the Collateral Agent shall hold, and have the right and power to act with respect to, the Collateral on behalf of and as agent for the holders of the Secured Obligations; but Agent in its separate capacity as agent hereunder is acting solely as agent for the Lenders and shall have no separate fiduciary duty, duty of loyalty, duty of care, duty of disclosure or other obligations whatsoever to any holder of Secured Obligations; and (ii) all matters, acts and omissions relating in any manner to the Collateral, or the omission, creation, perfection, priority, abandonment or release of any Lien, shall be governed solely by the provisions of this Agreement ~~Among~~ and the Collateral Documents, and no separate Lien, right, power or remedy shall arise or exist in favor of any Lender under any separate instrument or agreement or in respect of any Secured Obligations; and (iii) each Lender shall be bound by all actions taken or omitted, in accordance with the provisions of this Agreement or the Collateral Documents, by the Collateral Agent, at the direction of Agent on behalf of the Lenders.; and (iv) no holder of Secured Obligations shall exercise any right of setoff, bank’s lien or similar right except as expressly provided in Section 10.03. 103 (f) Any Collateral proceeds received by Agent from the Collateral Agent pursuant to Section 3(b) of the Collateral Agency Agreement shall be applied and paid to the Obligations as follows (unless Agent and Majority Lenders otherwise agree):

Appears in 1 contract

Sources: Credit Agreement (Bally Total Fitness Holding Corp)

Collateral Matters. (a) ~~Each~~ Agent ~~may~~ may, at its option, from time to time, at any time on or after an Event of Default and for so long as the same is continuing or upon any other failure of a condition precedent to the Loans and Letter of Credit Accommodations hereunder, make such disbursements and advances (“"Special Agent Advances”") which ~~such~~ Agent, in its sole discretion, (i) deems necessary or desirable either to ~~preserve, protect, prepare for sale~~ preserve or ~~lease or dispose of~~ protect the Collateral or any portion ~~thereof,~~ thereof or (ii) to enhance the likelihood or maximize the amount of repayment by ~~the~~ Borrowers of the ~~Loans, Reimbursement~~ Loans and other Obligations, provided, that, the aggregate principal amount of the Special Agent Advances pursuant to this clause (ii), plus the then outstanding principal amount of the additional Loans and Letter of Credit ~~Obligations and other Obligations~~ Accommodations which Agent may make or provide as set forth in Section 12.8 hereof, shall not exceed the aggregate amount of [ten (10%)] percent of the Maximum Credit or (iii) to pay any other amount chargeable to ~~the Borrowers~~ any Borrower pursuant to the terms of this ~~Agreement, including, without limitation,~~ Agreement or any of the other Financing Agreements consisting of (A) costs, fees and expenses ~~as described in Section 12.04~~and (B) payments to any issuer of Letter of Credit Accommodations. ~~The~~ Special Agent Advances shall be repayable on demand and be together with all interest thereon shall constitute Obligations secured by the ~~Collateral and~~ Collateral. Special Agent Advances shall ~~bear interest~~ not constitute Loans but shall otherwise constitute Obligations hereunder. Interest on Special Agent Advances shall be payable at ~~a rate per annum equal to~~ the ~~rate~~ Interest Rate then applicable to ~~Revolving~~ Prime Rate Loans ~~that are Reference Rate Loans. The Agent making any Agent Advances~~ and shall ~~notify the other Agent, each Lender and the Administrative Borrower in writing of each such Agent Advance, which notice shall include a description of the purpose of such Agent Advance~~be payable on demand. Without limitation to of its obligations pursuant to Section ~~10.05~~6.10, each Lender agrees that it shall make available to ~~the Agent making any Agent Advances~~Agent, upon ~~such~~ Agent’s 's demand, ~~in the currency in which the respective Agent Advance was made~~ in immediately available funds, the amount equal to such Lender’s 's Pro Rata Share of each such Special Agent ~~Advance subject to the terms of, the Agreement Among Lenders, provided that any such amount advanced by a Lender shall be deemed a Loan hereunder~~Advance. If such funds are not made available to ~~such~~ Agent by such Lender, such Lender shall be deemed a Defaulting Lender and Agent shall be entitled to recover such ~~funds~~ funds, on demand from such ~~Lender,~~ Lender together with interest thereon for each day from the date such payment was due until the date such amount is paid to ~~such Agent,~~ Agent at the Federal Funds ~~Effective~~ Rate for each day during such period (as published by the Federal Reserve Bank of New York or at Agent's option based on the arithmetic mean determined by Agent of the rates for the last transaction in overnight Federal funds arranged prior to 9:00 a.m. (New York City time) on that day by each of the three ~~Business Days~~ leading brokers of Federal funds transactions in New York City selected by Agent) and ~~thereafter~~ if such amounts are not paid within three (3) days of Agent's demand, at the ~~Reference Rate~~highest Interest Rate provided for in Section 3.1 hereof applicable to Prime Rate Loans. (b) ~~The~~ Lenders hereby irrevocably authorize ~~the Collateral~~ Agent, at its option and in its ~~discretion,~~ discretion to release any ~~Lien granted to~~ security interest in, mortgage or ~~held by~~ lien upon, any of the Collateral ~~Agent upon any Collateral~~ (i) upon termination of the ~~Total Commitment~~ Commitments and ~~Payment in Full~~ payment and satisfaction of all of the ~~Obligations;~~ Obligations and 107 delivery of cash collateral to the extent required under Section 13.1 below, or (ii) constituting property being sold or disposed of in if Administrative Borrower or any Borrower certifies to Agent that the ~~ordinary course of any Loan Party’s business~~ sale or ~~otherwise~~ disposition is made in compliance with ~~the terms of this Agreement~~ Section 9.7 hereof (and ~~the other Loan Documents;~~ Agent may rely conclusively on any such certificate, without further inquiry), or (iii) constituting property in which ~~the Loan Parties owned no~~ any Borrower did not own an interest at the time the ~~Lien~~ security interest, mortgage or lien was granted or at any time thereafter; , or (iv) having a value in the aggregate in any twelve (12) month period of less than $400,000, and to the extent Agent may release its security interest in and lien upon any such Collateral pursuant to the sale or other disposition thereof, such sale or other disposition shall be deemed consented to by Lenders, or (v) if required or permitted under the terms of any of the other Financing Agreements, including any intercreditor agreement, or (vi) approved, authorized or ratified in writing by all of Lenders. Except as provided above, Agent will not release any security interest in, mortgage or lien upon, any of the ~~applicable Lenders required pursuant to Section 12.02~~Collateral without the prior written authorization of all of Lenders. Upon request by ~~the Collateral~~ Agent at any time, ~~the~~ Lenders will promptly confirm in writing ~~the Collateral~~ Agent’s 's authority to release particular types or items of Collateral pursuant to this ~~Section 10.08(b)~~Section. (c) Without in any manner limiting ~~the Collateral~~ Agent’s 's authority to act without any specific or further authorization or consent by the ~~Lenders (as set forth in Section 10.08(b))~~Required Lenders, each Lender agrees to confirm in writing, upon request by ~~the Collateral~~ Agent, the authority to release Collateral conferred upon ~~the Collateral~~ Agent under ~~Section 10.08(b)~~this Section. ~~Upon the prior written request by any Loan Party, the Collateral~~ Agent shall (and is hereby irrevocably authorized by ~~the~~ Lenders to) execute such documents as may be necessary ~~or reasonably requested by any Loan Party~~ to evidence the release of the ~~Liens~~ security interest, mortgage or liens granted to Agent upon any Collateral to the ~~Collateral Agent for the benefit of the Agents and the Lenders upon such Collateral~~extent set forth above; provided, ~~however~~that, ~~that~~ (i) ~~the Collateral~~ Agent shall not be required to execute any such document on terms which, in ~~the Collateral~~ Agent’s 's opinion, would expose ~~the Collateral~~ Agent to liability or create any obligations or entail any consequence other than the release of such ~~Liens~~ security interest, mortgage or liens without recourse or ~~warranty,~~ warranty and (ii) such release shall not in any manner discharge, affect or impair the Obligations or any ~~Lien~~ security interest, mortgage or lien upon (or obligations of any ~~Loan Party~~ Borrower in respect of) ~~all interests in~~ the Collateral retained by ~~any Loan Party~~such Borrower. (d) Anything contained in any of the Loan Documents to the contrary notwithstanding but subject to the Agreement Among Lenders, the Loan Parties, each Agent and each Lender hereby agree that (i) no Lender shall have any right individually to realize upon any of the Collateral under any Loan Document or to enforce any Guaranty, it being understood and agreed that all powers, rights and remedies under the Loan Documents may be exercised solely by the Collateral Agent for the benefit of the Lenders in accordance with the terms thereof, (ii) in the event of a foreclosure by the Collateral Agent on any of the Collateral pursuant to a public or private sale, the Administrative Agent, the Collateral Agent or any Lender may be the purchaser of any or all of such Collateral at any such sale and (iii) the Collateral Agent, as agent for and representative of the Agents and the Lenders (but not any other Agent or any Lender or Lenders in its or their respective individual capacities unless the Required Lenders shall otherwise agree in writing) shall be entitled (either directly or through one or more acquisition vehicles) for the purpose of bidding and making settlement or payment of the purchase price for all or any portion of the Collateral to be sold (A) at any public or private sale, (B) at any sale conducted by the Collateral Agent under the provisions of the Uniform Commercial Code (including pursuant to Sections 9-610 or 9-620 of the Uniform Commercial Code), (C) at any sale or foreclosure conducted by the Collateral Agent (whether by judicial action or otherwise) in accordance with applicable law or (D) any sale conducted pursuant to the provisions of any Debtor Relief Law (including Section 363 of the Bankruptcy Code), to use and apply all or any of the Obligations as a credit on account of the purchase price for any Collateral payable by the Collateral Agent at such sale. (e) The Collateral Agent shall have no obligation whatsoever to any Lender or any other Person to investigate, confirm or assure that the Collateral exists or is owned by ~~the Loan Parties~~ any Borrower or is cared for, protected or insured or has been ~~encumbered~~ encumbered, or that any particular items of Collateral meet the eligibility criteria applicable in respect of the Loans or Letter of Credit Accommodations hereunder, or whether any particular reserves are appropriate, or that the ~~Lien~~ liens and security interests granted to ~~the Collateral~~ Agent pursuant ~~to this Agreement~~ hereto or any ~~other Loan Document has~~ of the Financing Agreements or otherwise have been properly or sufficiently or lawfully created, perfected, protected or enforced or is are entitled to any particular priority, or to exercise at all or in any particular manner or under any duty of care, disclosure or fidelity, or to continue exercising, any of the rights, authorities and powers granted or available to ~~the Collateral~~ Agent in this ~~Section 10.08~~ Agreement or in any of the other ~~Loan Document~~Financing Agreements, it being understood and agreed that in respect of the Collateral, or any act, omission or event related thereto, ~~the Collateral~~ Agent may act in any manner it may deem appropriate, in its ~~sole~~ discretion, given ~~the Collateral~~ Agent’s 's own interest in the Collateral as ~~one of the Lenders~~ a Lender and that ~~the Collateral~~ Agent shall have no duty or liability whatsoever to any other Lender~~, except as otherwise provided herein and in the Agreement Among Lenders~~.

Appears in 1 contract

Sources: Loan and Security Agreement (Lexington Precision Corp)

Collateral Matters. (a) ~~Each~~ The Origination Agent may from time to time make such disbursements and advances (“Origination Agent Advances”) which ~~such~~ the Origination Agent, in its sole discretion, deems necessary or desirable to preserve, protect, prepare for sale or lease or dispose of the Collateral or any portion thereof, to enhance the likelihood or maximize the amount of repayment by the Borrowers of the ~~Loans, Reimbursement Obligations, Letter of Credit Obligations~~ Loans and other Obligations or to pay any other amount chargeable to the Borrowers pursuant to the terms of this Agreement, including, without limitation, costs, fees and expenses as described in Section 12.04. The Origination Agent Advances shall be repayable on demand and be secured by the Collateral and shall bear interest at a rate per annum equal to the rate then applicable to ~~Revolving~~ Term Loans that are Reference Rate Loans. The ~~Agent making any~~ Origination Agent Advances shall constitute Obligations hereunder which may be charged to the Loan Account in accordance with Section 4.01. The Origination Agent shall notify ~~the other Agent,~~ each Lender and the Administrative Borrower in writing of each such Origination Agent Advance, which notice shall include a description of the purpose of such Origination Agent Advance. Without limitation to its obligations pursuant to Section 10.05, each Lender agrees that it shall make available to the ~~Agent making any Agent Advances~~Origination Agent, upon ~~such~~ the Origination Agent’s demand, in ~~the currency in which the respective Agent Advance was made~~ Dollars in immediately available funds, the amount equal to such Lender’s Pro Rata Share of each such Origination Agent ~~Advance subject to the terms of, the Agreement Among Lenders, provided that any such amount advanced by a Lender shall be deemed a Loan hereunder~~Advance. If such funds are not made available to ~~such~~ the Origination Agent by such Lender, ~~such~~ the Origination Agent shall be entitled to recover such funds on demand from such Lender, together with interest thereon for each day from the date such payment was due until the date such amount is paid to ~~such~~ the Origination Agent, at the Federal Funds ~~Effective~~ Rate for three Business Days and thereafter at the Reference Rate. (b) The Lenders hereby irrevocably authorize the Collateral Agent, at its option and in its discretion, to release any Lien granted to or held by the Collateral Agent upon any Collateral upon termination of the Total Term Loan Commitment and ~~Payment~~ payment and satisfaction of all Loans and all other Obligations (other than Contingent Indemnity Obligations) in ~~Full of~~ accordance with the ~~Obligations~~terms hereof; or constituting property being sold or disposed of in the ordinary course of any Loan Party’s business or otherwise in compliance with the terms of this Agreement and the other Loan Documents; or constituting property in which the Loan Parties owned no interest at the time the Lien was granted or at any time thereafter; or if approved, authorized or ratified in writing by the ~~applicable~~ Lenders ~~required pursuant to~~ in accordance with Section 12.02. Upon request by the Collateral Agent at any time, the Lenders will confirm in writing the Collateral Agent’s authority to release particular types or items of Collateral pursuant to this Section 10.08(b). (c) Without in any manner limiting the Collateral Agent’s authority to act without any specific or further authorization or consent by the Lenders (as set forth in Section 10.08(b)), each Lender agrees to confirm in writing, upon request by the Collateral Agent, the authority to release Collateral conferred upon the Collateral Agent under Section 10.08(b). Upon receipt by the Collateral Agent of confirmation from the Lenders of its authority to release any particular item or types of Collateral, and upon prior written request by any Loan Party, the Collateral Agent shall (and is hereby irrevocably authorized by the Lenders to) execute such documents as may be necessary ~~or reasonably requested by any Loan Party~~ to evidence the release of the Liens granted to the Collateral Agent for the benefit of the Agents and the Lenders upon such Collateral; provided, however, that (i) the Collateral Agent shall not be required to execute any such document on terms which, in the Collateral Agent’s opinion, would expose the Collateral Agent to liability or create any obligations or entail any consequence other than the release of such Liens without recourse or warranty, and (ii) such release shall not in any manner discharge, affect or impair the Obligations or any Lien upon (or obligations of any Loan Party in respect of) all interests in the Collateral retained by any Loan Party. (d) Anything contained in any of the Loan Documents to the contrary ~~notwithstanding but subject to the Agreement Among Lenders~~notwithstanding, the Loan Parties, each Agent and each Lender hereby agree that (i) no Lender shall have any right individually to realize upon any of the Collateral under any Loan Document or to enforce any Guaranty, it being understood and agreed that all powers, rights and remedies under the Loan Documents may be exercised solely by the Collateral Agent for the benefit of the Lenders in accordance with the terms thereof, (ii) in the event of a foreclosure by the Collateral Agent on any of the Collateral pursuant to a public or private sale, the Administrative Agent, the Collateral Agent or any Lender may be the purchaser of any or all of such Collateral at any such sale and (iii) the Collateral Agent, as agent for and representative of the Agents and the Lenders (but not any other Agent or any Lender or Lenders in its or their respective individual capacities unless the Required Lenders shall otherwise agree in writing) shall be entitled (either directly or through one or more acquisition vehicles) for the purpose of bidding and making settlement or payment of the purchase price for all or any portion of the Collateral to be sold (A) at any public or private sale, (B) at any sale conducted by the Collateral Agent under the provisions of the Uniform Commercial Code (including pursuant to Sections 9-610 or 9-620 of the Uniform Commercial Code), (C) at any sale or foreclosure conducted by the Collateral Agent (whether by judicial action or otherwise) in accordance with applicable law or (D) any sale conducted pursuant to the provisions of any Debtor Relief Law (including Section 363 of the Bankruptcy Code), to use and apply all or any of the Obligations as a credit on account of the purchase price for any Collateral payable by the Collateral Agent at such sale. (e) The Collateral Agent shall have no obligation whatsoever to any Lender to assure that the Collateral exists or is owned by the Loan Parties or is cared for, protected or insured or has been encumbered or that the Lien granted to the Collateral Agent pursuant to this Agreement or any other Loan Document has been properly or sufficiently or lawfully created, perfected, protected or enforced or is entitled to any particular priority, or to exercise at all or in any particular manner or under any duty of care, disclosure or fidelity, or to continue exercising, any of the rights, authorities and powers granted or available to the Collateral Agent in this Section 10.08 or in any other Loan Document, it being understood and agreed that in respect of the Collateral, or any act, omission or event related thereto, the Collateral Agent may act in any manner it may deem appropriate, in its sole discretion, given the Collateral Agent’s own interest in the Collateral as one of the Lenders and that the Collateral Agent shall have no duty or liability whatsoever to any other Lender, except as otherwise provided ~~herein and in the Agreement Among Lenders~~herein.

Appears in 1 contract

Sources: Financing Agreement (Rhino Resource Partners LP)

Collateral Matters. (a) ~~Each~~ Agent ~~may~~ may, at its option, from time to time, at any time on or after a Default or an Event of Default and for so long as the same is continuing or upon any other failure of a condition precedent to the making of Loans and issuance of Letters of Credit hereunder, make such disbursements and advances (“Special Agent Advances”) which ~~such~~ Agent, in its sole discretion, deems necessary or desirable either (i) to ~~preserve, protect, prepare for sale~~ preserve or ~~lease or dispose of~~ protect the Collateral or any portion ~~thereof,~~ thereof or (ii) to enhance the likelihood or maximize the amount of repayment by ~~the~~ Borrowers of the ~~Loans, Reimbursement~~ Loans and other Obligations, ~~Letter~~ provided, that, the aggregate principal amount of the Special Agent Advances pursuant to this Section 12.11, plus the then outstanding principal amount of the additional Loans and Letters of Credit ~~Obligations and other Obligations~~ which Agent may make or provide as set forth in Section 12.17 hereof, shall not exceed the aggregate amount of ten (10%) percent of the Maximum Credit or (iii) to pay any other amount chargeable to ~~the~~ Borrowers pursuant to the terms of this ~~Agreement, including, without limitation,~~ Agreement or any of the other Financing Agreements consisting of costs, fees and expenses ~~as described in Section 12.04~~and payments to Issuing Bank on account of Letter of Credit Obligations. ~~The~~ Special Agent Advances shall be repayable on demand and be secured by the ~~Collateral~~ Collateral. Special Agent Advances shall not constitute Loans but shall otherwise constitute Obligations hereunder. In no event shall the aggregate principal amount of the Special Agent Advances, plus the then outstanding principal amount of all Loans and Letter of Credit Obligations, exceed the Maximum Credit. Interest on Special Advances shall ~~bear interest~~ be payable at ~~a rate per annum equal to~~ the ~~rate~~ Interest Rate then applicable to ~~Revolving Loans that are Reference~~ Base Rate Loans. ~~The~~ Agent ~~making any Agent Advances~~ shall notify ~~the other Agent,~~ each Lender and ~~the Administrative Borrower~~ Borrowers in writing of each such Special Agent Advance, which notice shall include a description of the purpose of such Special Agent Advance. Without limitation to of its obligations pursuant to Section ~~10.05~~6.9, each Lender agrees that it shall make available to ~~the Agent making any Agent Advances~~Agent, upon ~~such~~ Agent’s demand, ~~in the currency in which the respective Agent Advance was made~~ in immediately available funds, the amount equal to such Lender’s Pro Rata Share of each such Special Agent ~~Advance subject to the terms of, the Agreement Among Lenders, provided that any such amount advanced by a Lender shall be deemed a Loan hereunder~~Advance. If such funds are not made available to ~~such~~ Agent by such Lender, such Lender shall be deemed a Defaulting Lender and Agent shall be entitled to recover such ~~funds~~ funds, on demand from such ~~Lender,~~ Lender together with interest thereon ~~for each day from the date such payment was due until the date such amount is paid to such Agent,~~ at the ~~Federal Funds Effective Rate for three Business Days and thereafter at the Reference~~ Defaulting Lender Rate. (b) ~~The~~ Lenders hereby irrevocably authorize ~~the Collateral~~ (and by entering into a Bank Product Agreement, each Bank Product Provider shall be deemed to authorize) Agent, at its option and in its ~~discretion,~~ discretion to release any security interest in, mortgage or Lien ~~granted to or held by~~ upon, any of the Collateral ~~Agent upon any Collateral~~ (i) upon termination of the ~~Total Commitment~~ Commitments and ~~Payment in Full~~ payment and satisfaction of all of the ~~Obligations;~~ Obligations and delivery of cash collateral to the extent required under Section 13.1 below, or (ii) constituting property being sold or disposed of in if Administrative Borrower or any Borrower certifies to Agent that the ~~ordinary course of any Loan Party’s business~~ sale or ~~otherwise~~ disposition is made in compliance with ~~the terms of this Agreement~~ Section 9.7 hereof (and ~~the other Loan Documents;~~ Agent may rely conclusively on any such certificate, without further inquiry), or (iii) constituting property in which ~~the Loan Parties owned no~~ any Borrower or Obligor did not own an interest at the time the Lien was granted or at any time thereafter; , or (iv) having a value in the aggregate in any fiscal year period of less than $5,000,000, and to the extent Agent may release its security interest in and Lien upon any such Collateral pursuant to the sale or other disposition thereof, such sale or other disposition shall be deemed consented to by Lenders, or (v) if required or permitted under the terms of any of the other Financing Agreements, including any intercreditor agreement, or (vi) constituting trademarks securing Permitted Trademark Financing Debt if concurrently with such release (A) Administrative Borrower or any Borrower certifies to Agent that the Indebtedness constituting the Permitted Trademark Financing Debt is incurred, and Liens securing the same are granted, in compliance with Sections 9.8 and 9.9 hereof (and Agent may rely conclusively on any such certificate, without further inquiry), and (B) Borrowers deliver to Agent a report detailing the calculation of the Borrowing Base which excludes therefrom any trademarks securing the Permitted Trademark Financing Debt, or (vii) approved, authorized or ratified in writing by all of Lenders. Except as provided above, Agent will not release any security interest in, mortgage or Lien upon, any of the ~~applicable Lenders required pursuant to Section 12.02~~Collateral without the prior written authorization of all of Lenders. Upon request by ~~the Collateral~~ Agent at any time, ~~the~~ Lenders will (and if so requested, Bank Product Providers will) promptly confirm in writing ~~the Collateral~~ Agent’s authority to release particular types or items of Collateral pursuant to this ~~Section 10.08(b)~~Section. In no event shall the consent or approval of Issuing Bank be required to any release of Collateral. (c) Obligors and Lenders hereby irrevocably authorize (and by entering into a Bank Product Agreement, each Bank Product Provider shall be deemed to authorize) Agent, based upon the instruction of the Required Lenders, to (i) consent to, credit bid or purchase (either directly or through one or more acquisition vehicles) all or any portion of the Collateral at any sale thereof conducted under the provisions of the Bankruptcy Code, including under Section 363 of the Bankruptcy Code, (ii) credit bid or purchase (either directly or through one or more acquisition vehicles) all or any portion of the Collateral at any sale or other disposition thereof conducted under the provisions of the UCC, including pursuant to Sections 9-610 or 9-620 of the UCC, or (iii) credit bid or purchase (either directly or through one or more acquisition vehicles) all or any portion of the Collateral at any other sale or foreclosure conducted by Agent (whether by judicial action or otherwise) in accordance with applicable law. In connection with any such credit bid or purchase, the Obligations owed to Lenders and Bank Product Providers shall be entitled to be, and shall be, credit bid on a ratable basis (with Obligations with respect to contingent or unliquidated claims being estimated for such purpose if the fixing or liquidation thereof would not unduly delay the ability of Agent to credit bid or purchase at such sale or other disposition of the Collateral and, if such claims cannot be estimated without unduly delaying the ability of Agent to credit bid, then such claims shall be disregarded, not credit bid, and not entitled to any interest in the asset or assets purchased by means of such credit bid) and Lenders and Bank Product Providers whose Obligations are credit bid shall be entitled to receive interests (ratably based upon the proportion of their Obligations credit bid in relation to the aggregate amount of Obligations so credit bid) in the asset or assets so purchased (or in the Capital Stock of the acquisition vehicle or vehicles that are used to consummate such purchase). Except as provided above, Agent will not execute and deliver a release of any Lien on any Collateral without the prior written authorization of (y) if the release is of all or substantially all of the Collateral, all of the Lenders (without requiring the authorization of Bank Product Providers), or (z) otherwise, Required Lenders (without requiring the authorization of Bank Product Providers). (d) Without in any manner limiting ~~the Collateral~~ Agent’s authority to act without any specific or further authorization or consent by the ~~Lenders (as set forth in Section 10.08(b))~~Required Lenders, each Lender ~~agrees to confirm in writing~~will (and if so requested, Bank Product Providers will), upon request by ~~the Collateral~~ Agent, ~~the~~ confirm in writing Agent’s authority to release Collateral conferred upon the Collateral Agent under Section 10.08(b). Upon the prior written request by any Loan Party, the Collateral Agent shall (and is hereby irrevocably authorized by the Lenders to) execute such documents as may be necessary or reasonably requested by any Loan Party pursuant to ~~evidence the release of the Liens granted to the Collateral Agent for the benefit of the Agents and the Lenders upon such Collateral~~this Section; provided, however, that (i) ~~the Collateral~~ Agent shall not be required to execute any document necessary to evidence such ~~document~~ release on terms ~~which~~that, in ~~the Collateral~~ Agent’s opinion, would expose ~~the Collateral~~ Agent to liability or create any ~~obligations~~ obligation or entail any consequence other than the release of such ~~Liens~~ Lien without ~~recourse~~ recourse, representation, or warranty, and (ii) such release shall not in any manner discharge, ~~affect~~ affect, or impair the Obligations or any Lien (other than those expressly being released) upon (or obligations of any ~~Loan Party~~ Borrowers or any Obligor in respect of) all interests ~~in the Collateral~~ retained by any ~~Loan Party. (d) Anything contained in~~ Borrower or any Obligor, including, the proceeds of any sale, all of which shall continue to constitute part of the ~~Loan Documents~~ Collateral. Lenders further hereby irrevocably authorize (and by entering into a Bank Product Agreement, each Bank Product Provider shall be deemed to authorize) Agent, at its option and in its sole discretion, to subordinate any Lien granted to or held by Agent under any Financing Agreement to the contrary notwithstanding but subject to the Agreement Among Lenders, the Loan Parties, each Agent and each Lender hereby agree that (i) no Lender shall have any right individually to realize upon any of the Collateral under any Loan Document or to enforce any Guaranty, it being understood and agreed that all powers, rights and remedies under the Loan Documents may be exercised solely by the Collateral Agent for the benefit of the Lenders in accordance with the terms thereof, (ii) in the event of a foreclosure by the Collateral Agent on any of the Collateral pursuant to a public or private sale, the Administrative Agent, the Collateral Agent or any Lender may be the purchaser holder of any ~~or all~~ Permitted Lien on such property if such Permitted Lien secures Permitted Indebtedness consisting of such Collateral at any such sale and (iii) the Collateral Agent, as agent for and representative of the Agents and the Lenders (but not any other Agent or any Lender or Lenders in its or their respective individual capacities unless the Required Lenders shall otherwise agree in writing) shall be entitled (either directly or through one or more acquisition vehicles) for the purpose of bidding and making settlement or payment of the purchase price for all or any portion of the Collateral to be sold (A) at any public or private sale, (B) at any sale conducted by the Collateral Agent under the provisions of the Uniform Commercial Code (including pursuant to Sections 9-610 or 9-620 of the Uniform Commercial Code), (C) at any sale or foreclosure conducted by the Collateral Agent (whether by judicial action or otherwise) in accordance with applicable law or (D) any sale conducted pursuant to the provisions of any Debtor Relief Law (including Section 363 of the Bankruptcy Code), to use and apply all or any of the Obligations as a credit on account of the purchase price for any Collateral payable by the Collateral Agent at such salemoney Indebtedness. (e) ~~The Collateral~~ Agent shall have no obligation whatsoever to any ~~Lender~~ of the Lenders (or the Bank Product Providers) to assure that the Collateral exists or is owned by ~~the Loan Parties~~ any Borrower or its Subsidiaries or any Guarantor or is cared for, ~~protected~~ protected, or insured or has been ~~encumbered~~ encumbered, or that ~~the~~ Agent’s Lien ~~granted to the Collateral Agent pursuant to this Agreement or any other Loan Document~~ has been properly or sufficiently or lawfully created, perfected, ~~protected~~ protected, or enforced or is are entitled to any particular priority, or that any particular items of Collateral meet the eligibility criteria applicable in respect thereof or whether to impose, maintain, reduce, or eliminate any particular reserve hereunder or whether the amount of any such reserve is appropriate or not, 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 Agent pursuant to this Agreement or any of the ~~Collateral Agent in this Section 10.08 or in any~~ other ~~Loan Document~~Financing Agreements, it being understood and agreed that in respect of the Collateral, or any act, ~~omission~~ omission, or event related thereto, subject to the ~~Collateral~~ terms and conditions contained herein, Agent may act in any manner it may deem appropriate, in its ~~sole discretion,~~ discretion given ~~the Collateral~~ Agent’s own interest in the Collateral in its capacity as one of the Lenders and that ~~the Collateral~~ Agent shall have no other duty or liability whatsoever to any ~~other Lender~~Lender (or Issuing Bank or Bank Product Provider) as to any of the foregoing, except as otherwise provided ~~herein and in the Agreement Among Lenders~~herein.

Appears in 1 contract

Sources: Loan and Security Agreement (Delta Apparel, Inc)

Collateral Matters. (a) ~~Each~~ Agent ~~may~~ may, at its option, from time to time, at any time on or after an Event of Default and for so long as the same is continuing or upon any other failure of a condition precedent to the making of Loans and issuance of Letters of Credit hereunder, make such disbursements and advances (“"Special Agent Advances”") which ~~such~~ Agent, in its sole discretion, deems necessary or desirable either (i) to ~~preserve, protect, prepare for sale~~ preserve or ~~lease or dispose of~~ protect the Collateral or any portion ~~thereof,~~ thereof or (ii) to enhance the likelihood or maximize the amount of repayment by ~~the~~ Borrowers of the ~~Loans, Reimbursement~~ Loans and other Obligations, ~~Letter~~ provided, that, the aggregate principal amount of the Special Agent Advances pursuant to this clause (ii), plus the then outstanding principal amount of the additional Loans and Letters of Credit ~~Obligations and other Obligations~~ which Agent may make or provide as set forth in Section 12.8 hereof, shall not exceed the aggregate amount of ten (10%) percent of the Maximum Credit or (iii) to pay any other amount chargeable to ~~the~~ Borrowers pursuant to the terms of this ~~Agreement, including, without limitation,~~ Agreement or any of the other Financing Agreements consisting of costs, fees and expenses ~~as described in Section 12.04~~and payments to Issuing Bank on account of Letter of Credit Obligations. ~~The~~ Special Agent Advances shall be repayable on demand and be secured by the ~~Collateral and~~ Collateral. Special Agent Advances shall ~~bear interest~~ not constitute Loans but shall otherwise constitute Obligations hereunder. Interest on Special Advances shall be payable at ~~a rate per annum equal to~~ the ~~rate~~ Interest Rate then applicable to ~~Revolving Loans that are Reference~~ Prime Rate Loans. ~~The~~ Agent ~~making any Agent Advances~~ shall notify ~~the other Agent,~~ each Lender and ~~the Administrative Borrower~~ Borrowers in writing of each such Special Agent Advance, which notice shall include a description of the purpose of such Special Agent Advance. Without limitation to of its obligations pursuant to Section ~~10.05~~6.9, each Lender agrees that it shall make available to ~~the Agent making any Agent Advances~~Agent, upon ~~such~~ Agent’s 's demand, ~~in the currency in which the respective Agent Advance was made~~ in immediately available funds, the amount equal to such Lender’s 's Pro Rata Share of each such Special Agent ~~Advance subject to the terms of, the Agreement Among Lenders, provided that any such amount advanced by a Lender shall be deemed a Loan hereunder~~Advance. If such funds are not made available to ~~such~~ Agent by such Lender, ~~such~~ Agent shall be entitled to recover such ~~funds~~ funds, on demand from such ~~Lender,~~ Lender together with interest thereon for each day from the date such payment was due until the date such amount is paid to ~~such Agent,~~ Agent at the Federal Funds ~~Effective~~ Rate for each day during such period (as published by the Federal Reserve Bank of Atlanta or at Agent's option based on the arithmetic mean determined by Agent of the rates for the last transaction in overnight Federal funds arranged prior to 9:00 a.m. (Atlanta, Georgia time) on that day by each of the three ~~Business Days~~ leading brokers of Federal funds transactions in New York City selected by Agent) and ~~thereafter~~ if such amounts are not paid within three (3) days of Agent's demand, at the ~~Reference Rate~~highest Interest Rate provided for in Section 3.1 hereof applicable to Prime Rate Loans. (b) ~~The~~ Lenders hereby irrevocably authorize ~~the Collateral~~ Agent, at its option and in its ~~discretion,~~ discretion to release any ~~Lien granted to~~ security interest in, mortgage or ~~held by~~ lien upon, any of the Collateral ~~Agent upon any Collateral~~ (i) upon termination of the ~~Total Commitment~~ Commitments and ~~Payment in Full~~ payment and satisfaction of all of the ~~Obligations;~~ Obligations and delivery of cash collateral to the extent required under Section 13.1 below, or (ii) constituting property being sold or disposed of in if Administrative Borrower or any Borrower certifies to Agent that the ~~ordinary course of any Loan Party’s business~~ sale or ~~otherwise~~ disposition is made in compliance with ~~the terms of this Agreement~~ Section 9.7 hereof (and ~~the other Loan Documents;~~ Agent may rely conclusively on any such certificate, without further inquiry), or (iii) constituting property in which ~~the Loan Parties owned no~~ any Borrower or Obligor did not own an interest at the time the ~~Lien~~ security interest, mortgage or lien was granted or at any time thereafter; , or (iv) having a value in the aggregate in any fiscal quarter period of less than $500,000, and to the extent Agent may release its security interest in and lien upon any such Collateral pursuant to the sale or other disposition thereof, such sale or other disposition shall be deemed consented to by Lenders, or (v) if required or permitted under the terms of any of the other Financing Agreements, including any intercreditor agreement, or (vi) approved, authorized or ratified in writing by all of Lenders. Except as provided above, Agent will not release any security interest in, mortgage or lien upon, any of the ~~applicable Lenders required pursuant to Section 12.02~~Collateral without the prior written authorization of all of Lenders. Upon request by ~~the Collateral~~ Agent at any time, ~~the~~ Lenders will promptly confirm in writing ~~the Collateral~~ Agent’s 's authority to release particular types or items of Collateral pursuant to this ~~Section 10.08(b)~~Section. (c) Without in any manner limiting ~~the Collateral~~ Agent’s 's authority to act without any specific or further authorization or consent by the ~~Lenders (as set forth in Section 10.08(b))~~Required Lenders, each Lender agrees to confirm in writing, upon request by ~~the Collateral~~ Agent, the authority to release Collateral conferred upon ~~the Collateral~~ Agent under ~~Section 10.08(b)~~this Section. ~~Upon the prior written request by any Loan Party, the Collateral~~ Agent shall (and is hereby irrevocably authorized by ~~the~~ Lenders to) execute such documents as may be necessary ~~or reasonably requested by any Loan Party~~ to evidence the release of the ~~Liens~~ security interest, mortgage or liens granted to Agent upon any Collateral to the ~~Collateral Agent for the benefit of the Agents and the Lenders upon such Collateral~~extent set forth above; provided, ~~however~~that, ~~that~~ (i) ~~the Collateral~~ Agent shall -103- not be required to execute any such document on terms which, in ~~the Collateral~~ Agent’s 's opinion, would expose ~~the Collateral~~ Agent to liability or create any obligations or entail any consequence other than the release of such ~~Liens~~ security interest, mortgage or liens without recourse or ~~warranty,~~ warranty and (ii) such release shall not in any manner discharge, affect or impair the Obligations or any ~~Lien~~ security interest, mortgage or lien upon (or obligations of any ~~Loan Party~~ Borrower or any Obligor in respect of) ~~all interests in~~ the Collateral retained by any ~~Loan Party~~Borrower or any Obligor. (d) Anything contained in any of the Loan Documents to the contrary notwithstanding but subject to the Agreement Among Lenders, the Loan Parties, each Agent and each Lender hereby agree that (i) no Lender shall have any right individually to realize upon any of the Collateral under any Loan Document or to enforce any Guaranty, it being understood and agreed that all powers, rights and remedies under the Loan Documents may be exercised solely by the Collateral Agent for the benefit of the Lenders in accordance with the terms thereof, (ii) in the event of a foreclosure by the Collateral Agent on any of the Collateral pursuant to a public or private sale, the Administrative Agent, the Collateral Agent or any Lender may be the purchaser of any or all of such Collateral at any such sale and (iii) the Collateral Agent, as agent for and representative of the Agents and the Lenders (but not any other Agent or any Lender or Lenders in its or their respective individual capacities unless the Required Lenders shall otherwise agree in writing) shall be entitled (either directly or through one or more acquisition vehicles) for the purpose of bidding and making settlement or payment of the purchase price for all or any portion of the Collateral to be sold (A) at any public or private sale, (B) at any sale conducted by the Collateral Agent under the provisions of the Uniform Commercial Code (including pursuant to Sections 9-610 or 9-620 of the Uniform Commercial Code), (C) at any sale or foreclosure conducted by the Collateral Agent (whether by judicial action or otherwise) in accordance with applicable law or (D) any sale conducted pursuant to the provisions of any Debtor Relief Law (including Section 363 of the Bankruptcy Code), to use and apply all or any of the Obligations as a credit on account of the purchase price for any Collateral payable by the Collateral Agent at such sale. (e) The Collateral Agent shall have no obligation whatsoever to any ~~Lender~~ Lender, Issuing Bank or any other Person to investigate, confirm or assure that the Collateral exists or is owned by ~~the Loan Parties~~ any Borrower or Obligor or is cared for, protected or insured or has been ~~encumbered~~ encumbered, or that any particular items of Collateral meet the eligibility criteria applicable in respect of the Loans or Letters of Credit hereunder, or whether any particular reserves are appropriate, or that the ~~Lien~~ liens and security interests granted to ~~the Collateral~~ Agent pursuant ~~to this Agreement~~ hereto or any ~~other Loan Document has~~ of the Financing Agreements or otherwise have been properly or sufficiently or lawfully created, perfected, protected or enforced or is are entitled to any particular priority, or to exercise at all or in any particular manner or under any duty of care, disclosure or fidelity, or to continue exercising, any of the rights, authorities and powers granted or available to ~~the Collateral~~ Agent in this ~~Section 10.08~~ Agreement or in any of the other ~~Loan Document~~Financing Agreements, it being understood and agreed that in respect of the Collateral, or any act, omission or event related thereto, ~~the Collateral~~ Agent may act in any manner it may deem appropriate, in its ~~sole~~ discretion, given ~~the Collateral~~ Agent’s 's own interest in the Collateral as ~~one of the Lenders~~ a Lender and that ~~the Collateral~~ Agent shall have no duty or liability whatsoever to any other ~~Lender, except as otherwise provided herein and in the Agreement Among Lenders~~Lender or Issuing Bank.

Appears in 1 contract

Sources: Loan and Security Agreement (Delta Apparel Inc)

Appears in 1 contract

Sources: Credit Agreement (Bally Total Fitness Holding Corp)

Collateral Matters. ~~(a) Each~~ The Administrative Agent may from time to time make such disbursements and advances (“"Administrative Agent Advances”") which ~~such~~ the Administrative Agent, in its sole discretion, deems necessary or desirable to preserve, protect, prepare for sale or lease or dispose of the Collateral or any portion thereof, to enhance the likelihood or maximize the amount of repayment by the Borrowers of the ~~Loans, Reimbursement Obligations, Letter of Credit Obligations~~ Loans and other Obligations or to pay any other amount chargeable to the Borrowers pursuant to the terms of this Agreement, including, without limitation, costs, fees and expenses as described in Section ~~12.04~~13.03. The Administrative Agent Advances shall be repayable on demand and be secured by the ~~Collateral and shall bear interest at a rate per annum equal to the rate then applicable to Revolving Loans that are Reference Rate Loans~~Collateral. The ~~Agent making any~~ Administrative Agent Advances shall constitute Obligations hereunder which may be charged to the Loan as provided in this Agreement. The Administrative Agent shall notify the ~~other Agent, each~~ Lender and the Administrative Borrower in writing of each such Administrative Agent Advance, which notice shall include a description of the purpose of such Administrative Agent Advance. Without limitation to its obligations pursuant to Section ~~10.05~~10.07, ~~each~~ the Lender agrees that it shall make available to the ~~Agent making any Agent Advances~~Administrative Agent, upon ~~such~~ the Administrative Agent’s 's demand, in ~~the currency in which the respective Agent Advance was made~~ Dollars in immediately available funds, the amount equal to such ~~Lender’s Pro Rata Share of each such~~ Administrative Agent ~~Advance subject to the terms of, the Agreement Among Lenders, provided that any such amount advanced by a Lender shall be deemed a Loan hereunder~~Advance. If such funds are not made available to ~~such~~ the Administrative Agent by ~~such~~ the Lender, ~~such~~ the Administrative Agent shall be entitled to recover such funds on demand from ~~such~~ the Lender, together with interest thereon for each day from the date such payment was due until the date such amount is paid to ~~such~~ the Administrative Agent, at the Federal Funds ~~Effective~~ Rate for three Business Days and thereafter at the Reference Rate. (ba) The ~~Lenders~~ Lender hereby irrevocably ~~authorize~~ authorizes the ~~Collateral~~ Administrative Agent, at its option and in its discretion, to release any Lien granted to or held by the ~~Collateral~~ Administrative Agent upon any Collateral upon termination of the Total Commitment and ~~Payment~~ payment and satisfaction of all Loans and all other Obligations in ~~Full of~~ accordance with the ~~Obligations~~terms hereof; or constituting property being sold or disposed of ~~in the ordinary course of any Loan Party’s business or otherwise~~ in compliance with the terms of this Agreement and the other Loan Documents; or constituting property in which the Loan Parties owned no interest at the time the Lien was granted or at any time thereafter; or if approved, authorized or ratified in writing by the ~~applicable Lenders required pursuant to Section 12.02~~Lender. Upon request by the ~~Collateral~~ Administrative Agent at any time, the ~~Lenders~~ Lender will confirm in writing the ~~Collateral~~ Administrative Agent’s 's authority to release particular types or items of Collateral pursuant to this Section ~~10.08(b~~10.09(a). (cb) Without in any manner limiting the ~~Collateral~~ Administrative Agent’s 's authority to act without any specific or further authorization or consent by the ~~Lenders~~ Lender (as set forth in Section ~~10.08(b~~10.09(a)), ~~each~~ the Lender agrees to confirm in writing, upon request by the ~~Collateral~~ Administrative Agent, the authority to release Collateral conferred upon the ~~Collateral~~ Administrative Agent under Section ~~10.08(b~~10.09(a). Upon receipt by the Administrative Agent of confirmation from the Lender of its authority to release any particular item or types of Collateral, and upon prior written request by any Loan Party, the ~~Collateral~~ Administrative Agent shall (and is hereby irrevocably authorized by the Lenders to) execute such documents as may be necessary ~~or reasonably requested by any Loan Party~~ to evidence the release of the Liens granted to the ~~Collateral~~ Administrative Agent for the benefit of the ~~Agents and the Lenders~~ Lender upon such Collateral; provided, however, that (i) the ~~Collateral~~ Administrative Agent shall not be required to execute any such document on terms which, in the ~~Collateral~~ Administrative Agent’s 's opinion, would expose the ~~Collateral~~ Administrative Agent to liability or create any obligations or entail any consequence other than the release of such Liens without recourse or warranty, and (ii) such release shall not in any manner discharge, affect or impair the Obligations or any Lien upon (or obligations of any Loan Party in respect of) all interests in the Collateral retained by any Loan Party. (d) Anything contained in any of the Loan Documents to the contrary notwithstanding but subject to the Agreement Among Lenders, the Loan Parties, each Agent and each Lender hereby agree that (i) no Lender shall have any right individually to realize upon any of the Collateral under any Loan Document or to enforce any Guaranty, it being understood and agreed that all powers, rights and remedies under the Loan Documents may be exercised solely by the Collateral Agent for the benefit of the Lenders in accordance with the terms thereof, (ii) in the event of a foreclosure by the Collateral Agent on any of the Collateral pursuant to a public or private sale, the Administrative Agent, the Collateral Agent or any Lender may be the purchaser of any or all of such Collateral at any such sale and (iii) the Collateral Agent, as agent for and representative of the Agents and the Lenders (but not any other Agent or any Lender or Lenders in its or their respective individual capacities unless the Required Lenders shall otherwise agree in writing) shall be entitled (either directly or through one or more acquisition vehicles) for the purpose of bidding and making settlement or payment of the purchase price for all or any portion of the Collateral to be sold (A) at any public or private sale, (B) at any sale conducted by the Collateral Agent under the provisions of the Uniform Commercial Code (including pursuant to Sections 9-610 or 9-620 of the Uniform Commercial Code), (C) at any sale or foreclosure conducted by the Collateral Agent (whether by judicial action or otherwise) in accordance with applicable law or (D) any sale conducted pursuant to the provisions of any Debtor Relief Law (including Section 363 of the Bankruptcy Code), to use and apply all or any of the Obligations as a credit on account of the purchase price for any Collateral payable by the Collateral Agent at such sale. (ec) The ~~Collateral~~ Administrative Agent shall have no obligation whatsoever to ~~any~~ the Lender to assure that the Collateral exists or is owned by the Loan Parties or is cared for, protected or insured or has been encumbered or that the Lien granted to the ~~Collateral~~ Administrative Agent pursuant to this Agreement or any other Loan Document has been properly or sufficiently or lawfully created, perfected, protected or enforced or is entitled to any particular priority, or to exercise at all or in any particular manner or under any duty of care, disclosure or fidelity, or to continue exercising, any of the rights, authorities and powers granted or available to the ~~Collateral~~ Administrative Agent in this Section ~~10.08~~ 10.09 or in any other Loan Document, it being understood and agreed that in respect of the Collateral, or any act, omission or event related thereto, the ~~Collateral~~ Administrative Agent may act in any manner it may deem appropriate, in its sole discretion, given the ~~Collateral~~ Administrative Agent’s 's own interest in the Collateral as ~~one of~~ the ~~Lenders~~ Lender and that the ~~Collateral~~ Administrative Agent shall have no duty or liability whatsoever to any other Lender, except as otherwise provided ~~herein and in the Agreement Among Lenders~~herein.

Appears in 1 contract

Sources: Debtor in Possession Credit Agreement (Cygnus Oil & Gas Corp)

Collateral Matters. (a) ~~Each~~ Agent ~~may~~ may, at its option, from time to time, at any time on or after an Event of Default and for so long as the same is continuing or upon any other failure of a condition precedent to the Loans and Letter of Credit Accommodations hereunder, make such disbursements and advances (“"Special Agent Advances”") which ~~such~~ Agent, in its sole discretion, deems necessary or desirable either (i) to ~~preserve, protect, prepare for sale~~ preserve or ~~lease or dispose of~~ protect the Collateral or any portion ~~thereof, to enhance~~ thereof (provided that in no event shall Special Agent Advances for such purpose exceed Four Million Five Hundred Thousand Dollars ($4,500,000) in the ~~likelihood~~ aggregate outstanding at any time) or ~~maximize the amount of repayment by the Borrowers of the Loans, Reimbursement Obligations, Letter of Credit Obligations and other Obligations or~~ (ii) to pay any other amount chargeable to ~~the Borrowers~~ any Borrower pursuant to the terms of this ~~Agreement, including, without limitation,~~ Agreement consisting of costs, fees and expenses ~~as described in Section 12.04~~and payments to any issuer of Letter of Credit Accommodations. ~~The~~ Special Agent Advances shall be repayable on demand and be secured by the ~~Collateral and shall bear interest at a rate per annum equal to the rate then applicable to Revolving Loans that are Reference Rate Loans~~Collateral. ~~The Agent making any~~ Special Agent Advances shall not constitute Loans but shall otherwise constitute Obligations hereunder. Agent shall notify ~~the other Agent,~~ each Lender and ~~the Administrative Borrower~~ Borrowers in writing of each such Special Agent Advance, which notice shall include a description of the purpose of such Special Agent Advance. Without limitation to of its obligations pursuant to Section ~~10.05~~6.10, each Lender agrees that it shall make available to ~~the Agent making any Agent Advances~~Agent, upon ~~such~~ Agent’s 's demand, ~~in the currency in which the respective Agent Advance was made~~ in immediately available funds, the amount equal to such Lender’s 's Pro Rata Share of each such Special Agent ~~Advance subject to the terms of, the Agreement Among Lenders, provided that any such amount advanced by a Lender shall be deemed a Loan hereunder~~Advance. If such funds are not made available to ~~such~~ Agent by such Lender, ~~such~~ Agent shall be entitled to recover such ~~funds~~ funds, on demand from such ~~Lender,~~ Lender together with interest ~~thereon~~ thereon, for each day from the date such payment was due until the date such amount is paid to ~~such Agent,~~ Agent at the ~~Federal Funds Effective Rate for three Business Days and thereafter at~~ interest rate then payable by Borrowers in respect of the ~~Reference Rate~~Revolving Loans as set forth in Section 3.1 hereof. (b) ~~The~~ Lenders hereby irrevocably authorize ~~the Collateral~~ Agent, at its option and in its ~~discretion,~~ discretion to release any ~~Lien granted to~~ security interest in, mortgage or ~~held by~~ lien upon, any of the Collateral ~~Agent upon any Collateral~~ (i) upon termination of the ~~Total Commitment~~ Commitments and ~~Payment in Full~~ payment and satisfaction of all of the ~~Obligations;~~ Obligations and delivery of cash collateral to the extent required under Section 14.1 hereof, or (ii) constituting property being sold or disposed of in if Borrowers certify to Agent that the ~~ordinary course of any Loan Party’s business~~ sale or ~~otherwise~~ disposition is made in compliance with ~~the terms of this Agreement~~ Section 9.7 hereof (and ~~the other Loan Documents;~~ Agent may rely conclusively on any such certificate, without further inquiry), or (iii) constituting property in which ~~the Loan Parties~~ no Borrower or Obligor owned no an interest at the time the ~~Lien~~ security interest, mortgage or lien was granted or at any time thereafter; , or (iv) having a value of less than Four Million Five Hundred Thousand Dollars ($4,500,000), or (v) if approved, authorized or ratified in writing by all of Lenders. Except as provided above, Agent will not release any security interest in, mortgage or lien upon, any of the ~~applicable~~ Collateral without the prior written authorization of all of Lenders ~~required pursuant~~ (and any Lender may require that the proceeds from any sale or other disposition of the Collateral to ~~Section 12.02~~be so released be applied to the Obligations in a manner satisfactory to such Lender). Upon request by ~~the Collateral~~ Agent at any time, ~~the~~ Lenders will promptly confirm in writing ~~the Collateral~~ Agent’s 's authority to release particular types or items of Collateral pursuant to this ~~Section 10.08(b)~~Section. (c) Without in any manner limiting ~~the Collateral~~ Agent’s 's authority to act without any specific or further authorization or consent by the ~~Lenders (as set forth in Section 10.08(b))~~Required Lenders, each Lender agrees to confirm in writing, upon request by ~~the Collateral~~ Agent, the authority to release Collateral conferred upon ~~the Collateral~~ Agent under ~~Section 10.08(b)~~this Section. ~~Upon the prior written request by any Loan Party, the Collateral~~ Agent shall (and is hereby irrevocably authorized by ~~the~~ Lenders to) execute such documents as may be necessary ~~or reasonably requested by any Loan Party~~ to evidence the release of the ~~Liens~~ security interest, mortgage or liens granted to ~~the Collateral~~ Agent for itself and the benefit of the ~~Agents and the~~ Lenders upon ~~such Collateral~~any Collateral to the extent set forth above; provided, ~~however~~that, ~~that~~ (i) ~~the Collateral~~ Agent shall not be required to execute any such document on terms which, in ~~the Collateral~~ Agent’s 's opinion, would expose ~~the Collateral~~ Agent to liability or create any obligations or entail any consequence other than the release of such ~~Liens~~ security interest, mortgage or liens without recourse or ~~warranty,~~ warranty and (ii) such release shall not in any manner discharge, affect or impair the Obligations or any ~~Lien~~ security interest, mortgage or lien upon (or obligations of any ~~Loan Party~~ Borrower in respect of) ~~all interests in~~ the Collateral retained by any ~~Loan Party~~Borrower. (d) Anything contained in any of the Loan Documents to the contrary notwithstanding but subject to the Agreement Among Lenders, the Loan Parties, each Agent and each Lender hereby agree that (i) no Lender shall have any right individually to realize upon any of the Collateral under any Loan Document or to enforce any Guaranty, it being understood and agreed that all powers, rights and remedies under the Loan Documents may be exercised solely by the Collateral Agent for the benefit of the Lenders in accordance with the terms thereof, (ii) in the event of a foreclosure by the Collateral Agent on any of the Collateral pursuant to a public or private sale, the Administrative Agent, the Collateral Agent or any Lender may be the purchaser of any or all of such Collateral at any such sale and (iii) the Collateral Agent, as agent for and representative of the Agents and the Lenders (but not any other Agent or any Lender or Lenders in its or their respective individual capacities unless the Required Lenders shall otherwise agree in writing) shall be entitled (either directly or through one or more acquisition vehicles) for the purpose of bidding and making settlement or payment of the purchase price for all or any portion of the Collateral to be sold (A) at any public or private sale, (B) at any sale conducted by the Collateral Agent under the provisions of the Uniform Commercial Code (including pursuant to Sections 9-610 or 9-620 of the Uniform Commercial Code), (C) at any sale or foreclosure conducted by the Collateral Agent (whether by judicial action or otherwise) in accordance with applicable law or (D) any sale conducted pursuant to the provisions of any Debtor Relief Law (including Section 363 of the Bankruptcy Code), to use and apply all or any of the Obligations as a credit on account of the purchase price for any Collateral payable by the Collateral Agent at such sale. (e) The Collateral Agent shall have no obligation whatsoever to any Lender or any other Person to investigate, confirm or assure that the Collateral exists or is owned by ~~the Loan Parties~~ any Borrower or any Obligor or is cared for, protected or insured or has been ~~encumbered~~ encumbered, or that any particular items of Collateral meet the eligibility criteria applicable in respect of the Loans or Letter of Credit Accommodations hereunder, or whether any particular reserves are appropriate, or that the ~~Lien~~ liens and security interests granted to ~~the Collateral~~ Agent herein or pursuant ~~to this Agreement~~ hereto or ~~any other Loan Document has~~ otherwise have been properly or sufficiently or lawfully created, perfected, protected or enforced or is are entitled to any particular priority, or to exercise at all or in any particular manner or under any duty of care, disclosure or fidelity, or to continue exercising, any of the rights, authorities and powers granted or available to ~~the Collateral~~ Agent in this ~~Section 10.08~~ Agreement or in any of the other ~~Loan Document~~Financing Agreements, it being understood and agreed that in respect of the Collateral, or any act, omission or event related thereto, ~~the Collateral~~ Agent may act in any manner it may deem appropriate, in its ~~sole~~ discretion, given ~~the Collateral~~ Agent’s 's own interest in the Collateral as ~~one of the Lenders~~ a Lender and that ~~the Collateral~~ Agent shall have no duty or liability whatsoever to any other Lender~~, except as otherwise provided herein and in the Agreement Among Lenders~~.

Appears in 1 contract

Sources: Loan and Security Agreement (Rockford Corp)

Collateral Matters. (a) ~~Each~~ Administrative Agent ~~may~~ may, at its option, from time to time, at any time on or after an Event of Default and for so long as the same is continuing or upon any other failure of a condition precedent to the Loans and Letter of Credit Accommodations hereunder, make such disbursements and advances (“Special Administrative Agent Advances”) which ~~such~~ Administrative Agent, in its sole discretion, (i) deems necessary or desirable either to ~~preserve, protect, prepare for sale~~ preserve or ~~lease or dispose of~~ protect the Collateral or any portion ~~thereof,~~ thereof or (ii) to enhance the likelihood or maximize the amount of repayment by ~~the~~ Borrowers and Guarantors of the ~~Loans, Reimbursement~~ Loans and other Obligations, provided, that, the aggregate principal amount of the Special Administrative Agent Advances pursuant to this clause (ii), plus the then outstanding principal amount of the additional Loans and Letter of Credit ~~Obligations and other Obligations~~ Accommodations which Administrative Agent may make or provide as set forth in Section 12.8 hereof, shall not exceed the aggregate amount of $5,000,000 or (iii) to pay any other amount chargeable to ~~the Borrowers~~ any Borrower or Guarantor pursuant to the terms of this ~~Agreement, including, without limitation,~~ Agreement or any of the other Financing Agreements consisting of (A) costs, fees and expenses ~~as described in Section 12.04~~and (B) payments to any issuer of Letter of Credit Accommodations. ~~The~~ Special Administrative Agent Advances shall be repayable on demand and be together with all interest thereon shall constitute Obligations secured by the ~~Collateral and~~ Collateral. Special Administrative Agent Advances shall ~~bear interest~~ not constitute Loans but shall otherwise constitute Obligations hereunder. Interest on Special Administrative Agent Advances shall be payable at ~~a rate per annum equal to~~ the ~~rate~~ Interest Rate then applicable to ~~Revolving~~ Prime Rate Loans ~~that are Reference Rate Loans. The Agent making any Agent Advances~~ and shall ~~notify the other Agent, each Lender and the Administrative Borrower in writing of each such Agent Advance, which notice shall include a description of the purpose of such Agent Advance~~be payable on demand. Without limitation to of its obligations pursuant to Section ~~10.05~~6.10, each Lender agrees that it shall make available to ~~the Agent making any Agent Advances~~Administrative Agent, upon ~~such~~ Administrative Agent’s demand, ~~in the currency in which the respective Agent Advance was made~~ in immediately available funds, the amount equal to such Lender’s Pro Rata Share of each such Special Administrative Agent ~~Advance subject to the terms of, the Agreement Among Lenders, provided that any such amount advanced by a Lender shall be deemed a Loan hereunder~~Advance. If such funds are not made available to ~~such~~ Administrative Agent by such Lender, such Lender shall be deemed a Defaulting Lender and Administrative Agent shall be entitled to recover such ~~funds~~ funds, on demand from such ~~Lender,~~ Lender together with interest thereon for each day from the date such payment was due until the date such amount is paid to ~~such Agent,~~ Administrative Agent at the Federal Funds ~~Effective~~ Rate for each day during such period (as published by the Federal Reserve Bank of New York or at Administrative Agent’s option based on the arithmetic mean determined by Administrative Agent of the rates for the last transaction in overnight Federal funds arranged prior to 9:00 a.m. (New York City time) on that day by each of the three ~~Business Days~~ leading brokers of Federal funds transactions in New York City selected by Administrative Agent) and ~~thereafter~~ if such amounts are not paid within three (3) days of Administrative Agent’s demand, at the ~~Reference Rate~~highest Interest Rate provided for in Section 3.1 hereof applicable to Prime Rate Loans. (b) ~~The~~ Lenders hereby irrevocably authorize ~~the Collateral~~ Administrative Agent, at its option and in its ~~discretion,~~ discretion to release any ~~Lien granted to~~ security interest in, mortgage or ~~held by~~ lien upon, any of the Collateral ~~Agent upon any Collateral~~ (i) upon termination of the ~~Total Commitment~~ Commitments and ~~Payment in Full~~ payment and satisfaction of all of the ~~Obligations;~~ Obligations and delivery of cash collateral to the extent required under Section 13.1 below, or (ii) constituting property being sold or disposed of in if Lead Borrower or any Borrower or Guarantor certifies to Administrative Agent that the ~~ordinary course of any Loan Party’s business~~ sale or ~~otherwise~~ disposition is made in compliance with ~~the terms of this Agreement~~ Section 9.7 hereof (and ~~the other Loan Documents;~~ Administrative Agent may rely conclusively on any such certificate, without further inquiry), or (iii) constituting property in which ~~the Loan Parties owned no~~ any Borrower or Guarantor did not own an interest at the time the ~~Lien~~ security interest, mortgage or lien was granted or at any time thereafter; , or (iv) having a value in the aggregate in any twelve (12) month period of less than $5,000,000, and to the extent Administrative Agent may release its security interest in and lien upon any such Collateral pursuant to the sale or other disposition thereof, such sale or other disposition shall be deemed consented to by Lenders, or (v) if required or permitted under any other terms hereof or of any of the other Financing Agreements, including any intercreditor agreement, or (vi) approved, authorized or ratified in writing by all of Lenders. Except as provided above, Administrative Agent will not release any security interest in, mortgage or lien upon, any of the ~~applicable Lenders required pursuant to Section 12.02~~Collateral without the prior written authorization of all of Lenders. Upon request by ~~the Collateral~~ Administrative Agent at any time, ~~the~~ Lenders will promptly confirm in writing ~~the Collateral~~ Administrative Agent’s authority to release particular types or items of Collateral pursuant to this ~~Section 10.08(b)~~Section. (c) Without in any manner limiting ~~the Collateral~~ Administrative Agent’s authority to act without any specific or further authorization or consent by the ~~Lenders (as set forth in Section 10.08(b))~~Required Lenders, each Lender agrees to confirm in writing, upon request by ~~the Collateral~~ Administrative Agent, the authority to release Collateral conferred upon ~~the Collateral~~ Administrative Agent under ~~Section 10.08(b)~~this Section. ~~Upon the prior written request by any Loan Party, the Collateral~~ Administrative Agent shall (and is hereby irrevocably authorized by ~~the~~ Lenders to) execute such documents as may be necessary ~~or reasonably requested by any Loan Party~~ to evidence the release of the ~~Liens~~ security interest, mortgage or liens granted to Administrative Agent upon any Collateral to the ~~Collateral Agent for the benefit of the Agents and the Lenders upon such Collateral~~extent set forth above; provided, ~~however~~that, ~~that~~ (i) ~~the Collateral~~ Administrative Agent shall not be required to execute any such document on terms which, in ~~the Collateral~~ Administrative Agent’s opinion, would expose ~~the Collateral~~ Administrative Agent to liability or create any obligations or entail any consequence other than the release of such ~~Liens~~ security interest, mortgage or liens without recourse or ~~warranty,~~ warranty and (ii) such release shall not in any manner discharge, affect or impair the Obligations or any ~~Lien~~ security interest, mortgage or lien upon (or obligations of any ~~Loan Party~~ Borrower or Guarantor in respect of) ~~all interests in~~ the Collateral retained by ~~any Loan Party~~such Borrower or Guarantor. (d) Anything contained in any of the Loan Documents to the contrary notwithstanding but subject to the Agreement Among Lenders, the Loan Parties, each Agent and each Lender hereby agree that (i) no Lender shall have any right individually to realize upon any of the Collateral under any Loan Document or to enforce any Guaranty, it being understood and agreed that all powers, rights and remedies under the Loan Documents may be exercised solely by the Collateral Agent for the benefit of the Lenders in accordance with the terms thereof, (ii) in the event of a foreclosure by the Collateral Agent on any of the Collateral pursuant to a public or private sale, the Administrative Agent, the Collateral Agent or any Lender may be the purchaser of any or all of such Collateral at any such sale and (iii) the Collateral Agent, as agent for and representative of the Agents and the Lenders (but not any other Agent or any Lender or Lenders in its or their respective individual capacities unless the Required Lenders shall otherwise agree in writing) shall be entitled (either directly or through one or more acquisition vehicles) for the purpose of bidding and making settlement or payment of the purchase price for all or any portion of the Collateral to be sold (A) at any public or private sale, (B) at any sale conducted by the Collateral Agent under the provisions of the Uniform Commercial Code (including pursuant to Sections 9-610 or 9-620 of the Uniform Commercial Code), (C) at any sale or foreclosure conducted by the Collateral Agent (whether by judicial action or otherwise) in accordance with applicable law or (D) any sale conducted pursuant to the provisions of any Debtor Relief Law (including Section 363 of the Bankruptcy Code), to use and apply all or any of the Obligations as a credit on account of the purchase price for any Collateral payable by the Collateral Agent at such sale. (e) The Collateral Agent shall have no obligation whatsoever to any Lender or any other Person to investigate, confirm or assure that the Collateral exists or is owned by ~~the Loan Parties~~ any Borrower or Guarantor or is cared for, protected or insured or has been ~~encumbered~~ encumbered, or that any particular items of Collateral meet the eligibility criteria applicable in respect of the Loans or Letter of Credit Accommodations hereunder, or whether any particular reserves are appropriate, or that the ~~Lien~~ liens and security interests granted to ~~the Collateral~~ Administrative Agent pursuant ~~to this Agreement~~ hereto or any ~~other Loan Document has~~ of the Financing Agreements or otherwise have been properly or sufficiently or lawfully created, perfected, protected or enforced or is are entitled to any particular priority, or to exercise at all or in any particular manner or under any duty of care, disclosure or fidelity, or to continue exercising, any of the rights, authorities and powers granted or available to ~~the Collateral~~ Administrative Agent in this ~~Section 10.08~~ Agreement or in any of the other ~~Loan Document~~Financing Agreements, it being understood and agreed that in respect of the Collateral, or any act, omission or event related thereto, ~~the Collateral~~ Administrative Agent may act in any manner it may deem appropriate, in its ~~sole~~ discretion, given ~~the Collateral~~ Administrative Agent’s own interest in the Collateral as ~~one of the Lenders~~ a Lender and that ~~the Collateral~~ Administrative Agent shall have no duty or liability whatsoever to any other Lender~~, except as otherwise provided herein and in the Agreement Among Lenders~~.

Appears in 1 contract

Sources: Loan and Security Agreement (Spartan Stores Inc)

Collateral Matters. ~~(a) Each~~ The Administrative Agent may from time to time make such disbursements and advances (“Agent Advances”) ~~which such~~ that the Administrative Agent, in its sole ~~discretion~~discretion and with the prior notice to the Co-Administrative Agent, deems necessary or desirable to preserve, protect, prepare for sale or lease or dispose of the Collateral or any portion thereof, to enhance the likelihood or maximize the amount of repayment by the Borrowers of the Loans, ~~Reimbursement Obligations~~Letters of Credit, ~~Letter of Credit Obligations~~ and other Obligations or to pay any other amount chargeable to the Borrowers or the other Credit Parties pursuant to the terms of this Agreement, ~~including, without limitation,~~ including costs, fees and expenses as described in Section ~~12.04~~11.01; provided that the aggregate outstanding principal balance of the Agent Advances shall not exceed $1,000,000 at any one time. The Agent Advances shall constitute Obligations hereunder, shall be repayable on ~~demand and~~ demand, shall be secured by the Collateral and shall bear interest at a rate per annum equal to the rate then applicable to Revolving Loans that are ~~Reference~~ Base Rate Loans. The Administrative Agent ~~making any Agent Advances~~ shall notify the ~~other~~ Co-Administrative Agent, each Lender and the ~~Administrative Borrower~~ Borrowers in writing of each such Agent Advance, which notice shall include a description of the purpose of such Agent Advance. Without limitation to its obligations pursuant to Section ~~10.05~~9.09, each Lender agrees that it shall make available to the ~~Agent making any Agent Advances~~Administrative Agent, upon ~~such~~ the Administrative Agent’s demand, in ~~the currency in which the respective Agent Advance was made~~ Dollars in immediately available funds, the amount equal to such Lender’s Pro Rata Share of each such Agent ~~Advance subject to the terms of, the Agreement Among Lenders, provided that any such amount advanced by a Lender shall be deemed a Loan hereunder~~Advance. If such funds are not made available to ~~such~~ the Administrative Agent by such Lender, ~~such~~ the Administrative Agent shall be entitled to recover such funds on demand from such Lender, together with interest thereon for each day from the date such payment was due until the date such amount is paid to ~~such~~ the Administrative Agent, at the Federal Funds Effective Rate for three Business Days and thereafter at the ~~Reference~~ Base Rate. (b) The Lenders hereby irrevocably authorize the Collateral Agent, at its option and in its discretion, to release any Lien granted to or held by the Collateral Agent upon any Collateral upon termination of the Total Commitment and Payment in Full of the Obligations; or constituting property being sold or disposed of in the ordinary course of any Loan Party’s business or otherwise in compliance with the terms of this Agreement and the other Loan Documents; or constituting property in which the Loan Parties owned no interest at the time the Lien was granted or at any time thereafter; or if approved, authorized or ratified in writing by the applicable Lenders required pursuant to Section 12.02. Upon request by the Collateral Agent at any time, the Lenders will confirm in writing the Collateral Agent’s authority to release particular types or items of Collateral pursuant to this Section 10.08(b). (c) Without in any manner limiting the Collateral Agent’s authority to act without any specific or further authorization or consent by the Lenders (as set forth in Section 10.08(b)), each Lender agrees to confirm in writing, upon request by the Collateral Agent, the authority to release Collateral conferred upon the Collateral Agent under Section 10.08(b). Upon the prior written request by any Loan Party, the Collateral Agent shall (and is hereby irrevocably authorized by the Lenders to) execute such documents as may be necessary or reasonably requested by any Loan Party to evidence the release of the Liens granted to the Collateral Agent for the benefit of the Agents and the Lenders upon such Collateral; provided, however, that (i) the Collateral Agent shall not be required to execute any such document on terms which, in the Collateral Agent’s opinion, would expose the Collateral Agent to liability or create any obligations or entail any consequence other than the release of such Liens without recourse or warranty, and (ii) such release shall not in any manner discharge, affect or impair the Obligations or any Lien upon (or obligations of any Loan Party in respect of) all interests in the Collateral retained by any Loan Party. (d) Anything contained in any of the Loan Documents to the contrary notwithstanding but subject to the Agreement Among Lenders, the Loan Parties, each Agent and each Lender hereby agree that (i) no Lender shall have any right individually to realize upon any of the Collateral under any Loan Document or to enforce any Guaranty, it being understood and agreed that all powers, rights and remedies under the Loan Documents may be exercised solely by the Collateral Agent for the benefit of the Lenders in accordance with the terms thereof, (ii) in the event of a foreclosure by the Collateral Agent on any of the Collateral pursuant to a public or private sale, the Administrative Agent, the Collateral Agent or any Lender may be the purchaser of any or all of such Collateral at any such sale and (iii) the Collateral Agent, as agent for and representative of the Agents and the Lenders (but not any other Agent or any Lender or Lenders in its or their respective individual capacities unless the Required Lenders shall otherwise agree in writing) shall be entitled (either directly or through one or more acquisition vehicles) for the purpose of bidding and making settlement or payment of the purchase price for all or any portion of the Collateral to be sold (A) at any public or private sale, (B) at any sale conducted by the Collateral Agent under the provisions of the Uniform Commercial Code (including pursuant to Sections 9-610 or 9-620 of the Uniform Commercial Code), (C) at any sale or foreclosure conducted by the Collateral Agent (whether by judicial action or otherwise) in accordance with applicable law or (D) any sale conducted pursuant to the provisions of any Debtor Relief Law (including Section 363 of the Bankruptcy Code), to use and apply all or any of the Obligations as a credit on account of the purchase price for any Collateral payable by the Collateral Agent at such sale. (e) The Collateral Agent shall have no obligation whatsoever to any Lender to assure that the Collateral exists or is owned by the Loan Parties or is cared for, protected or insured or has been encumbered or that the Lien granted to the Collateral Agent pursuant to this Agreement or any other Loan Document has been properly or sufficiently or lawfully created, perfected, protected or enforced or is entitled to any particular priority, or to exercise at all or in any particular manner or under any duty of care, disclosure or fidelity, or to continue exercising, any of the rights, authorities and powers granted or available to the Collateral Agent in this Section 10.08 or in any other Loan Document, it being understood and agreed that in respect of the Collateral, or any act, omission or event related thereto, the Collateral Agent may act in any manner it may deem appropriate, in its sole discretion, given the Collateral Agent’s own interest in the Collateral as one of the Lenders and that the Collateral Agent shall have no duty or liability whatsoever to any other Lender, except as otherwise provided herein and in the Agreement Among Lenders.

Appears in 1 contract

Sources: Credit Agreement (Nautical Miles Inc.)

Collateral Matters. (a) ~~Each~~ Agent ~~may~~ may, at its option, from time to time, at any time on or after an Event of Default and for so long as the same is continuing or upon any other failure of a condition precedent to the Loans hereunder, make such disbursements and advances (“Special Agent Advances”) which ~~such~~ Agent, in its sole discretion, (i) deems necessary or desirable either to ~~preserve, protect, prepare for sale~~ preserve or ~~lease or dispose of~~ protect the Collateral or any portion ~~thereof,~~ thereof or (ii) to enhance the likelihood or maximize the amount of repayment by ~~the~~ Borrowers and Guarantors of the ~~Loans, Reimbursement~~ Loans and other Obligations, ~~Letter~~ provided, that, (A) the aggregate outstanding principal amount of ~~Credit Obligations~~ the Special Agent Advances pursuant to this clause (ii) shall not exceed the aggregate amount of ten (10%) percent of the Maximum Credit, and ~~other Obligations~~ (B) the aggregate outstanding principal amount of the Special Agent Advances pursuant to this clause (ii) plus the aggregate outstanding principal amount of Loans shall not exceed the Maximum Credit, or (iii) to pay any other amount chargeable to ~~the Borrowers~~ any Borrower or Guarantor pursuant to the terms of this ~~Agreement, including, without limitation,~~ Agreement or any of the other Financing Agreements consisting of costs, fees and ~~expenses as described in Section 12.04~~expenses. ~~The~~ Special Agent Advances shall be repayable on demand and be together with all interest thereon shall constitute Obligations secured by the ~~Collateral and~~ Collateral. Special Agent Advances shall ~~bear interest~~ not constitute Loans but shall otherwise constitute Obligations hereunder. Interest on Special Agent Advances shall be payable at ~~a rate per annum equal to~~ the ~~rate~~ Interest Rate then applicable to ~~Revolving~~ Prime Rate Loans ~~that are Reference Rate Loans. The Agent making any Agent Advances~~ and shall ~~notify the other Agent, each Lender and the Administrative Borrower in writing of each such Agent Advance, which notice shall include a description of the purpose of such Agent Advance~~be payable on demand. Without limitation to of its obligations pursuant to Section ~~10.05~~6.10 hereof, each Lender agrees that it shall make available to ~~the Agent making any Agent Advances~~Agent, upon ~~such~~ Agent’s demand, ~~in the currency in which the respective Agent Advance was made~~ in immediately available funds, the amount equal to such Lender’s Pro Rata Share of each such Special Agent ~~Advance subject to the terms of, the Agreement Among Lenders, provided that any such amount advanced by a Lender shall be deemed a Loan hereunder~~Advance. If such funds are not made available to ~~such~~ Agent by such Lender, such Lender shall be deemed a Defaulting Lender and Agent shall be entitled to recover such ~~funds~~ funds, on demand from such ~~Lender,~~ Lender together with interest thereon for each day from the date such payment was due until the date such amount is paid to ~~such Agent,~~ Agent at the Federal Funds ~~Effective~~ Rate for each day during such period (as published by the Federal Reserve Bank of New York or at Agent’s option based on the arithmetic mean determined by Agent of the rates for the last transaction in overnight Federal funds arranged prior to 9:00 a.m. (New York City time) on that day by each of the three ~~Business Days~~ leading brokers of Federal funds transactions in New York City selected by Agent) and ~~thereafter~~ if such amounts are not paid within three (3) days of Agent’s demand, at the ~~Reference Rate~~highest Interest Rate provided for in Section 3.1 hereof applicable to Prime Rate Loans. (b) ~~The~~ Lenders hereby irrevocably authorize ~~the Collateral~~ Agent, at its option and in its ~~discretion,~~ discretion to release any ~~Lien granted to~~ security interest in, mortgage or ~~held by~~ lien upon, any of the Collateral ~~Agent upon any Collateral~~ (i) upon termination of the ~~Total Commitment~~ Commitments and ~~Payment in Full~~ payment and satisfaction of all of the ~~Obligations;~~ Obligations and delivery of cash collateral to the extent required under Section 13.1 below, or (ii) constituting property being sold or disposed of in if Administrative Borrower or any Borrower or Guarantor certifies to Agent that the ~~ordinary course of any Loan Party’s business~~ sale or ~~otherwise~~ disposition is made in compliance with ~~the terms of this Agreement~~ Section 9.7 hereof (and ~~the other Loan Documents;~~ Agent may rely conclusively on any such certificate, without further inquiry), or (iii) constituting property in which ~~the Loan Parties owned no~~ any Borrower or Guarantor did not own an interest at the time the ~~Lien~~ security interest, mortgage or lien was granted or at any time thereafter; , or (iv) having a value in the aggregate in any twelve (12) month period of less than $2,500,000, and to the extent Agent may release its security interest in and lien upon any such Collateral pursuant to the sale or other disposition thereof, such sale or other disposition shall be deemed consented to by Lenders, or (v) if required or permitted under the terms of any of the other Financing Agreements, including any intercreditor agreement, or (vi) approved, authorized or ratified in writing by all of Lenders. Except as provided above, Agent will not release any security interest in, mortgage or lien upon, any of the ~~applicable Lenders required pursuant to Section 12.02~~Collateral without the prior written authorization of all of Lenders. Upon request by ~~the Collateral~~ Agent at any time, ~~the~~ Lenders will promptly confirm in writing ~~the Collateral~~ Agent’s authority to release particular types or items of Collateral pursuant to this ~~Section 10.08(b)~~Section. (c) Without in any manner limiting ~~the Collateral~~ Agent’s authority to act without any specific or further authorization or consent by the ~~Lenders (as set forth in Section 10.08(b))~~Required Lenders, each Lender agrees to confirm in writing, upon request by ~~the Collateral~~ Agent, the authority to release Collateral conferred upon ~~the Collateral~~ Agent under ~~Section 10.08(b)~~this Section. ~~Upon the prior written request by any Loan Party, the Collateral~~ Agent shall (and is hereby irrevocably authorized by ~~the~~ Lenders to) execute such documents as may be necessary ~~or reasonably requested by any Loan Party~~ to evidence the release of the ~~Liens~~ security interest, mortgage or liens granted to Agent upon any Collateral to the ~~Collateral Agent for the benefit of the Agents and the Lenders upon such Collateral~~extent set forth above; provided, ~~however~~that, ~~that~~ (i) ~~the Collateral~~ Agent shall not be required to execute any such document on terms which, in ~~the Collateral~~ Agent’s opinion, would expose ~~the Collateral~~ Agent to liability or create any obligations or entail any consequence other than the release of such ~~Liens~~ security interest, mortgage or liens without recourse or ~~warranty,~~ warranty and (ii) such release shall not in any manner discharge, affect or impair the Obligations or any ~~Lien~~ security interest, mortgage or lien upon (or obligations of any ~~Loan Party~~ Borrower or Guarantor in respect of) ~~all interests in~~ the Collateral retained by ~~any Loan Party~~such Borrower or Guarantor. (d) Anything contained in any of the Loan Documents to the contrary notwithstanding but subject to the Agreement Among Lenders, the Loan Parties, each Agent and each Lender hereby agree that (i) no Lender shall have any right individually to realize upon any of the Collateral under any Loan Document or to enforce any Guaranty, it being understood and agreed that all powers, rights and remedies under the Loan Documents may be exercised solely by the Collateral Agent for the benefit of the Lenders in accordance with the terms thereof, (ii) in the event of a foreclosure by the Collateral Agent on any of the Collateral pursuant to a public or private sale, the Administrative Agent, the Collateral Agent or any Lender may be the purchaser of any or all of such Collateral at any such sale and (iii) the Collateral Agent, as agent for and representative of the Agents and the Lenders (but not any other Agent or any Lender or Lenders in its or their respective individual capacities unless the Required Lenders shall otherwise agree in writing) shall be entitled (either directly or through one or more acquisition vehicles) for the purpose of bidding and making settlement or payment of the purchase price for all or any portion of the Collateral to be sold (A) at any public or private sale, (B) at any sale conducted by the Collateral Agent under the provisions of the Uniform Commercial Code (including pursuant to Sections 9-610 or 9-620 of the Uniform Commercial Code), (C) at any sale or foreclosure conducted by the Collateral Agent (whether by judicial action or otherwise) in accordance with applicable law or (D) any sale conducted pursuant to the provisions of any Debtor Relief Law (including Section 363 of the Bankruptcy Code), to use and apply all or any of the Obligations as a credit on account of the purchase price for any Collateral payable by the Collateral Agent at such sale. (e) The Collateral Agent shall have no obligation whatsoever to any Lender or any other Person to investigate, confirm or assure that the Collateral exists or is owned by ~~the Loan Parties~~ any Borrower or Guarantor or is cared for, protected or insured or has been ~~encumbered~~ encumbered, or that the ~~Lien~~ liens and security interests granted to ~~the Collateral~~ Agent pursuant ~~to this Agreement~~ hereto or any ~~other Loan Document has~~ of the Financing Agreements or otherwise have been properly or sufficiently or lawfully created, perfected, protected or enforced or is are entitled to any particular priority, or to exercise at all or in any particular manner or under any duty of care, disclosure or fidelity, or to continue exercising, any of the rights, authorities and powers granted or available to ~~the Collateral~~ Agent in this ~~Section 10.08~~ Agreement or in any of the other ~~Loan Document~~Financing Agreements, it being understood and agreed that in respect of the Collateral, or any act, omission or event related thereto, subject to the ~~Collateral~~ other terms and conditions contained herein, Agent may act in any manner it may deem appropriate, in its ~~sole~~ discretion, given ~~the Collateral~~ Agent’s own interest in the Collateral as ~~one of the Lenders~~ a Lender and that ~~the Collateral~~ Agent shall have no duty or liability whatsoever to any other Lender. (e) Without limiting the generality of the foregoing, ~~except~~ each Lender (i) authorizes Agent to enter into the We▇▇▇ ▇ntercreditor Agreement, the Subordinated Noteholder Intercreditor Agreement, the WHX Intercreditor Agreement, the Intercompany Subordination Agreement and the Precious Metals Creditor Agreement on behalf of such Lender and (ii) agrees that it will be bound (as ~~otherwise provided herein~~ a Lender) by the terms and in conditions of the We▇▇▇ ▇ntercreditor Agreement, the Subordinated Noteholder Intercreditor Agreement, the WHX Intercreditor Agreement, the Intercompany Subordination Agreement ~~Among Lenders~~and the Precious Metals Creditor Agreement, whether or not such Lender executes any such agreement.

Appears in 1 contract

Sources: Loan and Security Agreement (Handy & Harman Ltd.)

Appears in 1 contract

Sources: Financing Agreement (Remark Media, Inc.)

Collateral Matters. (a) ~~Each~~ Administrative Agent ~~may~~ may, at its option, from time to time, at any time on or after an Event of Default and for so long as the same is continuing or upon any other failure of a condition precedent to the Loans and Letters of Credit hereunder, make such disbursements and advances (“"Special Agent Advances”") which ~~such~~ Administrative Agent, in its sole discretion, : (i) deems necessary or desirable either to ~~preserve, protect, prepare for sale~~ preserve or ~~lease or dispose of~~ protect the Collateral or any portion thereof, ; or (ii) to enhance the likelihood or maximize the amount of repayment by ~~the~~ Borrowers of the ~~Loans, Reimbursement Obligations, Letter of Credit Obligations~~ Loans and other ~~Obligations~~ Obligations; provided, that, the aggregate principal amount of the Special Administrative Agent Advances pursuant to this clause (ii), plus the then outstanding principal amount of the additional Loans and Letters of Credit, shall not exceed the aggregate amount of ten percent (10%) of the Maximum Credit outstanding at any time; or (iii) to pay any other amount chargeable to ~~the Borrowers~~ any Borrower pursuant to the terms of this ~~Agreement, including, without limitation,~~ Agreement or any of the other Loan Documents consisting of costs, fees and expenses ~~as described in Section 12.04~~and payments to any Issuing Bank of Letters of Credit. ~~The~~ Special Agent Advances shall be repayable on demand and be secured by the ~~Collateral and~~ Collateral. Special Agent Advances shall ~~bear interest~~ not constitute Loans but shall otherwise constitute Obligations hereunder. Interest on Special Agent Advances shall be payable at ~~a rate per annum equal to~~ the ~~rate~~ highest Interest Rate then applicable to ~~Revolving~~ any outstanding Loans ~~that are Reference Rate Loans. The Agent making any Agent Advances~~ and shall ~~notify the other Agent, each Lender and the Administrative Borrower in writing of each such Agent Advance, which notice shall include a description of the purpose of such Agent Advance~~be payable on demand. Without limitation to of its obligations pursuant to Section ~~10.05~~6.9, each Lender agrees that it shall make available to ~~the Agent making any Agent Advances~~Administrative Agent, upon ~~such~~ Administrative Agent’s 's demand, ~~in the currency in which the respective Agent Advance was made~~ in immediately available funds, the amount equal to such Lender’s 's Pro Rata Share of each such Special Agent ~~Advance subject to the terms of, the Agreement Among Lenders, provided that any such amount advanced by a Lender shall be deemed a Loan hereunder~~Advance. If such funds are not made available to ~~such~~ Administrative Agent by such Lender, such Lender shall be deemed a Defaulting Lender and Administrative Agent shall be entitled to recover such ~~funds~~ funds, on demand from such ~~Lender,~~ Lender together with interest thereon for each day from the date such payment was due until the date such amount is paid to ~~such Agent,~~ Administrative Agent at the Federal Funds ~~Effective~~ Rate for each day 4833-7494-6387.12 45083/0017 03/0202018 during such period (as published by the Federal Reserve Bank of New York or at Administrative Agent's option based on the arithmetic mean determined by Administrative Agent of the rates for the last transaction in overnight Federal funds arranged prior to 9:00 a.m. EST on that day by each of the three ~~Business Days~~ (3) leading brokers of Federal funds transactions in New York City selected by Administrative Agent) and ~~thereafter~~ if such amounts are not paid within three (3) days of Administrative Agent's demand, at the ~~Reference Rate~~highest Interest Rate provided under this Agreement applicable to Prime Rate Loans. (b) ~~The~~ Lenders hereby irrevocably authorize ~~the Collateral~~ Administrative Agent, at its option and in its ~~discretion,~~ discretion to release any ~~Lien granted to~~ security interest in, mortgage or ~~held by~~ lien upon, any of the ~~Collateral Agent upon any Collateral~~ Collateral: (i) upon termination of the ~~Total Commitment~~ Commitments and ~~Payment in Full~~ payment and satisfaction of all of the ~~Obligations~~Obligations and delivery of cash collateral to the extent required under Section 12.1 below; or constituting property being sold or disposed of in the ordinary course of any Loan Party’s business or otherwise in compliance with the terms of this Agreement and the other Loan Documents; or constituting property in which the Loan Parties owned no interest at the time the Lien was granted or at any time thereafter; or if (ii) approved, authorized or ratified in writing by all of Lenders. Except as provided above, Administrative Agent will not release any security interest in, mortgage or lien upon, any of the ~~applicable Lenders required pursuant to Section 12.02~~Collateral without the prior written authorization of all of Lenders. Upon request by ~~the Collateral~~ Administrative Agent at any time, ~~the~~ Lenders will promptly confirm in writing ~~the Collateral~~ Administrative Agent’s 's authority to release ~~particular types or~~ items of Collateral pursuant to this ~~Section 10.08(b)~~Section. (c) Without in any manner limiting ~~the Collateral~~ Administrative Agent’s 's authority to act without any specific or further authorization or consent by the ~~Lenders (as set forth in Section 10.08(b))~~Required Lenders, each Lender agrees to confirm in writing, upon request by ~~the Collateral~~ Administrative Agent, the authority to release Collateral conferred upon ~~the Collateral~~ Administrative Agent under ~~Section 10.08(b)~~this Section. ~~Upon the prior written request by any Loan Party, the Collateral~~ Administrative Agent shall (and is hereby irrevocably authorized by ~~the~~ Lenders to) execute such documents as may be necessary ~~or reasonably requested by any Loan Party~~ to evidence the release of the ~~Liens~~ security interest, mortgage or liens granted to Administrative Agent upon any Collateral to the ~~Collateral Agent for the benefit of the Agents and the Lenders upon such Collateral~~extent set forth above; provided, ~~however, that~~ that: (i) ~~the Collateral~~ Administrative Agent shall not be required to execute any such document on terms which, in ~~the Collateral~~ Administrative Agent’s 's opinion, would expose ~~the Collateral~~ Administrative Agent to liability or create any obligations or entail any consequence other than the release of such ~~Liens~~ security interest, mortgage or liens without recourse or warranty, ; and (ii) such release shall not in any manner discharge, affect or impair the Obligations or any ~~Lien~~ security interest, mortgage or lien upon (or obligations of any ~~Loan Party~~ Borrower in respect of) ~~all interests in~~ the Collateral retained by ~~any Loan Party~~such Borrower. (d) Anything contained in any of the Loan Documents to the contrary notwithstanding but subject to the Agreement Among Lenders, the Loan Parties, each Agent and each Lender hereby agree that (i) no Lender shall have any right individually to realize upon any of the Collateral under any Loan Document or to enforce any Guaranty, it being understood and agreed that all powers, rights and remedies under the Loan Documents may be exercised solely by the Collateral Agent for the benefit of the Lenders in accordance with the terms thereof, (ii) in the event of a foreclosure by the Collateral Agent on any of the Collateral pursuant to a public or private sale, the Administrative Agent, the Collateral Agent or any Lender may be the purchaser of any or all of such Collateral at any such sale and (iii) the Collateral Agent, as agent for and representative of the Agents and the Lenders (but not any other Agent or any Lender or Lenders in its or their respective individual capacities unless the Required Lenders shall otherwise agree in writing) shall be entitled (either directly or through one or more acquisition vehicles) for the purpose of bidding and making settlement or payment of the purchase price for all or any portion of the Collateral to be sold (A) at any public or private sale, (B) at any sale conducted by the Collateral Agent under the provisions of the Uniform Commercial Code (including pursuant to Sections 9-610 or 9-620 of the Uniform Commercial Code), (C) at any sale or foreclosure conducted by the Collateral Agent (whether by judicial action or otherwise) in accordance with applicable law or (D) any sale conducted pursuant to the provisions of any Debtor Relief Law (including Section 363 of the Bankruptcy Code), to use and apply all or any of the Obligations as a credit on account of the purchase price for any Collateral payable by the Collateral Agent at such sale. (e) The Collateral Agent shall have no obligation whatsoever to any Lender or any other Person to investigate, confirm, or assure that the Collateral exists or is owned by ~~the Loan Parties~~ any Borrower or is cared for, protected or insured or has been ~~encumbered~~ encumbered, or that any particular items of Collateral meet the eligibility criteria applicable in respect of the Loans or Letters of Credit hereunder, or whether any particular reserves are appropriate, or that the ~~Lien~~ liens and security interests granted to ~~the Collateral~~ Administrative Agent pursuant ~~to this Agreement~~ hereto or any ~~other~~ of the Loan ~~Document has~~ Documents or otherwise have been properly or sufficiently or lawfully created, perfected, protected or enforced or is are entitled to any particular priority, or to exercise at all or in any particular manner or under any duty of or care, disclosure or fidelity, or to continue exercising, any of the rights, authorities and powers granted or available to ~~the Collateral~~ Administrative Agent in this ~~Section 10.08~~ Agreement or in any of the other Loan ~~Document~~Documents, it being understood and agreed that in respect of the Collateral, or any act, omission or event related thereto, ~~the Collateral~~ Administrative Agent may act in any manner it may deem ~~appropriate,~~ appropriate in its ~~sole~~ discretion, given ~~the Collateral~~ Administrative Agent’s 's own interest in the Collateral as ~~one of the Lenders~~ a Lender and that ~~the Collateral~~ Administrative Agent shall have no duty or liability whatsoever to any other Lender~~, except as otherwise provided herein and in the Agreement Among Lenders~~.

Appears in 1 contract

Sources: Loan and Security Agreement (BBX Capital Corp)

Collateral Matters. (a) ~~Each~~ Agent ~~may~~ may, at its option, from time to time, at any time on or after an Event of Default and for so long as the same is continuing or upon any other failure of a condition precedent to the Loans and Letter of Credit Accommodations hereunder, make such disbursements and advances (“"Special Agent Advances”") which ~~such~~ Agent, in its ~~sole~~ good faith discretion, deems necessary or desirable either (i) to ~~preserve, protect, prepare for sale~~ preserve or ~~lease or dispose of~~ protect the Collateral or any portion ~~thereof,~~ thereof or (ii) to enhance the likelihood or maximize the amount of repayment by ~~the Borrowers~~ Borrower of the ~~Loans, Reimbursement~~ Loans and other Obligations, provided, that, the aggregate principal amount of the Special Agent Advances pursuant to this clause (ii), plus the then outstanding principal amount of the additional Loans and Letter of Credit ~~Obligations~~ Accommodations which Agent may make or provide as set forth in Section 12.8 hereof, shall not exceed the aggregate amount outstanding at any one time that is equal to the lesser of (A) $10,000,000 and ~~other Obligations~~ (B) the amount equal to ten (10%) 106 percent in excess of the Borrowing Base at such time any such Loan is made or such Letter of Credit Accommodation is provided or (iii) to pay any other amount chargeable to ~~the Borrowers~~ Borrower or Obligor pursuant to the terms of this ~~Agreement, including, without limitation,~~ Agreement or any of the other Financing Agreements consisting of costs, fees and expenses ~~as described in Section 12.04~~and payments to any issuer of Letter of Credit Accommodations. ~~The~~ Special Agent Advances shall be repayable on demand and be secured by the ~~Collateral and shall bear interest at a rate per annum equal to the rate then applicable to Revolving Loans that are Reference Rate Loans~~Collateral. ~~The Agent making any~~ Special Agent Advances shall not constitute Loans but shall otherwise constitute Obligations hereunder. Agent shall notify ~~the other Agent,~~ each Lender and ~~the Administrative~~ Borrower in writing of each such Special Agent Advance, which notice shall include a description of the purpose of such Special Agent Advance. Without limitation to of its obligations pursuant to Section ~~10.05~~6.10, each Lender agrees that it shall make available to ~~the Agent making any Agent Advances~~Agent, upon ~~such~~ Agent’s 's demand, ~~in the currency in which the respective Agent Advance was made~~ in immediately available funds, the amount equal to such Lender’s 's Pro Rata Share of each such Special Agent ~~Advance subject to the terms of, the Agreement Among Lenders, provided that any such amount advanced by a Lender shall be deemed a Loan hereunder~~Advance. If such funds are not made available to ~~such~~ Agent by such Lender, then such Lender shall be deemed a Defaulting Lender and Agent shall be entitled to recover such ~~funds~~ funds, on demand from such ~~Lender,~~ Lender together with interest thereon for each day from the date such payment was due until the date such amount is paid to ~~such Agent,~~ Agent at the Federal Funds ~~Effective~~ Rate for each day during such period (as published by the Federal Reserve Bank of New York or at Agent's option based on the arithmetic mean determined by Agent of the rates for the last transaction in overnight Federal funds arranged prior to 9:00 a.m. (New York City time) on that day by each of the three ~~Business Days~~ leading brokers of Federal funds transactions in New York City selected by Agent) and ~~thereafter~~ if such amounts are not paid within three (3) days of Agent's demand, at the ~~Reference Rate~~highest Interest Rate provided for in Section 3.1 hereof applicable to Prime Rate Loans. (b) ~~The~~ Lenders hereby irrevocably authorize ~~the Collateral~~ Agent, at its option and in its ~~discretion,~~ discretion to release any ~~Lien granted to~~ security interest in, mortgage or ~~held by~~ lien upon, any of the Collateral ~~Agent upon any Collateral~~ (i) upon termination of the ~~Total Commitment~~ Commitments and ~~Payment in Full~~ payment and satisfaction of all of the ~~Obligations;~~ Obligations and delivery of cash collateral to the extent required under Section 13.1 hereof, or (ii) constituting property being sold or disposed of in if Borrower certifies to Agent that the ~~ordinary course of any Loan Party’s business~~ sale or ~~otherwise~~ disposition is made in compliance with ~~the terms of this Agreement~~ Section 9.7 hereof (and ~~the other Loan Documents;~~ Agent may rely conclusively on any such certificate, without further inquiry), or (iii) constituting property in which ~~the Loan Parties owned no~~ Borrower or any Obligor did not own an interest at the time the ~~Lien~~ security interest, mortgage or lien was granted or at any time thereafter; , or (iv) having a value in the aggregate in any twelve (12) month period of less than $5,000,000 or (v) if required under the terms of any of the other Financing Agreements, including any intercreditor agreement, or (vi) if approved, authorized or ratified in writing by all of Lenders. Except as provided above, Agent will not release any security interest in, mortgage or lien upon, any of the ~~applicable Lenders required pursuant to Section 12.02~~Collateral without the prior written authorization of all of Lenders. Upon request by ~~the Collateral~~ Agent at any time, ~~the~~ Lenders will promptly confirm in writing ~~the Collateral~~ Agent’s 's authority to release particular types or items of Collateral pursuant to this ~~Section 10.08(b)~~Section. (c) Without in any manner limiting ~~the Collateral~~ Agent’s 's authority to act without any specific or further authorization or consent by the ~~Lenders (as set forth in Section 10.08(b))~~Required Lenders, each Lender agrees to confirm in writing, upon request by ~~the Collateral~~ Agent, the authority to release Collateral conferred upon ~~the Collateral~~ Agent under ~~Section 10.08(b)~~this Section. ~~Upon the prior written request by any Loan Party, the Collateral~~ Agent shall (and is hereby irrevocably authorized by ~~the~~ Lenders to) execute such documents as may be necessary ~~or reasonably requested by any Loan Party~~ to evidence the release of the ~~Liens~~ security interest, mortgage or liens granted to Agent upon any Collateral to the ~~Collateral Agent for the benefit of the Agents and the Lenders upon such Collateral~~extent set forth above; provided, ~~however~~that, ~~that~~ (i) ~~the Collateral~~ Agent shall not be required to execute any such document on terms which, in ~~the Collateral~~ Agent’s 's opinion, would expose ~~the Collateral~~ Agent to liability or create any obligations or entail any consequence other than the release of 107 such ~~Liens~~ security interest, mortgage or liens without recourse or ~~warranty,~~ warranty and (ii) such release shall not in any manner discharge, affect or impair the Obligations or any ~~Lien~~ security interest, mortgage or lien upon (or obligations of Borrower or any ~~Loan Party~~ Obligor in respect of) ~~all interests in~~ the Collateral retained by ~~any Loan Party~~Borrower or such Obligor. (d) Anything contained in any of the Loan Documents to the contrary notwithstanding but subject to the Agreement Among Lenders, the Loan Parties, each Agent and each Lender hereby agree that (i) no Lender shall have any right individually to realize upon any of the Collateral under any Loan Document or to enforce any Guaranty, it being understood and agreed that all powers, rights and remedies under the Loan Documents may be exercised solely by the Collateral Agent for the benefit of the Lenders in accordance with the terms thereof, (ii) in the event of a foreclosure by the Collateral Agent on any of the Collateral pursuant to a public or private sale, the Administrative Agent, the Collateral Agent or any Lender may be the purchaser of any or all of such Collateral at any such sale and (iii) the Collateral Agent, as agent for and representative of the Agents and the Lenders (but not any other Agent or any Lender or Lenders in its or their respective individual capacities unless the Required Lenders shall otherwise agree in writing) shall be entitled (either directly or through one or more acquisition vehicles) for the purpose of bidding and making settlement or payment of the purchase price for all or any portion of the Collateral to be sold (A) at any public or private sale, (B) at any sale conducted by the Collateral Agent under the provisions of the Uniform Commercial Code (including pursuant to Sections 9-610 or 9-620 of the Uniform Commercial Code), (C) at any sale or foreclosure conducted by the Collateral Agent (whether by judicial action or otherwise) in accordance with applicable law or (D) any sale conducted pursuant to the provisions of any Debtor Relief Law (including Section 363 of the Bankruptcy Code), to use and apply all or any of the Obligations as a credit on account of the purchase price for any Collateral payable by the Collateral Agent at such sale. (e) The Collateral Agent shall have no obligation whatsoever to any Lender or any other Person to investigate, confirm or assure that the Collateral exists or is owned by ~~the Loan Parties~~ Borrower or any Obligor or is cared for, protected or insured or has been ~~encumbered~~ encumbered, or that any particular items of Collateral meet the eligibility criteria applicable in respect of the Loans or Letter of Credit Accommodations hereunder, or whether any particular reserves are appropriate, or that the ~~Lien~~ liens and security interests granted to ~~the Collateral~~ Agent pursuant ~~to this Agreement~~ hereto or any ~~other Loan Document has~~ of the Financing Agreements or otherwise have been properly or sufficiently or lawfully created, perfected, protected or enforced or is are entitled to any particular priority, or to exercise at all or in any particular manner or under any duty of care, disclosure or fidelity, or to continue exercising, any of the rights, authorities and powers granted or available to ~~the Collateral~~ Agent in this ~~Section 10.08~~ Agreement or in any of the other ~~Loan Document~~Financing Agreements, it being understood and agreed that in respect of the Collateral, or any act, omission or event related thereto, ~~the Collateral~~ Agent may act in any manner it may deem appropriate, in its ~~sole~~ discretion, given ~~the Collateral~~ Agent’s 's own interest in the Collateral as ~~one of the Lenders~~ a Lender and that ~~the Collateral~~ Agent shall have no duty or liability whatsoever to any other Lender~~, except as otherwise provided herein and in the Agreement Among Lenders~~.

Appears in 1 contract

Sources: Loan and Security Agreement (Anchor Glass Container Corp /New)

Collateral Matters. (a) ~~Each~~ The Agent may from time to ~~time~~ time, make such disbursements and advances (“"Agent Advances”") which ~~such~~ the Agent, in its sole discretion, deems necessary or desirable to ~~preserve, protect, prepare for sale~~ preserve or ~~lease or dispose of~~ protect the Collateral or any portion thereof, to enhance the likelihood or maximize the amount of repayment by ~~the Borrowers~~ any Borrower, any Guarantor or other Person of the Loans, Reimbursement ~~Obligations, Letter~~ Obligations or Letters of Credit ~~Obligations~~ and other Obligations or to pay any other amount chargeable to ~~the Borrowers~~ such Borrower or Guarantor pursuant to the terms of this Agreement, including, without limitation, costs, fees and expenses as described in Section ~~12.04~~11.05. The Agent Advances shall be repayable on demand and be secured by the ~~Collateral and shall bear interest at a rate per annum equal to the rate then applicable to Revolving Loans that are Reference Rate Loans~~Collateral. The Agent ~~making any Agent~~ Advances shall ~~notify the other Agent, each Lender and the Administrative Borrower in writing of each such Agent Advance, which notice~~ not constitute Loans but shall ~~include a description of the purpose of such Agent Advance~~otherwise constitute Obligations hereunder. Without limitation to its obligations pursuant to Section ~~10.05~~9.06, each Lender agrees that it shall make available to the ~~Agent making any Agent Advances~~Agent, upon ~~such~~ the Agent’s 's demand, in ~~the currency in which the respective Agent Advance was made~~ dollars in immediately available funds, the amount equal to such Lender’s 's Pro Rata Share of each such Agent ~~Advance subject to the terms of, the Agreement Among Lenders, provided that any such amount advanced by a Lender shall be deemed a Loan hereunder~~Advance. If such funds are not made available to ~~such~~ the Agent by such Lender, ~~such~~ the Agent shall be entitled to recover such ~~funds~~ funds, on demand from such ~~Lender,~~ Lender together with interest ~~thereon~~ thereon, for each day from the date such payment was due until the date such amount is paid to ~~such~~ the Agent, at the Federal Funds ~~Effective~~ Rate for three Business Days and thereafter at the ~~Reference~~ Prime Rate. (b) The Lenders hereby irrevocably authorize the Collateral Agent, at its option and in its discretion, to release any Lien granted to or held by the Collateral Agent upon any Collateral upon termination of the Total Commitment and Payment in Full of the Obligations; or constituting property being sold or disposed of in the ordinary course of any Loan Party’s business or otherwise in compliance with the terms of this Agreement and the other Loan Documents; or constituting property in which the Loan Parties owned no interest at the time the Lien was granted or at any time thereafter; or if approved, authorized or ratified in writing by the applicable Lenders required pursuant to Section 12.02. Upon request by the Collateral Agent at any time, the Lenders will confirm in writing the Collateral Agent’s authority to release particular types or items of Collateral pursuant to this Section 10.08(b). (c) Without in any manner limiting the Collateral Agent’s authority to act without any specific or further authorization or consent by the Lenders (as set forth in Section 10.08(b)), each Lender agrees to confirm in writing, upon request by the Collateral Agent, the authority to release Collateral conferred upon the Collateral Agent under Section 10.08(b). Upon the prior written request by any Loan Party, the Collateral Agent shall (and is hereby irrevocably authorized by the Lenders to) execute such documents as may be necessary or reasonably requested by any Loan Party to evidence the release of the Liens granted to the Collateral Agent for the benefit of the Agents and the Lenders upon such Collateral; provided, however, that (i) the Collateral Agent shall not be required to execute any such document on terms which, in the Collateral Agent’s opinion, would expose the Collateral Agent to liability or create any obligations or entail any consequence other than the release of such Liens without recourse or warranty, and (ii) such release shall not in any manner discharge, affect or impair the Obligations or any Lien upon (or obligations of any Loan Party in respect of) all interests in the Collateral retained by any Loan Party. (d) Anything contained in any of the Loan Documents to the contrary notwithstanding but subject to the Agreement Among Lenders, the Loan Parties, each Agent and each Lender hereby agree that (i) no Lender shall have any right individually to realize upon any of the Collateral under any Loan Document or to enforce any Guaranty, it being understood and agreed that all powers, rights and remedies under the Loan Documents may be exercised solely by the Collateral Agent for the benefit of the Lenders in accordance with the terms thereof, (ii) in the event of a foreclosure by the Collateral Agent on any of the Collateral pursuant to a public or private sale, the Administrative Agent, the Collateral Agent or any Lender may be the purchaser of any or all of such Collateral at any such sale and (iii) the Collateral Agent, as agent for and representative of the Agents and the Lenders (but not any other Agent or any Lender or Lenders in its or their respective individual capacities unless the Required Lenders shall otherwise agree in writing) shall be entitled (either directly or through one or more acquisition vehicles) for the purpose of bidding and making settlement or payment of the purchase price for all or any portion of the Collateral to be sold (A) at any public or private sale, (B) at any sale conducted by the Collateral Agent under the provisions of the Uniform Commercial Code (including pursuant to Sections 9-610 or 9-620 of the Uniform Commercial Code), (C) at any sale or foreclosure conducted by the Collateral Agent (whether by judicial action or otherwise) in accordance with applicable law or (D) any sale conducted pursuant to the provisions of any Debtor Relief Law (including Section 363 of the Bankruptcy Code), to use and apply all or any of the Obligations as a credit on account of the purchase price for any Collateral payable by the Collateral Agent at such sale. (e) The Collateral Agent shall have no obligation whatsoever to any ~~Lender~~ Lenders to assure that the Collateral exists or is owned by ~~the Loan Parties~~ any Borrower or any Guarantor or is cared for, protected or insured or has been encumbered or that the ~~Lien~~ Liens granted to the ~~Collateral~~ Agent herein or pursuant ~~to this Agreement or any other Loan Document has~~ hereto, have been properly or sufficiently or lawfully created, perfected, protected or enforced or is are entitled to any particular priority, or to exercise at all or in any particular manner or under any duty of care, disclosure or fidelity, or to continue exercising, any of the rights, authorities and powers granted or available to the ~~Collateral~~ Agent in this Section ~~10.08~~ 9.08 or in any ~~other~~ of the Loan ~~Document~~Documents, it being understood and agreed that in respect of the Collateral, or any act, omission or event related thereto, the ~~Collateral~~ Agent may act in any manner it may deem appropriate, in its sole discretion, given the ~~Collateral~~ Agent’s 's own interest in the Collateral as one of the Lenders and that the ~~Collateral~~ Agent shall have no duty or liability whatsoever to any other Lender~~, except as otherwise provided herein and in the Agreement Among Lenders~~.

Appears in 1 contract

Sources: Financing Agreement (Happy Kids Inc)

Collateral Matters. (a) ~~Each Agent~~ A designated Lender selected by the Required Lenders (the "Designated Lender"), solely at the direction of the Required Lenders, may from time to time make such disbursements and advances (~~“Agent~~ the "Collateral Advances”") which ~~such Agent~~the Required Lenders, in ~~its~~ their sole discretion, ~~deems~~ deem necessary or desirable to preserve, protect, prepare for sale or lease or dispose of the Collateral or any portion thereof, to enhance the likelihood or maximize the amount of repayment by the Borrowers of the ~~Loans, Reimbursement Obligations, Letter of Credit Obligations~~ Loans and other Obligations or to pay any other amount chargeable to the Borrowers pursuant to the terms of this Agreement, including, without limitation, costs, fees and expenses as described in Section 12.04. The ~~Agent~~ Collateral Advances shall be repayable on demand and be secured by the Collateral and shall bear interest at a rate per annum equal to the rate then applicable to ~~Revolving~~ Loans that are Reference Rate Loans. The ~~Agent making any Agent~~ Collateral Advances shall constitute Obligations hereunder which may be charged to the Loan Account in accordance with Section 4.01. The Required Lenders shall notify the ~~other Agent, each Lender~~ Administrative Borrower and the ~~Administrative Borrower~~ Agents in writing of each such ~~Agent~~ Collateral Advance, which notice shall include a description of the purpose of such ~~Agent~~ Collateral Advance. Without limitation to its obligations pursuant to Section 10.05, each Lender agrees that it shall make ~~available to the Agent making any Agent Advances, upon such Agent’s demand~~available, in ~~the currency in which the respective Agent Advance was made~~ Dollars in immediately available funds, the amount equal to such Lender’s 's Pro Rata Share of each such ~~Agent Advance subject to the terms of, the Agreement Among Lenders, provided that any such amount advanced by a Lender shall be deemed a Loan hereunder~~Collateral Advance. If such funds are not made available ~~to such Agent~~ by such Lender, ~~such Agent~~ the Designated Lender shall be entitled to recover such funds on demand from such Lender, together with interest thereon for each day from the date such payment was due until the date such amount is paid to ~~such Agent~~the other Lenders, at the Federal Funds ~~Effective~~ Rate for ~~three~~ 3 Business Days and thereafter at the Reference Rate. (b) The Lenders hereby irrevocably authorize the Collateral Agent, ~~at its option~~ upon receipt of an officer's certificate of the Administrative Borrower certifying that the release is authorized or permitted by the Loan Documents and ~~in its discretion~~that all conditions precedent to such release have been satisfied, to release any Lien granted to or held by the Collateral Agent upon any Collateral upon termination of the Total Commitment and ~~Payment~~ payment and satisfaction of all Loans and other Obligations in ~~Full of~~ accordance with the ~~Obligations~~terms hereof; or constituting property being sold or disposed of in the ordinary course of any Loan Party’s 's business or otherwise in compliance with the terms of this Agreement and the other Loan Documents; or constituting property in which the Loan Parties owned no interest at the time the Lien was granted or at any time thereafter; or if approved, authorized or ratified in writing by the ~~applicable Lenders required pursuant to Section 12.02~~Lenders. Upon request by the Collateral Agent at any time, the Lenders will confirm in writing the Collateral Agent’s 's authority to release particular types or items of Collateral pursuant to this Section 10.08(b). (c) Without in any manner limiting the Collateral Agent’s 's authority to act without any specific or further authorization or consent by the Lenders (as set forth in Section 10.08(b)), each Lender agrees to confirm in writing, upon request by the Collateral Agent, the authority to release Collateral conferred upon the Collateral Agent under Section 10.08(b). Upon receipt by the Collateral Agent of confirmation from the Lenders of its authority to release any particular item or types of Collateral, and upon prior written request by any Loan Party, the Collateral Agent shall (and is hereby irrevocably authorized -120- by the Lenders to) execute such documents as may be necessary ~~or reasonably requested by any Loan Party~~ to evidence the release of the Liens granted to the Collateral Agent for the benefit of the Agents and the Lenders upon such Collateral; provided, however, that (i) the Collateral Agent shall not be required to execute any such document on terms which, in the Collateral Agent’s 's opinion, would expose the Collateral Agent to liability or create any obligations or entail any consequence other than the release of such Liens without recourse or warranty, and (ii) such release shall not in any manner discharge, affect or impair the Obligations or any Lien upon (or obligations of any Loan Party in respect of) all interests in the Collateral retained by any Loan Party. (d) Anything contained in any of the Loan Documents to the contrary ~~notwithstanding but subject to the Agreement Among Lenders~~notwithstanding, the Loan Parties, each Agent and each Lender hereby agree that (i) no Lender shall have any right individually to realize upon any of the Collateral under any Loan Document or to enforce any Guaranty, it being understood and agreed that all powers, rights and remedies under the Loan Documents may be exercised solely by the Collateral Agent for the benefit of the Lenders in accordance with the terms thereof, (ii) in the event of a foreclosure by the Collateral Agent on any of the Collateral pursuant to a public or private sale, the Administrative Agent, the Collateral Agent or any Lender may be the purchaser of any or all of such Collateral at any such ~~sale~~ sale, and (iii) with the prior written consent of the Required Lenders, the Collateral Agent, as agent for and representative of the Agents and the Lenders (but not any other Agent or any Lender or Lenders in its or their respective individual capacities unless the Required Lenders shall otherwise agree in writing) shall be entitled (either directly or through one or more acquisition vehicles) for the purpose of bidding and making settlement or payment of the purchase price for all or any portion of the Collateral to be sold (A) at any public or private sale, (B) at any sale conducted by the Collateral Agent under the provisions of the Uniform Commercial Code (including pursuant to Sections 9-610 or 9-620 of the Uniform Commercial Code), (C) at any sale or foreclosure conducted by the Collateral Agent (whether by judicial action or otherwise) in accordance with applicable ~~law~~ law, or (D) at any sale conducted pursuant to the provisions of any Debtor Relief Law (including Section 363 of the Bankruptcy Code), ~~to use~~ while using and ~~apply~~ applying all or any of the Obligations as a credit on account of the purchase price for any Collateral payable by the Collateral Agent at such sale. In connection with the exercise of any rights or remedies in respect of, or foreclosure or realization upon, any real estate-related collateral pursuant to this Agreement or any other Loan Document, no Agent shall be obligated to take title to or possession of real estate in its own name, or otherwise in a form or manner that may, in its reasonable judgment, expose it to liability. In the event that an Agent deems that it may be considered an “owner or operator” under any environmental laws or otherwise cause such Agent to incur, or be exposed to, any environmental liability or any liability under any other federal, state or local law, Agent reserves the right, instead of taking such action, either to resign as Administrative Agent or Collateral Agent, as applicable, subject to the terms and conditions of Section 10.07 or to arrange for the transfer of the title or control to a court appointed receiver. No Agent will be liable to any Person for any environmental liability or any environmental claims or contribution actions under any federal, state or local law, rule or regulation by reason of such Agent's actions and conduct as authorized, empowered and directed hereunder or relating to any kind of discharge or release or threatened discharge or release of any hazardous materials into the environment. (e) The Collateral Agent shall have no obligation whatsoever to any Lender to assure that the Collateral exists or is owned by the Loan Parties or is cared for, protected or insured or has been encumbered or that the Lien granted to the Collateral Agent pursuant to this Agreement or any other Loan Document has been properly or sufficiently or lawfully created, perfected, protected or enforced or is entitled to any particular priority, or to exercise at all or in any particular manner or under any duty of care, disclosure or fidelity, or to continue exercising, any of the rights, authorities and powers granted or available to the Collateral Agent in this Section 10.08 or in any other Loan Document, it being understood and agreed that in respect of the Collateral, or any act, omission or event related thereto, the Collateral Agent may act in any manner it may deem appropriate, in its sole discretion, given the Collateral Agent’s own interest in the Collateral as one of the Lenders and that the Collateral Agent shall have no duty or liability whatsoever to any other Lender, except as otherwise provided herein and in the Agreement Among Lenders.

Appears in 1 contract

Sources: Financing Agreement (Westmoreland Resource Partners, LP)

Appears in 1 contract

Sources: Financing Agreement (EagleRock Land, LLC)

Collateral Matters. (a) ~~Each~~ The Administrative Agent may from time to ~~time~~ time, make such disbursements and advances (“"Agent Advances”") which ~~such~~ the Administrative Agent, in its sole discretion, deems necessary or desirable to ~~preserve, protect, prepare for sale~~ preserve or ~~lease or dispose of~~ protect the Collateral or any portion thereof, to enhance the likelihood or maximize the amount of repayment by ~~the Borrowers~~ any Borrower, any Guarantor or other Person of the Loans, Reimbursement ~~Obligations, Letter~~ Obligations or Letters of Credit ~~Obligations~~ and other Obligations or to pay any other amount chargeable to ~~the Borrowers~~ any Borrower or Guarantor pursuant to the terms of this Agreement, including, without limitation, costs, fees and expenses as described in Section ~~12.04~~12.05. The Agent Advances shall be repayable on demand and be secured by the ~~Collateral and shall bear interest at a rate per annum equal to the rate then applicable to Revolving Loans that are Reference Rate Loans~~Collateral. The Agent ~~making any Agent~~ Advances shall ~~notify the other Agent, each Lender and the Administrative Borrower in writing of each such Agent Advance, which notice~~ not constitute Loans but shall ~~include a description of the purpose of such Agent Advance~~otherwise constitute Obligations hereunder. Without limitation to its obligations pursuant to Section ~~10.05~~9.06, each Lender agrees that it shall make available to the ~~Agent making any Agent Advances~~Administrative Agent, upon ~~such~~ the Administrative Agent’s 's demand, in ~~the currency in which the respective Agent Advance was made~~ Dollars in immediately available funds, the amount equal to such Lender’s 's Pro Rata Share of each such Agent ~~Advance subject to the terms of, the Agreement Among Lenders, provided that any such amount advanced by a Lender shall be deemed a Loan hereunder~~Advance. If such funds are not made available to ~~such~~ the Administrative Agent by such ~~Lender, such~~ Lender the Administrative Agent shall be entitled to recover such ~~funds~~ funds, on demand from such ~~Lender,~~ Lender together with interest ~~thereon~~ thereon, for each day from the date such payment was due until the date such amount is paid to ~~such~~ the Administrative Agent, at the Federal Funds ~~Effective~~ Rate for three Business Days and thereafter at the ~~Reference~~ Base Rate. (b) The Lenders hereby irrevocably authorize the Collateral Agent, at its option and in its discretion, to release any Lien granted to or held by the Collateral Agent upon any Collateral upon termination of the Total Commitment and Payment in Full of the Obligations; or constituting property being sold or disposed of in the ordinary course of any Loan Party’s business or otherwise in compliance with the terms of this Agreement and the other Loan Documents; or constituting property in which the Loan Parties owned no interest at the time the Lien was granted or at any time thereafter; or if approved, authorized or ratified in writing by the applicable Lenders required pursuant to Section 12.02. Upon request by the Collateral Agent at any time, the Lenders will confirm in writing the Collateral Agent’s authority to release particular types or items of Collateral pursuant to this Section 10.08(b). (c) Without in any manner limiting the Collateral Agent’s authority to act without any specific or further authorization or consent by the Lenders (as set forth in Section 10.08(b)), each Lender agrees to confirm in writing, upon request by the Collateral Agent, the authority to release Collateral conferred upon the Collateral Agent under Section 10.08(b). Upon the prior written request by any Loan Party, the Collateral Agent shall (and is hereby irrevocably authorized by the Lenders to) execute such documents as may be necessary or reasonably requested by any Loan Party to evidence the release of the Liens granted to the Collateral Agent for the benefit of the Agents and the Lenders upon such Collateral; provided, however, that (i) the Collateral Agent shall not be required to execute any such document on terms which, in the Collateral Agent’s opinion, would expose the Collateral Agent to liability or create any obligations or entail any consequence other than the release of such Liens without recourse or warranty, and (ii) such release shall not in any manner discharge, affect or impair the Obligations or any Lien upon (or obligations of any Loan Party in respect of) all interests in the Collateral retained by any Loan Party. (d) Anything contained in any of the Loan Documents to the contrary notwithstanding but subject to the Agreement Among Lenders, the Loan Parties, each Agent and each Lender hereby agree that (i) no Lender shall have any right individually to realize upon any of the Collateral under any Loan Document or to enforce any Guaranty, it being understood and agreed that all powers, rights and remedies under the Loan Documents may be exercised solely by the Collateral Agent for the benefit of the Lenders in accordance with the terms thereof, (ii) in the event of a foreclosure by the Collateral Agent on any of the Collateral pursuant to a public or private sale, the Administrative Agent, the Collateral Agent or any Lender may be the purchaser of any or all of such Collateral at any such sale and (iii) the Collateral Agent, as agent for and representative of the Agents and the Lenders (but not any other Agent or any Lender or Lenders in its or their respective individual capacities unless the Required Lenders shall otherwise agree in writing) shall be entitled (either directly or through one or more acquisition vehicles) for the purpose of bidding and making settlement or payment of the purchase price for all or any portion of the Collateral to be sold (A) at any public or private sale, (B) at any sale conducted by the Collateral Agent under the provisions of the Uniform Commercial Code (including pursuant to Sections 9-610 or 9-620 of the Uniform Commercial Code), (C) at any sale or foreclosure conducted by the Collateral Agent (whether by judicial action or otherwise) in accordance with applicable law or (D) any sale conducted pursuant to the provisions of any Debtor Relief Law (including Section 363 of the Bankruptcy Code), to use and apply all or any of the Obligations as a credit on account of the purchase price for any Collateral payable by the Collateral Agent at such sale. (e) The Collateral Agent shall have no obligation whatsoever to any ~~Lender~~ Lenders to assure that the Collateral exists or is owned by ~~the Loan Parties~~ any Borrower or any Guarantor or is cared for, protected or insured or has been encumbered or that the ~~Lien~~ Liens granted to the Collateral Agent herein or pursuant ~~to this Agreement or any other Loan Document has~~ hereto have been properly or sufficiently or lawfully created, perfected, protected or enforced or is are entitled to any particular priority, or to exercise at all or in any particular manner or under any duty of care, disclosure or fidelity, or to continue exercising, any of the rights, authorities and powers granted or available to the ~~Collateral Agent~~ Agents in this Section ~~10.08~~ 9.08 or in any ~~other~~ of the Loan ~~Document~~Documents, it being understood and agreed that in respect of the Collateral, or any act, omission or event related thereto, the Collateral Agent may act in any manner it may deem appropriate, in its sole discretion, given the Collateral Agent’s 's own interest in the Collateral as one of the Lenders and that the Collateral Agent shall have no duty or liability whatsoever to any other ~~Lender~~Lender other than for acts or omissions constituting gross negligence or willful misconduct as determined by a final judgment of a court of competent jurisdiction. (c) The Lenders hereby irrevocably authorize the Collateral Agent, at its option and in its discretion, to release any Lien granted to or held by the Collateral Agent upon any Collateral upon termination of the Revolving Credit Commitments and payment and satisfaction of all Loans and Letter of Credit Obligations, (whether or not due) and all other Obligations which have matured and which the Collateral Agent has been notified in writing are then due and payable; or constituting property being sold or disposed of if a Loan Party certifies to the Collateral Agent that the sale or disposition is made in compliance with Section 7.02(d)(ii) hereof (and the Collateral Agent may rely conclusively on any such certificate, without further inquiry); or constituting property in which the Loan Parties owned no interest at the time the Lien was granted or at any time thereafter; or (except as otherwise provided ~~herein and~~ in Section 12.03 of this Agreement) if approved, authorized or ratified in writing by the ~~Agreement Among~~ Required Lenders.. Without in any manner limiting the Collateral Agent's authority to act without any specific or further authorization or consent by the Required Lenders, upon request by the Collateral Agent at any time, the Lenders shall confirm in writing the Collateral Agent's authority to release particular types or items of Collateral pursuant to this Section 9.08(c). 60 66 ARTICLE X

Appears in 1 contract

Sources: Financing Agreement (Norton McNaughton Inc)

Collateral Matters. (a) ~~Each~~ Agent may from time to ~~time~~ time, before or after the occurrence of an Event of Default, make such disbursements and advances to the Collateral Agent (“Agent Advances”) which ~~such~~ Agent, in its sole discretion, deems necessary or desirable to ~~preserve, protect, prepare for sale~~ preserve or ~~lease or dispose of~~ protect the Collateral or any portion thereof, to enhance the likelihood or maximize the amount of repayment ~~by the Borrowers~~ of the ~~Loans, Reimbursement Obligations, Letter of Credit Obligations and other~~ Obligations or to pay any other amount chargeable to ~~the Borrowers~~ Borrower or any Guarantor pursuant to the terms of this ~~Agreement~~Agreement or any Collateral Document, including, without limitation, costs, fees and expenses as described in Section ~~12.04~~9.06; provided, however, that the Agent Advances shall not exceed Two Hundred Fifty Thousand Dollars ($250,000) without the prior written consent of Majority Lenders. The Agent Advances shall be repayable on demand and be secured by the ~~Collateral and shall bear interest at a rate per annum equal to the rate then applicable to Revolving Loans that are Reference Rate Loans~~Collateral. The Agent ~~making any Agent~~ Advances shall not constitute Advances but shall otherwise constitute Obligations hereunder. Agent shall notify ~~the other Agent,~~ each Lender ~~and the Administrative Borrower~~ in writing of each such Agent Advance, which notice shall include a description of the purpose of such Agent Advance. Without limitation to its obligations pursuant to Section ~~10.05~~10.09, each Lender agrees that it shall make available to ~~the Agent making any Agent Advances~~Agent, upon ~~such~~ Agent’s demand, ~~in the currency in which the respective Agent Advance was made~~ in immediately available funds, the amount equal to such Lender’s ~~Pro Rata Share~~ Commitment Percentage of each such Agent ~~Advance subject to the terms of, the Agreement Among Lenders, provided that any such amount advanced by a Lender shall be deemed a Loan hereunder~~Advance. If such funds are not made available to ~~such~~ Agent by such ~~Lender~~Lender within one (1) Banking Day after Agent’s demand therefor, ~~such~~ Agent ~~shall~~ will be entitled to recover any such ~~funds on demand~~ amount from such ~~Lender,~~ Lender together 102 with interest thereon at the Federal Funds Rate for each day ~~from~~ during the period commencing the date of such ~~payment was due until~~ demand and ending on the date such amount is ~~paid to such Agent, at the Federal Funds Effective Rate for three Business Days and thereafter at the Reference Rate~~received. (b) ~~The~~ Lenders acknowledge that the Borrower and its Subsidiaries have created and will create Liens permitted by this Agreement on a substantial portion of their property, including Collateral, to secure obligations owed to Persons other than the Secured Creditors and that the Borrower and its Subsidiaries from time to time have requested and will request the Agent and Collateral Agent to execute and deliver releases and subordinations with respect to Liens on the Collateral created by the Collateral Documents in connection with transactions permitted by this Agreement (such as the Borrower and its Subsidiaries obtaining financing on equipment and other property secured by Liens described in clauses (iv) and (xiv) of the definition of “Permitted Liens”). Lenders hereby irrevocably authorize ~~the Collateral~~ Agent, at its option and in its discretion, to direct the Collateral Agent to release or subordinate on terms satisfactory to the Collateral Agent any Lien granted to or held by the Collateral Agent upon any Collateral (i) upon termination of the ~~Total Commitment~~ Revolving Credit Commitments and ~~Payment~~ Term Loan Commitments and indefeasible payment in ~~Full~~ full and satisfaction of all of the Obligations; or (ii) constituting property being sold or disposed of in if the ~~ordinary course of any Loan Party’s business~~ sale or ~~otherwise in compliance with the terms of this Agreement and the other Loan Documents~~disposition is permitted hereunder; or (iii) constituting property in which ~~the Loan Parties~~ neither Borrower nor any Guarantor owned no an interest at the time the Lien was granted or at any time thereafter; or (iv) constituting property leased to Borrower or any Guarantor; or (v) if approved, authorized or ratified in writing by the ~~applicable~~ Majority Lenders ~~required pursuant~~ (subject to Section ~~12.02~~10.06(d)); or (vi) subject to a Permitted Lien or other Lien permitted by Section 7.03; or (vii) not owned by the Borrower or any Guarantor. Upon request by ~~the Collateral~~ Agent at any time, ~~the~~ Lenders will confirm in writing ~~the Collateral~~ Agent’s authority to so direct the release of particular types or items of Collateral pursuant to this Section ~~10.08(b~~10.13(b). Without limitation of the foregoing, the Lenders approve the form of, and authorize the Agent and the Collateral Agent to enter into at the request of the Borrower, subordination agreements substantially in the form of Exhibit N hereto. The Lenders hereby irrevocably authorize Agent, at its option and discretion (1) to direct the Collateral Agent to release and subordinate, on terms satisfactory to the Collateral Agent, Liens on Collateral which is also subject to Permitted Liens, (2) to execute any release, subordination or acknowledgement documents requested by the Borrower in order to effect any release or subordination described in this paragraph (b) and (3) to execute acknowledgements with respect to leases to the effect that the Property subject to such leases is not subject to the Liens created by the Credit Documents or Collateral, and the Agent and the Collateral Agent shall have no liability to the Secured Creditors for actions taken pursuant to this paragraph (b). This paragraph (b) is intended as an authorization by the Lenders to permit the Agent and the Collateral Agent to take the actions described herein and neither the Borrower nor any of its Subsidiaries or any other Person shall be entitled to the benefits hereof. In reliance on and pursuant to the foregoing authority the Agent and the Collateral Agent may enter into subordination agreements and take other actions requested by the Borrower in order to provide assurance to purchase money financing sources and their assignees and successors of their priority in particular items of Collateral, notwithstanding that such financing sources and their assignees and successors may have failed to maintain perfected first priority security interests thereon. (c) Without in any manner limiting ~~the Collateral~~ Agent’s authority to act without any specific or further authorization or consent by the Majority Lenders (as set forth in Section ~~10.08(b)~~10.13(b) above), each Lender agrees to confirm in writing, upon request by ~~the Collateral Agent~~Borrower, the authority to 103 direct the release of Collateral conferred upon the ~~Collateral~~ Agent under clauses (i) through (vii) of Section ~~10.08(b)~~10.13(b) above. Upon receipt by Agent of confirmation from the ~~prior written request by~~ Majority Lenders of its authority to direct the release of any ~~Loan Party~~particular item or types of Collateral, ~~the Collateral~~ Agent shall (and is hereby irrevocably authorized by ~~the~~ Lenders to) direct the Collateral Agent to execute such documents as may be necessary ~~or reasonably requested by any Loan Party~~ to evidence the release of the Liens granted to the Collateral Agent for the benefit of the ~~Agents and the Lenders~~ Secured Creditors herein or pursuant hereto upon such Collateral; provided, however, that (i) ~~the Collateral~~ Agent shall not be required to direct the Collateral Agent to execute any such document on terms which, in ~~the Collateral~~ Agent’s opinion, would expose Agent or the Collateral Agent to liability or create any ~~obligations~~ obligation or entail any consequence other than the release of such Liens without recourse or warranty, and (ii) such release shall not in any manner discharge, affect or impair the Obligations or any ~~Lien~~ Liens upon (or obligations of ~~any Loan Party~~ Borrower and its Subsidiaries in respect of) all interests ~~in the Collateral~~ retained by Borrower and its Subsidiaries, including (without limitation) the proceeds of any ~~Loan Party~~sale, all of which shall continue to constitute part of the Collateral. (d) ~~Anything contained in any of the Loan Documents to the contrary notwithstanding but subject to the Agreement Among Lenders, the Loan Parties, each~~ Neither Agent and each Lender hereby agree that (i) no Lender shall have any right individually to realize upon any of the Collateral under any Loan Document or to enforce any Guaranty, it being understood and agreed that all powers, rights and remedies under the Loan Documents may be exercised solely by the Collateral Agent for the benefit of the Lenders in accordance with the terms thereof, (ii) in the event of a foreclosure by the Collateral Agent on any of the Collateral pursuant to a public or private sale, the Administrative Agent, the Collateral Agent or any Lender may be the purchaser of any or all of such Collateral at any such sale and (iii) the Collateral Agent, as agent for and representative of the Agents and the Lenders (but not any other Agent or any Lender or Lenders in its or their respective individual capacities unless the Required Lenders shall otherwise agree in writing) shall be entitled (either directly or through one or more acquisition vehicles) for the purpose of bidding and making settlement or payment of the purchase price for all or any portion of the Collateral to be sold (A) at any public or private sale, (B) at any sale conducted by the Collateral Agent under the provisions of the Uniform Commercial Code (including pursuant to Sections 9-610 or 9-620 of the Uniform Commercial Code), (C) at any sale or foreclosure conducted by the Collateral Agent (whether by judicial action or otherwise) in accordance with applicable law or (D) any sale conducted pursuant to the provisions of any Debtor Relief Law (including Section 363 of the Bankruptcy Code), to use and apply all or any of the Obligations as a credit on account of the purchase price for any Collateral payable by the Collateral Agent at such sale. (e) The nor Collateral Agent shall have no any obligation whatsoever to any Lender to assure that the Collateral exists or is owned by ~~the Loan Parties~~ Borrower or any of its Subsidiaries or is cared for, protected or insured or has been encumbered or that the ~~Lien~~ Liens granted to the Agent or the Collateral Agent pursuant to ~~this Agreement or~~ any ~~other Loan~~ Collateral Document ~~has~~ have been properly or sufficiently or lawfully created, perfected, protected or enforced or is are entitled to any particular priority, 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~~ Agent or Collateral Agent in this Section ~~10.08~~ 10.13 or in any ~~other Loan Document~~of the Collateral Documents, it being understood and agreed that in respect of the Collateral, or any act, omission or event related thereto, ~~the~~ each of Agent and Collateral Agent may act in any manner it may deem appropriate, in its sole discretion, given ~~the~~ Agent’s and Collateral Agent’s own interest in the Collateral as one of the Lenders and that ~~the~~ Agent and Collateral Agent shall have no duty or liability whatsoever to any ~~other Lender,~~ Lender (except as ~~otherwise~~ specifically provided ~~herein~~ in this Agreement and the Collateral Documents). EACH LENDER FURTHER ACKNOWLEDGES AND AGREES THAT AGENT AND COLLATERAL AGENT SHALL NOT BE RESPONSIBLE FOR, AND SHALL HAVE NO LIABILITY OR OBLIGATION WITH RESPECT TO, THE VALIDITY, EFFECTIVENESS, GENUINENESS, ENFORCEABILITY OR SUFFICIENCY OF THIS AGREEMENT, THE NOTES, THE COLLATERAL DOCUMENTS, ANY OTHER INSTRUMENT OR AGREEMENT CONTEMPLATED HEREUNDER OR THEREUNDER, ANY ACTION TAKEN OR NOT TAKEN OR ANY DECISION MADE BY ANY PERSON (OTHER THAN AGENT, OR COLLATERAL AGENT, AS THE CASE MAY BE) WITH RESPECT TO ANY THEREOF OR WITH RESPECT TO THE COLLATERAL, THE FAILURE OF THE BORROWER OR ANY SUBSIDIARY TO PERFORM ITS OBLIGATIONS HEREUNDER OR THEREUNDER, ANY MISREPRESENTATION BY BORROWER OR ANY SUBSIDIARY HEREUNDER OR THEREUNDER, OR THE VALUE OF ANY COLLATERAL OR THE CREATION, ATTACHMENT, PERFECTION OR PRIORITY OF ANY SECURITY INTEREST OR LIEN PURPORTED TO BE CREATED BY THE COLLATERAL DOCUMENTS, THIS AGREEMENT OR SUCH OTHER INSTRUMENTS OR AGREEMENTS AND THAT AGENT, AS COLLATERAL AGENT AND AGENT, HAS UNDERTAKEN NO INDEPENDENT REVIEW OR ANALYSIS WITH RESPECT TO ANY OF THE FOREGOING. 104 (e) The benefit of the Collateral Documents and of the provisions of this Agreement relating to the Collateral shall extend to and be available in respect of the Secured Obligations (as defined in the Collateral Agency Agreement) solely on the condition and understanding, as among Agent and Lenders, that (i) the Secured Obligations shall be entitled to the benefit of the Collateral to the extent expressly set forth in the Collateral Documents, and to such extent the Collateral Agent shall hold, and have the right and power to act with respect to, the Collateral on behalf of and as agent for the holders of the Secured Obligations; but Agent in its separate capacity as agent hereunder is acting solely as agent for the Lenders and shall have no separate fiduciary duty, duty of loyalty, duty of care, duty of disclosure or other obligations whatsoever to any holder of Secured Obligations; and (ii) all matters, acts and omissions relating in any manner to the Collateral, or the omission, creation, perfection, priority, abandonment or release of any Lien, shall be governed solely by the provisions of this Agreement ~~Among~~ and the Collateral Documents, and no separate Lien, right, power or remedy shall arise or exist in favor of any Lender under any separate instrument or agreement or in respect of any Secured Obligations; and (iii) each Lender shall be bound by all actions taken or omitted, in accordance with the provisions of this Agreement or the Collateral Documents, by the Collateral Agent, at the direction of Agent on behalf of the Lenders; and (iv) no holder of Secured Obligations shall exercise any right of setoff, bank’s lien or similar right except as expressly provided in Section 10.03. (f) Any Collateral proceeds received by Agent from the Collateral Agent pursuant to Section 4(b) clause Third of the Collateral Agency Agreement shall be applied and paid to the Obligations as follows (unless Agent and Majority Lenders otherwise agree):

Appears in 1 contract

Sources: Credit Agreement (Bally Total Fitness Holding Corp)

Collateral Matters. (a) ~~Each~~ The Collateral Agent may from time to ~~time~~ time, during the occurrence and continuance of an Event of Default, make such disbursements and advances (“"Collateral Agent Advances”") which ~~such~~ the Collateral Agent, in its sole discretion, deems necessary or desirable to ~~preserve, protect, prepare for sale~~ preserve or ~~lease or dispose of~~ protect the Collateral or any portion thereof, to enhance the likelihood or maximize the amount of repayment by the ~~Borrowers~~ Borrower of the Loans, Reimbursement Obligations, Letter of Credit Obligations and other Obligations or to pay any other amount chargeable to the ~~Borrowers~~ Borrower pursuant to the terms of this Agreement, including, without limitation, costs, fees and expenses as described in Section ~~12.04~~12.05. The Collateral Agent Advances shall be repayable on demand and be secured by the ~~Collateral and shall bear interest at a rate per annum equal to the rate then applicable to Revolving Loans that are Reference Rate Loans~~Collateral. The ~~Agent making any~~ Collateral Agent Advances shall not constitute Loans but shall otherwise constitute Obligations hereunder. The Collateral Agent shall notify ~~the other Agent,~~ each Lender and the ~~Administrative~~ Borrower in writing of each such Collateral Agent Advance, which notice shall include a description of the purpose of such Collateral Agent Advance. Without limitation to its obligations pursuant to Section 10.05, each Lender agrees that it shall make available to the ~~Agent making any Agent Advances~~Collateral Agent, upon ~~such~~ the Collateral Agent’s 's demand, in ~~the currency in which the respective Agent Advance was made~~ Dollars in immediately available funds, the amount equal to such Lender’s 's Pro Rata Share of each such Collateral Agent ~~Advance subject to the terms of, the Agreement Among Lenders, provided that any such amount advanced by a Lender shall be deemed a Loan hereunder~~Advance. If such funds are not made available to ~~such~~ the Collateral Agent by such ~~Lender, such~~ Lender the Collateral Agent shall be entitled to recover such funds on demand from such Lender, together with interest thereon for each day from the date such payment was due until the date such amount is paid to such Agent, at the Federal Funds Effective Rate for three Business Days and thereafter at the Reference Rate. (b) The Lenders hereby irrevocably authorize the Collateral Agent, at its option and in its discretion, to release any Lien granted to or held by the Collateral Agent upon any Collateral upon termination of the Total Commitment and Payment in Full of the Obligations; or constituting property being sold or disposed of in the ordinary course of any Loan Party’s business or otherwise in compliance with the terms of this Agreement and the other Loan Documents; or constituting property in which the Loan Parties owned no interest at the time the Lien was granted or at any time thereafter; or if approved, authorized or ratified in writing by the applicable Lenders required pursuant to Section 12.02. Upon request by the Collateral Agent at any time, the Lenders will confirm in writing the Collateral Agent’s authority to release particular types or items of Collateral pursuant to this Section 10.08(b). (c) Without in any manner limiting the Collateral Agent’s authority to act without any specific or further authorization or consent by the Lenders (as set forth in Section 10.08(b)), each Lender agrees to confirm in writing, upon request by the Collateral Agent, the authority to release Collateral conferred upon the Collateral Agent under Section 10.08(b). Upon the prior written request by any Loan Party, the Collateral Agent shall (and is hereby irrevocably authorized by the Lenders to) execute such documents as may be necessary or reasonably requested by any Loan Party to evidence the release of the Liens granted to the Collateral Agent for the benefit of the Agents and the Lenders upon such Collateral; provided, however, that (i) the Collateral Agent shall not be required to execute any such document on terms which, in the Collateral Agent’s opinion, would expose the Collateral Agent to liability or create any obligations or entail any consequence other than the release of such Liens without recourse or warranty, and (ii) such release shall not in any manner discharge, affect or impair the Obligations or any Lien upon (or obligations of any Loan Party in respect of) all interests in the Collateral retained by any Loan Party. (d) Anything contained in any of the Loan Documents to the contrary notwithstanding but subject to the Agreement Among Lenders, the Loan Parties, each Agent and each Lender hereby agree that (i) no Lender shall have any right individually to realize upon any of the Collateral under any Loan Document or to enforce any Guaranty, it being understood and agreed that all powers, rights and remedies under the Loan Documents may be exercised solely by the Collateral Agent for the benefit of the Lenders in accordance with the terms thereof, (ii) in the event of a foreclosure by the Collateral Agent on any of the Collateral pursuant to a public or private sale, the Administrative Agent, the Collateral Agent or any Lender may be the purchaser of any or all of such Collateral at any such sale and (iii) the Collateral Agent, as agent for and representative of the Agents and the Lenders (but not any other Agent or any Lender or Lenders in its or their respective individual capacities unless the Required Lenders shall otherwise agree in writing) shall be entitled (either directly or through one or more acquisition vehicles) for the purpose of bidding and making settlement or payment of the purchase price for all or any portion of the Collateral to be sold (A) at any public or private sale, (B) at any sale conducted by the Collateral Agent under the provisions of the Uniform Commercial Code (including pursuant to Sections 9-610 or 9-620 of the Uniform Commercial Code), (C) at any sale or foreclosure conducted by the Collateral Agent (whether by judicial action or otherwise) in accordance with applicable law or (D) any sale conducted pursuant to the provisions of any Debtor Relief Law (including Section 363 of the Bankruptcy Code), to use and apply all or any of the Obligations as a credit on account of the purchase price for any Collateral payable by the Collateral Agent at such sale. (e) The Collateral Agent shall have no obligation whatsoever to any Lender to assure that the Collateral exists or is owned by the Loan Parties or is cared for, protected or insured or has been encumbered or that the Lien granted to the Collateral Agent pursuant to this Agreement or any other Loan Document has been properly or sufficiently or lawfully created, perfected, protected or enforced or is entitled to any particular priority, or to exercise at all or in any particular manner or under any duty of care, disclosure or fidelity, or to continue exercising, any of the rights, authorities and powers granted or available to the Collateral Agent in this Section 10.08 or in any other Loan Document, it being understood and agreed that in respect of the Collateral, or any act, omission or event related thereto, the Collateral Agent may act in any manner it may deem appropriate, in its sole discretion, given the Collateral Agent’s own interest in the Collateral as one of the Lenders and that the Collateral Agent shall have no duty or liability whatsoever to any other Lender, except as otherwise provided herein and in the Agreement Among Lenders.recover

Appears in 1 contract

Sources: Financing Agreement (Decora Industries Inc)

Collateral Matters. (a) ~~Each~~ Agent ~~may~~ may, at its option, from time to time, at any time on or after an Event of Default and for so long as the same is continuing, make such disbursements and advances (“Special Agent Advances”) which ~~such~~ Agent, in its sole discretion, (i) deems necessary or desirable either to ~~preserve, protect, prepare for sale~~ preserve or ~~lease or dispose of~~ protect the Collateral or any portion ~~thereof,~~ thereof or (ii) to enhance the likelihood or maximize the amount of repayment by ~~the~~ Borrowers and Guarantors of the ~~Loans, Reimbursement Obligations, Letter of Credit Obligations~~ Term Loan and other ~~Obligations or to pay any other amount chargeable to the Borrowers~~ Obligations. All Special Agent Advances made pursuant to this Section 12.11 shall (i) be repaid within ninety (90) days after the ~~terms of this Agreement~~date such Special Agent Advance is made, ~~including~~except as Required Lenders may otherwise agree, ~~without limitation, costs, fees and expenses as described in Section 12.04. The Agent Advances shall~~ (ii) be repayable on demand and be together with all interest thereon shall constitute Obligations secured by the Collateral and ~~shall~~ (iii) bear interest at ~~a rate per annum equal to~~ the rate ~~then applicable to Revolving Loans that are Reference Rate Loans. The Agent making any Agent Advances shall notify the other Agent, each Lender and the Administrative Borrower~~ specified in ~~writing of each such Agent Advance, which notice shall include a description~~ clause (c)(ii) of the ~~purpose~~ definition of ~~such Agent Advance~~“Interest Rate”. Without limitation to of its obligations pursuant to Section ~~10.05~~6.11, each Lender agrees that it shall make available to ~~the Agent making any Agent Advances~~Agent, upon ~~such~~ Agent’s demand, ~~in the currency in which the respective Agent Advance was made~~ in immediately available funds, the amount equal to such Lender’s Pro Rata Share of each such Special Agent ~~Advance subject to the terms of, the Agreement Among Lenders, provided that any such amount advanced by a Lender shall be deemed a Loan hereunder~~Advance. If such funds are not made available to ~~such~~ Agent by such Lender, such Lender shall be deemed a Defaulting Lender and Agent shall be entitled to recover such ~~funds~~ funds, on demand from such ~~Lender,~~ Lender together with interest thereon for each day from the date such payment was due until the date such amount is paid to ~~such Agent,~~ Agent at the Federal Funds ~~Effective~~ Rate for each day during such period (as published by the Federal Reserve Bank of New York or at Agent’s option based on the arithmetic mean determined by Agent of the rates for the last transaction in overnight Federal funds arranged prior to 9:00 a.m. (New York City time) on that day by each of the three ~~Business Days~~ leading brokers of Federal funds transactions in New York City selected by Agent) and ~~thereafter~~ if such amounts are not paid within three (3) days of Agent’s demand, at the ~~Reference Rate~~highest Interest Rate provided for in Section 3.1 hereof. (b) ~~The~~ Lenders hereby irrevocably authorize ~~the Collateral~~ Agent, at its option and in its ~~discretion,~~ discretion to release any ~~Lien granted to~~ security interest in, mortgage or ~~held by~~ lien upon, any of the Collateral ~~Agent upon any Collateral~~ (i) upon termination of the ~~Total Commitment~~ Term Loan Commitments and Payment in Full of the ~~Obligations;~~ Obligations (other than indemnification and other contingent obligations not yet accrued at such time), or (ii) constituting property being sold or disposed of in if Administrative Borrower or any Borrower or Guarantor certifies to Agent that the ~~ordinary course of any Loan Party’s business~~ sale or ~~otherwise~~ disposition is made in compliance with ~~the terms of this Agreement~~ Section 9.7 hereof (and ~~the other Loan Documents;~~ Agent may rely conclusively on any such certificate, without further inquiry), or (iii) constituting property in which ~~the Loan Parties owned no~~ any Borrower or Guarantor did not own an interest at the time the ~~Lien~~ security interest, mortgage or lien was granted or at any time thereafter; , or ~~if approved~~(iv) having a value in the aggregate in any twelve (12) month period of less than $1,000,000, ~~authorized or ratified~~ and to the extent Agent may release its security interest in ~~writing by the applicable Lenders required pursuant to Section 12.02. Upon request by the Collateral Agent at~~ and lien upon any ~~time, the Lenders will confirm in writing the Collateral Agent’s authority to release particular types or items of~~ such Collateral pursuant to ~~this Section 10.08(b). (c) Without in any manner limiting~~ the ~~Collateral Agent’s authority~~ sale or other disposition thereof, such sale or other disposition shall be deemed consented to ~~act without any specific or further authorization or consent~~ by the Lenders (as set forth in Section 10.08(b)), each Lender agrees to confirm in writing, upon request by the Collateral Agent, the authority to release Collateral conferred upon the Collateral Agent under Section 10.08(b). Upon the prior written request by any Loan Party, the Collateral Agent shall (and is hereby irrevocably authorized by the Lenders to) execute such documents as may be necessary or reasonably requested by any Loan Party to evidence the release of the Liens granted to the Collateral Agent for the benefit of the Agents and the Lenders upon such Collateral; provided, however, that (i) the Collateral Agent shall not be required to execute any such document on terms which, in the Collateral Agent’s opinion, would expose the Collateral Agent to liability or create any obligations or entail any consequence other than the release of such Liens without recourse or warranty, and (ii) such release shall not in any manner discharge, affect or impair the Obligations or any Lien upon (or obligations of any Loan Party in respect of) all interests in the Collateral retained by any Loan Party. (d) Anything contained in any of the Loan Documents to the contrary notwithstanding but subject to the Agreement Among Lenders, the Loan Parties, each Agent and each Lender hereby agree that (i) no Lender shall have any right individually to realize upon any of the Collateral under any Loan Document or to enforce any Guaranty, it being understood and agreed that all powers, rights and remedies under the Loan Documents may be exercised solely by the Collateral Agent for the benefit of the Lenders in accordance with the terms thereof, (ii) in the event of a foreclosure by the Collateral Agent on any of the Collateral pursuant to a public or private sale, the Administrative Agent, the Collateral Agent or any Lender may be the purchaser of any or all of such Collateral at any such sale and (iii) the Collateral Agent, as agent for and representative of the Agents and the Lenders (but not any other Agent or any Lender or Lenders in its or their respective individual capacities unless the Required Lenders shall otherwise agree in writing) shall be entitled (either directly or through one or more acquisition vehicles) for the purpose of bidding and making settlement or payment of the purchase price for all or any portion of the Collateral to be sold (A) at any public or private sale, (B) at any sale conducted by the Collateral Agent under the provisions of the Uniform Commercial Code (including pursuant to Sections 9-610 or 9-620 of the Uniform Commercial Code), (C) at any sale or foreclosure conducted by the Collateral Agent (whether by judicial action or otherwise) in accordance with applicable law or (D) any sale conducted pursuant to the provisions of any Debtor Relief Law (including Section 363 of the Bankruptcy Code), to use and apply all or any of the Obligations as a credit on account of the purchase price for any Collateral payable by the Collateral Agent at such sale. (e) The Collateral Agent shall have no obligation whatsoever to any Lender to assure that the Collateral exists or is owned by the Loan Parties or is cared for, protected or insured or has been encumbered or that the Lien granted to the Collateral Agent pursuant to this Agreement or any other Loan Document has been properly or sufficiently or lawfully created, perfected, protected or enforced or is entitled to any particular priority, or to exercise at all or in any particular manner or under any duty of care, disclosure or fidelity, or to continue exercising, any of the rights, authorities and powers granted or available to the Collateral Agent in this Section 10.08 or in any other Loan Document, it being understood and agreed that in respect of the Collateral, or any act, omission or event related thereto, the Collateral Agent may act in any manner it may deem appropriate, in its sole discretion, given the Collateral Agent’s own interest in the Collateral as one of the Lenders and that the Collateral Agent shall have no duty or liability whatsoever to any other Lender, except as otherwise provided herein and in the Agreement Among Lenders.or

Appears in 1 contract

Sources: Loan and Security Agreement (Franchise Group, Inc.)

Collateral Matters. ~~(a) Each~~ Administrative Agent ~~may~~ may, at its option, from time to time, at any time on or after an Event of Default and for so long as the same is continuing or upon any other failure of a condition precedent to the making of Loans hereunder, make such disbursements and advances (“Special Agent Advances”) which ~~such~~ Administrative Agent, in its sole discretion, deems necessary or desirable either (i) to ~~preserve, protect, prepare for sale~~ preserve or ~~lease or dispose of~~ protect the Collateral or any portion ~~thereof, to enhance the likelihood~~ thereof or ~~maximize the amount of repayment by the Borrowers of the Loans, Reimbursement Obligations, Letter of Credit Obligations and other Obligations or~~ (ii) to pay any other amount chargeable to ~~the Borrowers~~ NewPageCo pursuant to the terms of this ~~Agreement, including, without limitation,~~ Agreement or any of the other Credit Documents consisting of costs, fees and expenses ~~as described~~ and payments to any Issuing Bank (provided, that in no event shall (i) Special Agent Advances for such purpose exceed the amount equal to $25,000,000 in the aggregate outstanding at any time less the then outstanding Overadvances under Section ~~12.04~~10.9 hereof and (ii) Special Agent Advances plus the Revolving Exposure exceed the Lenders’ Commitment at the time of such Event of Default or cause any Lender’s Revolving Exposure to exceed such Lender’s Revolving Loan Commitment at the time of such Event of Default). ~~The~~ Special Agent Advances shall be repayable on demand and be secured by the ~~Collateral and shall bear interest at a rate per annum equal to the rate then applicable to Revolving Loans that are Reference Rate Loans~~Collateral. ~~The Agent making any~~ Special Agent Advances shall not constitute Loans but shall otherwise constitute Obligations hereunder. Administrative Agent shall notify ~~the other Agent,~~ each Lender and ~~the Administrative Borrower~~ NewPageCo in writing of each such Special Agent Advance, which notice shall include a description of the purpose of such Special Agent Advance. ~~Without limitation to its obligations pursuant to Section 10.05, each~~ Each Lender agrees that it shall make available to ~~the Agent making any Agent Advances~~Administrative Agent, upon ~~such~~ Administrative Agent’s demand, ~~in the currency in which the respective Agent Advance was made~~ in immediately available funds, the amount equal to such Lender’s Pro Rata Share of each such Special Agent ~~Advance subject to the terms of, the Agreement Among Lenders, provided that any such amount advanced by a Lender shall be deemed a Loan hereunder~~Advance. If such funds are not made available to ~~such~~ Administrative Agent by such Lender, ~~such~~ Administrative Agent shall be entitled to recover such ~~funds~~ funds, on demand from such ~~Lender,~~ Lender together with interest thereon for each day from the date such payment was due until the date such amount is paid to ~~such Agent,~~ Administrative Agent at the Federal Funds Effective Rate for each day during such period (as published by the Federal Reserve Bank of New York or at Administrative Agent’s option based on the arithmetic mean determined by Administrative Agent of the rates for the last transaction in overnight Federal funds arranged prior to 9:00 a.m. (New York City time) on that day by each of the three ~~Business Days~~ leading brokers of Federal funds transactions in New York City selected by Administrative Agent) and ~~thereafter~~ if such amounts are not paid within three (3) days of Administrative Agent’s demand, at the ~~Reference Rate. (b) The Lenders hereby irrevocably authorize the Collateral Agent, at its option and~~ highest interest rate provided for in ~~its discretion, to release any Lien granted to or held by the Collateral~~ Section 2.8(a). Special Agent upon any Collateral upon termination of the Total Commitment and Payment in Full of the Obligations; or constituting property being sold or disposed of in the ordinary course of any Loan Party’s business or otherwise in compliance with the terms of this Agreement and the other Loan Documents; or constituting property in which the Loan Parties owned no Advances shall bear interest at the ~~time the Lien was granted or at any time thereafter; or if approved, authorized or ratified in writing by the~~ rate applicable ~~Lenders required pursuant~~ to Section 12.02. Upon request by the Collateral Agent at any time, the Lenders will confirm in writing the Collateral Agent’s authority to release particular types or items of Collateral pursuant to this Section 10.08(b)Base Rate Loans. (c) Without in any manner limiting the Collateral Agent’s authority to act without any specific or further authorization or consent by the Lenders (as set forth in Section 10.08(b)), each Lender agrees to confirm in writing, upon request by the Collateral Agent, the authority to release Collateral conferred upon the Collateral Agent under Section 10.08(b). Upon the prior written request by any Loan Party, the Collateral Agent shall (and is hereby irrevocably authorized by the Lenders to) execute such documents as may be necessary or reasonably requested by any Loan Party to evidence the release of the Liens granted to the Collateral Agent for the benefit of the Agents and the Lenders upon such Collateral; provided, however, that (i) the Collateral Agent shall not be required to execute any such document on terms which, in the Collateral Agent’s opinion, would expose the Collateral Agent to liability or create any obligations or entail any consequence other than the release of such Liens without recourse or warranty, and (ii) such release shall not in any manner discharge, affect or impair the Obligations or any Lien upon (or obligations of any Loan Party in respect of) all interests in the Collateral retained by any Loan Party. (d) Anything contained in any of the Loan Documents to the contrary notwithstanding but subject to the Agreement Among Lenders, the Loan Parties, each Agent and each Lender hereby agree that (i) no Lender shall have any right individually to realize upon any of the Collateral under any Loan Document or to enforce any Guaranty, it being understood and agreed that all powers, rights and remedies under the Loan Documents may be exercised solely by the Collateral Agent for the benefit of the Lenders in accordance with the terms thereof, (ii) in the event of a foreclosure by the Collateral Agent on any of the Collateral pursuant to a public or private sale, the Administrative Agent, the Collateral Agent or any Lender may be the purchaser of any or all of such Collateral at any such sale and (iii) the Collateral Agent, as agent for and representative of the Agents and the Lenders (but not any other Agent or any Lender or Lenders in its or their respective individual capacities unless the Required Lenders shall otherwise agree in writing) shall be entitled (either directly or through one or more acquisition vehicles) for the purpose of bidding and making settlement or payment of the purchase price for all or any portion of the Collateral to be sold (A) at any public or private sale, (B) at any sale conducted by the Collateral Agent under the provisions of the Uniform Commercial Code (including pursuant to Sections 9-610 or 9-620 of the Uniform Commercial Code), (C) at any sale or foreclosure conducted by the Collateral Agent (whether by judicial action or otherwise) in accordance with applicable law or (D) any sale conducted pursuant to the provisions of any Debtor Relief Law (including Section 363 of the Bankruptcy Code), to use and apply all or any of the Obligations as a credit on account of the purchase price for any Collateral payable by the Collateral Agent at such sale. (e) The Collateral Agent shall have no obligation whatsoever to any Lender to assure that the Collateral exists or is owned by the Loan Parties or is cared for, protected or insured or has been encumbered or that the Lien granted to the Collateral Agent pursuant to this Agreement or any other Loan Document has been properly or sufficiently or lawfully created, perfected, protected or enforced or is entitled to any particular priority, or to exercise at all or in any particular manner or under any duty of care, disclosure or fidelity, or to continue exercising, any of the rights, authorities and powers granted or available to the Collateral Agent in this Section 10.08 or in any other Loan Document, it being understood and agreed that in respect of the Collateral, or any act, omission or event related thereto, the Collateral Agent may act in any manner it may deem appropriate, in its sole discretion, given the Collateral Agent’s own interest in the Collateral as one of the Lenders and that the Collateral Agent shall have no duty or liability whatsoever to any other Lender, except as otherwise provided herein and in the Agreement Among Lenders.

Appears in 1 contract

Sources: Revolving Credit and Guaranty Agreement (NewPage CORP)

Collateral Matters. (a) ~~Each~~ Agent ~~may~~ may, at its option, from time to time, at any time on or after an Event of Default and for so long as the same is continuing or upon any other failure of a condition precedent to the Loans and Letter of Credit Accommodations, make such disbursements and advances (“"Special Agent Advances”") which ~~such~~ Agent, in its sole discretion, deems necessary or desirable either (i) to ~~preserve, protect, prepare for sale~~ preserve or ~~lease or dispose of~~ protect the Collateral or any portion ~~thereof,~~ thereof or (ii) to enhance the likelihood or maximize the amount of repayment by ~~the Borrowers~~ any Borrower or any other Obligor of the Loans, ~~Reimbursement Obligations,~~ Letter of Credit ~~Obligations~~ Accommodations and other Obligations or (iii) to pay any other amount chargeable to ~~the Borrowers~~ any Borrower or any other Obligor pursuant to the terms of this ~~Agreement, including, without limitation,~~ Agreement or any of the other Financing Agreements consisting of costs, fees and expenses as and payments to any issuer of Letter of Credit Accommodations; provided, that, the Special Agent Advances described in ~~Section 12.04~~clauses (i) and (ii) above, together with the aggregate outstanding principal amount of additional Revolving Loans and Letter of Credit Accommodations described in SECTION 12.8, shall not exceed the lesser of (A) an amount equal to ten percent (10%) of the Borrowing Base , or (B) $4,500,000 and shall not be extant for more than 60 consecutive days. ~~The~~ Special Agent Advances shall be repayable on demand and be secured by the ~~Collateral and shall bear interest at a rate per annum equal to the rate then applicable to Revolving Loans that are Reference Rate Loans~~Collateral. ~~The Agent making any~~ Special Agent Advances shall not constitute Loans but shall otherwise constitute Obligations hereunder. Agent shall notify ~~the other Agent,~~ each Lender and ~~the Administrative~~ Borrower Agent in writing of each such Special Agent Advance, which notice shall include a description of the purpose of such Special Agent Advance. Without limitation to of its obligations pursuant to ~~Section 10.05~~SECTION 6.9, each Lender agrees that it shall make available to ~~the Agent making any Agent Advances~~Agent, upon ~~such~~ Agent’s 's demand, ~~in the currency in which the respective Agent Advance was made~~ in immediately available funds, the amount equal to such Lender’s 's Pro Rata Share of each such Special Agent ~~Advance subject to the terms of, the Agreement Among Lenders, provided that any such amount advanced by a Lender shall be deemed a Loan hereunder~~Advance. If such funds are not made available to ~~such~~ Agent by such Lender, ~~such~~ Agent shall be entitled to recover such ~~funds~~ funds, on demand from such ~~Lender,~~ Lender together with interest thereon for each day from the date such payment was due until the date such amount is paid to ~~such Agent,~~ Agent at the Federal Funds ~~Effective~~ Rate for each day during such period (as published by the Federal Reserve Bank of New York or at Agent's option based on the arithmetic mean determined by Agent of the rates for the last transaction in overnight Federal funds arranged prior to 9:00 a.m. (New York City time) on that day by each of the three ~~Business Days~~ leading brokers of Federal funds transactions in New York City selected by Agent) and ~~thereafter~~ if such amounts are not paid within three (3) days of Agent's demand, at the ~~Reference Rate~~highest Interest Rate provided for in SECTION 3.1 hereof applicable to Prime Rate Loans. (b) ~~The~~ Lenders hereby irrevocably authorize ~~the Collateral~~ Agent, at its option and in its ~~discretion,~~ discretion to release any security interest in, mortgage or Lien ~~granted to or held by~~ upon, any of the Collateral ~~Agent upon any Collateral~~ (i) upon termination of the ~~Total Commitment~~ Commitments and ~~Payment in Full~~ payment and satisfaction of all of the ~~Obligations;~~ Obligations and delivery of cash collateral to the extent required under SECTION 13.1 below, or (ii) constituting property being sold or disposed of in if Borrowers certify to Agent that the ~~ordinary course of any Loan Party’s business~~ sale or ~~otherwise~~ disposition is made in compliance with ~~the terms of this Agreement~~ SECTION 9.7 hereof (and ~~the other Loan Documents;~~ Agent may rely conclusively on any such certificate, without further inquiry), or (iii) constituting property in which ~~the Loan Parties owned no~~ any Borrower or any other Obligor did not own an interest at the time the security interest, mortgage or Lien was granted or at any time thereafter; , or (iv) having a value in the aggregate in any twelve (12) month period of less than $50,000, so long as no Event of Default exists at the time of such release, or (v) if approved, authorized or ratified in writing by all of Lenders. Except as provided above, Agent will not release any security interest in, mortgage or Lien upon, any of the ~~applicable Lenders required pursuant to Section 12.02~~Collateral without the prior written authorization of all of Lenders. Upon request by ~~the Collateral~~ Agent at any time, ~~the~~ Lenders will promptly confirm in writing ~~the Collateral~~ Agent’s 's authority to release particular types or items of Collateral pursuant to this ~~Section 10.08(b)~~Section. (c) Without in any manner limiting ~~the Collateral~~ Agent’s 's authority to act without any specific or further authorization or consent by the ~~Lenders (as set forth in Section 10.08(b))~~Required Lenders, each Lender agrees to confirm in writing, upon request by ~~the Collateral~~ Agent, the authority to release Collateral conferred upon ~~the Collateral~~ Agent under ~~Section 10.08(b)~~this Section. ~~Upon the prior written request by any Loan Party, the Collateral~~ Agent shall (and is hereby irrevocably authorized by ~~the~~ Lenders to) execute such documents as may be necessary ~~or reasonably requested by any Loan Party~~ to evidence the release of the security interest, mortgage or Liens granted to Agent upon any Collateral to the ~~Collateral Agent for the benefit of the Agents and the Lenders upon such Collateral~~extent set forth above; provided, ~~however~~that, ~~that~~ (i) ~~the Collateral~~ Agent shall not be required to execute any such document on terms which, in ~~the Collateral~~ Agent’s 's opinion, would expose ~~the Collateral~~ Agent to liability or create any obligations or entail any consequence other than the release of such security interest, mortgage or Liens without recourse or ~~warranty,~~ warranty and (ii) such release shall not in any manner discharge, affect or impair the Obligations or any security interest, mortgage or Lien upon (or obligations of any ~~Loan Party~~ Borrower or any other Obligor in respect of) ~~all interests in~~ the Collateral retained by ~~any Loan Party~~such Borrower or such other Obligor. (d) Anything contained in any of the Loan Documents to the contrary notwithstanding but subject to the Agreement Among Lenders, the Loan Parties, each Agent and each Lender hereby agree that (i) no Lender shall have any right individually to realize upon any of the Collateral under any Loan Document or to enforce any Guaranty, it being understood and agreed that all powers, rights and remedies under the Loan Documents may be exercised solely by the Collateral Agent for the benefit of the Lenders in accordance with the terms thereof, (ii) in the event of a foreclosure by the Collateral Agent on any of the Collateral pursuant to a public or private sale, the Administrative Agent, the Collateral Agent or any Lender may be the purchaser of any or all of such Collateral at any such sale and (iii) the Collateral Agent, as agent for and representative of the Agents and the Lenders (but not any other Agent or any Lender or Lenders in its or their respective individual capacities unless the Required Lenders shall otherwise agree in writing) shall be entitled (either directly or through one or more acquisition vehicles) for the purpose of bidding and making settlement or payment of the purchase price for all or any portion of the Collateral to be sold (A) at any public or private sale, (B) at any sale conducted by the Collateral Agent under the provisions of the Uniform Commercial Code (including pursuant to Sections 9-610 or 9-620 of the Uniform Commercial Code), (C) at any sale or foreclosure conducted by the Collateral Agent (whether by judicial action or otherwise) in accordance with applicable law or (D) any sale conducted pursuant to the provisions of any Debtor Relief Law (including Section 363 of the Bankruptcy Code), to use and apply all or any of the Obligations as a credit on account of the purchase price for any Collateral payable by the Collateral Agent at such sale. (e) The Collateral Agent shall have no obligation whatsoever to any Lender or any other Person to investigate, confirm or assure that the Collateral exists or is owned by ~~the Loan Parties~~ any Borrower or any other Obligor or is cared for, protected or insured or has been ~~encumbered~~ encumbered, or that any particular items of Collateral meet the eligibility criteria applicable in respect of the Loans and Letter of Credit Accommodations hereunder, or whether any particular reserves are appropriate, or that the ~~Lien~~ Liens and security interests granted to ~~the Collateral~~ Agent pursuant ~~to this Agreement~~ hereto or any ~~other Loan Document has~~ of the Financing Agreements or otherwise have been properly or sufficiently or lawfully created, perfected, protected or enforced or is are entitled to any particular priority, or to exercise at all or in any particular manner or under any duty of care, disclosure or fidelity, or to continue exercising, any of the rights, authorities and powers granted or available to ~~the Collateral~~ Agent in this ~~Section 10.08~~ Agreement or in any of the other ~~Loan Document~~Financing Agreements, it being understood and agreed that in respect of the Collateral, or any act, omission or event related thereto, ~~the Collateral~~ Agent may act in any manner it may deem appropriate, in its ~~sole~~ discretion, given ~~the Collateral~~ Agent’s 's own interest in the Collateral as ~~one of the Lenders~~ a Lender and that ~~the Collateral~~ Agent shall have no duty or liability whatsoever to any other Lender~~, except as otherwise provided herein and in the Agreement Among Lenders~~.

Appears in 1 contract

Sources: Loan and Security Agreement (Kirklands Inc)

Collateral Matters. (a) ~~Each~~ Agent ~~may~~ may, at its option, from time to time, at any time on or after an Event of Default and for so long as the same is continuing or upon any other failure of a condition precedent to the Loans and Letter of Credit Accommodations hereunder, make such disbursements and advances (“"Special Agent Advances”") which ~~such~~ Agent, in its sole discretion, deems necessary or desirable either (i) to ~~preserve, protect, prepare for sale~~ preserve or ~~lease or dispose of~~ protect the Collateral or any portion ~~thereof,~~ thereof or (ii) to enhance the likelihood or maximize the amount of repayment by ~~the Borrowers~~ Borrower of the ~~Loans, Reimbursement~~ Loans and other Obligations, provided, that, the aggregate principal amount of the Special Agent Advances pursuant to this clause (ii), plus the ten outstanding principal amount of the additional Loans and Letter of Credit ~~Obligations and other Obligations~~ Accommodations which Agent may make or provide as set forth in Section 12.8 hereof, shall not exceed the aggregate amount of ten (10%) percent of the Maximum Credit or (iii) to pay any other amount chargeable to ~~the Borrowers~~ Borrower pursuant to the terms of this ~~Agreement, including, without limitation,~~ Agreement or any of the other Financing Agreements consisting of costs, fees and expenses ~~as described in Section 12.04~~and payments to any issuer of Letter of Credit Accommodations. ~~The~~ Special Agent Advances shall be repayable on demand and be secured by the ~~Collateral and~~ Collateral. Special Agent Advances shall ~~bear interest~~ not constitute Loans but shall otherwise constitute Obligations hereunder. Interest on Special Advances shall be payable at ~~a rate per annum equal to~~ the ~~rate~~ Interest Rate then applicable to ~~Revolving Loans that are Reference~~ Prime Rate Loans. ~~The~~ Agent ~~making any Agent Advances~~ shall notify ~~the other Agent,~~ each Lender and ~~the Administrative~~ Borrower in writing of each such Special Agent Advance, which notice shall include a description of the purpose of such Special Agent Advance. Without limitation to of its obligations pursuant to Section ~~10.05~~6.9, each Lender agrees that it shall make available to ~~the Agent making any Agent Advances~~Agent, upon ~~such~~ Agent’s 's demand, ~~in the currency in which the respective Agent Advance was made~~ in immediately available funds, the amount equal to such Lender’s 's Pro Rata Share of each such Special Agent ~~Advance subject to the terms of, the Agreement Among Lenders, provided that any such amount advanced by a Lender shall be deemed a Loan hereunder~~Advance. If such funds are not made available to ~~such~~ Agent by such Lender, ~~such~~ Agent shall be entitled to recover such ~~funds~~ funds, on demand from such ~~Lender,~~ Lender together with interest thereon for each day from the date such payment was due until the date such amount is paid to ~~such Agent,~~ Agent at the Federal Funds ~~Effective~~ Rate for each day during such period (as published by the Federal Reserve Bank of Atlanta or at Agent's option based on the arithmetic mean determined by Agent of the rates for the last transaction in overnight Federal funds arranged prior to 9:00 a.m. (Atlanta, Georgia time) on that day by each of the three ~~Business Days~~ leading brokers of Federal funds transactions in New York City selected by Agent) and ~~thereafter~~ if such amounts are not paid within three (3) days of Agent's demand, at the ~~Reference Rate~~highest Interest Rate provided for in Section 3.1 hereof applicable to Prime Rate Loans. (b) ~~The~~ Lenders hereby irrevocably authorize ~~the Collateral~~ Agent, at its option and in its ~~discretion,~~ discretion to release any ~~Lien granted to~~ security interest in, mortgage or ~~held by~~ lien upon, any of the Collateral ~~Agent upon any Collateral~~ (i) upon termination of the ~~Total Commitment~~ Commitments and ~~Payment in Full~~ payment and satisfaction of all of the ~~Obligations;~~ Obligations and delivery of cash collateral to the extent required under Section 13.1 below, or (ii) constituting property being sold or disposed of in if Borrower certifies to Agent that the ~~ordinary course of any Loan Party’s business~~ sale or ~~otherwise~~ disposition is made in compliance with ~~the terms of this Agreement~~ Section 9.7 hereof (and ~~the other Loan Documents;~~ Agent may rely conclusively on any such certificate, without further inquiry), or (iii) constituting property in which ~~the Loan Parties owned no~~ Borrower or any Obligor did not own an interest at the time the ~~Lien~~ security interest, mortgage or lien was granted or at any time thereafter; , or (iv) having a value in the aggregate in any fiscal quarter period of less than $500,000, and to the extent Agent may release its security interest in and lien upon any such Collateral pursuant to the sale or other disposition thereof, such sale or other disposition shall be deemed consented to by Lenders, or (v) if required or permitted under the terms of any of the other Financing Agreements, including any intercreditor agreement, or (vi) approved, authorized or ratified in writing by all of Lenders. Except as provided above, Agent will not release any security interest in, mortgage or lien upon, any of the ~~applicable Lenders required pursuant to Section 12.02~~Collateral without the prior written authorization of all of Lenders. Upon request by ~~the Collateral~~ Agent at any time, ~~the~~ Lenders will promptly confirm in writing ~~the Collateral~~ Agent’s 's authority to release particular types or items of Collateral pursuant to this ~~Section 10.08(b)~~Section. (c) Without in any manner limiting ~~the Collateral~~ Agent’s 's authority to act without any specific or further authorization or consent by the ~~Lenders (as set forth in Section 10.08(b))~~Required Lenders, each Lender agrees to confirm in writing, upon request by ~~the Collateral~~ Agent, the authority to release Collateral conferred upon ~~the Collateral~~ Agent under ~~Section 10.08(b)~~this Section. ~~Upon the prior written request by any Loan Party, the Collateral~~ Agent shall (and is hereby irrevocably authorized by ~~the~~ Lenders to) execute such documents as may be necessary ~~or reasonably requested by any Loan Party~~ to evidence the release of the ~~Liens~~ security interest, mortgage or liens granted to Agent upon any Collateral to the ~~Collateral Agent for the benefit of the Agents and the Lenders upon such Collateral~~extent set forth above; provided, ~~however~~that, ~~that~~ (i) ~~the Collateral~~ Agent shall not be required to execute any such document on terms which, in ~~the Collateral~~ Agent’s 's opinion, would expose ~~the Collateral~~ Agent to liability or create any obligations or entail any consequence other than the release of such ~~Liens~~ security interest, mortgage or liens without recourse or ~~warranty,~~ warranty and (ii) such release shall not in any manner discharge, affect or impair the Obligations or any ~~Lien~~ security interest, mortgage or lien upon (or obligations of Borrower or any ~~Loan Party~~ Obligor in respect of) ~~all interests in~~ the Collateral retained by Borrower or any ~~Loan Party~~Obligor. (d) Anything contained in any of the Loan Documents to the contrary notwithstanding but subject to the Agreement Among Lenders, the Loan Parties, each Agent and each Lender hereby agree that (i) no Lender shall have any right individually to realize upon any of the Collateral under any Loan Document or to enforce any Guaranty, it being understood and agreed that all powers, rights and remedies under the Loan Documents may be exercised solely by the Collateral Agent for the benefit of the Lenders in accordance with the terms thereof, (ii) in the event of a foreclosure by the Collateral Agent on any of the Collateral pursuant to a public or private sale, the Administrative Agent, the Collateral Agent or any Lender may be the purchaser of any or all of such Collateral at any such sale and (iii) the Collateral Agent, as agent for and representative of the Agents and the Lenders (but not any other Agent or any Lender or Lenders in its or their respective individual capacities unless the Required Lenders shall otherwise agree in writing) shall be entitled (either directly or through one or more acquisition vehicles) for the purpose of bidding and making settlement or payment of the purchase price for all or any portion of the Collateral to be sold (A) at any public or private sale, (B) at any sale conducted by the Collateral Agent under the provisions of the Uniform Commercial Code (including pursuant to Sections 9-610 or 9-620 of the Uniform Commercial Code), (C) at any sale or foreclosure conducted by the Collateral Agent (whether by judicial action or otherwise) in accordance with applicable law or (D) any sale conducted pursuant to the provisions of any Debtor Relief Law (including Section 363 of the Bankruptcy Code), to use and apply all or any of the Obligations as a credit on account of the purchase price for any Collateral payable by the Collateral Agent at such sale. (e) The Collateral Agent shall have no obligation whatsoever to any Lender or any other Person to investigate, confirm or assure that the Collateral exists or is owned by ~~the Loan Parties~~ Borrower or any Obligor or is cared for, protected or insured or has been ~~encumbered~~ encumbered, or that any particular items of Collateral meet the eligibility criteria applicable in respect of the Loans or Letter of Credit Accommodations hereunder, or whether any particular reserves are appropriate, or that the ~~Lien~~ liens and security interests granted to ~~the Collateral~~ Agent pursuant ~~to this Agreement~~ hereto or any ~~other Loan Document has~~ of the Financing Agreements or otherwise have been properly or sufficiently or lawfully created, perfected, protected or enforced or is are entitled to any particular priority, or to exercise at all or in any particular manner or under any duty of care, disclosure or fidelity, or to continue exercising, any of the rights, authorities and powers granted or available to ~~the Collateral~~ Agent in this ~~Section 10.08~~ Agreement or in any of the other ~~Loan Document~~Financing Agreements, it being understood and agreed that in respect of the Collateral, or any act, omission or event related thereto, ~~the Collateral~~ Agent may act in any manner it may deem appropriate, in its ~~sole~~ discretion, given ~~the Collateral~~ Agent’s 's own interest in the Collateral as ~~one of the Lenders~~ a Lender and that ~~the Collateral~~ Agent shall have no duty or liability whatsoever to any other Lender~~, except as otherwise provided herein and in the Agreement Among Lenders~~.

Appears in 1 contract

Sources: Loan and Security Agreement (Delta Apparel Inc)

Collateral Matters. (a) ~~Each~~ The Collateral Agent ~~may~~ may, after the occurrence and during the continuation of a Default or an Event of Default, from time to time make such disbursements and advances (“"Collateral Agent Advances”") which ~~such~~ the Collateral Agent, in its ~~sole~~ reasonable discretion, deems necessary or desirable to preserve, protect, prepare for sale or lease or dispose of the Collateral or any portion thereof, to enhance the likelihood or maximize the amount of repayment by the ~~Borrowers~~ Borrower of the Loans, Reimbursement Obligations, Letter of Credit Obligations and other Obligations or to pay any other amount chargeable to the ~~Borrowers~~ Borrower pursuant to the terms of this Agreement, including, without limitation, costs, fees and expenses as described in ~~Section 12.04~~0, provided that the aggregate amount of outstanding Collateral Agent Advances at no time shall exceed $5,500,000. The Collateral Agent Advances shall be repayable on demand and be secured by the ~~Collateral and shall bear interest at a rate per annum equal to the rate then applicable to Revolving Loans that are Reference Rate Loans~~Collateral. The ~~Agent making any~~ Collateral Agent Advances shall constitute Obligations hereunder which may be charged to the Loan Account in accordance with 1)a)x). The Collateral Agent shall notify ~~the other Agent,~~ each Lender and the ~~Administrative~~ Borrower in writing of each such Collateral Agent Advance, which notice shall include a description of the purpose of such Collateral Agent Advance. Without limitation to its obligations pursuant to ~~Section 10.05~~0, each Lender agrees that it shall make available to the ~~Agent making any Agent Advances~~Collateral Agent, upon ~~such~~ the Collateral Agent’s 's demand, in ~~the currency in which the respective Agent Advance was made~~ Dollars in immediately available funds, the amount equal to such Lender’s 's Pro Rata Share (determined under clause (d) of the definition of Pro Rata Share) of each such Collateral Agent ~~Advance subject to the terms of, the Agreement Among Lenders, provided that any such amount advanced by a Lender shall be deemed a Loan hereunder~~Advance. If such funds are not made available to ~~such~~ the Collateral Agent by such Lender, ~~such~~ the Collateral Agent shall be entitled to recover such funds on demand from such Lender, together with interest thereon for each day from the date such payment was due until the date such amount is paid to ~~such~~ the Collateral Agent, at the Federal Funds ~~Effective~~ Rate for three Business Days and thereafter at the Reference Rate. (b) The Lenders hereby irrevocably authorize the Collateral Agent, at its option and in its discretion, to release any Lien granted to or held by the Collateral Agent upon any Collateral upon termination of the Total Commitment and ~~Payment~~ payment and satisfaction of all Loans, Reimbursement Obligations, Letter of Credit Obligations, and all other Obligations in ~~Full of~~ accordance with the ~~Obligations~~terms hereof; or constituting property being sold or disposed of ~~in the ordinary course of any Loan Party’s business or otherwise~~ in compliance with the terms of this Agreement and the other Loan Documents; or constituting property in which the Loan Parties owned no interest at the time the Lien was granted or at any time thereafter; or if approved, authorized or ratified in writing by the ~~applicable Lenders required pursuant to Section 12.02~~Lenders. Upon request by the Collateral Agent at any time, the Lenders will confirm in writing the Collateral Agent’s 's authority to release particular types or items of Collateral pursuant to this ~~Section 10.08(b)~~0. (c) Without in any manner limiting the Collateral Agent’s 's authority to act without any specific or further authorization or consent by the Lenders (as set forth in ~~Section 10.08(b)~~0), each Lender agrees to confirm in writing, upon request by the Collateral Agent, the authority to release Collateral conferred upon the Collateral Agent under ~~Section 10.08(b)~~0. Upon receipt by the Collateral Agent of confirmation from the Lenders of its authority to release any particular item or types of Collateral, and upon prior written request by any Loan Party, the Collateral Agent shall (and is hereby irrevocably authorized by the Lenders to) execute such documents as may be necessary ~~or reasonably requested by any Loan Party~~ to evidence the release of the Liens granted to the Collateral Agent for the benefit of the ~~Agents~~ Agents, the Lenders and the ~~Lenders~~ Bank Product Providers upon such Collateral; provided, however, that (i) the Collateral Agent shall not be required to execute any such document on terms which, in the Collateral Agent’s 's opinion, would expose the Collateral Agent to liability or create any obligations or entail any consequence other than the release of such Liens without recourse or warranty, and (ii) such release shall not in any manner discharge, affect or impair the Obligations or any Lien upon (or obligations of any Loan Party in respect of) all interests in the Collateral retained by any Loan Party. (d) ~~Anything contained in any of the Loan Documents to the contrary notwithstanding but subject to the Agreement Among Lenders, the Loan Parties, each~~ Neither Agent ~~and each Lender hereby agree that (i) no Lender~~ shall have any right individually to realize upon any of the Collateral under any Loan Document or to enforce any Guaranty, it being understood and agreed that all powers, rights and remedies under the Loan Documents may be exercised solely by the Collateral Agent for the benefit of the Lenders in accordance with the terms thereof, (ii) in the event of a foreclosure by the Collateral Agent on any of the Collateral pursuant to a public or private sale, the Administrative Agent, the Collateral Agent or any Lender may be the purchaser of any or all of such Collateral at any such sale and (iii) the Collateral Agent, as agent for and representative of the Agents and the Lenders (but not any other Agent or any Lender or Lenders in its or their respective individual capacities unless the Required Lenders shall otherwise agree in writing) shall be entitled (either directly or through one or more acquisition vehicles) for the purpose of bidding and making settlement or payment of the purchase price for all or any portion of the Collateral to be sold (A) at any public or private sale, (B) at any sale conducted by the Collateral Agent under the provisions of the Uniform Commercial Code (including pursuant to Sections 9-610 or 9-620 of the Uniform Commercial Code), (C) at any sale or foreclosure conducted by the Collateral Agent (whether by judicial action or otherwise) in accordance with applicable law or (D) any sale conducted pursuant to the provisions of any Debtor Relief Law (including Section 363 of the Bankruptcy Code), to use and apply all or any of the Obligations as a credit on account of the purchase price for any Collateral payable by the Collateral Agent at such sale. (e) The Collateral Agent shall have no obligation whatsoever to any Lender to assure that the Collateral exists or is owned by the Loan Parties or is cared for, protected or insured or has been encumbered or that the Lien granted to the Collateral Agent pursuant to this Agreement or any other Loan Document has been properly or sufficiently or lawfully created, perfected, protected or enforced or is entitled to any particular priority, or to exercise at all or in any particular manner or under any duty of care, disclosure or fidelity, or to continue exercising, any of the rights, authorities and powers granted or available to ~~the Collateral~~ any Agent in this ~~Section 10.08~~ 0 or in any other Loan Document, it being understood and agreed that in respect of the Collateral, or any act, omission or event related thereto, ~~the Collateral~~ any Agent may act in any manner it may deem appropriate, in its sole discretion, given ~~the Collateral~~ such Agent’s 's own interest in the Collateral as one of the Lenders and that ~~the Collateral~~ neither Agent shall have no any duty or liability whatsoever to any other Lender, except as otherwise provided ~~herein and in the Agreement Among Lenders~~herein.

Appears in 1 contract

Sources: Financing Agreement (MDC Partners Inc)

Appears in 1 contract

Sources: Financing Agreement (Patriot National, Inc.)

Collateral Matters. (a) ~~Each Agent~~ The Agents may (but shall not be obligated) from time to time make such disbursements and advances (“"Agent Advances”") which ~~such~~ either Agent, in its sole discretion, deems necessary or desirable to preserve, protect, prepare for sale or lease or dispose of the Collateral or any portion thereof, to enhance the likelihood or maximize the amount of repayment by the Borrowers of the Loans~~, Reimbursement Obligations~~, Letter of Credit Obligations and other Obligations or to pay any other amount chargeable to the Borrowers pursuant to the terms of this Agreement, including, without limitation, costs, fees and expenses as described in Section 12.04. The Agent Advances shall be repayable on demand and be secured by the Collateral and shall bear interest at a rate per annum equal to the rate then applicable to Revolving Loans that are Reference Rate Loans. The Agent ~~making any Agent~~ Advances shall constitute Obligations hereunder which may be charged to the Loan Account in accordance with Section 4.02. The Agent making such Agent Advance shall notify ~~the other Agent,~~ each Lender and the ~~Administrative Borrower~~ Borrowing Agent in writing of each such Agent Advance, which notice shall include a description of the purpose of such Agent Advance. Without limitation to its obligations pursuant to Section 10.05, each Lender agrees that it shall make available to the ~~Agent making any Agent Advances~~applicable Agent, upon such Agent’s 's demand, in ~~the currency in which the respective Agent Advance was made~~ Dollars in immediately available funds, the amount equal to such Lender’s 's Pro Rata Share of each such Agent ~~Advance subject to the terms of, the Agreement Among Lenders, provided that any such amount advanced by a Lender shall be deemed a Loan hereunder~~Advance. If such funds are not made available to ~~such~~ the applicable Agent by such Lender, such Agent shall be entitled to recover such funds on demand from such Lender, together with interest thereon for each day from the date such payment was due until the date such amount is paid to such Agent, at the Federal Funds Effective Rate for ~~three~~ 3 Business Days and thereafter at the Reference Rate. (b) The Lenders hereby irrevocably authorize the Collateral Agent, at its option and in its discretion, to release any Lien granted to or held by the Collateral Agent upon any Collateral upon termination of the Total Commitment and ~~Payment~~ payment and satisfaction of all Loans and all other Obligations in ~~Full of~~ accordance with the ~~Obligations~~terms hereof; or constituting property being sold or disposed of in the ordinary course of any Loan Party’s 's business or otherwise in compliance with the terms of this Agreement and the other Loan Documents; or constituting property in which the Loan Parties owned no interest at the time the Lien was granted or at any time thereafter; or if approved, authorized or ratified in writing by the ~~applicable~~ Lenders ~~required pursuant to~~ in accordance with Section 12.02. Upon request by the Collateral Agent at any time, the Lenders will confirm in writing the Collateral Agent’s 's authority to release particular types or items of Collateral pursuant to this Section 10.08(b). (c) Without in any manner limiting the Collateral Agent’s 's authority to act without any specific or further authorization or consent by the Lenders (as set forth in Section 10.08(b)), each Lender agrees to confirm in writing, upon request by the Collateral Agent, the authority to release Collateral conferred upon the Collateral Agent under Section 10.08(b). Upon receipt by the Collateral Agent of confirmation from the Lenders of its authority to release any particular item or types of Collateral, and upon prior written request by any Loan Party, the Collateral Agent shall (and is hereby irrevocably authorized by the Lenders to) execute such documents as may be necessary ~~or reasonably requested by any Loan Party~~ to evidence the release of the Liens granted to the Collateral Agent for the benefit of the Agents and the Lenders upon such Collateral; provided, however, that (i) the Collateral Agent shall not be required to execute any such document on terms which, in the Collateral Agent’s 's opinion, would expose the Collateral Agent to liability or create any obligations or entail any consequence other than the release of such Liens without recourse or warranty, and (ii) such release shall not in any manner discharge, affect or impair the Obligations or any Lien upon (or obligations of any Loan Party in respect of) all interests in the Collateral retained by any Loan Party. (d) Anything contained in any of the Loan Documents to the contrary ~~notwithstanding but subject to the Agreement Among Lenders~~notwithstanding, the Loan Parties, each Agent and each Lender hereby agree that (i) no Lender shall have any right individually to realize upon any of the Collateral under any Loan Document or to enforce any Guaranty, it being understood and agreed that all powers, rights and remedies under the Loan Documents may be exercised solely by the Collateral Agent for the benefit of the Lenders in accordance with the terms thereof, (ii) in the event of a foreclosure by the Collateral Agent on any of the Collateral pursuant to a public or private sale, the Administrative Agent, the Collateral Agent or any Lender may be the purchaser of any or all of such Collateral at any such sale and (iii) the Collateral Agent, as agent for and representative of the Agents and the Lenders (but not any other Agent or any Lender or Lenders in its or their respective individual capacities unless the Required Lenders shall otherwise agree in writing) shall be entitled (either directly or through one or more acquisition vehicles) for the purpose of bidding and making settlement or payment of the purchase price for all or any portion of the Collateral to be sold (A) at any public or private sale, (B) at any sale conducted by the Collateral Agent under the provisions of the Uniform Commercial Code (including pursuant to Sections 9-610 or 9-620 of the Uniform Commercial Code)) or PPSA, (C) at any sale or foreclosure conducted by the Collateral Agent (whether by judicial action or otherwise) in accordance with applicable law or (D) any sale conducted pursuant to the provisions of any Debtor Relief Law (including Section 363 of the Bankruptcy Code), to use and apply all or any of the Obligations as a credit on account of the purchase price for any Collateral payable by the Collateral Agent at such sale. (e) The Collateral Agent shall have no obligation whatsoever to any Lender to assure that the Collateral exists or is owned by the Loan Parties or is cared for, protected or insured or has been encumbered or that the Lien granted to the Collateral Agent pursuant to this Agreement or any other Loan Document has been properly or sufficiently or lawfully created, perfected, protected or enforced or is entitled to any particular priority, or to exercise at all or in any particular manner or under any duty of care, disclosure or fidelity, or to continue exercising, any of the rights, authorities and powers granted or available to the Collateral Agent in this Section 10.08 or in any other Loan Document, it being understood and agreed that in respect of the Collateral, or any act, omission or event related thereto, the Collateral Agent may act in any manner it may deem appropriate, in its sole discretion, given the Collateral Agent’s 's own interest in the Collateral as one of the Lenders and that the Collateral Agent shall have no duty or liability whatsoever to any other Lender, except as otherwise provided herein ~~and~~ or in the ~~Agreement Among Lenders~~other Loan Documents.

Appears in 1 contract

Sources: Financing Agreement (Harvard Bioscience Inc)

Appears in 1 contract

Sources: Financing Agreement (Redback Networks Inc)

Collateral Matters. (a) ~~Each~~ Agent ~~may~~ may, at its option, from time to time, at any time on or after an Event of Default and for so long as the same is continuing or upon any other failure of a condition precedent to the Loans and Letter of Credit Accommodations hereunder, make such disbursements and advances (“"Special Agent Advances”") which ~~such~~ Agent, in its sole discretion, deems necessary or desirable either (i) to ~~preserve, protect, prepare for sale~~ preserve or ~~lease or dispose of~~ protect the Collateral or any portion ~~thereof,~~ thereof or (ii) to enhance the likelihood or maximize the amount of repayment by ~~the~~ Borrowers and Guarantors of the ~~Loans, Reimbursement Obligations, Letter of Credit Obligations~~ Loans and other Obligations or (iii) to pay any other amount chargeable to ~~the Borrowers~~ any Borrower or Guarantor pursuant to the terms of this ~~Agreement, including, without limitation,~~ Agreement or any of the other Financing Agreements consisting of costs, fees and expenses as and payments to any issuer of Letter of Credit Accommodations; PROVIDED, THAT, the Special Agent Advances described in ~~Section 12.04~~clauses (i) and (ii) above, together with the aggregate outstanding principal amount of Overadvances, shall not exceed $2,000,000. ~~The~~ Special Agent Advances shall be repayable on demand and be secured by the ~~Collateral and shall bear interest at a rate per annum equal to the rate then applicable to Revolving Loans that are Reference Rate Loans~~Collateral. ~~The Agent making any~~ Special Agent Advances shall not constitute Loans but shall otherwise constitute Obligations hereunder. Agent shall notify ~~the other Agent,~~ each Lender and ~~the Administrative Borrower~~ Parent in writing of each such Special Agent Advance, which notice shall include a description of the purpose of such Special Agent Advance. Without limitation to of its obligations pursuant to Section ~~10.05~~6.9, each Lender agrees that it shall make available to ~~the Agent making any Agent Advances~~Agent, upon ~~such~~ Agent’s 's demand, ~~in the currency in which the respective Agent Advance was made~~ in immediately available funds, the amount equal to such Lender’s 's Pro Rata Share of each such Special Agent ~~Advance subject to the terms of, the Agreement Among Lenders, provided that any such amount advanced by a Lender shall be deemed a Loan hereunder~~Advance. If such funds are not made available to ~~such~~ Agent by such Lender, ~~such~~ Agent shall be entitled to recover such ~~funds~~ funds, on demand from such ~~Lender,~~ Lender together with interest thereon for each day from the date such payment was due until the date such amount is paid to ~~such Agent,~~ Agent at the Federal Funds ~~Effective~~ Rate for each day during such period (as published by the Federal Reserve Bank of New York or at Agent's option based on the arithmetic mean determined by Agent of the rates for the last transaction in overnight Federal funds arranged prior to 9:00 a.m. (Miami, Florida time) on that day by each of the three ~~Business Days~~ leading brokers of Federal funds transactions in New York City selected by Agent) and ~~thereafter~~ if such amounts are not paid within three (3) days of Agent's demand, at the ~~Reference Rate~~highest Interest Rate provided for in Section 3.1 hereof applicable to Revolving Loans. (b) ~~The~~ Lenders hereby irrevocably authorize ~~the Collateral~~ Agent, at its option and in its ~~discretion,~~ 112 discretion to release any ~~Lien granted to~~ security interest in, mortgage or ~~held by~~ lien upon, any of the Collateral ~~Agent upon any Collateral~~ (i) upon termination of the ~~Total Commitment~~ Commitments and ~~Payment in Full~~ payment and satisfaction of all of the ~~Obligations;~~ Obligations and delivery of cash collateral to the extent required under Section 13.1 below, or (ii) constituting property being sold or disposed of in if Parent or any Borrower certifies to Agent that the ~~ordinary course of any Loan Party’s business~~ sale or ~~otherwise~~ disposition is made in compliance with ~~the terms of this Agreement~~ Section 9.7 hereof (and ~~the other Loan Documents;~~ Agent may rely conclusively on any such certificate, without further inquiry), or (iii) constituting property in which ~~the Loan Parties owned no~~ any Borrower or Guarantor did not own an interest at the time the ~~Lien~~ security interest, mortgage or lien was granted or at any time thereafter; , or (iv) having a value in the aggregate in any twelve (12) month period of less than the US Dollar Equivalent of $100,000 or (v) if approved, authorized or ratified in writing by all of Lenders. Except as provided above, Agent will not release any security interest in, mortgage or lien upon, any of the ~~applicable Lenders required pursuant to Section 12.02~~Collateral without the prior written authorization of all of Lenders. Upon request by ~~the Collateral~~ Agent at any time, ~~the~~ Lenders will promptly confirm in writing ~~the Collateral~~ Agent’s 's authority to release particular types or items of Collateral pursuant to this ~~Section 10.08(b)~~Section. (c) Without in any manner limiting ~~the Collateral~~ Agent’s 's authority to act without any specific or further authorization or consent by the ~~Lenders (as set forth in Section 10.08(b))~~Required Lenders, each Lender agrees to confirm in writing, upon request by ~~the Collateral~~ Agent, the authority to release Collateral conferred upon ~~the Collateral~~ Agent under ~~Section 10.08(b)~~this Section. ~~Upon the prior written request by any Loan Party, the Collateral~~ Agent shall (and is hereby irrevocably authorized by ~~the~~ Lenders to) execute such documents as may be necessary ~~or reasonably requested by any Loan Party~~ to evidence the release of the ~~Liens~~ security interest, mortgage or liens granted to Agent upon any Collateral to the ~~Collateral Agent for the benefit of the Agents and the Lenders upon such Collateral~~extent set forth above; ~~provided~~PROVIDED, ~~however~~THAT, ~~that~~ (i) ~~the Collateral~~ Agent shall not be required to execute any such document on terms which, in ~~the Collateral~~ Agent’s 's opinion, would expose ~~the Collateral~~ Agent to liability or create any obligations or entail any consequence other than the release of such ~~Liens~~ security interest, mortgage or liens without recourse or ~~warranty,~~ warranty and (ii) such release shall not in any manner discharge, affect or impair the Obligations or any ~~Lien~~ security interest, mortgage or lien upon (or obligations of any ~~Loan Party~~ Borrower or Guarantor in respect of) ~~all interests in~~ the Collateral retained by ~~any Loan Party~~such Borrower or Guarantor. (d) Anything contained in any of the Loan Documents to the contrary notwithstanding but subject to the Agreement Among Lenders, the Loan Parties, each Agent and each Lender hereby agree that (i) no Lender shall have any right individually to realize upon any of the Collateral under any Loan Document or to enforce any Guaranty, it being understood and agreed that all powers, rights and remedies under the Loan Documents may be exercised solely by the Collateral Agent for the benefit of the Lenders in accordance with the terms thereof, (ii) in the event of a foreclosure by the Collateral Agent on any of the Collateral pursuant to a public or private sale, the Administrative Agent, the Collateral Agent or any Lender may be the purchaser of any or all of such Collateral at any such sale and (iii) the Collateral Agent, as agent for and representative of the Agents and the Lenders (but not any other Agent or any Lender or Lenders in its or their respective individual capacities unless the Required Lenders shall otherwise agree in writing) shall be entitled (either directly or through one or more acquisition vehicles) for the purpose of bidding and making settlement or payment of the purchase price for all or any portion of the Collateral to be sold (A) at any public or private sale, (B) at any sale conducted by the Collateral Agent under the provisions of the Uniform Commercial Code (including pursuant to Sections 9-610 or 9-620 of the Uniform Commercial Code), (C) at any sale or foreclosure conducted by the Collateral Agent (whether by judicial action or otherwise) in accordance with applicable law or (D) any sale conducted pursuant to the provisions of any Debtor Relief Law (including Section 363 of the Bankruptcy Code), to use and apply all or any of the Obligations as a credit on account of the purchase price for any Collateral payable by the Collateral Agent at such sale. (e) The Collateral Agent shall have no obligation whatsoever to any Lender or any other Person to investigate, confirm or assure that the Collateral exists or is owned by ~~the Loan Parties~~ any Borrower or Guarantor or is cared for, protected or insured or has been ~~encumbered~~ encumbered, or that any particular items of Collateral meet the eligibility criteria applicable in respect of the Loans or Letter of Credit Accommodations hereunder, or whether any particular reserves are appropriate, or that the ~~Lien~~ liens and security interests granted to ~~the Collateral~~ Agent pursuant ~~to this Agreement~~ hereto or any ~~other Loan Document has~~ of the Financing Agreements or otherwise have been properly or sufficiently or lawfully created, perfected, protected or enforced or is are entitled to any particular priority, or to exercise at all or in any particular manner or under any duty of care, disclosure or fidelity, or to continue exercising, any of the rights, authorities and powers granted or available to ~~the Collateral~~ Agent in this ~~Section 10.08~~ Agreement or in any of the other ~~Loan Document~~Financing Agreements, it being understood and agreed that in respect of the Collateral, or any act, omission or event related thereto, ~~the Collateral~~ Agent may act in any manner it may deem appropriate, in its ~~sole~~ discretion, given ~~the Collateral~~ Agent’s 's own interest in the Collateral as ~~one of the Lenders~~ a Lender and that ~~the Collateral~~ Agent shall have no duty or liability whatsoever to any other Lender~~, except as otherwise provided herein and in the Agreement Among Lenders~~.

Appears in 1 contract

Sources: Loan and Security Agreement (Thane International Inc)

Collateral Matters. (a) ~~Each~~ Agent may from time to ~~time~~ time, before or after the occurrence of an Event of Default, make such disbursements and advances to the Collateral Agent (“"Agent Advances”") which ~~such~~ Agent, in its sole discretion, deems necessary or desirable to ~~preserve, protect, prepare for sale~~ preserve or ~~lease or dispose of~~ protect the Collateral or any portion thereof, to enhance the likelihood or maximize the amount of repayment ~~by the Borrowers~~ of the ~~Loans, Reimbursement Obligations, Letter of Credit Obligations and other~~ Obligations or to pay any other amount chargeable to ~~the Borrowers~~ Borrower or any Guarantor pursuant to the terms of this ~~Agreement~~Agreement or any Collateral Document, including, without limitation, costs, fees and expenses as described in Section ~~12.04~~9.06; provided, however, that the Agent Advances shall not exceed One Hundred Thousand Dollars ($100,000) without the prior written consent of Majority Lenders. The Agent Advances shall be repayable on demand and be secured by the ~~Collateral and shall bear interest at a rate per annum equal to the rate then applicable to Revolving Loans that are Reference Rate Loans~~Collateral. The Agent ~~making any Agent~~ Advances shall not constitute Advances but shall otherwise constitute Obligations hereunder. Agent shall notify ~~the other Agent,~~ each Lender ~~and the Administrative Borrower~~ in writing of each such Agent Advance, which notice shall include a description of the purpose of such Agent Advance. Without limitation to its obligations pursuant to Section ~~10.05~~10.09, each Lender agrees that it shall make available to ~~the Agent making any Agent Advances~~Agent, upon ~~such~~ Agent’s demand, ~~in the currency in which the respective Agent Advance was made~~ in immediately available funds, the amount equal to such Lender’s ~~Pro Rata Share~~ Commitment Percentage of each such Agent ~~Advance subject to the terms of, the Agreement Among Lenders, provided that any such amount advanced by a Lender shall be deemed a Loan hereunder~~Advance. If such funds are not made available to ~~such~~ Agent by such ~~Lender~~Lender within one (1) Banking Day after Agent’s demand therefor, ~~such~~ Agent ~~shall~~ will be entitled to recover any such ~~funds on demand~~ amount from such ~~Lender,~~ Lender together with interest thereon at the Federal Funds Rate for each day ~~from~~ during the period commencing the date of such ~~payment was due until~~ demand and ending on the date such amount is ~~paid to such Agent, at the Federal Funds Effective Rate for three Business Days and thereafter at the Reference Rate~~received. (b) ~~The~~ Lenders hereby irrevocably authorize ~~the Collateral~~ Agent, at its option and in its discretion, to direct the Collateral Agent to release or subordinate on terms satisfactory to the Collateral Agent any Lien granted to or held by the Collateral Agent upon any Collateral (i) upon termination of the ~~Total Commitment~~ Revolving Credit Commitments and ~~Payment~~ Term Loan Commitments and indefeasible payment in ~~Full~~ full and satisfaction of all of the Obligations; or (ii) constituting property being sold or disposed of in if the ~~ordinary course of any Loan Party’s business~~ sale or ~~otherwise in compliance~~ disposition is permitted hereunder (including with ~~the terms of this Agreement and the other Loan Documents~~respect to Receivables Assets); or (iii) constituting property in which ~~the Loan Parties~~ neither Borrower nor any Guarantor owned no an interest at the time the Lien was granted or at any time thereafter; or (iv) constituting property leased to Borrower or any Guarantor; or (v) if approved, authorized or ratified in writing by the ~~applicable Lenders required pursuant~~ Majority Lenders; or (vi) subject to ~~Section 12.02~~a Permitted Lien; or (vii) not owned by the Borrower or any Guarantor. Upon request by ~~the Collateral~~ Agent at any time, ~~the~~ Lenders will confirm in writing ~~the Collateral~~ Agent’s authority to so direct the release of particular types or items of Collateral pursuant to this Section ~~10.08(b~~10.13(b). The Lenders hereby irrevocably authorize Agent, at its option and discretion (1) to direct the Collateral Agent to release and subordinate, on terms satisfactory to the Collateral Agent, Liens on Collateral which is also subject to Permitted Liens, (2) to execute any release, subordination or acknowledgement documents requested by the Borrower in order to effect any release or subordination described in this paragraph (b) and (3) to execute acknowledgements with respect to leases to the effect that the Property subject to such leases is not subject to the Liens created by the Credit Documents or Collateral. This paragraph (b) is intended as an authorization by the Lenders to permit the Agent and the Collateral Agent to take the actions described herein and neither the Borrower nor any of its Subsidiaries or any other Person shall be entitled to the benefits hereof. (c) Without in any manner limiting ~~the Collateral~~ Agent’s authority to act without any specific or further authorization or consent by the Majority Lenders (as set forth in Section ~~10.08(b)~~10.13(b) above), each Lender agrees to confirm in writing, upon request by ~~the Collateral Agent~~Borrower, the authority to direct the release of Collateral conferred upon the ~~Collateral~~ Agent under clauses (i) through (v) of Section ~~10.08(b)~~10.13(b) above. ~~Upon~~ So long as no Event of Default is then continuing, upon receipt by Agent of confirmation from the Majority Lenders of its authority to direct the release of any particular item or types of Collateral, and upon at least five (5) Banking Days’ prior written request by ~~any Loan Party~~Borrower, ~~the Collateral~~ Agent shall (and is hereby irrevocably authorized by ~~the~~ Lenders to) direct the Collateral Agent to execute such documents as may be necessary ~~or reasonably requested by any Loan Party~~ to evidence the release of the Liens granted to the Collateral Agent for the benefit of the ~~Agents and the Lenders~~ Secured Creditors herein or pursuant hereto upon such Collateral; provided, however, that (i) ~~the Collateral~~ Agent shall not be required to direct the Collateral Agent to execute any such document on terms which, in ~~the Collateral~~ Agent’s opinion, would expose Agent or the Collateral Agent to liability or create any ~~obligations~~ obligation or entail any consequence other than the release of such Liens without recourse or warranty, and (ii) such release shall not in any manner discharge, affect or impair the Obligations or any ~~Lien~~ Liens upon (or obligations of ~~any Loan Party~~ Borrower in respect of) all interests ~~in the Collateral~~ retained by Borrower, including (without limitation) the proceeds of any ~~Loan Party~~sale, all of which shall continue to constitute part of the Collateral. (d) ~~Anything contained in any of the Loan Documents to the contrary notwithstanding but subject to the Agreement Among Lenders, the Loan Parties, each~~ Neither Agent and each Lender hereby agree that (i) no Lender shall have any right individually to realize upon any of the Collateral under any Loan Document or to enforce any Guaranty, it being understood and agreed that all powers, rights and remedies under the Loan Documents may be exercised solely by the Collateral Agent for the benefit of the Lenders in accordance with the terms thereof, (ii) in the event of a foreclosure by the Collateral Agent on any of the Collateral pursuant to a public or private sale, the Administrative Agent, the Collateral Agent or any Lender may be the purchaser of any or all of such Collateral at any such sale and (iii) the Collateral Agent, as agent for and representative of the Agents and the Lenders (but not any other Agent or any Lender or Lenders in its or their respective individual capacities unless the Required Lenders shall otherwise agree in writing) shall be entitled (either directly or through one or more acquisition vehicles) for the purpose of bidding and making settlement or payment of the purchase price for all or any portion of the Collateral to be sold (A) at any public or private sale, (B) at any sale conducted by the Collateral Agent under the provisions of the Uniform Commercial Code (including pursuant to Sections 9-610 or 9-620 of the Uniform Commercial Code), (C) at any sale or foreclosure conducted by the Collateral Agent (whether by judicial action or otherwise) in accordance with applicable law or (D) any sale conducted pursuant to the provisions of any Debtor Relief Law (including Section 363 of the Bankruptcy Code), to use and apply all or any of the Obligations as a credit on account of the purchase price for any Collateral payable by the Collateral Agent at such sale. (e) The nor Collateral Agent shall have no any obligation whatsoever to any Lender to assure that the Collateral exists or is owned by ~~the Loan Parties~~ Borrower or is cared for, protected or insured or has been encumbered or that the ~~Lien~~ Liens granted to the Collateral Agent pursuant to ~~this Agreement or~~ any ~~other Loan~~ Collateral Document ~~has~~ have been properly or sufficiently or lawfully created, perfected, protected or enforced or is are entitled to any particular priority, 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~~ Agent or Collateral Agent in this Section ~~10.08~~ 10.13 or in any ~~other Loan Document~~of the Collateral Documents, it being understood and agreed that in respect of the Collateral, or any act, omission or event related thereto, ~~the Collateral~~ Agent may act in any manner it may deem appropriate, in its sole discretion, given ~~the Collateral~~ Agent’s own interest in the Collateral as one of the Lenders and that ~~the Collateral~~ Agent shall have no duty or liability whatsoever to any ~~other Lender,~~ Lender (except as ~~otherwise~~ specifically provided ~~herein~~ in this Agreement and the Collateral Documents). EACH LENDER FURTHER ACKNOWLEDGES AND AGREES THAT AGENT SHALL NOT BE RESPONSIBLE FOR, AND SHALL HAVE NO LIABILITY OR OBLIGATION WITH RESPECT TO, THE VALIDITY, EFFECTIVENESS, GENUINENESS, ENFORCEABILITY OR SUFFICIENCY OF THIS AGREEMENT, THE NOTES, THE COLLATERAL DOCUMENTS, ANY OTHER INSTRUMENT OR AGREEMENT CONTEMPLATED HEREUNDER OR THEREUNDER, ANY ACTION TAKEN OR NOT TAKEN OR ANY DECISION MADE BY ANY PERSON (OTHER THAN AGENT) WITH RESPECT TO ANY THEREOF OR WITH RESPECT TO THE COLLATERAL, THE FAILURE OF THE BORROWER OR ANY SUBSIDIARY TO PERFORM ITS OBLIGATIONS HEREUNDER OR THEREUNDER, ANY MISREPRESENTATION BY BORROWER OR ANY SUBSIDIARY HEREUNDER OR THEREUNDER, OR THE VALUE OF ANY COLLATERAL OR THE CREATION, ATTACHMENT, PERFECTION OR PRIORITY OF ANY SECURITY INTEREST OR LIEN PURPORTED TO BE CREATED BY THE COLLATERAL DOCUMENTS, THIS AGREEMENT OR SUCH OTHER INSTRUMENTS OR AGREEMENTS AND THAT AGENT, AS COLLATERAL AGENT AND AGENT, HAS UNDERTAKEN NO INDEPENDENT REVIEW OR ANALYSIS WITH RESPECT TO ANY OF THE FOREGOING. (e) The benefit of the Collateral Documents and of the provisions of this Agreement relating to the Collateral shall extend to and be available in respect of the Secured Obligations (as defined in the Collateral Agency Agreement) solely on the condition and understanding, as among Agent and Lenders, that (i) the Secured Obligations shall be entitled to the benefit of the Collateral to the extent expressly set forth in the Collateral Documents, and to such extent the Collateral Agent shall hold, and have the right and power to act with respect to, the Collateral on behalf of and as agent for the holders of the Secured Obligations; but Agent in its separate capacity as agent hereunder is acting solely as agent for the Lenders and shall have no separate fiduciary duty, duty of loyalty, duty of care, duty of disclosure or other obligations whatsoever to any holder of Secured Obligations; and (ii) all matters, acts and omissions relating in any manner to the Collateral, or the omission, creation, perfection, priority, abandonment or release of any Lien, shall be governed solely by the provisions of this Agreement ~~Among~~ and the Collateral Documents, and no separate Lien, right, power or remedy shall arise or exist in favor of any Lender under any separate instrument or agreement or in respect of any Secured Obligations; and (iii) each Lender shall be bound by all actions taken or omitted, in accordance with the provisions of this Agreement or the Collateral Documents, by the Collateral Agent, at the direction of Agent on behalf of the Lenders; and (iv) no holder of Secured Obligations shall exercise any right of setoff, bank’s lien or similar right except as expressly provided in Section 10.03. (f) Any Collateral proceeds received by Agent from the Collateral Agent pursuant to Section 3(b) of the Collateral Agency Agreement shall be applied and paid to the Obligations as follows (unless Agent and Majority Lenders otherwise agree): First: To Agent and the Collateral Agent in an amount equal to all costs and expenses incurred in connection with performing their respective duties hereunder and under the Collateral Documents, including, without limitation, those related to or in connection with the administration of this Agreement or the enforcement of their respective rights under the Collateral Documents;

Appears in 1 contract

Sources: Credit Agreement (Bally Total Fitness Holding Corp)

Collateral Matters. (a) ~~Each~~ The Administrative Agent may from time to ~~time~~ time, during the occurrence and continuance of an Event of Default, make such disbursements and advances (“"Agent Advances”") which ~~such~~ the Administrative Agent, in its sole discretion, deems necessary or desirable to ~~preserve, protect, prepare for sale~~ preserve or ~~lease or dispose of~~ protect the Collateral or any portion thereof, to enhance the likelihood or maximize the amount of repayment by the Borrowers of the ~~Loans, Reimbursement Obligations, Letter of Credit Obligations~~ Loans and other Obligations or to pay any other amount chargeable to the ~~Borrowers~~ Borrower pursuant to the terms of this Agreement, including, without limitation, costs, fees and expenses as described in Section ~~12.04~~10.06. The Administrative Agent Advances shall be repayable on demand and be secured by the ~~Collateral and shall bear interest at a rate per annum equal to the rate then applicable to Revolving Loans that are Reference Rate Loans~~Collateral. The ~~Agent making any~~ Administrative Agent Advances shall not constitute Loans but shall otherwise constitute Obligations hereunder. The Administrative Agent shall notify ~~the other Agent,~~ each Lender and the ~~Administrative Borrower~~ Parent in writing of each such Administrative Agent Advance, which notice shall include a description of the purpose of such Administrative Agent Advance. Without limitation to its obligations pursuant to Section ~~10.05~~11.05, each Lender agrees that it shall make available to the ~~Agent making any Agent Advances~~Administrative Agent, upon ~~such~~ the Administrative Agent’s 's demand, in ~~the currency in which the respective Agent Advance was made~~ Dollars in immediately available funds, the amount equal to such Lender’s 's Pro Rata Share of each such Administrative Agent ~~Advance subject to the terms of, the Agreement Among Lenders, provided that any such amount advanced by a Lender shall be deemed a Loan hereunder~~Advance. If such funds are not made available to ~~such~~ the Administrative Agent by such ~~Lender, such~~ Lender the Administrative Agent shall be entitled to recover such ~~funds~~ funds, on demand from such ~~Lender,~~ Lender together with interest ~~thereon~~ thereon, for each day from the date such payment was due until the date such amount is paid to ~~such~~ the Administrative Agent, at the ~~Federal Funds Effective Rate~~ customary rate set by the Administrative Agent for the correction of errors among banks for three (3) Business Days and thereafter at the ~~Reference~~ Regular Rate. (b) The Lenders hereby irrevocably authorize the ~~Collateral~~ Administrative Agent, at its option and in its discretion, to release any Lien granted to or held by the ~~Collateral~~ Administrative Agent upon any Collateral upon termination of the ~~Total Commitment~~ Revolving Credit Commitments and ~~Payment~~ payment and satisfaction of all Loans, Reimbursement Obligations, other Letter of Credit Exposure (whether or not due) and all other Obligations which have matured and which the Administrative Agent has been notified in ~~Full of the Obligations~~writing are then due and payable; or constituting property being sold or disposed of in if the ~~ordinary course of any Loan Party’s business~~ Parent certifies to the Administrative Agent that the sale or ~~otherwise~~ disposition is made in compliance with ~~the terms of this Agreement~~ Section 8.04 b) hereof (and the ~~other Loan Documents~~Administrative Agent may rely conclusively on any such certificate, without further inquiry); or constituting property in which the ~~Loan Parties~~ Borrowers owned no interest at the time the Lien was granted or at any time thereafter; or if approved, authorized or ratified in writing by the ~~applicable Lenders required pursuant to Section 12.02~~Majority Lenders. Upon request by the ~~Collateral~~ Administrative Agent at any time, the Lenders will confirm in writing the ~~Collateral~~ Administrative Agent’s 's authority to release particular types or items of Collateral pursuant to this Section ~~10.08(b~~11.08(b). (c) Without in any manner limiting the ~~Collateral~~ Administrative Agent’s 's authority to act without any specific or further authorization or consent by the Majority Lenders (as set forth in Section ~~10.08(b~~11.08(b)), each Lender agrees to confirm in ~~writing,~~ writing upon request by the ~~Collateral~~ Administrative Agent, the authority to release Collateral conferred upon the ~~Collateral~~ Administrative Agent under Section ~~10.08(b~~11.08(b). ~~Upon~~ So long as no Event of Default is then continuing, upon receipt by the Administrative Agent of Confirmation from the Majority Lenders of its authority to release any particular item or types of Collateral, and upon at least five (5) Business Days' prior written request by ~~any Loan Party,~~ the ~~Collateral~~ Borrower the Administrative Agent shall (and is hereby irrevocably authorized by the Lenders to) execute such documents as may be necessary ~~or reasonably requested by any Loan Party~~ to evidence the release of the Liens granted to the ~~Collateral~~ Administrative Agent for the benefit of ~~the Agents and~~ the Lenders upon such Collateral; provided, however, that (i) the ~~Collateral~~ Administrative Agent shall not be required to execute any such document on terms which, in the ~~Collateral~~ Administrative Agent’s 's opinion, would expose the ~~Collateral~~ Administrative Agent to liability or create ~~any obligations~~ an obligation or entail any consequence other than the release of such Liens without recourse or ~~warranty,~~ warranty and (ii) such release shall not in any manner discharge, affect or impair the Obligations or any Lien upon (or obligations of ~~any Loan Party~~ the Borrowers in respect of) all interests in the Collateral retained by ~~any Loan Party~~the Borrowers. (d) Anything contained in any of the Loan Documents to the contrary notwithstanding but subject to the Agreement Among Lenders, the Loan Parties, each Agent and each Lender hereby agree that (i) no Lender shall have any right individually to realize upon any of the Collateral under any Loan Document or to enforce any Guaranty, it being understood and agreed that all powers, rights and remedies under the Loan Documents may be exercised solely by the Collateral Agent for the benefit of the Lenders in accordance with the terms thereof, (ii) in the event of a foreclosure by the Collateral Agent on any of the Collateral pursuant to a public or private sale, the The Administrative Agent, the Collateral Agent or any Lender may be the purchaser of any or all of such Collateral at any such sale and (iii) the Collateral Agent, as agent for and representative of the Agents and the Lenders (but not any other Agent or any Lender or Lenders in its or their respective individual capacities unless the Required Lenders shall otherwise agree in writing) shall be entitled (either directly or through one or more acquisition vehicles) for the purpose of bidding and making settlement or payment of the purchase price for all or any portion of the Collateral to be sold (A) at any public or private sale, (B) at any sale conducted by the Collateral Agent under the provisions of the Uniform Commercial Code (including pursuant to Sections 9-610 or 9-620 of the Uniform Commercial Code), (C) at any sale or foreclosure conducted by the Collateral Agent (whether by judicial action or otherwise) in accordance with applicable law or (D) any sale conducted pursuant to the provisions of any Debtor Relief Law (including Section 363 of the Bankruptcy Code), to use and apply all or any of the Obligations as a credit on account of the purchase price for any Collateral payable by the Collateral Agent at such sale. (e) The Collateral Agent shall have no obligation whatsoever to any ~~Lender~~ Lenders to assure that the Collateral exists or is owned by the ~~Loan Parties~~ Borrower or is cared for, protected or insured or has been encumbered or that the Lien granted to the ~~Collateral~~ Administrative Agent pursuant to ~~this Agreement or any other Loan Document~~ the Security Documents has been properly or sufficiently or lawfully created, perfected, protected or enforced or is entitled to any particular priority, or to exercise at all or in any particular manner or under any duty of care, disclosure or fidelity, or to continue exercising, any of the rights, authorities and powers granted or available to the ~~Collateral~~ Administrative Agent in this Section ~~10.08~~ 11.08 or in any ~~other Loan Document~~of the Related Documents, it being understood and agreed that in respect of the Collateral, or any act, omission or event related thereto, the ~~Collateral~~ Administrative Agent may act in any manner it may deem appropriate, in its sole discretion, given the ~~Collateral~~ Administrative Agent’s 's own interest in the Collateral as one of the Lenders and that the ~~Collateral~~ Administrative Agent shall have no duty or liability whatsoever to any other Lender~~, except as otherwise provided herein and in the Agreement Among Lenders~~.

Appears in 1 contract

Sources: Credit Agreement (Genesis Direct Inc)

Collateral Matters. (a) Each Agent may from time to time make such disbursements and advances (“"Agent Advances”") which such Agent, in its sole discretion, deems necessary or desirable to preserve, protect, prepare for sale or lease or dispose of the Collateral or any portion thereof, to enhance the likelihood or maximize the amount of repayment by the Borrowers of the ~~Loans, Reimbursement Obligations, Letter of Credit Obligations~~ Loans and other Obligations or to pay any other amount chargeable to the Borrowers pursuant to the terms of this Agreement, including, without limitation, costs, fees and expenses as described in Section 12.04. The Agent Advances shall be repayable on demand and be secured by the Collateral and shall bear interest at a rate per annum equal to the rate then applicable to Revolving Loans that are Reference Rate Loans. The Agent Advances shall constitute Obligations hereunder which may be charged to the Loan Account in accordance with Section 4.01. The Agent making any Agent Advances shall notify ~~the other Agent,~~ each Lender and the Administrative Borrower in writing of each such Agent Advance, which notice shall include a description of the purpose of such Agent Advance. Without limitation to its obligations pursuant to Section 10.05, each Lender agrees that it shall make available to the Agent making any Agent Advances, upon such Agent’s 's demand, in ~~the currency in which the respective Agent Advance was made~~ Dollars in immediately available funds, the amount equal to such Lender’s 's Pro Rata Share of each such Agent ~~Advance subject to the terms of, the Agreement Among Lenders, provided that any such amount advanced by a Lender shall be deemed a Loan hereunder~~Advance. If such funds are not made available to the Agent making such Agent Advance by such Lender, such Agent shall be entitled to recover such funds on demand from such Lender, together with interest thereon for each day from the date such payment was due until the date such amount is paid to the such Agent, at the Federal Funds Effective Rate for three Business Days and thereafter at the Reference Rate. (b) The Lenders hereby irrevocably authorize the Collateral Agent, at its option and in its discretion, to release any Lien granted to or held by the Collateral Agent upon any Collateral upon termination of the Total Commitment and ~~Payment~~ payment and satisfaction of all Loans and all other Obligations (other than Contingent Indemnification Obligations), in ~~Full of~~ each case, in accordance with the ~~Obligations~~terms hereof; or constituting property being sold or disposed of in the ordinary course of any Loan Party’s 's business or otherwise in compliance with the terms of this Agreement and the other Loan Documents; or constituting property in which the Loan Parties owned no interest at the time the Lien was granted or at any time thereafter; or if approved, authorized or ratified in writing by the ~~applicable~~ Lenders ~~required pursuant to~~ in accordance with Section 12.02, and, if all of the Equity Interests of any Guarantor are disposed of in accordance with the terms of this Agreement, to release the Guaranty of such Guarantor. Upon request by the Collateral Agent at any time, the Lenders will confirm in writing the Collateral Agent’s 's authority to release particular types or items of Collateral pursuant to this Section 10.08(b). (c) Without in any manner limiting the Collateral Agent’s 's authority to act without any specific or further authorization or consent by the Lenders (as set forth in Section 10.08(b)), each Lender agrees to confirm in writing, upon request by the Collateral Agent, the authority to release Collateral or Guaranties conferred upon the Collateral Agent under Section 10.08(b). Upon receipt by the Collateral Agent of confirmation from the Lenders of its authority to release any particular item or types of Collateral or Guaranty and upon prior written request by any Loan Party, the Collateral Agent shall (and is hereby irrevocably authorized by the Lenders to) execute such documents as may be necessary ~~or reasonably requested by any Loan Party~~ to evidence the release of the Liens granted to the Collateral Agent for the benefit of the ~~Agents and the Lenders~~ Secured Parties upon such ~~Collateral~~Collateral or such Guaranty; provided, however, that (i) the Collateral Agent shall not be required to execute any such document on terms which, in the Collateral Agent’s 's opinion, would expose the Collateral Agent to liability or create any obligations or entail any consequence other than the release of such Liens or Guaranty without recourse or warranty, and (ii) such release shall not in any manner discharge, affect or impair the Obligations or any Lien upon (or obligations of any Loan Party in respect of) all interests in the Collateral retained by any Loan Party. (d) Anything contained in any of the Loan Documents to the contrary ~~notwithstanding but subject to the Agreement Among Lenders~~notwithstanding, the Loan Parties, each Agent and each Lender hereby agree that (i) no Lender shall have any right individually to realize upon any of the Collateral under any Loan Document or to enforce any Guaranty, it being understood and agreed that all powers, rights and remedies under the Loan Documents may be exercised solely by the Collateral Agent for the benefit of the Lenders in accordance with the terms thereof, (ii) in the event of a foreclosure by the Collateral Agent on any of the Collateral pursuant to a public or private sale, the Administrative Agent, the Collateral Agent or any Lender may be the purchaser of any or all of such Collateral at any such sale and (iii) the Collateral Agent, as agent for and representative of the Agents and the Lenders (but not any other Agent or any Lender or Lenders in its or their respective individual capacities unless the Required Lenders shall otherwise agree in writing) shall be entitled (either directly or through one or more acquisition vehicles) for the purpose of bidding and making settlement or payment of the purchase price for all or any portion of the Collateral to be sold (A) at any public or private sale, (B) at any sale conducted by the Collateral Agent under the provisions of the Uniform Commercial Code (including pursuant to Sections 9-610 or 9-620 of the Uniform Commercial Code), (C) at any sale or foreclosure conducted by the Collateral Agent (whether by judicial action or otherwise) in accordance with applicable law or (D) any sale conducted pursuant to the provisions of any Debtor Relief Law (including Section 363 of the Bankruptcy Code), to use and apply all or any of the Obligations as a credit on account of the purchase price for any Collateral payable by the Collateral Agent at such sale. (e) The Collateral Agent shall have no obligation whatsoever to any Lender to assure that the Collateral exists or is owned by the Loan Parties or is cared for, protected or insured or has been encumbered or that the Lien granted to the Collateral Agent pursuant to this Agreement or any other Loan Document has been properly or sufficiently or lawfully created, perfected, protected or enforced or is entitled to any particular priority, or to exercise at all or in any particular manner or under any duty of care, disclosure or fidelity, or to continue exercising, any of the rights, authorities and powers granted or available to the Collateral Agent in this Section 10.08 or in any other Loan Document, it being understood and agreed that in respect of the Collateral, or any act, omission or event related thereto, the Collateral Agent may act in any manner it may deem appropriate, in its sole discretion, given the Collateral Agent’s 's own interest in the Collateral as one of the Lenders and that the Collateral Agent shall have no duty or liability whatsoever to any other Lender, except as otherwise provided ~~herein and in the Agreement Among Lenders~~herein.

Appears in 1 contract

Sources: Financing Agreement (Propel Media, Inc.)

Appears in 1 contract

Sources: Financing Agreement (Gametech International Inc)

Collateral Matters. (a) ~~Each~~ The Collateral Agent may from time to time make such disbursements and advances (“Collateral Agent Advances”) which ~~such~~ the Collateral Agent, in its sole discretion, deems necessary or desirable to preserve, protect, prepare for sale or lease or dispose of the Collateral or any portion thereof, to enhance the likelihood or maximize the amount of repayment by the Borrowers of the ~~Loans, Reimbursement Obligations, Letter of Credit Obligations~~ Loans and other Obligations or to pay any other amount chargeable to the Borrowers pursuant to the terms of this Agreement, including, without limitation, costs, fees and expenses as described in Section 12.04. The Collateral Agent Advances shall be repayable on demand and be secured by the Collateral and shall bear interest at a rate per annum equal to the rate then applicable to ~~Revolving~~ Term Loans that are Reference Rate Loans. The ~~Agent making any~~ Collateral Agent Advances shall constitute Obligations hereunder which may be charged to the Loan Account in accordance with Section 4.01. The Collateral Agent shall notify ~~the other Agent,~~ each Lender and the Administrative Borrower in writing of each such Collateral Agent Advance, which notice shall include a description of the purpose of such Collateral Agent Advance. Without limitation to its obligations pursuant to Section 10.05, each Lender agrees that it shall make available to the ~~Agent making any Agent Advances~~Collateral Agent, upon ~~such~~ the Collateral Agent’s demand, in ~~the currency in which the respective Agent Advance was made~~ Dollars in immediately available funds, the amount equal to such ~~Lender~~▇▇▇▇▇▇’s Pro Rata Share of each such Collateral Agent ~~Advance subject to the terms of, the Agreement Among Lenders, provided that any such amount advanced by a Lender shall be deemed a Loan hereunder~~Advance. If such funds are not made available to ~~such~~ the Collateral Agent by such Lender, ~~such~~ the Collateral Agent shall be entitled to recover such funds on demand from such Lender, together with interest thereon for each day from the date such payment was due until the date such amount is paid to ~~such~~ the Collateral Agent, at the Federal Funds ~~Effective~~ Rate for three Business Days and thereafter at the Reference Rate. (b) The Lenders hereby irrevocably authorize and direct the Collateral Agent, at its option ~~and in its discretion,~~ to (1) release any Lien granted to or held by the Collateral Agent upon any Collateral upon termination of the Total Term Loan Commitment and ~~Payment~~ payment and satisfaction of all Loans and all other Obligations (other than Contingent Indemnity Obligations) in ~~Full of~~ accordance with the ~~Obligations~~terms hereof; or constituting property being sold or disposed of in the ordinary course of any Loan Party’s business or otherwise in compliance with the terms of this Agreement and the other Loan Documents; or constituting property in which the Loan Parties owned no interest at the time the Lien was granted or at any time thereafter; or if the property subject to such Lien is owned by a Guarantor, upon the release of such Guarantor from its Guarantee otherwise in accordance with a transaction expressly permitted by the Loan Documents; or that constitutes Excluded Property; or if approved, authorized or ratified in writing by the ~~applicable~~ Lenders ~~required pursuant~~ in accordance with Section 12.02 and (2) release any Guarantor (other than the Parent or any Borrower (except as otherwise permitted hereunder)) from its obligations under the Guarantee if such Person ceases to ~~Section 12.02~~be a Guarantor (or becomes an Excluded Subsidiary) as a result of a transaction or designation expressly permitted hereunder. Upon request by the Collateral Agent at any time, the Lenders will confirm in writing the Collateral Agent’s authority to release particular types or items of Collateral pursuant to this Section 10.08(b). (c) Without in any manner limiting the Collateral Agent’s authority to act without any specific or further authorization or consent by the Lenders (as set forth in Section 10.08(b)), each Lender agrees to confirm in writing, upon request by the Collateral Agent, the authority to release Collateral conferred upon the Collateral Agent under Section 10.08(b). Upon receipt by the Collateral Agent of confirmation from the Lenders of its authority to release any particular item or types of Collateral, and upon prior written request by any Loan Party, the Collateral Agent shall (and is hereby irrevocably authorized by the Lenders to) execute such documents as may be necessary ~~or reasonably requested by any Loan Party~~ to evidence the release of the Liens granted to the Collateral Agent for the benefit of the Agents and the Lenders upon such Collateral; provided, however, that (i) the Collateral Agent shall not be required to execute any such document on terms which, in the Collateral Agent’s opinion, would expose the Collateral Agent to liability or create any obligations or entail any consequence other than the release of such Liens without recourse or warranty, and (ii) such release shall not in any manner discharge, affect or impair the Obligations or any Lien upon (or obligations of any Loan Party in respect of) all interests in the Collateral retained by any Loan Party. (d) Anything contained in any of the Loan Documents to the contrary ~~notwithstanding but subject to the Agreement Among Lenders~~notwithstanding, the Loan Parties, each Agent and each Lender hereby agree that ~~(i)~~ no Lender shall have any right individually to realize upon any of the Collateral under any Loan Document or to enforce any Guaranty, it being understood and agreed that all powers, rights and remedies under the Loan Documents may be exercised solely by the Collateral Agent for the benefit of the Lenders in accordance with the terms thereof~~, (ii) in~~ . The Collateral Agent shall have its own independent right to demand payment of the ~~event of a foreclosure~~ amounts payable by the ~~Collateral Agent on~~ Borrowers under the Loan Documents, irrespective of any discharge of the ~~Collateral pursuant~~ Borrower’s obligations to ~~a public or private sale,~~ pay those amounts to the ~~Administrative Agent,~~ other Lenders resulting from failure by them to take appropriate steps in insolvency proceedings affecting the ~~Collateral Agent or any Lender may~~ Borrowers to preserve their entitlement to be paid those amounts. (e) The Agents and the ~~purchaser of any or all of such Collateral at any such sale and (iii)~~ Lenders hereby irrevocably authorize the Collateral Agent, as agent for and representative of the Agents and the Lenders (but not any other Agent or any Lender or Lenders in its or their respective individual capacities unless the Required Lenders shall otherwise agree in writing), to credit bid all or any portion of the Obligations (including by accepting some or all of the Collateral in satisfaction of some or all of the Obligations pursuant to a deed in lieu of foreclosure or otherwise) ~~shall be entitled~~ and in such manner purchase (either directly or through one or more acquisition vehicles) ~~for the purpose of bidding and making settlement or payment of the purchase price for~~ all or any portion of the Collateral ~~to be sold~~ (~~A) at any public or private sale, (B~~i) at any sale thereof conducted ~~by the Collateral Agent~~ under the provisions of the ~~Uniform Commercial Code (~~Bankruptcy Code, including ~~pursuant to Sections 9-610~~ under Section 363, 1123 or ~~9-620~~ 1129 of the ~~Uniform Commercial~~ Bankruptcy Code), or any similar laws in any other jurisdictions to which a Loan Party is subject, or (Cii) at any ~~sale~~ other sale, foreclosure or ~~foreclosure~~ acceptance of collateral in lieu of debt conducted by (or with the consent or at the direction of) the Collateral Agent (whether by judicial action or otherwise) in accordance with any applicable ~~law~~ law. In connection with any such credit bid and purchase, the Obligations owed to the Agents and the Lenders shall be entitled to be, and shall be, credit bid by the Collateral Agent (but not any other Agent or any Lender or Lenders in its or their respective individual capacities unless the Required Lenders shall otherwise agree in writing) on a ratable basis (with Obligations with respect to contingent or unliquidated claims receiving contingent interests in the acquired assets on a ratable basis that shall vest upon the liquidation of such claims in an amount proportional to the liquidated portion of the contingent claim amount used in allocating the contingent interests) for the asset or assets so purchased (or for the equity interests or debt instruments of the acquisition vehicle or vehicles that are issued in connection with such purchase). In connection with any such bid (A) the Collateral Agent shall be authorized to form one or more acquisition vehicles and to assign any successful credit bid to such acquisition vehicle or vehicles, (B) each of the Agents’ and the Lenders’ ratable interests in the Obligations which were credit bid shall be deemed without any further action under this Agreement to be assigned to such vehicle or vehicles for the purpose of closing such sale, (C) the Collateral Agent shall be authorized to adopt documents providing for the governance of the acquisition vehicle or vehicles (provided that any actions by the Collateral Agent with respect to such acquisition vehicle or vehicles, including any disposition of the assets or equity interests thereof, shall be governed, directly or indirectly, by, and the governing documents shall provide for, control by the vote of the Required Lenders or their permitted assignees under the terms of this Agreement or the governing documents of the applicable acquisition vehicle or vehicles, as the case may be, irrespective of the termination of this Agreement and without giving effect to the limitations on actions by the Required Lenders contained in Section 12.02), (D) ~~any sale conducted pursuant~~ the Collateral Agent, on behalf of such acquisition vehicle or vehicles, shall be authorized to ~~the provisions of any Debtor Relief Law (including Section 363~~ issue to each of the ~~Bankruptcy Code)~~Agents and the Lenders, ~~to use and apply all or any of the Obligations as a credit~~ ratably on account of the ~~purchase price~~ relevant Obligations which were credit bid, interests, whether as equity, partnership interests, limited partnership interests or membership interests, in any such acquisition vehicle and/or debt instruments issued by such acquisition vehicle, all without the need for any Agent, any Lender or any acquisition vehicle to take any further action, and (E) to the extent that Obligations that are assigned to an acquisition vehicle are not used to acquire Collateral ~~payable~~ for any reason (as a result of another bid being higher or better, because the amount of Obligations assigned to the acquisition vehicle exceeds the amount of Obligations credit bid by the acquisition vehicle or otherwise), such Obligations shall automatically be reassigned to the Agents and the Lenders pro rata with their original interest in such Obligations and the equity interests and/or debt instruments issued by any acquisition vehicle on account of such Obligations shall automatically be cancelled, without the need for any Agent, any Lender or any acquisition vehicle to take any further action. Notwithstanding that the ratable portion of the Obligations of each Agent and each Lender are deemed assigned to the acquisition vehicle or vehicles as set forth in clause (B) above, each Agent and each Lender shall execute such documents and provide such information regarding such Person (and/or any designee of such Person that will receive interests in or debt instruments issued by such acquisition vehicle) as the Collateral Agent at may reasonably request in connection with the formation of any acquisition vehicle, the formulation or submission of any credit bid or the consummation of the transactions contemplated by such ~~sale~~credit bid. (ef) The Collateral Agent shall have no obligation whatsoever to any Lender to assure that the Collateral exists or is owned by the Loan Parties or is cared for, protected or insured or has been encumbered or that the Lien granted to the Collateral Agent pursuant to this Agreement or any other Loan Document has been properly or sufficiently or lawfully created, perfected, protected or enforced or is entitled to any particular priority, or to exercise at all or in any particular manner or under any duty of care, disclosure or fidelity, or to continue exercising, any of the rights, authorities and powers granted or available to the Collateral Agent in this Section 10.08 or in any other Loan Document, it being understood and agreed that in respect of the Collateral, or any act, omission or event related thereto, the Collateral Agent may act in any manner it may deem appropriate, in its sole discretion, given the Collateral Agent’s own interest in the Collateral as one of the Lenders and that the Collateral Agent shall have no duty or liability whatsoever to any other Lender, except as otherwise provided ~~herein and~~ herein. (g) No holder of Swap Obligations shall have any rights in connection with the management or release of any Collateral or of the obligations of any Loan Party under this Agreement. No holder of Swap Obligations that obtains the benefits of any Guarantee or any Collateral by virtue of the provisions hereof or of any other Loan Document shall have any right to notice of any action or to consent to, direct or object to any action hereunder or under any other Loan Document or otherwise in respect of the Collateral (including the release or impairment of any Collateral) other than in its capacity as a Lender or Agent and, in such case, only to the extent expressly provided in the Loan Documents. Notwithstanding any other provision of this Agreement ~~Among Lenders~~to the contrary, no Agent shall be required to verify the payment of, or that other satisfactory arrangements have been made with respect to, Obligations arising under Hedge Agreements.

Appears in 1 contract

Sources: Financing Agreement (Digital Turbine, Inc.)

Appears in 1 contract

Sources: Financing Agreement (XBP Global Holdings, Inc.)

Collateral Matters. ~~(a) Each~~ Administrative Agent ~~may~~ may, at its option, from time to time, at any time on or after an Event of Default and for so long as the same is continuing or upon any other failure of a condition precedent to the making of Loans hereunder, make such disbursements and advances (“Special Agent Advances”) which ~~such~~ Administrative Agent, in its sole discretion, deems necessary or desirable either (i) to ~~preserve, protect, prepare for sale~~ preserve or ~~lease or dispose of~~ protect the Collateral or any portion ~~thereof, to enhance the likelihood~~ thereof or ~~maximize the amount of repayment by the Borrowers of the Loans, Reimbursement Obligations, Letter of Credit Obligations and other Obligations or~~ (ii) to pay any other amount chargeable to the Borrowers pursuant to the terms of this ~~Agreement, including, without limitation,~~ Agreement or any of the other Loan Documents consisting of costs, fees and expenses ~~as described~~ and payments to any Issuing Bank (provided that in no event shall (i) Special Agent Advances for such purpose exceed the amount equal to $17.5 million in the aggregate outstanding at any time less the then outstanding Revolving Loans, Swingline Loans and Letters of Credit under Section ~~12.04~~10.10 hereof and (ii) Special Agent Advances plus the Revolving Exposure exceed the Lenders’ Revolving Commitment at the time of such Event of Default or cause any Lender’s Revolving Exposure to exceed such Lender’s Revolving Commitment at the time of such Event of Default). ~~The~~ Special Agent Advances shall be repayable on demand and be secured by the ~~Collateral and shall bear interest at a rate per annum equal to the rate then applicable to Revolving Loans that are Reference Rate Loans~~Collateral. ~~The Agent making any~~ Special Agent Advances shall not constitute Loans but shall otherwise constitute Obligations hereunder. Administrative Agent shall notify ~~the other Agent,~~ each Lender and the ~~Administrative~~ Lead Borrower in writing of each such Special Agent Advance, which notice shall include a description of the purpose of such Special Agent Advance. ~~Without limitation to its obligations pursuant to Section 10.05, each~~ Each Lender agrees that it shall make available to ~~the Agent making any Agent Advances~~Administrative Agent, upon ~~such~~ Administrative Agent’s demand, ~~in the currency in which the respective Agent Advance was made~~ in immediately available funds, the amount equal to such Lender’s Pro Rata ~~Share~~ Percentage of each such Special Agent ~~Advance subject to the terms of, the Agreement Among Lenders, provided that any such amount advanced by a Lender shall be deemed a Loan hereunder~~Advance. If such funds are not made available to ~~such~~ Administrative Agent by such Lender, ~~such~~ Administrative Agent shall be entitled to recover such ~~funds~~ funds, on demand from such ~~Lender,~~ Lender together with interest thereon for each day from the date such payment was due until the date such amount is paid to ~~such Agent,~~ Administrative Agent at the Federal Funds ~~Effective~~ Rate for each day during such period (as published by the Federal Reserve Bank of New York or at Administrative Agent’s option based on the arithmetic mean determined by Administrative Agent of the rates for the last transaction in overnight Federal funds arranged prior to 9:00 a.m. (New York City time) on that day by each of the three ~~Business Days~~ leading brokers of Federal funds transactions in New York City selected by Administrative Agent) and ~~thereafter~~ if such amounts are not paid within three (3) days of Administrative Agent’s demand, at the ~~Reference Rate. (b) The Lenders hereby irrevocably authorize the Collateral Agent, at its option and~~ highest interest rate provided for in its discretion, to release any Lien granted to or held by the Collateral Agent upon any Collateral upon termination of the Total Commitment and Payment in Full of the Obligations; or constituting property being sold or disposed of in the ordinary course of any Loan Party’s business or otherwise in compliance with the terms of this Agreement and the other Loan Documents; or constituting property in which the Loan Parties owned no interest at the time the Lien was granted or at any time thereafter; or if approved, authorized or ratified in writing by the applicable Lenders required pursuant to Section 12.02. Upon request by the Collateral Agent at any time, the Lenders will confirm in writing the Collateral Agent’s authority to release particular types or items of Collateral pursuant to this Section 10.08(b2.06(a). (c) Without in any manner limiting the Collateral Agent’s authority to act without any specific or further authorization or consent by the Lenders (as set forth in Section 10.08(b)), each Lender agrees to confirm in writing, upon request by the Collateral Agent, the authority to release Collateral conferred upon the Collateral Agent under Section 10.08(b). Upon the prior written request by any Loan Party, the Collateral Agent shall (and is hereby irrevocably authorized by the Lenders to) execute such documents as may be necessary or reasonably requested by any Loan Party to evidence the release of the Liens granted to the Collateral Agent for the benefit of the Agents and the Lenders upon such Collateral; provided, however, that (i) the Collateral Agent shall not be required to execute any such document on terms which, in the Collateral Agent’s opinion, would expose the Collateral Agent to liability or create any obligations or entail any consequence other than the release of such Liens without recourse or warranty, and (ii) such release shall not in any manner discharge, affect or impair the Obligations or any Lien upon (or obligations of any Loan Party in respect of) all interests in the Collateral retained by any Loan Party. (d) Anything contained in any of the Loan Documents to the contrary notwithstanding but subject to the Agreement Among Lenders, the Loan Parties, each Agent and each Lender hereby agree that (i) no Lender shall have any right individually to realize upon any of the Collateral under any Loan Document or to enforce any Guaranty, it being understood and agreed that all powers, rights and remedies under the Loan Documents may be exercised solely by the Collateral Agent for the benefit of the Lenders in accordance with the terms thereof, (ii) in the event of a foreclosure by the Collateral Agent on any of the Collateral pursuant to a public or private sale, the Administrative Agent, the Collateral Agent or any Lender may be the purchaser of any or all of such Collateral at any such sale and (iii) the Collateral Agent, as agent for and representative of the Agents and the Lenders (but not any other Agent or any Lender or Lenders in its or their respective individual capacities unless the Required Lenders shall otherwise agree in writing) shall be entitled (either directly or through one or more acquisition vehicles) for the purpose of bidding and making settlement or payment of the purchase price for all or any portion of the Collateral to be sold (A) at any public or private sale, (B) at any sale conducted by the Collateral Agent under the provisions of the Uniform Commercial Code (including pursuant to Sections 9-610 or 9-620 of the Uniform Commercial Code), (C) at any sale or foreclosure conducted by the Collateral Agent (whether by judicial action or otherwise) in accordance with applicable law or (D) any sale conducted pursuant to the provisions of any Debtor Relief Law (including Section 363 of the Bankruptcy Code), to use and apply all or any of the Obligations as a credit on account of the purchase price for any Collateral payable by the Collateral Agent at such sale. (e) The Collateral Agent shall have no obligation whatsoever to any Lender to assure that the Collateral exists or is owned by the Loan Parties or is cared for, protected or insured or has been encumbered or that the Lien granted to the Collateral Agent pursuant to this Agreement or any other Loan Document has been properly or sufficiently or lawfully created, perfected, protected or enforced or is entitled to any particular priority, or to exercise at all or in any particular manner or under any duty of care, disclosure or fidelity, or to continue exercising, any of the rights, authorities and powers granted or available to the Collateral Agent in this Section 10.08 or in any other Loan Document, it being understood and agreed that in respect of the Collateral, or any act, omission or event related thereto, the Collateral Agent may act in any manner it may deem appropriate, in its sole discretion, given the Collateral Agent’s own interest in the Collateral as one of the Lenders and that the Collateral Agent shall have no duty or liability whatsoever to any other Lender, except as otherwise provided herein and in the Agreement Among Lenders.

Appears in 1 contract

Sources: Credit Agreement (Broder Bros., Co.)

Collateral Matters. (a) Each Agent may from time to time make such disbursements and advances (“Agent Advances”) which such Agent, in its sole discretion, deems necessary or desirable to preserve, protect, prepare for sale or lease or dispose of the Collateral or any portion thereof, to enhance the likelihood or maximize the amount of repayment by the ~~Borrowers~~ Borrower of the ~~Loans, Reimbursement Obligations, Letter of Credit Obligations~~ Loans and other Obligations or to pay any other amount chargeable to the ~~Borrowers~~ Borrower pursuant to the terms of this Agreement, including, without limitation, costs, fees and expenses as described in Section ~~12.04~~11.4. The Agent Advances shall be repayable on demand and be secured by the Collateral and shall bear interest at a rate per annum equal to the rate then applicable to ~~Revolving~~ Term Loans that are Reference Rate Loans. The Agent ~~making any Agent~~ Advances shall constitute Obligations hereunder which may be charged to the Loan Account in accordance with Section 4.1. The Collateral Agent shall notify ~~the other Agent,~~ each Lender and the ~~Administrative~~ Borrower in writing of each such Agent Advance, which notice shall include a description of the purpose of such Agent Advance. Without limitation to its obligations pursuant to Section ~~10.05~~9.5, each Lender agrees that it shall make available to the ~~Agent making any Agent Advances~~Collateral Agent, upon such Agent’s demand, in ~~the currency in which the respective Agent Advance was made~~ Dollars in immediately available funds, the amount equal to such Lender’s Pro Rata Share of each such Agent ~~Advance subject to the terms of, the Agreement Among Lenders, provided that any such amount advanced by a Lender shall be deemed a Loan hereunder~~Advance. If such funds are not made available to ~~such~~ the Collateral Agent by such Lender, such Agent shall be entitled to recover such funds on demand from such Lender, together with interest thereon for each day from the date such payment was due until the date such amount is paid to such Agent, at the Federal Funds ~~Effective~~ Rate for three Business Days and thereafter at the Reference Rate. (b) The Lenders hereby irrevocably authorize the Collateral Agent, at its option and in its discretion, to release any Lien granted to or held by the Collateral Agent upon any Collateral upon termination of the Total Commitment and ~~Payment~~ payment and satisfaction of all Loans and all other Obligations (other than Contingent Indemnity Obligations) in ~~Full of~~ accordance with the ~~Obligations~~terms hereof; or constituting property being sold or disposed of in the ordinary course of any Loan Party’s business or otherwise in compliance with the terms of this Agreement and the other Loan Documents; or constituting property in which the Loan Parties owned no interest at the time the Lien was granted or at any time thereafter; or if approved, authorized or ratified in writing by the ~~applicable~~ Lenders ~~required pursuant to~~ in accordance with Section ~~12.02~~11.2. Upon request by the Collateral Agent at any time, the Lenders will confirm in writing the Collateral Agent’s authority to release particular types or items of Collateral pursuant to this Section ~~10.08(b~~9.8(b). (c) Without in any manner limiting the Collateral Agent’s authority to act without any specific or further authorization or consent by the Lenders (as set forth in Section ~~10.08(b~~9.8(b)), each Lender agrees to confirm in writing, upon request by the Collateral Agent, the authority to release Collateral conferred upon the Collateral Agent under Section ~~10.08(b~~9.8(b). Upon receipt by the Collateral Agent of confirmation from the Lenders of its authority to release any particular item or types of Collateral, and upon prior written request by any Loan Party, the Collateral Agent shall (and is hereby irrevocably authorized by the Lenders to) execute such documents as may be necessary ~~or reasonably requested by any Loan Party~~ to evidence the release of the Liens granted to the Collateral Agent for the benefit of the Agents and the Lenders upon such Collateral; provided, however, that (i) the Collateral Agent shall not be required to execute any such document on terms which, in the Collateral Agent’s opinion, would expose the Collateral Agent to liability or create any obligations or entail any consequence other than the release of such Liens without recourse or warranty, and (ii) such release shall not in any manner discharge, affect or impair the Obligations or any Lien upon (or obligations of any Loan Party in respect of) all interests in the Collateral retained by any Loan Party. (d) ~~Anything~~ Notwithstanding anything contained in any of the Loan Documents to the ~~contrary notwithstanding but subject to the Agreement Among Lenders~~contrary, the Loan Parties, each Agent and each Lender hereby agree that ~~(i)~~ no Lender shall have any right individually to realize upon any of the Collateral under any Loan Document or to enforce any Guaranty, it being understood and agreed that all powers, rights and remedies under the Loan Documents may be exercised solely by the Collateral Agent for the benefit of the Lenders in accordance with the terms thereof, (iie) in The Agents and the event of a foreclosure by the Collateral Agent on any of the Collateral pursuant to a public or private sale, the Administrative Agent, the Collateral Agent or any Lender may be the purchaser of any or all of such Collateral at any such sale and (iii) Lenders hereby irrevocably authorize the Collateral Agent, as agent for and representative of the Agents and the Lenders (but not any other Agent or any Lender or Lenders in its or their respective individual capacities unless the Required Lenders shall otherwise agree in writing), to credit bid all or any portion of the Obligations (including by accepting some or all of the Collateral in satisfaction of some or all of the Obligations pursuant to a deed in lieu of foreclosure or otherwise) ~~shall be entitled~~ and in such manner purchase (either directly or through one or more acquisition vehicles) ~~for the purpose of bidding and making settlement or payment of the purchase price for~~ all or any portion of the Collateral ~~to be sold~~ (~~A) at any public or private sale, (B~~i) at any sale thereof conducted ~~by the Collateral Agent~~ under the provisions of the ~~Uniform Commercial Code (~~Bankruptcy Code, including ~~pursuant to Sections 9-610~~ under Section 363, 1123 or ~~9-620~~ 1129 of the ~~Uniform Commercial~~ Bankruptcy Code), or any similar laws in any other jurisdictions to which a Loan Party is subject, or (Cii) at any ~~sale~~ other sale, foreclosure or ~~foreclosure~~ acceptance of collateral in lieu of debt conducted by (or with the consent or at the direction of) the Collateral Agent (whether by judicial action or otherwise) in accordance with any applicable ~~law~~ law. In connection with any such credit bid and purchase, the Obligations owed to the Agents and the Lenders shall be entitled to be, and shall be, credit bid by the Collateral Agent (but not any other Agent or any Lender or Lenders in its or their respective individual capacities unless the Required Lenders shall otherwise agree in writing) on a ratable basis (with Obligations with respect to contingent or unliquidated claims receiving contingent interests in the acquired assets on a ratable basis that shall vest upon the liquidation of such claims in an amount proportional to the liquidated portion of the contingent claim amount used in allocating the contingent interests) for the asset or assets so purchased (or for the equity interests or debt instruments of the acquisition vehicle or vehicles that are issued in connection with such purchase). In connection with any such bid (A) the Collateral Agent shall be authorized to form one or more acquisition vehicles and to assign any successful credit bid to such acquisition vehicle or vehicles, (B) each of the Agents’ and the Lenders’ ratable interests in the Obligations which were credit bid shall be deemed without any further action under this Agreement to be assigned to such vehicle or vehicles for the purpose of closing such sale, (C) the Collateral Agent shall be authorized to adopt documents providing for the governance of the acquisition vehicle or vehicles (provided that any actions by the Collateral Agent with respect to such acquisition vehicle or vehicles, including any disposition of the assets or equity interests thereof, shall be governed, directly or indirectly, by, and the governing documents shall provide for, control by the vote of the Required Lenders or their permitted assignees under the terms of this Agreement or the governing documents of the applicable acquisition vehicle or vehicles, as the case may be, irrespective of the termination of this Agreement and without giving effect to the limitations on actions by the Required Lenders contained in Section 11.2), (D) ~~any sale conducted pursuant~~ the Collateral Agent, on behalf of such acquisition vehicle or vehicles, shall be authorized to ~~the provisions of any Debtor Relief Law (including Section 363~~ issue to each of the ~~Bankruptcy Code)~~Agents and the Lenders, ~~to use and apply all or any of the Obligations as a credit~~ ratably on account of the ~~purchase price~~ relevant Obligations which were credit bid, interests, whether as equity, partnership interests, limited partnership interests or membership interests, in any such acquisition vehicle and/or debt instruments issued by such acquisition vehicle, all without the need for any Agent, any Lender or any acquisition vehicle to take any further action, and (E) to the extent that Obligations that are assigned to an acquisition vehicle are not used to acquire Collateral ~~payable~~ for any reason (as a result of another bid being higher or better, because the amount of Obligations assigned to the acquisition vehicle exceeds the amount of Obligations credit bid by the acquisition vehicle or otherwise), such Obligations shall automatically be reassigned to the Agents and the Lenders pro rata with their original interest in such Obligations and the equity interests and/or debt instruments issued by any acquisition vehicle on account of such Obligations shall automatically be cancelled, without the need for any Agent, any Lender or any acquisition vehicle to take any further action. Notwithstanding that the ratable portion of the Obligations of each Agent and each Lender are deemed assigned to the acquisition vehicle or vehicles as set forth in clause (B) above, each Agent and each Lender shall execute such documents and provide such information regarding such Person (and/or any designee of such Person that will receive interests in or debt instruments issued by such acquisition vehicle) as the Collateral Agent at may reasonably request in connection with the formation of any acquisition vehicle, the formulation or submission of any credit bid or the consummation of the transactions contemplated by such ~~sale~~credit bid. (ef) The Collateral Agent shall have no obligation whatsoever to any Lender to assure that the Collateral exists or is owned by the Loan Parties or is cared for, protected or insured or has been encumbered or that the Lien granted to the Collateral Agent pursuant to this Agreement or any other Loan Document has been properly or sufficiently or lawfully created, perfected, protected or enforced or is entitled to any particular priority, or to exercise at all or in any particular manner or under any duty of care, disclosure or fidelity, or to continue exercising, any of the rights, authorities and powers granted or available to the Collateral Agent in this Section ~~10.08~~ 9.8 or in any other Loan Document, it being understood and agreed that in respect of the Collateral, or any act, omission or event related thereto, the Collateral Agent may act in any manner it may deem appropriate, in its sole discretion, given the Collateral Agent’s own interest in the Collateral as one of the Lenders and that the Collateral Agent shall have no duty or liability whatsoever to any other Lender, except as otherwise provided ~~herein and in the Agreement Among Lenders~~herein.

Appears in 1 contract

Sources: Term Loan Credit Agreement (Synergy CHC Corp.)

Collateral Matters. (a) ~~Each~~ Agent ~~may~~ may, at its option, from time to time, at any time on or after an Event of Default and for so long as the same is continuing or upon any other failure of a condition precedent to the Loans and Letters of Credit hereunder, make such disbursements and advances (“Special Agent Advances”) which ~~such~~ Agent, in its sole discretion, (i) deems necessary or desirable either to ~~preserve, protect, prepare for sale~~ preserve or ~~lease or dispose of~~ protect the Collateral or any portion ~~thereof,~~ thereof or (ii) to enhance the likelihood or maximize the amount of repayment by ~~the~~ Borrowers and Guarantors of the ~~Loans, Reimbursement~~ Loans and other Obligations, provided, that, (A) the aggregate principal amount of the Special Agent Advances pursuant to this clause (ii) outstanding at any time, plus the then outstanding principal amount of the additional Loans and Letters of Credit which Agent may make or provide as set forth in Section 12.8 hereof, shall not exceed $25,000,000 and (B) the aggregate principal amount of the Special Agent Advances pursuant to this clause (ii) outstanding at any time, plus the then outstanding principal amount of the Loans and the Letter of Credit ~~Obligations and other Obligations~~ Obligations, shall not exceed the Maximum Credit, or (iii) to pay any other amount chargeable to ~~the Borrowers~~ any Borrower or Guarantor pursuant to the terms of this ~~Agreement, including, without limitation,~~ Agreement or any of the other Financing Agreements consisting of (A) costs, fees and expenses ~~as described~~ and (B) payments to Issuing Bank in ~~Section 12.04~~respect of any Letter of Credit Obligations. The Special Agent Advances shall be repayable on demand and be together with all interest thereon shall constitute Obligations secured by the ~~Collateral and~~ Collateral. Special Agent Advances shall ~~bear interest~~ not constitute Loans but shall otherwise constitute Obligations hereunder. Interest on Special Agent Advances shall be payable at ~~a rate per annum equal to~~ the ~~rate~~ Interest Rate then applicable to ~~Revolving~~ Prime Rate Loans ~~that are Reference Rate Loans. The Agent making any Agent Advances~~ and shall ~~notify the other Agent, each Lender and the Administrative Borrower in writing of each such Agent Advance, which notice shall include a description of the purpose of such Agent Advance~~be payable on demand. Without limitation to of its obligations pursuant to Section ~~10.05~~6.11, each Lender agrees that it shall make available to ~~the Agent making any Agent Advances~~Agent, upon ~~such~~ Agent’s demand, ~~in the currency in which the respective Agent Advance was made~~ in immediately available funds, the amount equal to such Lender’s Pro Rata Share of each such Special Agent ~~Advance subject to the terms of, the Agreement Among Lenders, provided that any such amount advanced by a Lender shall be deemed a Loan hereunder~~Advance. If such funds are not made available to ~~such~~ Agent by such Lender, such Lender shall be deemed a Defaulting Lender and Agent shall be entitled to recover such ~~funds~~ funds, on demand from such ~~Lender,~~ Lender together with interest thereon for each day from the date such payment was due until the date such amount is paid to ~~such Agent,~~ Agent at the Federal Funds ~~Effective~~ Rate for each day during such period (as published by the Federal Reserve Bank of Chicago or at Agent’s option based on the arithmetic mean determined by Agent of the rates for the last transaction in overnight Federal funds arranged prior to 9:00 a.m. (Chicago time) on that day by each of the three ~~Business Days~~ leading brokers of Federal funds transactions in Chicago selected by Agent) and ~~thereafter~~ if such amounts are not paid within three (3) days of Agent’s demand, at the ~~Reference Rate~~highest Interest Rate provided for in Section 3.1 hereof applicable to Prime Rate Loans. (b) ~~The~~ Lenders hereby irrevocably authorize ~~the Collateral~~ Agent, at its option and in its ~~discretion,~~ discretion to release any ~~Lien granted to~~ security interest in, mortgage or ~~held by~~ lien upon, any of the Collateral ~~Agent upon any Collateral~~ (i) upon termination of the ~~Total Commitment~~ Commitments and ~~Payment in Full~~ payment and satisfaction of all of the ~~Obligations;~~ Obligations and delivery of cash collateral to the extent required under Section 13.1 below, or (ii) constituting property being sold or disposed of in if Administrative Borrower or any Borrower or Guarantor certifies to Agent that the ~~ordinary course of any Loan Party’s business~~ sale or ~~otherwise~~ disposition is made in compliance with ~~the terms of this Agreement~~ Section 9.7 hereof (and ~~the other Loan Documents;~~ Agent may rely conclusively on any such certificate, without further inquiry), or (iii) constituting property in which ~~the Loan Parties owned no~~ any Borrower or Guarantor did not own an interest at the time the ~~Lien~~ security interest, mortgage or lien was granted or at any time thereafter; , or (iv) having a value in the aggregate in any twelve (12) month period of less than $20,000,000, and to the extent Agent may release its security interest in and lien upon any such Collateral pursuant to the sale or other disposition thereof, such sale or other disposition shall be deemed consented to by Lenders, or (v) if required or permitted under the terms of any of the other Financing Agreements, including any intercreditor agreement, or (vi) approved, authorized or ratified in writing by all of Lenders. Except as provided above, Agent will not release any security interest in, mortgage or lien upon, any of the ~~applicable Lenders required pursuant to Section 12.02~~Collateral without the prior written authorization of all of Lenders. Upon request by ~~the Collateral~~ Agent at any time, ~~the~~ Lenders will promptly confirm in writing ~~the Collateral~~ Agent’s authority to release particular types or items of Collateral pursuant to this ~~Section 10.08(b)~~Section. In no event shall the consent or approval of an Issuing Bank to any release of Collateral be required. Nothing contained herein shall be construed to require the consent of any Bank Product Provider to any release of any Collateral or termination of security interests in any Collateral. (c) Without in any manner limiting ~~the Collateral~~ Agent’s authority to act without any specific or further authorization or consent by the ~~Lenders (as set forth in Section 10.08(b))~~Required Lenders, each Lender agrees to confirm in writing, upon request by ~~the Collateral~~ Agent, the authority to release Collateral conferred upon ~~the Collateral~~ Agent under ~~Section 10.08(b)~~this Section. ~~Upon the prior written request by any Loan Party, the Collateral~~ Agent shall (and is hereby irrevocably authorized by ~~the~~ Lenders to) execute such documents as may be necessary ~~or reasonably requested by any Loan Party~~ to evidence the release of the ~~Liens~~ security interest, mortgage or liens granted to Agent upon any Collateral to the ~~Collateral Agent for the benefit of the Agents and the Lenders upon such Collateral~~extent set forth above; provided, ~~however~~that, ~~that~~ (i) ~~the Collateral~~ Agent shall not be required to execute any such document on terms which, in ~~the Collateral~~ Agent’s opinion, would expose ~~the Collateral~~ Agent to liability or create any obligations or entail any consequence other than the release of such ~~Liens~~ security interest, mortgage or liens without recourse or ~~warranty,~~ warranty and (ii) such release shall not in any manner discharge, affect or impair the Obligations or any ~~Lien~~ security interest, mortgage or lien upon (or obligations of any ~~Loan Party~~ Borrower or Guarantor in respect of) ~~all interests in~~ the Collateral retained by ~~any Loan Party~~such Borrower or Guarantor. (d) Anything contained in any of the Loan Documents to the contrary notwithstanding but subject to the Agreement Among Lenders, the Loan Parties, each Agent and each Lender hereby agree that (i) no Lender shall have any right individually to realize upon any of the Collateral under any Loan Document or to enforce any Guaranty, it being understood and agreed that all powers, rights and remedies under the Loan Documents may be exercised solely by the Collateral Agent for the benefit of the Lenders in accordance with the terms thereof, (ii) in the event of a foreclosure by the Collateral Agent on any of the Collateral pursuant to a public or private sale, the Administrative Agent, the Collateral Agent or any Lender may be the purchaser of any or all of such Collateral at any such sale and (iii) the Collateral Agent, as agent for and representative of the Agents and the Lenders (but not any other Agent or any Lender or Lenders in its or their respective individual capacities unless the Required Lenders shall otherwise agree in writing) shall be entitled (either directly or through one or more acquisition vehicles) for the purpose of bidding and making settlement or payment of the purchase price for all or any portion of the Collateral to be sold (A) at any public or private sale, (B) at any sale conducted by the Collateral Agent under the provisions of the Uniform Commercial Code (including pursuant to Sections 9-610 or 9-620 of the Uniform Commercial Code), (C) at any sale or foreclosure conducted by the Collateral Agent (whether by judicial action or otherwise) in accordance with applicable law or (D) any sale conducted pursuant to the provisions of any Debtor Relief Law (including Section 363 of the Bankruptcy Code), to use and apply all or any of the Obligations as a credit on account of the purchase price for any Collateral payable by the Collateral Agent at such sale. (e) The Collateral Agent shall have no obligation whatsoever to any ~~Lender~~ Secured Party or any other Person to investigate, confirm or assure that the Collateral exists or is owned by ~~the Loan Parties~~ any Borrower or Guarantor or is cared for, protected or insured or has been ~~encumbered~~ encumbered, or that any particular items of Collateral meet the eligibility criteria applicable in respect of the Loans or Letters of Credit hereunder, or whether any particular reserves are appropriate, or that the ~~Lien~~ liens and security interests granted to ~~the Collateral~~ Agent pursuant ~~to this Agreement~~ hereto or any ~~other Loan Document has~~ of the Financing Agreements or otherwise have been properly or sufficiently or lawfully created, perfected, protected or enforced or is are entitled to any particular priority, or to exercise at all or in any particular manner or under any duty of care, disclosure or fidelity, or to continue exercising, any of the rights, authorities and powers granted or available to ~~the Collateral~~ Agent in this ~~Section 10.08~~ Agreement or in any of the other ~~Loan Document~~Financing Agreements, it being understood and agreed that in respect of the Collateral, or any act, omission or event related thereto, subject to the ~~Collateral~~ other terms and conditions contained herein, Agent may act in any manner it may deem appropriate, in its ~~sole~~ discretion, given ~~the Collateral~~ Agent’s own interest in the Collateral as ~~one of the Lenders~~ a Lender and that ~~the Collateral~~ Agent shall have no duty or liability whatsoever to any other ~~Lender, except as otherwise provided herein and in the Agreement Among Lenders~~Lender or Issuing Bank.

Appears in 1 contract

Sources: Loan and Security Agreement (Officemax Inc)

Collateral Matters. (a) ~~Each~~ The Collateral Agent may from time to time make such disbursements and advances (“"Collateral Agent Advances”") which ~~such~~ the Collateral Agent, in its sole discretion, deems necessary or desirable to preserve, protect, prepare for sale or lease or dispose of the Collateral or any portion thereof, to enhance the likelihood or maximize the amount of repayment by the Borrowers of the ~~Loans, Reimbursement Obligations, Letter of Credit Obligations~~ Loans and other Obligations or to pay any other amount chargeable to the Borrowers pursuant to the terms of this Agreement, including, without limitation, costs, fees and expenses as described in Section 12.04. The Collateral Agent Advances shall be repayable on demand and be secured by the Collateral and shall bear interest at a rate per annum equal to the rate then applicable to ~~Revolving~~ Term Loans that are Reference Rate Loans. The ~~Agent making any~~ Collateral Agent Advances shall constitute Obligations hereunder which may be charged to the Loan Account in accordance with Section 4.01. The Collateral Agent shall notify ~~the other Agent,~~ each Lender and the Administrative Borrower in writing of each such Collateral Agent Advance, which notice shall include a description of the purpose of such Collateral Agent Advance. Without limitation to its obligations pursuant to Section 10.05, each Lender agrees that it shall make available to the ~~Agent making any Agent Advances~~Collateral Agent, upon ~~such~~ the Collateral Agent’s 's demand, in ~~the currency in which the respective Agent Advance was made~~ Dollars in immediately available funds, the amount equal to such Lender’s 's Pro Rata Share of each such Collateral Agent ~~Advance subject to the terms of, the Agreement Among Lenders, provided that any such amount advanced by a Lender shall be deemed a Loan hereunder~~Advance. If such funds are not made available to ~~such~~ the Collateral Agent by such Lender, ~~such~~ the Collateral Agent shall be entitled to recover such funds on demand from such Lender, together with interest thereon for each day from the date such payment was due until the date such amount is paid to ~~such~~ the Collateral Agent, at the Federal Funds ~~Effective~~ Rate for three Business Days and thereafter at the Reference Rate. (b) The Lenders hereby irrevocably authorize the Collateral Agent, at its option and in its discretion, to release any Lien granted to or held by the Collateral Agent upon any Collateral upon termination of the Total Term Loan Commitment and ~~Payment~~ payment and satisfaction of all Loans and all other Obligations (other than Contingent Indemnity Obligations) in ~~Full of~~ accordance with the ~~Obligations~~terms hereof; or constituting property being sold or disposed of in the ordinary course of any Loan Party’s 's business or otherwise in compliance with the terms of this Agreement and the other Loan Documents; or constituting property in which the Loan Parties owned no interest at the time the Lien was granted or at any time thereafter; or if approved, authorized or ratified in writing by the ~~applicable~~ Lenders ~~required pursuant to~~ in accordance with Section 12.02. Upon request by the Collateral Agent at any time, the Lenders will confirm in writing the Collateral Agent’s 's authority to release particular types or items of Collateral pursuant to this Section 10.08(b). (c) Without in any manner limiting the Collateral Agent’s 's authority to act without any specific or further authorization or consent by the Lenders (as set forth in Section 10.08(b)), each Lender agrees to confirm in writing, upon request by the Collateral Agent, the authority to release Collateral conferred upon the Collateral Agent under Section 10.08(b). Upon receipt by the Collateral Agent of confirmation from the Lenders of its authority to release any particular item or types of Collateral, and upon prior written request by any Loan Party, the Collateral Agent shall (and is hereby irrevocably authorized by the Lenders to) execute such documents as may be necessary ~~or reasonably requested by any Loan Party~~ to evidence the release of the Liens granted to the Collateral Agent for the benefit of the Agents and the Lenders upon such Collateral; provided, however, that (i) the Collateral Agent shall not be required to execute any such document on terms which, in the Collateral Agent’s 's opinion, would expose the Collateral Agent to liability or create any obligations or entail any consequence other than the release of such Liens without recourse or warranty, and (ii) such release shall not in any manner discharge, affect or impair the Obligations or any Lien upon (or obligations of any Loan Party in respect of) all interests in the Collateral retained by any Loan Party. (d) Anything contained in any of the Loan Documents to the contrary notwithstanding but subject to the Agreement Among Lenders, the Loan Parties, each Agent and each Lender hereby agree that (i) no Lender shall have any right individually to realize upon any of the Collateral under any Loan Document or to enforce any Guaranty, it being understood and agreed that all powers, rights and remedies under the Loan Documents may be exercised solely by the Collateral Agent for the benefit of the Lenders in accordance with the terms thereof, (ii) in the event of a foreclosure by the Collateral Agent on any of the Collateral pursuant to a public or private sale, the Administrative Agent, the Collateral Agent or any Lender may be the purchaser of any or all of such Collateral at any such sale and (iii) the Collateral Agent, as agent for and representative of the Agents and the Lenders (but not any other Agent or any Lender or Lenders in its or their respective individual capacities unless the Required Lenders shall otherwise agree in writing) shall be entitled (either directly or through one or more acquisition vehicles) for the purpose of bidding and making settlement or payment of the purchase price for all or any portion of the Collateral to be sold (A) at any public or private sale, (B) at any sale conducted by the Collateral Agent under the provisions of the Uniform Commercial Code (including pursuant to Sections 9-610 or 9-620 of the Uniform Commercial Code), (C) at any sale or foreclosure conducted by the Collateral Agent (whether by judicial action or otherwise) in accordance with applicable law or (D) any sale conducted pursuant to the provisions of any Debtor Relief Law (including Section 363 of the Bankruptcy Code), to use and apply all or any of the Obligations as a credit on account of the purchase price for any Collateral payable by the Collateral Agent at such sale. (e) The Collateral Agent shall have no obligation whatsoever to any Lender to assure that the Collateral exists or is owned by the Loan Parties or is cared for, protected or insured or has been encumbered or that the Lien granted to the Collateral Agent pursuant to this Agreement or any other Loan Document has been properly or sufficiently or lawfully created, perfected, protected or enforced or is entitled to any particular priority, or to exercise at all or in any particular manner or under any duty of care, disclosure or fidelity, or to continue exercising, any of the rights, authorities and powers granted or available to the Collateral Agent in this Section 10.08 or in any other Loan Document, it being understood and agreed that in respect of the Collateral, or any act, omission or event related thereto, the Collateral Agent may act in any manner it may deem appropriate, in its sole discretion, given the Collateral Agent’s own interest in the Collateral as one of the Lenders and that the Collateral Agent shall have no duty or liability whatsoever to any other Lender, except as otherwise provided herein and in the Agreement Among Lenders.and

Appears in 1 contract

Sources: Financing Agreement (Alj Regional Holdings Inc)

Collateral Matters. (a) ~~Each~~ In addition to, and not in limitation of the provisions of Section 3.1(f) above, Agent may from time to time, at any time on or after the occurrence of an Event of Default and for so long as the same is continuing, make such disbursements and advances (“"Agent Advances”") which ~~such~~ Agent, in its sole discretion, deems necessary or desirable either (i) to ~~preserve, protect, prepare for sale~~ preserve or ~~lease~~ protect the Collateral or ~~dispose of the~~ Guarantor Collateral or any portion thereof, (ii) to enhance the likelihood or maximize the amount of repayment by ~~the Borrowers~~ Borrower and Guarantors of the ~~Loans, Reimbursement Obligations, Letter of Credit Obligations~~ Loans and other Obligations or (iii) to pay any other amount chargeable to ~~the Borrowers~~ Borrower pursuant to the terms of this Agreement, including, without limitation, costs, fees and expenses as described in Section ~~12.04~~10.2 and payments to any issuer of Letter of Credit Accommodations. ~~The~~ Agent Advances shall be repayable on demand and be secured by the ~~Collateral and shall bear interest at a rate per annum equal to the rate then applicable to Revolving Loans that are Reference Rate Loans~~Collateral. ~~The Agent making any~~ Agent Advances shall not constitute Loans but shall otherwise constitute Obligations hereunder. Agent shall notify ~~the other Agent,~~ each Lender and ~~the Administrative~~ Borrower in writing of each such Agent Advance, which notice shall include a description of the purpose of such Agent Advance. Without limitation to of its obligations pursuant to Section ~~10.05~~12.5, each Lender agrees that it shall make available to ~~the Agent making any Agent Advances~~Agent, upon ~~such~~ Agent’s 's demand, ~~in the currency in which the respective Agent Advance was made~~ in immediately available funds, the amount equal to such Lender’s 's Pro Rata Share of each such Agent ~~Advance subject to the terms of, the Agreement Among Lenders, provided that any such amount advanced by a Lender shall be deemed a Loan hereunder~~Advance. If such funds are not made available to ~~such~~ Agent by such Lender, ~~such~~ Agent shall be entitled to recover such ~~funds~~ funds, on demand from such ~~Lender,~~ Lender together with interest ~~thereon~~ thereon, for each day from the date such payment was due until the date such amount is paid to ~~such~~ Agent, at the ~~Federal Funds Effective Rate for three Business Days and thereafter at the Reference~~ Interest Rate. (b) ~~The~~ Lenders hereby irrevocably authorize ~~the Collateral~~ Agent, at its option and in its ~~discretion,~~ discretion to release any ~~Lien granted to~~ security interest in, mortgage or ~~held by~~ lien upon, any of the ~~Collateral Agent upon any~~ Collateral upon termination of the ~~Total Commitment~~ Commitments and ~~Payment in Full~~ payment and satisfaction of all of the ~~Obligations~~Obligations and delivery of cash collateral as provided in Section 10.1 above; or constituting property being sold or disposed of in if Borrower certifies to Agent that the ~~ordinary course of any Loan Party’s business~~ sale or ~~otherwise~~ disposition is made in compliance with ~~the terms of this Agreement~~ Section 7.11 hereof (and ~~the other Loan Documents~~Agent may rely conclusively on any such certificate, without further inquiry); or constituting property in which ~~the Loan Parties~~ Borrower owned no interest at the time the ~~Lien~~ security interest, mortgage or lien was granted or at any time thereafter; or if approved, authorized or ratified in writing by the ~~applicable Lenders required pursuant to Section 12.02~~Majority Lenders. Except as provided above, Agent will not release any security interest in, mortgage or lien upon, any of the Collateral without the prior written authorization of the Majority Lenders; provided, that, Agent may not release such security interests in, mortgage or lien upon, any of the Collateral having a value in excess of $5,000,000, without the prior written authorization of all of the Lenders. Upon request by ~~the Collateral~~ Agent at any time, the Lenders will confirm in writing ~~the Collateral~~ Agent’s 's authority to release particular types or items of Collateral pursuant to this Section ~~10.08(b)~~12.12. (c) Without in any manner limiting ~~the Collateral~~ Agent’s 's authority to act without any specific or further authorization or consent by the ~~Lenders (as set forth in Section 10.08(b))~~Majority Lenders, each Lender agrees to confirm in writing, upon request by ~~the Collateral~~ Agent, the authority to release Collateral conferred upon ~~the Collateral~~ Agent under this Section ~~10.08(b)~~12.12. ~~Upon~~ So long as no Event of Default is then continuing, upon receipt by Agent of confirmation from the Majority Lenders of its authority to release any particular item or types of Collateral, and upon at least five (5) Business Day's prior written request by ~~any Loan Party~~Borrower, ~~the Collateral~~ Agent shall (and is hereby irrevocably authorized by ~~the~~ Lenders to) execute such documents as may be necessary ~~or reasonably requested by any Loan Party~~ to evidence the release of the ~~Liens~~ security interest, mortgage or liens granted to ~~the Collateral~~ Agent for the benefit of ~~the Agents and~~ the Lenders upon such Collateral; provided, ~~however~~that, ~~that~~ (i) ~~the Collateral~~ Agent shall not be required to execute any such document on terms which, in ~~the Collateral~~ Agent’s 's opinion, would expose ~~the Collateral~~ Agent to liability or create any obligations or entail any consequence other than the release of such ~~Liens~~ security interest, mortgage or liens without recourse or ~~warranty,~~ warranty and (ii) such release shall not in any manner discharge, affect or impair the Obligations or any ~~Lien~~ security interest, mortgage or lien upon (or obligations of ~~any Loan Party~~ Borrower in respect of) ~~all interests in~~ the Collateral retained by ~~any Loan Party~~Borrower. (d) Anything contained in any of the Loan Documents to the contrary notwithstanding but subject to the Agreement Among Lenders, the Loan Parties, each Agent and each Lender hereby agree that (i) no Lender shall have any right individually to realize upon any of the Collateral under any Loan Document or to enforce any Guaranty, it being understood and agreed that all powers, rights and remedies under the Loan Documents may be exercised solely by the Collateral Agent for the benefit of the Lenders in accordance with the terms thereof, (ii) in the event of a foreclosure by the Collateral Agent on any of the Collateral pursuant to a public or private sale, the Administrative Agent, the Collateral Agent or any Lender may be the purchaser of any or all of such Collateral at any such sale and (iii) the Collateral Agent, as agent for and representative of the Agents and the Lenders (but not any other Agent or any Lender or Lenders in its or their respective individual capacities unless the Required Lenders shall otherwise agree in writing) shall be entitled (either directly or through one or more acquisition vehicles) for the purpose of bidding and making settlement or payment of the purchase price for all or any portion of the Collateral to be sold (A) at any public or private sale, (B) at any sale conducted by the Collateral Agent under the provisions of the Uniform Commercial Code (including pursuant to Sections 9-610 or 9-620 of the Uniform Commercial Code), (C) at any sale or foreclosure conducted by the Collateral Agent (whether by judicial action or otherwise) in accordance with applicable law or (D) any sale conducted pursuant to the provisions of any Debtor Relief Law (including Section 363 of the Bankruptcy Code), to use and apply all or any of the Obligations as a credit on account of the purchase price for any Collateral payable by the Collateral Agent at such sale. (e) The Collateral Agent shall have no obligation whatsoever to any Lender to assure that the Collateral exists or is owned by Borrower, any Guarantor or any Obligor (as the ~~Loan Parties~~ case may be) or is cared for, protected or insured or has been encumbered or that the ~~Lien~~ security interest, mortgage or lien granted to ~~the Collateral~~ Agent pursuant to ~~this Agreement or~~ any ~~other Loan Document~~ of the Financing Agreements has been properly or sufficiently or lawfully created, perfected, protected or enforced or is entitled to any particular priority, or to exercise at all or in ~~any~~ particular manner or under any duty of care, disclosure or fidelity, or to continue exercising, any of the rights, authorities and powers granted or available to ~~the Collateral~~ Agent in this Section ~~10.08~~ 12 or in any of the other ~~Loan Document~~Financing Agreements, it being understood and agreed that in respect of the Collateral, or any act, omission or event related thereto, ~~the Collateral~~ Agent may act in any manner it may deem appropriate, in its sole discretion, given ~~the Collateral~~ Agent’s 's own interest in the Collateral as one of the Lenders and that ~~the Collateral~~ Agent shall have no duty or liability whatsoever to any other Lender~~, except as otherwise provided herein and in the Agreement Among Lenders~~.

Appears in 1 contract

Sources: Revolving Credit and Security Agreement (Salant Corp)

Collateral Matters. (a) ~~Each~~ The Origination Agent may (but shall not be obligated to) from time to time make such disbursements and advances (“Origination Agent Advances”) which ~~such~~ the Origination Agent, in its ~~sole discretion~~Permitted Discretion, deems necessary or desirable to preserve, protect, prepare for sale or lease or dispose of the Collateral or any portion thereof, to enhance the likelihood or maximize the amount of repayment by the Borrowers of the ~~Loans, Reimbursement Obligations, Letter of Credit Obligations~~ Loans and other Obligations or to pay any other amount chargeable to the Borrowers pursuant to the terms of this Agreement to the extent not paid by the Borrowers in accordance with this Agreement, including, without limitation, costs, fees and expenses as described in Section 12.04. The Origination Agent Advances shall be repayable on within three (3) Business Days after demand and be secured by the Collateral and shall bear interest at a rate per annum equal to the rate then applicable to ~~Revolving~~ Term Loans that are Reference Rate Loans. The ~~Agent making any~~ Origination Agent Advances shall constitute Obligations hereunder which may be charged to the Loan Account in accordance with Section 4.01. The Origination Agent shall notify each Lender, the ~~other Agent, each Lender~~ Administrative Agent and the Administrative Borrower in writing of each such Origination Agent Advance, which notice shall include a description of the purpose of such Origination Agent Advance. Without limitation to its obligations pursuant to Section 10.05, each Lender agrees that it shall make available to the ~~Agent making any Agent Advances~~Origination Agent, upon ~~such~~ the Origination Agent’s demand, in ~~the currency in which the respective Agent Advance was made~~ Dollars in immediately available funds, the amount equal to such Lender’s Pro Rata Share of each such Origination Agent ~~Advance subject to the terms of, the Agreement Among Lenders, provided that any such amount advanced by a Lender shall be deemed a Loan hereunder~~Advance. If such funds are not made available to ~~such~~ the Origination Agent by such Lender, ~~such~~ the Origination Agent shall be entitled to recover such funds on demand from such Lender, together with interest thereon for each day from the date such payment was due until the date such amount is paid to ~~such~~ the Origination Agent, at the Federal Funds ~~Effective~~ Rate for three (3) Business Days and thereafter at the Reference Rate. (b) Notwithstanding anything to the contrary contained herein, after the occurrence and during the continuance of a Triggering Event (as defined in the Revolving Facility Intercreditor Agreement) (other than a Triggering Event pursuant to clause (k) of the definition thereof), the Origination Agent may (but shall not be obligated to) make Origination Agent Advances, in its sole discretion but otherwise in accordance with the provisions set forth in Section 10.08(b), the proceeds of which shall be used, in lieu of the Agents and the Lenders consummating the purchase of the Revolving Facility Debt pursuant to Section 27 of the Revolving Facility Intercreditor Agreement, to repay in full, on behalf of the Loan Parties, all outstanding Revolving Facility Debt (including to cash collateralize any letters of credit then outstanding under the Revolving Facility Agreement), and each of the Loan Parties hereby irrevocably appoints the Origination Agent as its attorney-in-fact and authorizes the Origination Agent to execute and deliver written notice to the Revolving Facility Agent, as required by the terms of the Revolving Facility Agreement, to permanently reduce the amount of the Revolving Facility Commitments to zero, such reduction to be effective concurrently with the funding of any such Origination Agent Advances, and to execute and deliver such other ancillary documents and notices as may be required in connection therewith; provided that, alternatively, the proceeds of any such Origination Agent Advance may be used to refinance the outstanding Revolving Facility Debt (including to cash collateralize any letters of credit then outstanding under the Revolving Facility Agreement) pursuant to a payoff letter obtained by the Loan Parties from the Revolving Facility Agent. The power of attorney granted by the Loan Parties is limited solely to such actions related to the making of Origination Agent Advances under this Section and the repayment or refinancing of the Revolving Facility Debt with the proceeds thereof and the permanent reduction or cancellation of the Revolving Facility Commitments in connection therewith. This appointment is coupled with an interest. The Origination Agent may, at its option, sell participations in the Origination Agent Advances made pursuant to this Section 10.08(b) to the other Lenders and their Affiliates and Related Funds. (c) The Lenders hereby irrevocably authorize the Collateral Agent, at its option and in its discretion, to release any Lien granted to or held by the Collateral Agent upon any Collateral upon termination of the Total Term Loan Commitment and ~~Payment~~ payment and satisfaction of all Loans and all other Obligations (other than Contingent Indemnity Obligations) in ~~Full of~~ accordance with the ~~Obligations~~terms hereof; or constituting property being sold or disposed of in the ordinary course of any Loan Party’s business or otherwise in compliance with the terms of this Agreement and the other Loan ~~Documents~~Documents (including in connection with a Permitted Disposition); or constituting property in which the Loan Parties owned no interest at the time the Lien was granted or at any time thereafter; or if approved, authorized or ratified in writing by the ~~applicable~~ Lenders ~~required pursuant to~~ in accordance with Section 12.02. Upon request by the Collateral Agent at any time, the Lenders will confirm in writing the Collateral Agent’s authority to release particular types or items of Collateral pursuant to this Section 10.08(b). (cd) Without in any manner limiting the Collateral Agent’s authority to act without any specific or further authorization or consent by the Lenders (as set forth in Section 10.08(b)), each Lender agrees to confirm in writing, upon request by the Collateral Agent, the authority to release Collateral conferred upon the Collateral Agent under Section 10.08(b). Upon receipt by the Collateral Agent of confirmation from the Lenders of its authority to release any particular item or types of Collateral, and upon prior written request by any Loan Party, the Collateral Agent shall (and is hereby irrevocably authorized by the Lenders to) execute such documents as may be necessary ~~or reasonably requested by any Loan Party~~ to evidence the release of the Liens granted to the Collateral Agent for the benefit of the Agents and the Lenders upon such Collateral; provided, however, that (i) the Collateral Agent shall not be required to execute any such document on terms which, in the Collateral Agent’s opinion, would expose the Collateral Agent to liability or create any obligations or entail any consequence other than the release of such Liens without recourse or warranty, and (ii) such release shall not in any manner discharge, affect or impair the Obligations or any Lien upon (or obligations of any Loan Party in respect of) all interests in the Collateral retained by any Loan Party. (de) Anything contained in any of the Loan Documents to the contrary ~~notwithstanding but subject to the Agreement Among Lenders~~notwithstanding, the Loan Parties, each Agent and each Lender hereby agree that (i) no Lender shall have any right individually to realize upon any of the Collateral under any Loan Document or to enforce any Guaranty, it being understood and agreed that all powers, rights and remedies under the Loan Documents may be exercised solely by the Collateral Agent for the benefit of the Lenders in accordance with the terms thereof, (ii) in the event of a foreclosure by the Collateral Agent on any of the Collateral pursuant to a public or private sale, the Administrative Agent, the Collateral Agent, the Origination Agent or any Lender may be the purchaser of any or all of such Collateral at any such sale and (iii) the Collateral Agent, as agent for and representative of the Agents and the Lenders (but not any other Agent or any Lender or Lenders in its or their respective individual capacities unless the Required Lenders shall otherwise agree in writing) shall be entitled (either directly or through one or more acquisition vehicles) for the purpose of bidding and making settlement or payment of the purchase price for all or any portion of the Collateral to be sold (A) at any public or private sale, (B) at any sale conducted by the Collateral Agent under the provisions of the Uniform Commercial Code (including pursuant to Sections 9-610 or 9-620 of the Uniform Commercial Code), (C) at any sale or foreclosure conducted by the Collateral Agent (whether by judicial action or otherwise) in accordance with applicable law or (D) any sale conducted pursuant to the provisions of any Debtor Relief Law (including Section 363 of the Bankruptcy Code), to use and apply all or any of the Obligations as a credit on account of the purchase price for any Collateral payable by the Collateral Agent at such sale. (ef) The Collateral Agent shall have no obligation whatsoever to any Lender to assure that the Collateral exists or is owned by the Loan Parties or is cared for, protected or insured or has been encumbered or that the Lien granted to the Collateral Agent pursuant to this Agreement or any other Loan Document has been properly or sufficiently or lawfully created, perfected, protected or enforced or is entitled to any particular priority, or to exercise at all or in any particular manner or under any duty of care, disclosure or fidelity, or to continue exercising, any of the rights, authorities and powers granted or available to the Collateral Agent in this Section 10.08 or in any other Loan Document, it being understood and agreed that in respect of the Collateral, or any act, omission or event related thereto, the Collateral Agent may act in any manner it may deem appropriate, in its sole discretion, given the Collateral Agent’s own interest in the Collateral as one of the Lenders and that the Collateral Agent shall have no duty or liability whatsoever to any other Lender, except as otherwise provided ~~herein~~ herein. (g) Notwithstanding the provisions of this Section 10.08, the Collateral Agent shall be authorized, without the consent of any Lender and without the requirement that an asset sale consisting of the sale, transfer or other disposition having occurred, to release any security interest in any building, structure or improvement located in an area determined by the ~~Agreement Among Lenders~~Federal Emergency Management Agency to have special flood hazards.

Appears in 1 contract

Sources: Financing Agreement (Limbach Holdings, Inc.)

Collateral Matters. (a) ~~Each~~ The Agent may from time to ~~time~~ time, during the occurrence and continuance of an Event of Default, make such disbursements and advances (“"Agent Advances”") which ~~such~~ the Agent, in its sole discretion, deems necessary or desirable to ~~preserve, protect, prepare for sale~~ preserve or ~~lease or dispose of~~ protect the Collateral or any portion thereof, to enhance the likelihood or maximize the amount of repayment by the ~~Borrowers~~ Borrower of the ~~Loans, Reimbursement Obligations, Letter of Credit Obligations~~ Loans and other Obligations or to pay any other amount chargeable to the ~~Borrowers~~ Borrower pursuant to the terms of this Agreement, including, without limitation, costs, fees and expenses as described in Section ~~12.04~~11.06. The Agent Advances shall be repayable on demand and be secured by the ~~Collateral and shall bear interest at a rate per annum equal to the rate then applicable to Revolving Loans that are Reference Rate Loans~~Collateral. The Agent ~~making any Agent~~ Advances shall not constitute Loans but shall otherwise constitute Obligations hereunder. The Agent shall notify ~~the other Agent,~~ each Lender and the ~~Administrative~~ Borrower in writing of each such Agent Advance, which notice shall include a description of the purpose of such Agent Advance. Without limitation to its obligations pursuant to Section ~~10.05~~12.05, each Lender agrees that it shall make available to the ~~Agent making any Agent Advances~~Agent, upon ~~such~~ the Agent’s 's demand, in ~~the currency in which the respective Agent Advance was made~~ Dollars in immediately available funds, the amount equal to such Lender’s 's Pro Rata Share of each such Agent ~~Advance subject to the terms of, the Agreement Among Lenders, provided that any such amount advanced by a Lender shall be deemed a Loan hereunder~~Advance. If such funds are not made available to ~~such~~ the Agent by such ~~Lender, such~~ Lender the Agent shall be entitled to recover such ~~funds~~ funds, on demand from such ~~Lender,~~ Lender together with interest ~~thereon~~ thereon, for each day from the date such payment was due until the date such amount is paid to ~~such~~ the Agent, at the ~~Federal Funds Effective Rate~~ customary rate set by the Agent for the correction of errors among banks for three Business Days and thereafter at the ~~Reference~~ Regular Rate. (b) The Lenders hereby irrevocably authorize the ~~Collateral~~ Agent, at its option and in its discretion, to release any Lien granted to or held by the ~~Collateral~~ Agent upon any Collateral upon termination of the ~~Total Commitment~~ Revolving Credit Commitments and ~~Payment~~ payment and satisfaction of all Loans, Reimbursement Obligations, other Letter of Credit Exposure (whether or not due) and all other Obligations which have matured and which the Agent has been notified in ~~Full of the Obligations~~writing are then due and payable; or constituting property being sold or disposed of in if the ~~ordinary course of any Loan Party’s business~~ Borrower certifies to the Agent that the sale or ~~otherwise~~ disposition is made in compliance with ~~the terms of this Agreement~~ Section 9.05 (b) hereof (and the ~~other Loan Documents~~Agent may rely conclusively on any such certificate, without further inquiry); or constituting property in which the ~~Loan Parties~~ Borrower owned no interest at the time the Lien was granted or at any time thereafter; or if approved, authorized or ratified in writing by the ~~applicable Lenders required pursuant to Section 12.02~~Majority Lenders. Upon request by the ~~Collateral~~ Agent at any time, the Lenders will confirm in writing the ~~Collateral~~ Agent’s 's authority to release particular types or items of Collateral pursuant to this Section ~~10.08(b~~12.08(b). (c) Without in any manner limiting the ~~Collateral~~ Agent’s 's authority to act without any specific or further authorization or consent by the Majority Lenders (as set forth in Section ~~10.08(b~~12.08(b)), each Lender agrees to confirm in writing, upon request by the ~~Collateral~~ Agent, the authority to release Collateral conferred upon the ~~Collateral~~ Agent under Section ~~10.08(b~~12.08(b). ~~Upon~~ So long as no Event of Default is then continuing, upon receipt by the Agent of confirmation from the Majority Lenders of its authority to release any particular item or types of Collateral, and upon prior written request by ~~any Loan Party~~the Borrower, the ~~Collateral~~ Agent shall (and is hereby irrevocably authorized by the Lenders to) execute such documents as may be necessary ~~or reasonably requested by any Loan Party~~ to evidence the release of the Liens granted to the ~~Collateral~~ Agent for the benefit of ~~the Agents and~~ the Lenders upon such Collateral; provided, however, that (i) the ~~Collateral~~ Agent shall not be required to execute any such document on terms which, in the ~~Collateral~~ Agent’s 's opinion, would expose the ~~Collateral~~ Agent to liability or create any obligations or entail any consequence other than the release of such Liens without recourse or warranty, and (ii) such release shall not in any manner discharge, affect or impair the Obligations or any Lien upon (or obligations of ~~any Loan Party~~ the Borrower in respect of) all interests in the Collateral retained by ~~any Loan Party~~the Borrower. (d) Anything contained in any of the Loan Documents to the contrary notwithstanding but subject to the Agreement Among Lenders, the Loan Parties, each Agent and each Lender hereby agree that (i) no Lender shall have any right individually to realize upon any of the Collateral under any Loan Document or to enforce any Guaranty, it being understood and agreed that all powers, rights and remedies under the Loan Documents may be exercised solely by the Collateral Agent for the benefit of the Lenders in accordance with the terms thereof, (ii) in the event of a foreclosure by the Collateral Agent on any of the Collateral pursuant to a public or private sale, the Administrative Agent, the Collateral Agent or any Lender may be the purchaser of any or all of such Collateral at any such sale and (iii) the Collateral Agent, as agent for and representative of the Agents and the Lenders (but not any other Agent or any Lender or Lenders in its or their respective individual capacities unless the Required Lenders shall otherwise agree in writing) shall be entitled (either directly or through one or more acquisition vehicles) for the purpose of bidding and making settlement or payment of the purchase price for all or any portion of the Collateral to be sold (A) at any public or private sale, (B) at any sale conducted by the Collateral Agent under the provisions of the Uniform Commercial Code (including pursuant to Sections 9-610 or 9-620 of the Uniform Commercial Code), (C) at any sale or foreclosure conducted by the Collateral Agent (whether by judicial action or otherwise) in accordance with applicable law or (D) any sale conducted pursuant to the provisions of any Debtor Relief Law (including Section 363 of the Bankruptcy Code), to use and apply all or any of the Obligations as a credit on account of the purchase price for any Collateral payable by the Collateral Agent at such sale. (e) The ~~Collateral~~ Agent shall have no obligation whatsoever to any ~~Lender~~ Lenders to assure that the Collateral exists or is owned by the ~~Loan Parties~~ Borrower or is cared for, protected or insured or has been encumbered or that the Lien granted to the ~~Collateral~~ Agent pursuant to ~~this Agreement or any other Loan Document~~ the Security Documents has been properly or sufficiently or lawfully created, perfected, protected or enforced or is entitled to any particular priority, or to exercise at all or in any particular manner or under any duty of care, disclosure or fidelity, or to continue exercising, any of the rights, authorities and powers granted or available to the ~~Collateral~~ Agent in this Section ~~10.08~~ 12.08 or in any ~~other Loan Document~~of the Related Documents, it being understood and agreed that in respect of the Collateral, or any act, omission or event related thereto, the ~~Collateral~~ Agent may act in any manner it may deem appropriate, in its sole discretion, given the ~~Collateral~~ Agent’s 's own interest in the Collateral as one of the Lenders and that the ~~Collateral~~ Agent shall have no duty or liability whatsoever to any other Lender~~, except as otherwise provided herein and in the Agreement Among Lenders.~~. REMAINDER OF PAGE INTENTIONALLY LEFT BLANK

Appears in 1 contract

Sources: Revolving Credit Agreement (Best Products Co Inc)

Collateral Matters. (a) ~~Each~~ Agent ~~may~~ may, at its option, from time to time, at any time on or after an Event of Default and for so long as the same is continuing or upon any other failure of a condition precedent to the Loans and Letter of Credit Accommodations hereunder, make such disbursements and advances (“"Special Agent Advances”") which ~~such~~ Agent, in its sole discretion, (i) deems necessary or desirable either to ~~preserve, protect, prepare for sale~~ preserve or ~~lease or dispose of~~ protect the Collateral or any portion ~~thereof,~~ thereof or (ii) to enhance the likelihood or maximize the amount of repayment by ~~the~~ Borrowers and Guarantors of the ~~Loans~~Loans and other Obligations; PROVIDED, ~~Reimbursement Obligations~~THAT, the aggregate principal amount of the Special Agent Advances pursuant to this clause (ii), plus the then outstanding principal amount of the additional Loans and Letter of Credit ~~Obligations and other Obligations~~ Accommodations which Agent may make or provide as set forth in Section 12.8 hereof, shall not exceed the aggregate amount of $6,000,000 or (iii) to pay any other amount chargeable to ~~the Borrowers~~ any Borrower or Guarantor pursuant to the terms of this ~~Agreement, including, without limitation,~~ Agreement or any of the other Financing Agreements consisting of (A) costs, fees and expenses ~~as described in Section 12.04~~and (B) payments to any issuer of Letter of Credit Accommodations. ~~The~~ Special Agent Advances shall be repayable on demand and be together with all interest thereon shall constitute Obligations secured by the ~~Collateral and~~ Collateral. Special Agent Advances shall ~~bear interest~~ not constitute Loans but shall otherwise constitute Obligations hereunder. Interest on Special Agent Advances shall be payable at ~~a rate per annum equal to~~ the ~~rate~~ Interest Rate then applicable to ~~Revolving~~ Prime Rate Loans ~~that are Reference Rate Loans. The Agent making any Agent Advances~~ and shall ~~notify the other Agent, each Lender and the Administrative Borrower in writing of each such Agent Advance, which notice shall include a description of the purpose of such Agent Advance~~be payable on demand. Without limitation to of its obligations pursuant to Section ~~10.05~~6.10, each Lender agrees that it shall make available to ~~the Agent making any Agent Advances~~Agent, upon ~~such~~ Agent’s 's demand, ~~in the currency in which the respective Agent Advance was made~~ in immediately available funds, the amount equal to such Lender’s 's Pro Rata Share of each such Special Agent ~~Advance subject to the terms of, the Agreement Among Lenders, provided that any such amount advanced by a Lender shall be deemed a Loan hereunder~~Advance. If such funds are not made available to ~~such~~ Agent by such Lender, such Lender shall be deemed a Defaulting Lender and Agent shall be entitled to recover such ~~funds~~ funds, on demand from such ~~Lender,~~ Lender together with interest thereon for each day from the date such payment was due until the date such amount is paid to ~~such Agent,~~ Agent at the Federal Funds ~~Effective~~ Rate for each day during such period (as published by the Federal Reserve Bank of New York or at Agent's option based on the arithmetic mean determined by Agent of the rates for the last transaction in overnight federal funds arranged prior to 9:00 a.m. (New York City time) on that day by each of the three ~~Business Days~~ leading brokers of federal funds transactions in New York City selected by Agent) and ~~thereafter~~ if such amounts are not paid within three (3) days of Agent's demand, at the ~~Reference Rate~~highest Interest Rate provided for in Section 3.1 hereof applicable to Prime Rate Loans. (b) ~~The~~ Lenders hereby irrevocably authorize ~~the Collateral~~ Agent, at its option and in its ~~discretion,~~ discretion to release any ~~Lien granted to~~ security interest in, mortgage or ~~held by~~ lien upon, any of the Collateral ~~Agent upon any Collateral~~ (i) upon termination of the ~~Total Commitment~~ Commitments and ~~Payment in Full~~ payment and satisfaction of all of the ~~Obligations;~~ Obligations and delivery of cash collateral to the extent required under Section 13.1 below, or (ii) constituting property being sold or disposed of in if Administrative Borrower or any Borrower or Guarantor certifies to Agent that the ~~ordinary course of any Loan Party’s business~~ sale or ~~otherwise~~ disposition is made in compliance with ~~the terms of this Agreement~~ Section 9.7 hereof (and ~~the other Loan Documents;~~ Agent may rely conclusively on any such certificate, without further inquiry), or (iii) constituting property in which ~~the Loan Parties owned no~~ any Borrower or Guarantor did not own an interest at the time the ~~Lien~~ security interest, mortgage or lien was granted or at any time thereafter; , or (iv) having a value in the aggregate in any twelve (12) month period of less than $5,000,000, and to the extent Agent may release its security interest in and lien upon any such Collateral pursuant to the sale or other disposition thereof, such sale or other disposition shall be deemed consented to by Lenders, or (v) if required or permitted under the terms of any of the other Financing Agreements, including any intercreditor agreement, or (vi) approved, authorized or ratified in writing by the ~~applicable~~ Required 118 Lenders ~~required pursuant to Section 12.02~~or all of Lenders, as applicable. Except as provided above, Agent will not release any security interest in, mortgage or lien upon, any of the Collateral without the prior written authorization of all of Lenders. Upon request by ~~the Collateral~~ Agent at any time, ~~the~~ Lenders will promptly confirm in writing ~~the Collateral~~ Agent’s 's authority to release particular types or items of Collateral pursuant to this ~~Section 10.08(b)~~Section. (c) Without in any manner limiting ~~the Collateral~~ Agent’s 's authority to act without any specific or further authorization or consent by the ~~Lenders (as set forth in Section 10.08(b))~~Required Lenders, each Lender agrees to confirm in writing, upon request by ~~the Collateral~~ Agent, the authority to release Collateral conferred upon ~~the Collateral~~ Agent under ~~Section 10.08(b)~~this Section. ~~Upon the prior written request by any Loan Party, the Collateral~~ Agent shall (and is hereby irrevocably authorized by ~~the~~ Lenders to) execute such documents as may be necessary ~~or reasonably requested by any Loan Party~~ to evidence the release of the ~~Liens~~ security interest, mortgage or liens granted to Agent upon any Collateral to the ~~Collateral Agent for the benefit of the Agents and the Lenders upon such Collateral~~extent set forth above; ~~provided~~PROVIDED, ~~however~~THAT, ~~that~~ (i) ~~the Collateral~~ Agent shall not be required to execute any such document on terms which, in ~~the Collateral~~ Agent’s 's opinion, would expose ~~the Collateral~~ Agent to liability or create any obligations or entail any consequence other than the release of such ~~Liens~~ security interest, mortgage or liens without recourse or ~~warranty,~~ warranty and (ii) such release shall not in any manner discharge, affect or impair the Obligations or any ~~Lien~~ security interest, mortgage or lien upon (or obligations of any ~~Loan Party~~ Borrower or Guarantor in respect of) ~~all interests in~~ the Collateral retained by ~~any Loan Party~~such Borrower or Guarantor. (d) Anything contained in any of the Loan Documents to the contrary notwithstanding but subject to the Agreement Among Lenders, the Loan Parties, each Agent and each Lender hereby agree that (i) no Lender shall have any right individually to realize upon any of the Collateral under any Loan Document or to enforce any Guaranty, it being understood and agreed that all powers, rights and remedies under the Loan Documents may be exercised solely by the Collateral Agent for the benefit of the Lenders in accordance with the terms thereof, (ii) in the event of a foreclosure by the Collateral Agent on any of the Collateral pursuant to a public or private sale, the Administrative Agent, the Collateral Agent or any Lender may be the purchaser of any or all of such Collateral at any such sale and (iii) the Collateral Agent, as agent for and representative of the Agents and the Lenders (but not any other Agent or any Lender or Lenders in its or their respective individual capacities unless the Required Lenders shall otherwise agree in writing) shall be entitled (either directly or through one or more acquisition vehicles) for the purpose of bidding and making settlement or payment of the purchase price for all or any portion of the Collateral to be sold (A) at any public or private sale, (B) at any sale conducted by the Collateral Agent under the provisions of the Uniform Commercial Code (including pursuant to Sections 9-610 or 9-620 of the Uniform Commercial Code), (C) at any sale or foreclosure conducted by the Collateral Agent (whether by judicial action or otherwise) in accordance with applicable law or (D) any sale conducted pursuant to the provisions of any Debtor Relief Law (including Section 363 of the Bankruptcy Code), to use and apply all or any of the Obligations as a credit on account of the purchase price for any Collateral payable by the Collateral Agent at such sale. (e) The Collateral Agent shall have no obligation whatsoever to any Lender or any other Person to investigate, confirm or assure that the Collateral exists or is owned by ~~the Loan Parties~~ any Borrower or Guarantor or is cared for, protected or insured or has been ~~encumbered~~ encumbered, or that any particular items of Collateral meet the eligibility criteria applicable in respect of the Loans or Letter of Credit Accommodations hereunder, or whether any particular reserves are appropriate, or that the ~~Lien~~ liens and security interests granted to ~~the Collateral~~ Agent pursuant ~~to this Agreement~~ hereto or any ~~other Loan Document has~~ of the Financing Agreements or otherwise have been properly or sufficiently or lawfully created, perfected, protected or enforced or is are entitled to any particular priority, or to exercise at all or in any particular manner or under any duty of care, disclosure or fidelity, or to continue exercising, any of the rights, authorities and powers granted or available to ~~the Collateral~~ Agent in this ~~Section 10.08~~ Agreement or in any of the other ~~Loan Document~~Financing Agreements, it being understood and agreed that in respect of the Collateral, or any act, omission or event related thereto, subject to the ~~Collateral~~ other terms and conditions contained herein, Agent may act in any manner it may deem appropriate, in its ~~sole~~ discretion, given ~~the Collateral~~ Agent’s 's own interest in the Collateral as ~~one of the Lenders~~ a Lender and that ~~the Collateral~~ Agent shall have no duty or liability whatsoever to any other Lender~~, except as otherwise provided herein and in the Agreement Among Lenders~~.

Appears in 1 contract

Sources: Loan and Security Agreement (Atlas Air Worldwide Holdings Inc)

Collateral Matters. (a) ~~Each~~ The Collateral Agent ~~may~~ may, but shall be under no obligation to, from time to ~~time~~ time, at the written direction of the Required Lenders, make such disbursements and advances (“Collateral Agent Advances”) which ~~such Agent~~the Required Lenders, in ~~its~~ their sole discretion, ~~deems~~ deem necessary or desirable to preserve, protect, prepare for sale or lease or dispose of the Collateral or any portion thereof, to enhance the likelihood or maximize the amount of repayment by the ~~Borrowers~~ Borrower of the ~~Loans, Reimbursement Obligations, Letter of Credit Obligations~~ Term Loans and other Obligations or to pay any other amount chargeable to the ~~Borrowers~~ Borrower pursuant to the terms of this Agreement, including, without limitation, costs, fees and expenses as described in Section 12.04. The Collateral Agent Advances shall be repayable on demand and be secured by the Collateral and shall bear interest at a rate per annum equal to the ~~rate then applicable to Revolving Loans that are~~ Reference ~~Rate Loans~~Rate. The ~~Agent making any~~ Collateral Agent Advances shall constitute Obligations hereunder. The Collateral Agent shall notify ~~the other Agent,~~ each Lender and the ~~Administrative~~ Borrower in writing of each such Collateral Agent Advance, which notice shall include a description of the purpose of such Collateral Agent Advance. Without limitation to its obligations pursuant to Section 10.05, each Lender agrees that it shall make available to the ~~Agent making any Agent Advances~~Collateral Agent, upon ~~such~~ the Collateral Agent’s demand, in ~~the currency in which the respective Agent Advance was made~~ Dollars in immediately available funds, the amount equal to such Lender’s Pro Rata Share of each such Collateral Agent ~~Advance subject to the terms of, the Agreement Among Lenders, provided that any such amount advanced by a Lender shall be deemed a Loan hereunder~~Advance. If such funds are not made available to ~~such~~ the Collateral Agent by such Lender, ~~such~~ the Collateral Agent shall be entitled to recover such funds on demand from such Lender, together with interest thereon for each day from the date such payment was due until the date such amount is paid to ~~such~~ the Collateral Agent, at the Federal Funds ~~Effective~~ Rate for three Business Days and thereafter at the Reference Rate. (b) The Lenders hereby irrevocably authorize the Collateral Agent, at its option and in its discretion, to release any Lien granted to or held by the Collateral Agent upon any Collateral (i) upon termination of the ~~Total~~ Term Loan Commitment and ~~Payment~~ payment and satisfaction of all Term Loans and all other Obligations (other than Contingent Indemnification Obligations) in ~~Full of~~ accordance with the ~~Obligations~~terms hereof; or (ii) constituting property being sold or disposed of in the ordinary course of any Loan Party’s business or otherwise in compliance with the terms of this Agreement and the other Loan Documents; or (iii) constituting property in which the Loan Parties owned no interest at the time the Lien was granted or at any time thereafter; or if approved, authorized or ratified in writing by the ~~applicable~~ Lenders ~~required pursuant to~~ in accordance with Section 12.02. Upon request by the Collateral Agent at any time, the Lenders will confirm in writing the Collateral Agent’s authority to release particular types or items of Collateral pursuant to this Section 10.08(b). (c) ~~Without in any manner limiting the Collateral Agent’s authority to act without any specific or further authorization or consent by the Lenders (as set forth in Section 10.08(b)), each~~ Each Lender agrees to confirm in writing, upon request by the Collateral Agent, the authority to release Collateral conferred upon the Collateral Agent under Section 10.08(b). Upon receipt by the Collateral Agent of confirmation from the Lenders of its authority to release any particular item or types of Collateral, and upon prior written request by any Loan Party, the Collateral Agent shall (and is hereby irrevocably authorized by the Lenders to) execute such documents as may be necessary ~~or reasonably requested by any Loan Party~~ to evidence the release of the Liens granted to the Collateral Agent for the benefit of the Agents and the ~~Lenders~~ Secured Parties upon such Collateral; provided, however, that (i) the Collateral Agent shall not be required to execute any such document on terms which, in the Collateral Agent’s opinion, would expose the Collateral Agent to liability or create any obligations or entail any consequence other than the release of such Liens without recourse or warranty, and (ii) such release shall not in any manner discharge, affect or impair the Obligations or any Lien upon (or obligations of any Loan Party in respect of) all interests in the Collateral retained by any Loan Party. (d) Anything contained in any of the Loan Documents to the contrary ~~notwithstanding but subject to the Agreement Among Lenders~~notwithstanding, the Loan Parties, each Agent and each Lender hereby agree that (i) no Lender shall have any right individually to realize upon any of the Collateral under any Loan Document or to enforce any Guaranty, it being understood and agreed that all powers, rights and remedies under the Loan Documents may be exercised solely by the Collateral Agent acting at the written direction of the Required Lenders for the benefit of the Lenders in accordance with the terms thereof, (ii) in the event of a foreclosure by the Collateral Agent on any of the Collateral pursuant to a public or private sale, the Administrative Agent, the Collateral Agent or any Lender may be the purchaser of any or all of such Collateral at any such sale and (iii) the Collateral Agent, as agent for and representative of the Agents and the Lenders (but not any other Agent or any Lender or Lenders in its or their respective individual capacities unless the Required Lenders shall otherwise agree in writing) shall be entitled (either directly or through one or more acquisition vehicles) for the purpose of bidding and making settlement or payment of the purchase price for all or any portion of the Collateral to be sold (A) at any public or private sale, (B) at any sale conducted by the Collateral Agent under the provisions of the Uniform Commercial Code (including pursuant to Sections 9-610 or 9-620 of the Uniform Commercial Code), (C) at any sale or foreclosure conducted by the Collateral Agent (whether by judicial action or otherwise) in accordance with applicable law or (D) any sale conducted pursuant to the provisions of any Debtor Relief Law (including Section 363 of the Bankruptcy Code), to use and apply all or any of the Obligations as a credit on account of the purchase price for any Collateral payable by the Collateral Agent at such sale. (e) The Collateral Agent shall have no obligation whatsoever to any Lender to assure that the Collateral exists or is owned by the Loan Parties or is cared for, protected or insured or has been encumbered or that the Lien granted to the Collateral Agent pursuant to this Agreement or any other Loan Document has been properly or sufficiently or lawfully created, perfected, protected or enforced or is entitled to any particular priority, or to exercise at all or in any particular manner or under any duty of care, disclosure or fidelity, or to continue exercising, any of the rights, authorities and powers granted or available to the Collateral Agent in this Section 10.08 or in any other Loan Document, it being understood and agreed that in respect of the Collateral, or any act, omission or event related thereto, the Collateral Agent ~~may act in any manner it may deem appropriate, in its sole discretion, given the Collateral Agent’s own interest in the Collateral as one of the Lenders and that the Collateral Agent~~ shall have no duty or liability whatsoever to any other Lender, except as otherwise provided ~~herein and~~ herein. (f) Beyond the exercise of reasonable care in the ~~Agreement Among Lenders~~custody thereof, no Agent shall have any duty as to any Collateral in its possession or control or in the possession or control of any agent or bailee or any income thereon or as to preservation of rights against prior parties or any other rights pertaining thereto. No Agent shall be responsible for (i) perfecting, maintaining, monitoring, preserving or protecting the security interest or Liens granted under this Agreement, any other Loan Document or any agreement or instrument contemplated hereby or thereby, (ii) the filing, re-filing, recording, re-recording or continuing or any document, financing statement, mortgage, assignment, notice, instrument of further assurance or other instrument in any public office at any time or times or (iii) providing, maintaining, monitoring or preserving insurance on or the payment of taxes with respect to any of the Collateral. The actions described in items (i) through (iii) shall be the sole responsibility of the Borrower. The Collateral Agent shall be deemed to have exercised reasonable care in the custody of the Collateral in its possession if the Collateral is accorded treatment substantially equal to that which it accords its own property and shall not be liable or responsible for any loss or diminution in the value of any of the Collateral, by reason of the act or omission of any carrier, forwarding agency or other agent or bailee selected by the Collateral Agent in good faith. (g) No Agent shall be responsible for the existence, genuineness or value of any of the Collateral or for the validity, perfection, priority or enforceability of the Liens in any of the Collateral, whether impaired by operation of law or by reason of any of any action or omission to act on its part hereunder, except to the extent such action or omission constitutes gross negligence or willful misconduct on the part of such Agent (as determined by a final, nonappealable judgment by a court of competent jurisdiction), for the validity or sufficiency of the Collateral or any agreement or assignment contained therein, for the validity of the title to the Collateral, for insuring the Collateral or for the payment of taxes, charges, assessments or Liens upon the Collateral or otherwise as to the maintenance of the Collateral. The Agents hereby disclaim any representation or warranty to the present and future holders of the Obligations concerning the perfection of the Liens granted hereunder or in the value of any of the Collateral. (h) In the event that any Agent is required to acquire title to an asset for any reason, or take any managerial action of any kind in regard thereto, in order to carry out any fiduciary or trust obligation for the benefit of another, which in such Agent’s sole discretion may cause the Agent, to be considered an “owner or operator” under any Environmental Laws or otherwise cause the Agent to incur, or be exposed to, any liability under Environmental Law, (i) each Agent reserves the right, instead of taking such action, either to resign as Agent or to arrange for the transfer of the title or control of the asset to a court appointed receiver and (ii) no Agent will be liable to any Person for any Environmental Liabilities and Costs or any environmental liabilities or contribution actions under any federal, state or local law, rule or regulation by reason of such Agent’s actions and conduct as authorized, empowered and directed hereunder or relating to any kind of discharge or Release or threatened discharge or Release of any Hazardous Materials into the environment, unless and only to the extent that such liability results from such Agent’s gross negligence or willful misconduct as finally judicially determined in a court of competent jurisdiction.

Appears in 1 contract

Sources: Credit Agreement (Gannett Co., Inc.)

Appears in 1 contract

Sources: Financing Agreement (Compass Group Diversified Holdings LLC)

Collateral Matters. ~~(a) Each~~ Administrative Agent ~~may~~ may, at its option, from time to time, at any time on or after an Event of Default and for so long as the same is continuing or upon any other failure of a condition precedent to the making of Loans hereunder, make such disbursements and advances (“Special Agent Advances”) which ~~such~~ Administrative Agent, in its sole discretion, deems necessary or desirable either (i) to ~~preserve, protect, prepare for sale~~ preserve or ~~lease or dispose of~~ protect the Collateral or any portion ~~thereof, to enhance the likelihood~~ thereof or ~~maximize the amount of repayment by the Borrowers of the Loans, Reimbursement Obligations, Letter of Credit Obligations and other Obligations or~~ (ii) to pay any other amount chargeable to ~~the Borrowers~~ NewPageCo pursuant to the terms of this ~~Agreement, including, without limitation,~~ Agreement or any of the other Credit Documents consisting of costs, fees and expenses ~~as described~~ and payments to any Issuing Bank (provided, that in no event shall (i) Special Agent Advances for such purpose exceed the amount equal to $15,000,000 million in the aggregate outstanding at any time less the then outstanding Overadvances under Section ~~12.04~~10.9 hereof and (ii) Special Agent Advances plus the Revolving Exposure exceed the Lenders’ Commitment at the time of such Event of Default or cause any Lender’s Revolving Exposure to exceed such Lender’s Revolving Loan Commitment at the time of such Event of Default). ~~The~~ Special Agent Advances shall be repayable on demand and be secured by the ~~Collateral and shall bear interest at a rate per annum equal to the rate then applicable to Revolving Loans that are Reference Rate Loans~~Collateral. ~~The Agent making any~~ Special Agent Advances shall not constitute Loans but shall otherwise constitute Obligations hereunder. Administrative Agent shall notify ~~the other Agent,~~ each Lender and ~~the Administrative Borrower~~ NewPageCo in writing of each such Special Agent Advance, which notice shall include a description of the purpose of such Special Agent Advance. ~~Without limitation to its obligations pursuant to Section 10.05, each~~ Each Lender agrees that it shall make available to ~~the Agent making any Agent Advances~~Administrative Agent, upon ~~such~~ Administrative Agent’s demand, ~~in the currency in which the respective Agent Advance was made~~ in immediately available funds, the amount equal to such Lender’s Pro Rata Share of each such Special Agent ~~Advance subject to the terms of, the Agreement Among Lenders, provided that any such amount advanced by a Lender shall be deemed a Loan hereunder~~Advance. If such funds are not made available to ~~such~~ Administrative Agent by such Lender, ~~such~~ Administrative Agent shall be entitled to recover such ~~funds~~ funds, on demand from such ~~Lender,~~ Lender together with interest thereon for each day from the date such payment was due until the date such amount is paid to ~~such Agent,~~ Administrative Agent at the Federal Funds Effective Rate for each day during such period (as published by the Federal Reserve Bank of New York or at Administrative Agent’s option based on the arithmetic mean determined by Administrative Agent of the rates for the last transaction in overnight Federal funds arranged prior to 9:00 a.m. (New York City time) on that day by each of the three ~~Business Days~~ leading brokers of Federal funds transactions in New York City selected by Administrative Agent) and ~~thereafter~~ if such amounts are not paid within three (3) days of Administrative Agent’s demand, at the ~~Reference Rate. (b) The Lenders hereby irrevocably authorize the Collateral Agent, at its option and~~ highest interest rate provided for in ~~its discretion, to release any Lien granted to or held by the Collateral~~ Section 2.8(a). Special Agent upon any Collateral upon termination of the Total Commitment and Payment in Full of the Obligations; or constituting property being sold or disposed of in the ordinary course of any Loan Party’s business or otherwise in compliance with the terms of this Agreement and the other Loan Documents; or constituting property in which the Loan Parties owned no Advances shall bear interest at the ~~time the Lien was granted or at any time thereafter; or if approved, authorized or ratified in writing by the~~ rate applicable ~~Lenders required pursuant~~ to Section 12.02. Upon request by the Collateral Agent at any time, the Lenders will confirm in writing the Collateral Agent’s authority to release particular types or items of Collateral pursuant to this Section 10.08(b)Base Rate Loans. (c) Without in any manner limiting the Collateral Agent’s authority to act without any specific or further authorization or consent by the Lenders (as set forth in Section 10.08(b)), each Lender agrees to confirm in writing, upon request by the Collateral Agent, the authority to release Collateral conferred upon the Collateral Agent under Section 10.08(b). Upon the prior written request by any Loan Party, the Collateral Agent shall (and is hereby irrevocably authorized by the Lenders to) execute such documents as may be necessary or reasonably requested by any Loan Party to evidence the release of the Liens granted to the Collateral Agent for the benefit of the Agents and the Lenders upon such Collateral; provided, however, that (i) the Collateral Agent shall not be required to execute any such document on terms which, in the Collateral Agent’s opinion, would expose the Collateral Agent to liability or create any obligations or entail any consequence other than the release of such Liens without recourse or warranty, and (ii) such release shall not in any manner discharge, affect or impair the Obligations or any Lien upon (or obligations of any Loan Party in respect of) all interests in the Collateral retained by any Loan Party. (d) Anything contained in any of the Loan Documents to the contrary notwithstanding but subject to the Agreement Among Lenders, the Loan Parties, each Agent and each Lender hereby agree that (i) no Lender shall have any right individually to realize upon any of the Collateral under any Loan Document or to enforce any Guaranty, it being understood and agreed that all powers, rights and remedies under the Loan Documents may be exercised solely by the Collateral Agent for the benefit of the Lenders in accordance with the terms thereof, (ii) in the event of a foreclosure by the Collateral Agent on any of the Collateral pursuant to a public or private sale, the Administrative Agent, the Collateral Agent or any Lender may be the purchaser of any or all of such Collateral at any such sale and (iii) the Collateral Agent, as agent for and representative of the Agents and the Lenders (but not any other Agent or any Lender or Lenders in its or their respective individual capacities unless the Required Lenders shall otherwise agree in writing) shall be entitled (either directly or through one or more acquisition vehicles) for the purpose of bidding and making settlement or payment of the purchase price for all or any portion of the Collateral to be sold (A) at any public or private sale, (B) at any sale conducted by the Collateral Agent under the provisions of the Uniform Commercial Code (including pursuant to Sections 9-610 or 9-620 of the Uniform Commercial Code), (C) at any sale or foreclosure conducted by the Collateral Agent (whether by judicial action or otherwise) in accordance with applicable law or (D) any sale conducted pursuant to the provisions of any Debtor Relief Law (including Section 363 of the Bankruptcy Code), to use and apply all or any of the Obligations as a credit on account of the purchase price for any Collateral payable by the Collateral Agent at such sale. (e) The Collateral Agent shall have no obligation whatsoever to any Lender to assure that the Collateral exists or is owned by the Loan Parties or is cared for, protected or insured or has been encumbered or that the Lien granted to the Collateral Agent pursuant to this Agreement or any other Loan Document has been properly or sufficiently or lawfully created, perfected, protected or enforced or is entitled to any particular priority, or to exercise at all or in any particular manner or under any duty of care, disclosure or fidelity, or to continue exercising, any of the rights, authorities and powers granted or available to the Collateral Agent in this Section 10.08 or in any other Loan Document, it being understood and agreed that in respect of the Collateral, or any act, omission or event related thereto, the Collateral Agent may act in any manner it may deem appropriate, in its sole discretion, given the Collateral Agent’s own interest in the Collateral as one of the Lenders and that the Collateral Agent shall have no duty or liability whatsoever to any other Lender, except as otherwise provided herein and in the Agreement Among Lenders.

Appears in 1 contract

Sources: Revolving Credit and Guaranty Agreement (NewPage CORP)

Collateral Matters. (a) ~~Each~~ Agent ~~may~~ may, at its option, from time to time, at any time on or after an Event of Default and for so long as the same is continuing or upon any other failure of a condition precedent to the Loans hereunder, make such disbursements and advances (“Special Agent Advances”) which ~~such~~ Agent, in its sole discretion, (i) deems necessary or desirable either to ~~preserve, protect, prepare for sale~~ preserve or ~~lease or dispose of~~ protect the Collateral or any portion ~~thereof,~~ thereof or (ii) to enhance the likelihood or maximize the amount of repayment by ~~the~~ Borrowers and Guarantors of the ~~Loans, Reimbursement~~ Loans and other Obligations, ~~Letter~~ provided, that, (A) the aggregate outstanding principal amount of ~~Credit Obligations~~ the Special Agent Advances pursuant to this clause (ii) shall not exceed the aggregate amount of ten (10%) percent of the Maximum Credit, and ~~other Obligations~~ (B) the aggregate outstanding principal amount of the Special Agent Advances pursuant to this clause (ii) plus the aggregate outstanding principal amount of Loans shall not exceed the Maximum Credit, or (iii) to pay any other amount chargeable to ~~the Borrowers~~ any Borrower or Guarantor pursuant to the terms of this ~~Agreement, including, without limitation,~~ Agreement or any of the other Financing Agreements consisting of costs, fees and ~~expenses as described in Section 12.04~~expenses. ~~The~~ Special Agent Advances shall be repayable on demand and be together with all interest thereon shall constitute Obligations secured by the ~~Collateral and~~ Collateral. Special Agent Advances shall ~~bear interest~~ not constitute Loans but shall otherwise constitute Obligations hereunder. Interest on Special Agent Advances shall be payable at ~~a rate per annum equal to~~ the ~~rate~~ Interest Rate then applicable to ~~Revolving~~ Prime Rate Loans ~~that are Reference Rate Loans. The Agent making any Agent Advances~~ and shall ~~notify the other Agent, each Lender and the Administrative Borrower in writing of each such Agent Advance, which notice shall include a description of the purpose of such Agent Advance~~be payable on demand. Without limitation to of its obligations pursuant to Section ~~10.05~~6.10 hereof, each Lender agrees that it shall make available to ~~the Agent making any Agent Advances~~Agent, upon ~~such~~ Agent’s demand, ~~in the currency in which the respective Agent Advance was made~~ in immediately available funds, the amount equal to such Lender’s Pro Rata Share of each such Special Agent ~~Advance subject to the terms of, the Agreement Among Lenders, provided that any such amount advanced by a Lender shall be deemed a Loan hereunder~~Advance. If such funds are not made available to ~~such~~ Agent by such Lender, such Lender shall be deemed a Defaulting Lender and Agent shall be entitled to recover such ~~funds~~ funds, on demand from such ~~Lender,~~ Lender together with interest thereon for each day from the date such payment was due until the date such amount is paid to ~~such Agent,~~ Agent at the Federal Funds ~~Effective~~ Rate for each day during such period (as published by the Federal Reserve Bank of New York or at Agent’s option based on the arithmetic mean determined by Agent of the rates for the last transaction in overnight Federal funds arranged prior to 9:00 a.m. (New York City time) on that day by each of the three ~~Business Days~~ leading brokers of Federal funds transactions in New York City selected by Agent) and ~~thereafter~~ if such amounts are not paid within three (3) days of Agent’s demand, at the ~~Reference Rate~~highest Interest Rate provided for in Section 3.1 hereof applicable to Prime Rate Loans. (b) ~~The~~ Lenders hereby irrevocably authorize ~~the Collateral~~ Agent, at its option and in its ~~discretion,~~ discretion to release any ~~Lien granted to~~ security interest in, mortgage or ~~held by~~ lien upon, any of the Collateral ~~Agent upon any Collateral~~ (i) upon termination of the ~~Total Commitment~~ Commitments and ~~Payment in Full~~ payment and satisfaction of all of the ~~Obligations;~~ Obligations and delivery of cash collateral to the extent required under Section 13.1 below, or (ii) constituting property being sold or disposed of in if Administrative Borrower or any Borrower or Guarantor certifies to Agent that the ~~ordinary course of any Loan Party’s business~~ sale or ~~otherwise~~ disposition is made in compliance with ~~the terms of this Agreement~~ Section 9.7 hereof (and ~~the other Loan Documents;~~ Agent may rely conclusively on any such certificate, without further inquiry), or (iii) constituting property in which ~~the Loan Parties owned no~~ any Borrower or Guarantor did not own an interest at the time the ~~Lien~~ security interest, mortgage or lien was granted or at any time thereafter; , or (iv) having a value in the aggregate in any twelve (12) month period of less than $2,500,000, and to the extent Agent may release its security interest in and lien upon any such Collateral pursuant to the sale or other disposition thereof, such sale or other disposition shall be deemed consented to by Lenders, or (v) if required or permitted under the terms of any of the other Financing Agreements, including any intercreditor agreement, or (vi) approved, authorized or ratified in writing by all of Lenders. Except as provided above, Agent will not release any security interest in, mortgage or lien upon, any of the ~~applicable Lenders required pursuant to Section 12.02~~Collateral without the prior written authorization of all of Lenders. Upon request by ~~the Collateral~~ Agent at any time, ~~the~~ Lenders will promptly confirm in writing ~~the Collateral~~ Agent’s authority to release particular types or items of Collateral pursuant to this ~~Section 10.08(b)~~Section. (c) Without in any manner limiting ~~the Collateral~~ Agent’s authority to act without any specific or further authorization or consent by the ~~Lenders (as set forth in Section 10.08(b))~~Required Lenders, each Lender agrees to confirm in writing, upon request by ~~the Collateral~~ Agent, the authority to release Collateral conferred upon ~~the Collateral~~ Agent under ~~Section 10.08(b)~~this Section. ~~Upon the prior written request by any Loan Party, the Collateral~~ Agent shall (and is hereby irrevocably authorized by ~~the~~ Lenders to) execute such documents as may be necessary ~~or reasonably requested by any Loan Party~~ to evidence the release of the ~~Liens~~ security interest, mortgage or liens granted to Agent upon any Collateral to the ~~Collateral Agent for the benefit of the Agents and the Lenders upon such Collateral~~extent set forth above; provided, ~~however~~that, ~~that~~ (i) ~~the Collateral~~ Agent shall not be required to execute any such document on terms which, in ~~the Collateral~~ Agent’s opinion, would expose ~~the Collateral~~ Agent to liability or create any obligations or entail any consequence other than the release of such ~~Liens~~ security interest, mortgage or liens without recourse or ~~warranty,~~ warranty and (ii) such release shall not in any manner discharge, affect or impair the Obligations or any ~~Lien~~ security interest, mortgage or lien upon (or obligations of any ~~Loan Party~~ Borrower or Guarantor in respect of) ~~all interests in~~ the Collateral retained by ~~any Loan Party~~such Borrower or Guarantor. (d) Anything contained in any of the Loan Documents to the contrary notwithstanding but subject to the Agreement Among Lenders, the Loan Parties, each Agent and each Lender hereby agree that (i) no Lender shall have any right individually to realize upon any of the Collateral under any Loan Document or to enforce any Guaranty, it being understood and agreed that all powers, rights and remedies under the Loan Documents may be exercised solely by the Collateral Agent for the benefit of the Lenders in accordance with the terms thereof, (ii) in the event of a foreclosure by the Collateral Agent on any of the Collateral pursuant to a public or private sale, the Administrative Agent, the Collateral Agent or any Lender may be the purchaser of any or all of such Collateral at any such sale and (iii) the Collateral Agent, as agent for and representative of the Agents and the Lenders (but not any other Agent or any Lender or Lenders in its or their respective individual capacities unless the Required Lenders shall otherwise agree in writing) shall be entitled (either directly or through one or more acquisition vehicles) for the purpose of bidding and making settlement or payment of the purchase price for all or any portion of the Collateral to be sold (A) at any public or private sale, (B) at any sale conducted by the Collateral Agent under the provisions of the Uniform Commercial Code (including pursuant to Sections 9-610 or 9-620 of the Uniform Commercial Code), (C) at any sale or foreclosure conducted by the Collateral Agent (whether by judicial action or otherwise) in accordance with applicable law or (D) any sale conducted pursuant to the provisions of any Debtor Relief Law (including Section 363 of the Bankruptcy Code), to use and apply all or any of the Obligations as a credit on account of the purchase price for any Collateral payable by the Collateral Agent at such sale. (e) The Collateral Agent shall have no obligation whatsoever to any Lender or any other Person to investigate, confirm or assure that the Collateral exists or is owned by ~~the Loan Parties~~ any Borrower or Guarantor or is cared for, protected or insured or has been ~~encumbered~~ encumbered, or that the ~~Lien~~ liens and security interests granted to ~~the Collateral~~ Agent pursuant ~~to this Agreement~~ hereto or any ~~other Loan Document has~~ of the Financing Agreements or otherwise have been properly or sufficiently or lawfully created, perfected, protected or enforced or is are entitled to any particular priority, or to exercise at all or in any particular manner or under any duty of care, disclosure or fidelity, or to continue exercising, any of the rights, authorities and powers granted or available to ~~the Collateral~~ Agent in this ~~Section 10.08~~ Agreement or in any of the other ~~Loan Document~~Financing Agreements, it being understood and agreed that in respect of the Collateral, or any act, omission or event related thereto, subject to the ~~Collateral~~ other terms and conditions contained herein, Agent may act in any manner it may deem appropriate, in its ~~sole~~ discretion, given ~~the Collateral~~ Agent’s own interest in the Collateral as ~~one of the Lenders~~ a Lender and that ~~the Collateral~~ Agent shall have no duty or liability whatsoever to any other Lender. (e) Without limiting the generality of the foregoing, ~~except~~ each Lender (i) authorizes Agent to enter into the W▇▇▇▇ Intercreditor Agreement, the Subordinated Noteholder Intercreditor Agreement, the WHX Intercreditor Agreement, the Intercompany Subordination Agreement and the Precious Metals Creditor Agreement on behalf of such Lender and (ii) agrees that it will be bound (as ~~otherwise provided herein~~ a Lender) by the terms and in conditions of the W▇▇▇▇ Intercreditor Agreement, the Subordinated Noteholder Intercreditor Agreement, the WHX Intercreditor Agreement, the Intercompany Subordination Agreement ~~Among Lenders~~and the Precious Metals Creditor Agreement, whether or not such Lender executes any such agreement.

Appears in 1 contract

Sources: Loan and Security Agreement (WHX Corp)

Collateral Matters. (a) ~~Each~~ Agent ~~may~~ may, at its option, from time to time, at any time on or after an Event of Default and for so long as the same is continuing or upon any other failure of a condition precedent to the Loans and Letter of Credit Accommodations hereunder, make such 120 disbursements and advances (“"Special Agent Advances”") which ~~such~~ Agent, in its sole discretion, deems necessary or desirable either (i) to ~~preserve, protect, prepare for sale~~ preserve or ~~lease or dispose of~~ protect the Collateral or any portion ~~thereof,~~ thereof or (ii) to enhance the likelihood or maximize the amount of repayment by ~~the Borrowers~~ Borrower of the ~~Loans, Reimbursement~~ Loans and other Obligations, provided, that, the aggregate principal amount of Special Agent Advances, together with the then outstanding principal amount of the additional Loans and Letter of Credit ~~Obligations and other Obligations~~ Accommodations that equal or exceed the Borrowing Base provided for under Section 12.8 hereof, shall not exceed in the aggregate $15,000,000 outstanding at any time or (iii) to pay any other amount chargeable to ~~the Borrowers~~ Borrower pursuant to the terms of this ~~Agreement, including, without limitation,~~ Agreement or any of the other Financing Agreements consisting of costs, fees and expenses ~~as described in Section 12.04~~and payments to any issuer of Letter of Credit Accommodations. ~~The~~ Special Agent Advances shall be repayable on demand and be secured by the ~~Collateral and shall bear interest at a rate per annum equal to the rate then applicable to Revolving Loans that are Reference Rate Loans~~Collateral. ~~The Agent making any~~ Special Agent Advances shall not constitute Loans but shall otherwise constitute Obligations hereunder. Agent shall notify ~~the other Agent,~~ each Lender and ~~the Administrative~~ Borrower in writing of each such Special Agent Advance, which notice shall include a description of the purpose of such Special Agent Advance. Without limitation to of its obligations pursuant to Section ~~10.05~~6.9, each Lender agrees that it shall make available to ~~the Agent making any Agent Advances~~Agent, upon ~~such~~ Agent’s 's demand, ~~in the currency in which the respective Agent Advance was made~~ in immediately available funds, the amount equal to such Lender’s 's Pro Rata Share of each such Special Agent ~~Advance subject to the terms of, the Agreement Among Lenders, provided that any such amount advanced by a Lender shall be deemed a Loan hereunder~~Advance. If such funds are not made available to ~~such~~ Agent by such Lender, ~~such~~ Agent shall be entitled to recover such ~~funds~~ funds, on demand from such ~~Lender,~~ Lender together with interest thereon for each day from the date such payment was due until the date such amount is paid to ~~such Agent,~~ Agent at the Federal Funds ~~Effective~~ Rate for each day during such period (as published by the Federal Reserve Bank of New York or at Agent's option based on the arithmetic mean determined by Agent of the rates for the last transaction in overnight Federal funds arranged prior to 9:00 a.m. (New York City time) on that day by each of the three ~~Business Days~~ leading brokers of Federal funds transactions in New York City selected by Agent) and ~~thereafter~~ if such amounts are not paid within three (3) days of Agent's demand, at the ~~Reference Rate~~highest Interest Rate provided for in Section 3.1 hereof applicable to Prime Rate Loans. (b) ~~The~~ Lenders hereby irrevocably authorize ~~the Collateral~~ Agent, at its option and in its ~~discretion,~~ discretion to release any ~~Lien granted to~~ security interest in, mortgage or ~~held by~~ lien upon, any of the Collateral ~~Agent upon any Collateral~~ (i) upon termination of the ~~Total Commitment~~ Commitments and ~~Payment in Full~~ payment and satisfaction of all of the ~~Obligations;~~ Obligations and delivery of cash collateral to the extent required under Section 13.1 below, or (ii) constituting property being sold or disposed of in if Borrower certifies to Agent that the ~~ordinary course of any Loan Party’s business~~ sale or ~~otherwise~~ disposition is made in compliance with ~~the terms of this Agreement~~ Section 9.7 hereof (and ~~the other Loan Documents;~~ Agent may rely conclusively on any such certificate, without further inquiry), or (iii) constituting property in which ~~the Loan Parties owned no~~ Borrower did not own an interest at the time the ~~Lien~~ security interest, mortgage or lien was granted or at any time thereafter; , or (iv) having a value in the aggregate in any twelve (12) month period of less than $3,000,000 or (v) if approved, authorized or ratified in writing by all of Lenders. Except as provided above, Agent will not release any security interest in, mortgage or lien upon, any of the ~~applicable~~ Collateral without the prior written authorization of all of Lenders ~~required pursuant~~ (and any Lender may require that the proceeds from any sale or other disposition of the Collateral to ~~Section 12.02~~be so released be applied to the Obligations in a manner satisfactory to such Lender). Upon request by ~~the Collateral~~ Agent at any time, ~~the~~ Lenders will promptly confirm in writing ~~the Collateral~~ Agent’s 's authority to release particular types or items of Collateral pursuant to this ~~Section 10.08(b)~~Section. (c) Without in any manner limiting ~~the Collateral~~ Agent’s 's authority to act without any specific or further authorization or consent by the ~~Lenders (as set forth in Section 10.08(b))~~Required Lenders, each Lender agrees to confirm in 121 writing, upon request by ~~the Collateral~~ Agent, the authority to release Collateral conferred upon ~~the Collateral~~ Agent under ~~Section 10.08(b)~~this Section. ~~Upon the prior written request by any Loan Party, the Collateral~~ Agent shall (and is hereby irrevocably authorized by ~~the~~ Lenders to) execute such documents as may be necessary ~~or reasonably requested by any Loan Party~~ to evidence the release of the ~~Liens~~ security interest, mortgage or liens granted to Agent upon any Collateral to the ~~Collateral Agent for the benefit of the Agents and the Lenders upon such Collateral~~extent set forth above; provided, ~~however~~THAT, ~~that~~ (i) ~~the Collateral~~ Agent shall not be required to execute any such document on terms which, in ~~the Collateral~~ Agent’s 's opinion, would expose ~~the Collateral~~ Agent to liability or create any obligations or entail any consequence other than the release of such ~~Liens~~ security interest, mortgage or liens without recourse or ~~warranty,~~ warranty and (ii) such release shall not in any manner discharge, affect or impair the Obligations or any ~~Lien~~ security interest, mortgage or lien upon (or obligations of ~~any Loan Party~~ Borrower in respect of) ~~all interests in~~ the Collateral retained by ~~any Loan Party~~Borrower. (d) Anything contained in any of the Loan Documents to the contrary notwithstanding but subject to the Agreement Among Lenders, the Loan Parties, each Agent and each Lender hereby agree that (i) no Lender shall have any right individually to realize upon any of the Collateral under any Loan Document or to enforce any Guaranty, it being understood and agreed that all powers, rights and remedies under the Loan Documents may be exercised solely by the Collateral Agent for the benefit of the Lenders in accordance with the terms thereof, (ii) in the event of a foreclosure by the Collateral Agent on any of the Collateral pursuant to a public or private sale, the Administrative Agent, the Collateral Agent or any Lender may be the purchaser of any or all of such Collateral at any such sale and (iii) the Collateral Agent, as agent for and representative of the Agents and the Lenders (but not any other Agent or any Lender or Lenders in its or their respective individual capacities unless the Required Lenders shall otherwise agree in writing) shall be entitled (either directly or through one or more acquisition vehicles) for the purpose of bidding and making settlement or payment of the purchase price for all or any portion of the Collateral to be sold (A) at any public or private sale, (B) at any sale conducted by the Collateral Agent under the provisions of the Uniform Commercial Code (including pursuant to Sections 9-610 or 9-620 of the Uniform Commercial Code), (C) at any sale or foreclosure conducted by the Collateral Agent (whether by judicial action or otherwise) in accordance with applicable law or (D) any sale conducted pursuant to the provisions of any Debtor Relief Law (including Section 363 of the Bankruptcy Code), to use and apply all or any of the Obligations as a credit on account of the purchase price for any Collateral payable by the Collateral Agent at such sale. (e) The Collateral Agent shall have no obligation whatsoever to any Lender or any other Person to investigate, confirm or assure that the Collateral exists or is owned by ~~the Loan Parties~~ Borrower or is cared for, protected or insured or has been ~~encumbered~~ encumbered, or that any particular items of Collateral meet the eligibility criteria applicable in respect of the Loans or Letter of Credit Accommodations hereunder, or whether any particular reserves are appropriate, or that the ~~Lien~~ liens and security interests granted to ~~the Collateral~~ Agent pursuant ~~to this Agreement~~ hereto or any ~~other Loan Document has~~ of the Financing Agreements or otherwise have been properly or sufficiently or lawfully created, perfected, protected or enforced or is are entitled to any particular priority, or to exercise at all or in any particular manner or under any duty of care, disclosure or fidelity, or to continue exercising, any of the rights, authorities and powers granted or available to ~~the Collateral~~ Agent in this ~~Section 10.08~~ Agreement or in any of the other ~~Loan Document~~Financing Agreements, it being understood and agreed that in respect of the Collateral, or any act, omission or event related thereto, ~~the Collateral~~ Agent may act in any manner it may deem appropriate, in its ~~sole~~ discretion, given ~~the Collateral~~ Agent’s 's own interest in the Collateral as ~~one of the Lenders~~ a Lender and that ~~the Collateral~~ Agent shall have no duty or liability whatsoever to any other Lender~~, except as otherwise provided herein and in the Agreement Among Lenders~~.

Appears in 1 contract

Sources: Loan and Security Agreement (Aep Industries Inc)

Appears in 1 contract

Sources: Financing Agreement (Orthofix Medical Inc.)

Collateral Matters. (a) ~~Each~~ Agent ~~may~~ may, at its option, from time to time, at any time on or after an Event of Default and for so long as the same is continuing or upon any other failure of a condition precedent to the Loan hereunder, make such disbursements and advances (“"Special Agent Advances”") which ~~such~~ Agent, in its sole discretion, (i) deems necessary or desirable either to ~~preserve, protect, prepare for sale~~ preserve or ~~lease or dispose of~~ protect the Collateral or any portion ~~thereof,~~ thereof or (ii) to enhance the likelihood or maximize the amount of repayment by ~~the~~ Borrowers and Guarantors of the ~~Loans, Reimbursement~~ Loan and other Obligations, ~~Letter~~ provided, that, the aggregate principal amount of the Special Agent Advances pursuant to this clause (ii) shall not exceed the aggregate amount of ten (10%) percent of the Maximum Credit ~~Obligations and other Obligations~~ or (iii) to pay any other amount chargeable to ~~the Borrowers~~ any Borrower or Guarantor pursuant to the terms of this ~~Agreement, including, without limitation,~~ Agreement or any of the other Financing Agreements consisting of costs, fees and ~~expenses as described in Section 12.04~~expenses. ~~The~~ Special Agent Advances shall be repayable on demand and be together with all interest thereon shall constitute Obligations secured by the ~~Collateral and~~ Collateral. Special Agent Advances shall ~~bear interest~~ not constitute a portion of the Loan but shall otherwise constitute Obligations hereunder. Interest on Special Agent Advances shall be payable at ~~a rate per annum equal to~~ the ~~rate~~ Interest Rate then applicable to ~~Revolving Loans that are Reference Rate Loans~~the Loan and shall be payable on demand. The Agent making any Agent Advances shall notify the other Agent, each Lender and the Administrative Borrower in writing of each such Agent Advance, which notice shall include a description of the purpose of such Agent Advance. Without limitation to its obligations pursuant to Section 10.05, each Each Lender agrees that it shall make available to ~~the Agent making any Agent Advances~~Agent, upon ~~such~~ Agent’s 's demand, ~~in the currency in which the respective Agent Advance was made~~ in immediately available funds, the amount equal to such Lender’s 's Pro Rata Share of each such Special Agent ~~Advance subject to the terms of, the Agreement Among Lenders, provided that any such amount advanced by a Lender shall be deemed a Loan hereunder~~Advance. If such funds are not made available to ~~such~~ Agent by such Lender, ~~such~~ Agent shall be entitled to recover such ~~funds~~ funds, on demand from such ~~Lender,~~ Lender together with interest thereon for each day from the date such payment was due until the date such amount is paid to ~~such Agent,~~ Agent at the Federal Funds ~~Effective~~ Rate for each day during such period (as published by the Federal Reserve Bank of New York or at Agent's option based on the arithmetic mean determined by Agent of the rates for the last transaction in overnight Federal funds arranged prior to 9:00 a.m. (New York City time) on that day by each of the three ~~Business Days~~ leading brokers of Federal funds transactions in New York City selected by Agent) and ~~thereafter~~ if such amounts are not paid within three (3) days of Agent's demand, at the ~~Reference Rate~~highest Interest Rate provided for in Section 3.1 hereof applicable to the Loan. (b) ~~The~~ Lenders hereby irrevocably authorize ~~the Collateral~~ Agent, at its option and in its ~~discretion,~~ discretion to release any ~~Lien granted to~~ security interest in, mortgage or ~~held by~~ lien upon, any of the Collateral ~~Agent~~ (i) upon ~~any Collateral upon termination~~ payment and satisfaction of all of the ~~Total Commitment~~ Obligations and ~~Payment in Full~~ delivery of cash collateral to the ~~Obligations;~~ extent required under Section 13.1 below, or (ii) constituting property being sold or disposed of in if Administrative Borrower or any Borrower or Guarantor certifies to Agent that the ~~ordinary course of any Loan Party’s business~~ sale or ~~otherwise~~ disposition is made in compliance with ~~the terms of this Agreement~~ Section 9.7 hereof (and ~~the other Loan Documents;~~ Agent may rely conclusively on any such certificate, without further inquiry), or (iii) constituting property in which ~~the Loan Parties owned no~~ any Borrower or Guarantor did not own an interest at the time the ~~Lien~~ security interest, mortgage or lien was granted or at any time thereafter; , or (iv) having a value in the aggregate in any twelve (12) month period of less than $1,000,000, and to the extent Agent may release its security interest in and lien upon any such Collateral pursuant to the sale or other disposition thereof, such sale or other disposition shall be deemed consented to by Lenders, or (v) if required or permitted under the terms of any of the other Financing Agreements, including any intercreditor agreement, or (vi) approved, authorized or ratified in writing by all of Lenders. Except as provided above, Agent will not release any security interest in, mortgage or lien upon, any of the ~~applicable Lenders required pursuant to Section 12.02~~Collateral without the prior written authorization of all of Lenders. Upon request by ~~the Collateral~~ Agent at any time, ~~the~~ Lenders will promptly confirm in writing ~~the Collateral~~ Agent’s 's authority to release particular types or items of Collateral pursuant to this ~~Section 10.08(b)~~Section. (c) Without in any manner limiting ~~the Collateral~~ Agent’s 's authority to act without any specific or further authorization or consent by the ~~Lenders (as set forth in Section 10.08(b))~~Required Lenders, each Lender agrees to confirm in writing, upon request by ~~the Collateral~~ Agent, the authority to release Collateral conferred upon ~~the Collateral~~ Agent under ~~Section 10.08(b)~~this Section. ~~Upon the prior written request by any Loan Party, the Collateral~~ Agent shall (and is hereby irrevocably authorized by ~~the~~ Lenders to) execute such documents as may be necessary ~~or reasonably requested by any Loan Party~~ to evidence the release of the ~~Liens~~ security interest, mortgage or liens granted to Agent upon any Collateral to the ~~Collateral Agent for the benefit of the Agents and the Lenders upon such Collateral~~extent set forth above; provided, ~~however~~that, ~~that~~ (i) ~~the Collateral~~ Agent shall not be required to execute any such document on terms which, in ~~the Collateral~~ Agent’s 's opinion, would expose ~~the Collateral~~ Agent to liability or create any obligations or entail any consequence other than the release of such ~~Liens~~ security interest, mortgage or liens without recourse or ~~warranty,~~ warranty and (ii) such release shall not in any manner discharge, affect or impair the Obligations or any ~~Lien~~ security interest, mortgage or lien upon (or obligations of any ~~Loan Party~~ Borrower or Guarantor in respect of) ~~all interests in~~ the Collateral retained by ~~any Loan Party~~such Borrower or Guarantor. (d) Anything contained in any of the Loan Documents to the contrary notwithstanding but subject to the Agreement Among Lenders, the Loan Parties, each Agent and each Lender hereby agree that (i) no Lender shall have any right individually to realize upon any of the Collateral under any Loan Document or to enforce any Guaranty, it being understood and agreed that all powers, rights and remedies under the Loan Documents may be exercised solely by the Collateral Agent for the benefit of the Lenders in accordance with the terms thereof, (ii) in the event of a foreclosure by the Collateral Agent on any of the Collateral pursuant to a public or private sale, the Administrative Agent, the Collateral Agent or any Lender may be the purchaser of any or all of such Collateral at any such sale and (iii) the Collateral Agent, as agent for and representative of the Agents and the Lenders (but not any other Agent or any Lender or Lenders in its or their respective individual capacities unless the Required Lenders shall otherwise agree in writing) shall be entitled (either directly or through one or more acquisition vehicles) for the purpose of bidding and making settlement or payment of the purchase price for all or any portion of the Collateral to be sold (A) at any public or private sale, (B) at any sale conducted by the Collateral Agent under the provisions of the Uniform Commercial Code (including pursuant to Sections 9-610 or 9-620 of the Uniform Commercial Code), (C) at any sale or foreclosure conducted by the Collateral Agent (whether by judicial action or otherwise) in accordance with applicable law or (D) any sale conducted pursuant to the provisions of any Debtor Relief Law (including Section 363 of the Bankruptcy Code), to use and apply all or any of the Obligations as a credit on account of the purchase price for any Collateral payable by the Collateral Agent at such sale. (e) The Collateral Agent shall have no obligation whatsoever to any Lender or any other Person to investigate, confirm or assure that the Collateral exists or is owned by ~~the Loan Parties~~ any Borrower or Guarantor or is cared for, protected or insured or has been ~~encumbered~~ encumbered, or that the ~~Lien~~ liens and security interests granted to ~~the Collateral~~ Agent pursuant ~~to this Agreement~~ hereto or any ~~other Loan Document has~~ of the Financing Agreements or otherwise have been properly or sufficiently or lawfully created, perfected, protected or enforced or is are entitled to any particular priority, or to exercise at all or in any particular manner or under any duty of care, disclosure or fidelity, or to continue exercising, any of the rights, authorities and powers granted or available to ~~the Collateral~~ Agent in this ~~Section 10.08~~ Agreement or in any of the other ~~Loan Document~~Financing Agreements, it being understood and agreed that in respect of the Collateral, or any act, omission or event related thereto, subject to the ~~Collateral~~ other terms and conditions contained herein, Agent may act in any manner it may deem appropriate, in its ~~sole~~ discretion, given ~~the Collateral~~ Agent’s 's own interest in the Collateral ~~as one of the Lenders and that the Collateral Agent shall have no duty or liability whatsoever to any other Lender, except as otherwise provided herein and in the Agreement Among Lenders.~~as

Appears in 1 contract

Sources: Loan and Security Agreement (WHX Corp)

Collateral Matters. (a) Each Agent may from time to time make such disbursements and advances (“Agent Advances”) which such Agent, in its sole discretion, deems necessary or desirable to preserve, protect, prepare for sale or lease or dispose of the Collateral or any portion thereof, to enhance the likelihood or maximize the amount of repayment by the Borrowers of the Loans, Reimbursement Obligations, Letter of Credit Obligations and other Obligations or to pay any other amount chargeable to the Borrowers pursuant to the terms of this Agreement, including, without limitation, costs, fees and expenses as described in Section 12.04. The Agent Advances shall be repayable on demand and be secured by the Collateral and shall bear interest at a rate per annum equal to the rate then applicable to Revolving Loans that are Reference Rate Loans. The Agent making any Agent Advances shall notify the other Agent, each Lender and the Administrative Borrower in writing of each such Agent Advance, which notice shall include a description of the purpose of such Agent Advance. Without limitation to its obligations pursuant to Section 10.05, each Lender agrees that it shall make available to the Agent making any Agent Advances, upon such Agent’s demand, in the currency in which the respective Agent Advance was made in immediately available funds, the amount equal to such Lender’s Pro Rata Share of each such Agent Advance subject to the terms of, the Agreement Among Lenders, provided that any such amount advanced by a Lender shall be deemed a Loan hereunder. If such funds are not made available to such Agent by such Lender, such Agent shall be entitled to recover such funds on demand from such Lender, together with interest thereon for each day from the date such payment was due until the date such amount is paid to such Agent, at the Federal Funds Effective Rate for three Business Days and thereafter at the Reference Rate. (b) The Lenders hereby BANKS irrevocably authorize the ~~Collateral Agent~~COLLATERAL AGENT, ~~at its option and in its discretion~~upon the direction of the ADMINISTRATIVE AGENT, to release any ~~Lien~~ mortgage, deed of trust, pledge, lien, security interest or other charge or encumbrance of any nature on any property granted to or held by the ~~Collateral Agent~~ COLLATERAL AGENT under any LOAN DOCUMENT upon ~~any Collateral upon termination~~ BORROWER’s full and final satisfaction of the Total Commitment and Payment in Full of the Obligations; or constituting property being sold or disposed of in the ordinary course of any Loan Party’s business or otherwise in compliance with the terms of this Agreement and the other Loan Documents; or constituting property in which the Loan Parties owned no interest at the time the Lien was granted or at any time thereafter; or if approved, authorized or ratified in writing by the applicable Lenders required pursuant to Section 12.02OBLIGATIONS. Upon request by the ~~Collateral Agent~~ COLLATERAL AGENT at any time, the ~~Lenders~~ BANKS will confirm in writing the ~~Collateral Agent~~COLLATERAL AGENT’s authority to release its interest in particular types or items of ~~Collateral~~ property pursuant to this Section ~~10.08(b). (c) Without~~ 8.10. In each case as specified in ~~any manner limiting the Collateral Agent’s authority to act without any specific or further authorization or consent by the Lenders (as set forth in~~ this Section ~~10.08(b)), each Lender agrees to confirm in writing, upon request by the Collateral Agent~~8.10, the ~~authority~~ COLLATERAL AGENT will, at BORROWER’s expense, execute and deliver to release Collateral conferred upon the Collateral Agent under Section 10.08(b). Upon the prior written request by any Loan Party, the Collateral Agent shall (and is hereby irrevocably authorized by the Lenders to) execute BORROWER such documents as BORROWER may ~~be necessary or~~ reasonably ~~requested by any Loan Party~~ request to evidence the release of such item of collateral from the ~~Liens~~ assignment and security interest granted under the LOAN DOCUMENTS in accordance with the terms of the LOANS DOCUMENTS and this Section 8.10. Notwithstanding anything to the ~~Collateral Agent~~ contrary in any LOAN DOCUMENT, the powers conferred on the COLLATERAL AGENT under the LOAN DOCUMENTS are solely to protect its interest (on behalf of the BANKS) in the collateral securing the LOANS and shall not impose any duty upon it to exercise any such powers. Except for the ~~benefit~~ reasonable care of ~~the Agents~~ any such collateral in its possession and the ~~Lenders upon~~ accounting for moneys actually received by it under the LOAN DOCUMENTS, the COLLATERAL AGENT shall have no duty as to any such ~~Collateral; provided~~collateral, ~~however~~or responsibility, ~~that~~ for (i) ascertaining or taking action with respect to calls, conversions, exchanges, maturities, tenders or other matters relative to any investment property constituting collateral, whether or not the ~~Collateral Agent~~ COLLATERAL AGENT has or is deemed to have knowledge of such matters, or (ii) taking any necessary steps to preserve rights against prior parties or any other rights pertaining to any such collateral. The COLLATERAL AGENT shall be deemed to have exercised reasonable care in the custody and preservation of any collateral in its possession if such collateral is accorded treatment substantially equal to that which it accords its own property. The COLLATERAL AGENT shall not be liable for interest on any money or assets received by it. Assets held in trust by the COLLATERAL AGENT need not be segregated from other assets except to the extent required by law. Before the COLLATERAL AGENT acts or refrains from acting, it may require a certificate of an appropriate officer of BORROWER at the expense of BORROWER. The COLLATERAL AGENT shall not be liable for any action it takes or omits to take in good faith in reliance on such officer’s certificate. The COLLATERAL AGENT shall not be liable for any action that it takes or omits to take in good faith that it reasonably believes to be authorized or within its rights or powers under the LOAN DOCUMENTS. The COLLATERAL AGENT shall not be bound to make any investigation into the facts or matters stated in any resolution, certificate, statement, instrument, opinion, notice, request, direction, consent, order, bond, debenture, or other paper or document, but the COLLATERAL AGENT, in its discretion, may make such further inquiry or investigation into such facts or matters as it may see fit and, if the COLLATERAL AGENT shall determine to make such further inquiry or investigation, it shall be entitled, upon reasonable notice to BORROWER, to examine the books, records and premises of BORROWER, personally or by agent or attorney and to consult with the officers and representatives of BORROWER, including BORROWER’s accountants and attorneys. The COLLATERAL AGENT shall be under no obligation to exercise any of the rights or powers vested in it by the LOAN DOCUMENTS at the request, order or direction of the BANKS unless such BANKS have offered to the COLLATERAL AGENT security or indemnity reasonably satisfactory to the COLLATERAL AGENT against the costs, expenses and liabilities that may be incurred by it in compliance with such request, order or direction. The COLLATERAL AGENT shall not be required to ~~execute~~ give any ~~such document on terms which, in the Collateral Agent’s opinion, would expose the Collateral Agent to liability~~ bond or create any obligations or entail any consequence other than the release of such Liens without recourse or warranty, and (ii) such release shall not in any manner discharge, affect or impair the Obligations or any Lien upon (or obligations of any Loan Party in respect of) all interests in the Collateral retained by any Loan Party. (d) Anything contained in any of the Loan Documents to the contrary notwithstanding but subject to the Agreement Among Lenders, the Loan Parties, each Agent and each Lender hereby agree that (i) no Lender shall have any right individually to realize upon any of the Collateral under any Loan Document or to enforce any Guaranty, it being understood and agreed that all powers, rights and remedies under the Loan Documents may be exercised solely by the Collateral Agent for the benefit of the Lenders in accordance with the terms thereof, (ii) in the event of a foreclosure by the Collateral Agent on any of the Collateral pursuant to a public or private sale, the Administrative Agent, the Collateral Agent or any Lender may be the purchaser of any or all of such Collateral at any such sale and (iii) the Collateral Agent, as agent for and representative of the Agents and the Lenders (but not any other Agent or any Lender or Lenders in its or their respective individual capacities unless the Required Lenders shall otherwise agree in writing) shall be entitled (either directly or through one or more acquisition vehicles) for the purpose of bidding and making settlement or payment of the purchase price for all or any portion of the Collateral to be sold (A) at any public or private sale, (B) at any sale conducted by the Collateral Agent under the provisions of the Uniform Commercial Code (including pursuant to Sections 9-610 or 9-620 of the Uniform Commercial Code), (C) at any sale or foreclosure conducted by the Collateral Agent (whether by judicial action or otherwise) in accordance with applicable law or (D) any sale conducted pursuant to the provisions of any Debtor Relief Law (including Section 363 of the Bankruptcy Code), to use and apply all or any of the Obligations as a credit on account of the purchase price for any Collateral payable by the Collateral Agent at such sale. (e) The Collateral Agent shall have no obligation whatsoever to any Lender to assure that the Collateral exists or is owned by the Loan Parties or is cared for, protected or insured or has been encumbered or that the Lien granted to the Collateral Agent pursuant to this Agreement or any other Loan Document has been properly or sufficiently or lawfully created, perfected, protected or enforced or is entitled to any particular priority, or to exercise at all or in any particular manner or under any duty of care, disclosure or fidelity, or to continue exercising, any of the rights, authorities and powers granted or available to the Collateral Agent in this Section 10.08 or in any other Loan Document, it being understood and agreed that surety in respect of the ~~Collateral~~performance of its powers and duties under the LOAN DOCUMENTS. The COLLATERAL AGENT may from time to time, at its option, perform any act that BORROWER agrees hereunder or under any ~~act~~LOAN DOCUMENT to perform and that BORROWER shall fail to perform after being requested in writing so to perform (it being understood that no such request need be given after the occurrence of an EVENT OF DEFAULT) and the COLLATERAL AGENT may from time to time take any other action that the COLLATERAL AGENT reasonably deems necessary for the maintenance, ~~omission~~ preservation or ~~event related thereto,~~ protection of any of the ~~Collateral Agent may act in any manner it may deem appropriate~~collateral for the LOANS or of its security interest therein. The COLLATERAL AGENT is authorized to endorse, in ~~its sole discretion~~the name of BORROWER, ~~given~~ any item, howsoever received by the ~~Collateral Agent’s own interest in the Collateral as one~~ COLLATERAL AGENT, representing any payment on or other proceeds of any of the ~~Lenders and that~~ collateral for the ~~Collateral Agent shall have no duty or liability whatsoever to any other Lender, except as otherwise provided herein and in the Agreement Among Lenders~~LOANS.

Appears in 1 contract

Sources: Loan Agreement (REX AMERICAN RESOURCES Corp)

Collateral Matters. (a) ~~Each~~ The Collateral Agent ~~may~~ may, but shall be under no obligation to, from time to ~~time~~ time, at the written direction of the Required Lenders, make such disbursements and advances (“"Collateral Agent Advances”") which ~~such Agent~~the Required Lenders, in ~~its~~ their sole discretion, ~~deems~~ deem necessary or desirable to preserve, protect, prepare for sale or lease or dispose of the Collateral or any portion thereof, to enhance the likelihood or maximize the amount of repayment by the ~~Borrowers~~ Borrower of the ~~Loans, Reimbursement Obligations, Letter of Credit Obligations~~ Term Loans and other Obligations or to pay any other amount chargeable to the ~~Borrowers~~ Borrower pursuant to the terms of this Agreement, including, without limitation, costs, fees and expenses as described in Section 12.04. The Collateral Agent Advances shall be repayable on demand and be secured by the Collateral and shall bear interest at a rate per annum equal to the ~~rate then applicable to Revolving Loans that are~~ Reference ~~Rate Loans~~Rate. The ~~Agent making any~~ Collateral Agent Advances shall constitute Obligations hereunder. The Collateral Agent shall notify ~~the other Agent,~~ each Lender and the ~~Administrative~~ Borrower in writing of each such Collateral Agent Advance, which notice shall include a description of the purpose of such Collateral Agent Advance. Without limitation to its obligations pursuant to Section 10.05, each Lender agrees that it shall make available to the ~~Agent making any Agent Advances~~Collateral Agent, upon ~~such~~ the Collateral Agent’s 's demand, in ~~the currency in which the respective Agent Advance was made~~ Dollars in immediately available funds, the amount equal to such Lender’s 's Pro Rata Share of each such Collateral Agent ~~Advance subject to the terms of, the Agreement Among Lenders, provided that any such amount advanced by a Lender shall be deemed a Loan hereunder~~Advance. If such funds are not made available to ~~such~~ the Collateral Agent by such Lender, ~~such~~ the Collateral Agent shall be entitled to recover such funds on demand from such Lender, together with interest thereon for each day from the date such payment was due until the date such amount is paid to ~~such~~ the Collateral Agent, at the Federal Funds ~~Effective~~ Rate for three Business Days and thereafter at the Reference Rate. (b) The Lenders hereby irrevocably authorize the Collateral Agent, at its option and in its discretion, to release any Lien granted to or held by the Collateral Agent upon any Collateral (i) upon termination of the ~~Total~~ Term Loan Commitment and ~~Payment~~ payment and satisfaction of all Term Loans and all other Obligations (other than Contingent Indemnification Obligations) in ~~Full of~~ accordance with the ~~Obligations~~terms hereof; or (ii) constituting property being sold or disposed of in the ordinary course of any Loan Party’s 's business or otherwise in compliance with the terms of this Agreement and the other Loan Documents; or (iii) constituting property in which the Loan Parties owned no interest at the time the Lien was granted or at any time thereafter; or if approved, authorized or ratified in writing by the ~~applicable~~ Lenders ~~required pursuant to~~ in accordance with Section 12.02. Upon request by the Collateral Agent at any time, the Lenders will confirm in writing the Collateral Agent’s authority to release particular types or items of Collateral pursuant to this Section 10.08(b). (c) ~~Without in any manner limiting the Collateral Agent’s authority to act without any specific or further authorization or consent by the Lenders (as set forth in Section 10.08(b)), each~~ Each Lender agrees to confirm in writing, upon request by the Collateral Agent, the authority to release Collateral conferred upon the Collateral Agent under Section 10.08(b). Upon receipt by the Collateral Agent of confirmation from the Lenders of its authority to release any particular item or types of Collateral, and upon prior written request by any Loan Party, the Collateral Agent shall (and is hereby irrevocably authorized by the Lenders to) execute such documents as may be necessary ~~or reasonably requested by any Loan Party~~ to evidence the release of the Liens granted to the Collateral Agent for the benefit of the Agents and the ~~Lenders~~ Secured Parties upon such Collateral; provided, however, that (i) the Collateral Agent shall not be required to execute any such document on terms which, in the Collateral Agent’s 's opinion, would expose the Collateral Agent to liability or create any obligations or entail any consequence other than the release of such Liens without recourse or warranty, and (ii) such release shall not in any manner discharge, affect or impair the Obligations or any Lien upon (or obligations of any Loan Party in respect of) all interests in the Collateral retained by any Loan Party. (d) Anything contained in any of the Loan Documents to the contrary ~~notwithstanding but subject to the Agreement Among Lenders~~notwithstanding, the Loan Parties, each Agent and each Lender hereby agree that (i) no Lender shall have any right individually to realize upon any of the Collateral under any Loan Document or to enforce any Guaranty, it being understood and agreed that all powers, rights and remedies under the Loan Documents may be exercised solely by the Collateral Agent acting at the written direction of the Required Lenders for the benefit of the Lenders in accordance with the terms thereof, (ii) in the event of a foreclosure by the Collateral Agent on any of the Collateral pursuant to a public or private sale, the Administrative Agent, the Collateral Agent or any Lender may be the purchaser of any or all of such Collateral at any such sale and (iii) the Collateral Agent, as agent for and representative of the Agents and the Lenders (but not any other Agent or any Lender or Lenders in its or their respective individual capacities unless the Required Lenders shall otherwise agree in writing) shall be entitled (either directly or through one or more acquisition vehicles) for the purpose of bidding and making settlement or payment of the purchase price for all or any portion of the Collateral to be sold (A) at any public or private sale, (B) at any sale conducted by the Collateral Agent under the provisions of the Uniform Commercial Code (including pursuant to Sections 9-610 or 9-620 of the Uniform Commercial Code), (C) at any sale or foreclosure conducted by the Collateral Agent (whether by judicial action or otherwise) in accordance with applicable law or (D) any sale conducted pursuant to the provisions of any Debtor Relief Law (including Section 363 of the Bankruptcy Code), to use and apply all or any of the Obligations as a credit on account of the purchase price for any Collateral payable by the Collateral Agent at such sale. (e) The Collateral Agent shall have no obligation whatsoever to any Lender to assure that the Collateral exists or is owned by the Loan Parties or is cared for, protected or insured or has been encumbered or that the Lien granted to the Collateral Agent pursuant to this Agreement or any other Loan Document has been properly or sufficiently or lawfully created, perfected, protected or enforced or is entitled to any particular priority, or to exercise at all or in any particular manner or under any duty of care, disclosure or fidelity, or to continue exercising, any of the rights, authorities and powers granted or available to the Collateral Agent in this Section 10.08 or in any other Loan Document, it being understood and agreed that in respect of the Collateral, or any act, omission or event related thereto, the Collateral Agent ~~may act in any manner it may deem appropriate, in its sole discretion, given the Collateral Agent’s own interest in the Collateral as one of the Lenders and that the Collateral Agent~~ shall have no duty or liability whatsoever to any other Lender, except as otherwise provided ~~herein and~~ herein. (f) Beyond the exercise of reasonable care in the ~~Agreement Among Lenders~~custody thereof, no Agent shall have any duty as to any Collateral in its possession or control or in the possession or control of any agent or bailee or any income thereon or as to preservation of rights against prior parties or any other rights pertaining thereto. No Agent shall be responsible for (i) perfecting, maintaining, monitoring, preserving or protecting the security interest or Liens granted under this Agreement, any other Loan Document or any agreement or instrument contemplated hereby or thereby, (ii) the filing, re-filing, recording, re-recording or continuing or any document, financing statement, mortgage, assignment, notice, instrument of further assurance or other instrument in any public office at any time or times or (iii) providing, maintaining, monitoring or preserving insurance on or the payment of taxes with respect to any of the Collateral. The actions described in items (i) through (iii) shall be the sole responsibility of the Borrower. The Collateral Agent shall be deemed to have exercised reasonable care in the custody of the Collateral in its possession if the Collateral is accorded treatment substantially equal to that which it accords its own property and shall not be liable or responsible for any loss or diminution in the value of any of the Collateral, by reason of the act or omission of any carrier, forwarding agency or other agent or bailee selected by the Collateral Agent in good faith. (g) No Agent shall be responsible for the existence, genuineness or value of any of the Collateral or for the validity, perfection, priority or enforceability of the Liens in any of the Collateral, whether impaired by operation of law or by reason of any of any action or omission to act on its part hereunder, except to the extent such action or omission constitutes gross negligence or willful misconduct on the part of such Agent (as determined by a final, nonappealable judgment by a court of competent jurisdiction), for the validity or sufficiency of the Collateral or any agreement or assignment contained therein, for the validity of the title to the Collateral, for insuring the Collateral or for the payment of taxes, charges, assessments or Liens upon the Collateral or otherwise as to the maintenance of the Collateral. The Agents hereby disclaim any representation or warranty to the present and future holders of the Obligations concerning the perfection of the Liens granted hereunder or in the value of any of the Collateral. (h) In the event that any Agent is required to acquire title to an asset for any reason, or take any managerial action of any kind in regard thereto, in order to carry out any fiduciary or trust obligation for the benefit of another, which in such Agent's sole discretion may cause the Agent, to be considered an "owner or operator" under any Environmental Laws or otherwise cause the Agent to incur, or be exposed to, any liability under Environmental Law, (i) each Agent reserves the right, instead of taking such action, either to resign as Agent or to arrange for the transfer of the title or control of the asset to a court appointed receiver and (ii) no Agent will be liable to any Person for any Environmental Liabilities and Costs or any environmental liabilities or contribution actions under any federal, state or local law, rule or regulation by reason of such Agent's actions and conduct as authorized, empowered and directed hereunder or relating to any kind of discharge or Release or threatened discharge or Release of any Hazardous Materials into the environment, unless and only to the extent that such liability results from such Agent’s gross negligence or willful misconduct as finally judicially determined in a court of competent jurisdiction.

Appears in 1 contract

Sources: Credit Agreement (Gannett Co., Inc.)

Collateral Matters. (a) ~~Each~~ Agent ~~may~~ may, at its option, from time to time, at any time on or after an Event of Default and for so long as the same is continuing or upon any other failure of a condition precedent to the Loans and Letter of Credit Accommodations hereunder, make such disbursements and advances (“Special Agent Advances”) which ~~such~~ Agent, in its sole discretion, deems necessary or desirable either (i) to ~~preserve, protect, prepare for sale~~ preserve or ~~lease or dispose of~~ protect the Collateral or any portion ~~thereof,~~ thereof or (ii) to enhance the likelihood or maximize the amount of repayment by ~~the Borrowers~~ Borrower of the ~~Loans, Reimbursement~~ Loans and other Obligations, provided, that, the aggregate principal amount of the Special Agent Advances pursuant to this clause (ii), plus the then outstanding principal amount of the additional Loans and Letter of Credit ~~Obligations~~ Accommodations which Agent may make or provide as set forth in Section 12.8 hereof, shall not cause the total of all outstanding Loans and ~~other Obligations~~ Letter of Credit Accommodations to exceed the amount of the Revolving Loans and Letter of Credit Accommodations available to Borrower hereunder by more than five percent (5%) of such amount or (iii) to pay any other amount chargeable to ~~the Borrowers~~ Borrower or Obligor pursuant to the terms of this ~~Agreement, including, without limitation,~~ Agreement or any of the other Financing Agreements consisting of costs, fees and expenses ~~as described in Section 12.04~~and payments to any issuer of Letter of Credit Accommodations. ~~The~~ Special Agent Advances shall be repayable on demand and be secured by the ~~Collateral and shall bear interest at a rate per annum equal to the rate then applicable to Revolving Loans that are Reference Rate Loans~~Collateral. ~~The Agent making any~~ Special Agent Advances shall not constitute Loans but shall otherwise constitute Obligations hereunder. Agent shall notify ~~the other Agent,~~ each Lender and ~~the Administrative~~ Borrower in writing of each such Special Agent Advance, which notice shall include a description of the purpose of such Special Agent Advance. Without limitation to of its obligations pursuant to Section ~~10.05~~6.10, each Lender agrees that it shall make available to ~~the Agent making any Agent Advances~~Agent, upon ~~such~~ Agent’s demand, ~~in the currency in which the respective Agent Advance was made~~ in immediately available funds, the amount equal to such Lender’s Pro Rata Share of each such Special Agent ~~Advance subject to the terms of, the Agreement Among Lenders, provided that any such amount advanced by a Lender shall be deemed a Loan hereunder~~Advance. If such funds are not made available to ~~such~~ Agent by such Lender, then such Lender shall be deemed a Defaulting Lender and Agent shall be entitled to recover such ~~funds~~ funds, on demand from such ~~Lender,~~ Lender together with interest thereon for each day from the date such payment was due until the date such amount is paid to ~~such Agent,~~ Agent at the Federal Funds ~~Effective~~ Rate for each day during such period (as published by the Federal Reserve Bank of New York or at Agent’s option based on the arithmetic mean determined by Agent of the rates for the last transaction in overnight Federal funds arranged prior to 9:00 a.m. (New York City time) on that day by each of the three ~~Business Days~~ leading brokers of Federal funds transactions in New York City selected by Agent) and ~~thereafter~~ if such amounts are not paid within three (3) days of Agent’s demand, at the ~~Reference Rate~~highest Interest Rate provided for in Section 3.1 hereof applicable to Prime Rate Loans. (b) ~~The~~ Lenders hereby irrevocably authorize ~~the Collateral~~ Agent, at its option and in its ~~discretion,~~ discretion to release any ~~Lien granted to~~ security interest in, mortgage or ~~held by~~ lien upon, any of the Collateral ~~Agent upon any Collateral~~ (i) upon termination of the ~~Total Commitment~~ Commitments and ~~Payment in Full~~ payment and satisfaction of all of the ~~Obligations;~~ Obligations and delivery of cash collateral to the extent required under Section 13.1 below, or (ii) constituting property being sold or disposed of in if Borrower certifies to Agent that the ~~ordinary course of any Loan Party’s business~~ sale or ~~otherwise~~ disposition is made in compliance with ~~the terms of this Agreement~~ Section 9.7 hereof (and ~~the other Loan Documents;~~ Agent may rely conclusively on any such certificate, without further inquiry), or (iii) constituting property in which ~~the Loan Parties owned no~~ Borrower or any Obligor did not own an interest at the time the ~~Lien~~ security interest, mortgage or lien was granted or at any time thereafter; , or (iv) having a value in the aggregate in any twelve (12) month period of less than Five Million ($5,000,000) Dollars, or (v) if required under the terms of any of the other Financing Agreements, including any intercreditor agreement, or (vi) if approved, authorized or ratified in writing by all of Lenders. Except as provided above, Agent will not release any security interest in, mortgage or lien upon, any of the ~~applicable Lenders required pursuant to Section 12.02~~Collateral without the prior written authorization of all of Lenders. Upon request by ~~the Collateral~~ Agent at any time, ~~the~~ Lenders will promptly confirm in writing ~~the Collateral~~ Agent’s authority to release particular types or items of Collateral pursuant to this ~~Section 10.08(b)~~Section. (c) Without in any manner limiting ~~the Collateral~~ Agent’s authority to act without any specific or further authorization or consent by the ~~Lenders (as set forth in Section 10.08(b))~~Required Lenders, each Lender agrees to confirm in writing, upon request by ~~the Collateral~~ Agent, the authority to release Collateral conferred upon ~~the Collateral~~ Agent under ~~Section 10.08(b)~~this Section. ~~Upon the prior written request by any Loan Party, the Collateral~~ Agent shall (and is hereby irrevocably authorized by ~~the~~ Lenders to) execute such documents as may be necessary ~~or reasonably requested by any Loan Party~~ to evidence the release of the ~~Liens~~ security interest, mortgage or liens granted to Agent upon any Collateral to the ~~Collateral Agent for the benefit of the Agents and the Lenders upon such Collateral~~extent set forth above; provided, ~~however~~that, ~~that~~ (i) ~~the Collateral~~ Agent shall not be required to execute any such document on terms which, in ~~the Collateral~~ Agent’s opinion, would expose ~~the Collateral~~ Agent to liability or create any obligations or entail any consequence other than the release of such ~~Liens~~ security interest, mortgage or liens without recourse or ~~warranty,~~ warranty and (ii) such release shall not in any manner discharge, affect or impair the Obligations or any ~~Lien~~ security interest, mortgage or lien upon (or obligations of Borrower or any ~~Loan Party~~ Obligor in respect of) ~~all interests in~~ the Collateral retained by ~~any Loan Party~~Borrower or such Obligor. (d) Anything contained in any of the Loan Documents to the contrary notwithstanding but subject to the Agreement Among Lenders, the Loan Parties, each Agent and each Lender hereby agree that (i) no Lender shall have any right individually to realize upon any of the Collateral under any Loan Document or to enforce any Guaranty, it being understood and agreed that all powers, rights and remedies under the Loan Documents may be exercised solely by the Collateral Agent for the benefit of the Lenders in accordance with the terms thereof, (ii) in the event of a foreclosure by the Collateral Agent on any of the Collateral pursuant to a public or private sale, the Administrative Agent, the Collateral Agent or any Lender may be the purchaser of any or all of such Collateral at any such sale and (iii) the Collateral Agent, as agent for and representative of the Agents and the Lenders (but not any other Agent or any Lender or Lenders in its or their respective individual capacities unless the Required Lenders shall otherwise agree in writing) shall be entitled (either directly or through one or more acquisition vehicles) for the purpose of bidding and making settlement or payment of the purchase price for all or any portion of the Collateral to be sold (A) at any public or private sale, (B) at any sale conducted by the Collateral Agent under the provisions of the Uniform Commercial Code (including pursuant to Sections 9-610 or 9-620 of the Uniform Commercial Code), (C) at any sale or foreclosure conducted by the Collateral Agent (whether by judicial action or otherwise) in accordance with applicable law or (D) any sale conducted pursuant to the provisions of any Debtor Relief Law (including Section 363 of the Bankruptcy Code), to use and apply all or any of the Obligations as a credit on account of the purchase price for any Collateral payable by the Collateral Agent at such sale. (e) The Collateral Agent shall have no obligation whatsoever to any Lender or any other Person to investigate, confirm or assure that the Collateral exists or is owned by ~~the Loan Parties~~ Borrower or any Obligor or is cared for, protected or insured or has been ~~encumbered~~ encumbered, or that any particular items of Collateral meet the eligibility criteria applicable in respect of the Loans or Letter of Credit Accommodations hereunder, or whether any particular reserves are appropriate, or that the ~~Lien~~ liens and security interests granted to ~~the Collateral~~ Agent pursuant ~~to this Agreement~~ hereto or any ~~other Loan Document has~~ of the Financing Agreements or otherwise have been properly or sufficiently or lawfully created, perfected, protected or enforced or is are entitled to any particular priority, or to exercise at all or in any particular manner or under any duty of care, disclosure or fidelity, or to continue exercising, any of the rights, authorities and powers granted or available to ~~the Collateral~~ Agent in this ~~Section 10.08~~ Agreement or in any of the other ~~Loan Document~~Financing Agreements, it being understood and agreed that in respect of the Collateral, or any act, omission or event related thereto, ~~the Collateral~~ Agent may act in any manner it may deem appropriate, in its ~~sole~~ discretion, given ~~the Collateral~~ Agent’s own interest in the Collateral as ~~one of the Lenders~~ a Lender and that ~~the Collateral~~ Agent shall have no duty or liability whatsoever to any other Lender, except as otherwise ~~provided herein and~~ expressly set forth in ~~the Agreement Among Lenders~~this Agreement.

Appears in 1 contract

Sources: Loan and Security Agreement (Reptron Electronics Inc)

Collateral Matters. (a) ~~Each~~ The Agent may from time to time make such disbursements and advances (“"Agent Advances”") which ~~such~~ the Agent, in its sole discretion, deems necessary or desirable to preserve, protect, prepare for sale or lease or dispose of the Collateral or any portion thereof, to enhance the likelihood or maximize the amount of repayment by the Borrowers of the ~~Loans, Reimbursement Obligations, Letter of Credit Obligations~~ Loans and other Obligations or to pay any other amount chargeable to the Borrowers pursuant to the terms of this Agreement, including, without limitation, costs, fees and expenses as described in Section ~~12.04~~11.04. The Agent Advances shall be repayable on demand and be secured by the ~~Collateral and shall bear interest at a rate per annum equal to the rate then applicable to Revolving Loans that are Reference Rate Loans~~Collateral. The Agent ~~making any Agent~~ Advances shall constitute Obligations hereunder which may be charged to the Loan Account in accordance with Section 3.01. The Agent shall notify ~~the other Agent,~~ each Lender and ~~the Administrative Borrower~~ Parent in writing of each such Agent Advance, which notice shall include a description of the purpose of such Agent Advance. Without limitation to its obligations pursuant to Section ~~10.05~~9.05, each Lender agrees that it shall make available to the ~~Agent making any Agent Advances~~Agent, upon ~~such~~ the Agent’s 's demand, in ~~the currency in which the respective Agent Advance was made~~ Dollars in immediately available funds, the amount equal to such Lender’s 's Pro Rata Share of each such Agent ~~Advance subject to the terms of, the Agreement Among Lenders, provided that any such amount advanced by a Lender shall be deemed a Loan hereunder~~Advance. If such funds are not made available to ~~such~~ the Agent by such Lender, ~~such~~ the Agent shall be entitled to recover such funds on demand from such Lender, together with interest thereon for each day from the date such payment was due until the date such amount is paid to ~~such~~ the Agent, at the Federal Funds ~~Effective~~ Rate for three Business Days and thereafter at the Reference Rate. (b) The Lenders hereby irrevocably authorize the ~~Collateral~~ Agent, at its option and in its discretion, to release any Lien granted to or held by the ~~Collateral~~ Agent upon any Collateral upon termination of the Total Commitment and ~~Payment in Full~~ payment and satisfaction of ~~the~~ all Loans all other Obligations; or constituting property being sold or disposed of ~~in the ordinary course of any Loan Party’s business or otherwise~~ in compliance with the terms of this Agreement and the other Loan ~~Documents~~Documents or which the Lenders have otherwise agreed to release in compliance with the terms of this Agreement or any other Loan Document;; or constituting property in which the Loan Parties owned no interest at the time the Lien was granted or at any time thereafter; or if approved, authorized or ratified in writing by the ~~applicable Lenders required pursuant to Section 12.02~~Lenders. Upon request by the ~~Collateral~~ Agent at any time, the Lenders will confirm in writing the ~~Collateral~~ Agent’s 's authority to release particular types or items of Collateral pursuant to this Section ~~10.08(b~~9.08(b). (c) Without in any manner limiting the ~~Collateral~~ Agent’s 's authority to act without any specific or further authorization or consent by the Lenders (as set forth in Section ~~10.08(b~~9.08(b)), each Lender agrees to confirm in writing, upon request by the ~~Collateral~~ Agent, the authority to release Collateral conferred upon the ~~Collateral~~ Agent under Section ~~10.08(b~~9.08(b). Upon receipt by the Agent of confirmation from the Lenders of its authority to release any particular item or types of Collateral, and upon prior written request by any Loan Party, the ~~Collateral~~ Agent shall (and is hereby irrevocably authorized by the Lenders to) execute such documents as may be necessary ~~or reasonably requested by any Loan Party~~ to evidence the release of the Liens granted to the ~~Collateral~~ Agent for the benefit of ~~the Agents and~~ the Lenders upon such Collateral; provided, however, that (i) the ~~Collateral~~ Agent shall not be required to execute any such document on terms which, in the ~~Collateral~~ Agent’s 's opinion, would expose the ~~Collateral~~ Agent to liability or create any obligations or entail any consequence other than the release of such Liens without recourse or warranty, and (ii) such release shall not in any manner discharge, affect or impair the Obligations or any Lien upon (or obligations of any Loan Party in respect of) all interests in the Collateral retained by any Loan Party. (d) Anything contained in any of the Loan Documents to the contrary notwithstanding but subject to the Agreement Among Lenders, the Loan Parties, each Agent and each Lender hereby agree that (i) no Lender shall have any right individually to realize upon any of the Collateral under any Loan Document or to enforce any Guaranty, it being understood and agreed that all powers, rights and remedies under the Loan Documents may be exercised solely by the Collateral Agent for the benefit of the Lenders in accordance with the terms thereof, (ii) in the event of a foreclosure by the Collateral Agent on any of the Collateral pursuant to a public or private sale, the Administrative Agent, the Collateral Agent or any Lender may be the purchaser of any or all of such Collateral at any such sale and (iii) the Collateral Agent, as agent for and representative of the Agents and the Lenders (but not any other Agent or any Lender or Lenders in its or their respective individual capacities unless the Required Lenders shall otherwise agree in writing) shall be entitled (either directly or through one or more acquisition vehicles) for the purpose of bidding and making settlement or payment of the purchase price for all or any portion of the Collateral to be sold (A) at any public or private sale, (B) at any sale conducted by the Collateral Agent under the provisions of the Uniform Commercial Code (including pursuant to Sections 9-610 or 9-620 of the Uniform Commercial Code), (C) at any sale or foreclosure conducted by the Collateral Agent (whether by judicial action or otherwise) in accordance with applicable law or (D) any sale conducted pursuant to the provisions of any Debtor Relief Law (including Section 363 of the Bankruptcy Code), to use and apply all or any of the Obligations as a credit on account of the purchase price for any Collateral payable by the Collateral Agent at such sale. (e) The ~~Collateral~~ Agent shall have no obligation whatsoever to any Lender to assure that the Collateral exists or is owned by the Loan Parties or is cared for, protected or insured or has been encumbered or that the Lien granted to the ~~Collateral~~ Agent pursuant to this Agreement or any other Loan Document has been properly or sufficiently or lawfully created, perfected, protected or enforced or is entitled to any particular priority, or to exercise at all or in any particular manner or under any duty of care, disclosure or fidelity, or to continue exercising, any of the rights, authorities and powers granted or available to the ~~Collateral~~ Agent in this Section ~~10.08~~ 9.08 or in any other Loan Document, it being understood and agreed that in respect of the Collateral, or any act, omission or event related thereto, the ~~Collateral~~ Agent may act in any manner it may deem appropriate, in its sole discretion, given the ~~Collateral~~ Agent’s 's own interest in the Collateral as one of the Lenders and that the ~~Collateral~~ Agent shall have no duty or liability whatsoever to any other Lender, except as otherwise provided ~~herein and in the Agreement Among Lenders~~herein.

Appears in 1 contract

Sources: Financing Agreement (Lakes Entertainment Inc)

Collateral Matters. (a) ~~Each~~ Any Agent may from time to time make such disbursements and advances (“"Agent Advances”") which such Agent, in its sole discretion, deems necessary or desirable to preserve, protect, prepare for sale or lease or dispose of the Collateral or any portion thereof, to enhance the likelihood or maximize the amount of repayment by the Borrowers of the Loans, Reimbursement Obligations, Letter of Credit Obligations and other Obligations or to pay any other amount chargeable to the Borrowers pursuant to the terms of this Agreement, including, without limitation, costs, fees and expenses as described in Section 12.04. The Agent Advances shall be repayable on demand and be secured by the Collateral and shall bear interest at a rate per annum equal to the rate then applicable to ~~Revolving~~ Loans that are Reference Rate Loans. The Agent Advances shall constitute Obligations hereunder which may be charged to the Loan Account in accordance with Section 4.01. The Agent making ~~any~~ the Agent ~~Advances~~ Advance shall notify the other ~~Agent,~~ Agent and each Lender and the Administrative Borrower in writing of each such Agent Advance, which notice shall include a description of the purpose of such Agent Advance. Without limitation to its obligations pursuant to Section 10.05, each Lender agrees that it shall make available to the Agent making ~~any~~ the Agent ~~Advances~~Advance, upon such Agent’s 's demand, in ~~the currency in which the respective Agent Advance was made~~ Dollars in immediately available funds, the amount equal to such Lender’s 's Pro Rata Share of each such Agent ~~Advance subject to the terms of, the Agreement Among Lenders, provided that any such amount advanced by a Lender shall be deemed a Loan hereunder~~Advance. If such funds are not made available to the Agent making such Agent Advance by such Lender, such Agent shall be entitled to recover such funds on demand from such Lender, together with interest thereon for each day from the date such payment was due until the date such amount is paid to such Agent, at the Federal Funds Effective Rate for three Business Days and thereafter at the Reference Rate. (b) The Lenders hereby irrevocably authorize the Collateral Agent, at its option and in its discretion, to release any Lien granted to or held by the Collateral Agent upon any Collateral upon termination of the Total Commitment and ~~Payment~~ payment and satisfaction of all Loans, Reimbursement Obligations, Letter of Credit Obligations, and all other Obligations (other than Contingent Indemnification Obligations) in ~~Full of~~ accordance with the ~~Obligations~~terms hereof; or constituting property being sold or disposed of in the ordinary course of any Loan Party’s 's business or otherwise in compliance with the terms of this Agreement and the other Loan Documents; or constituting property in which the Loan Parties owned no interest at the time the Lien was granted or at any time thereafter; or if approved, authorized or ratified in writing by the ~~applicable~~ Lenders ~~required pursuant to~~ in accordance with Section 12.02. Upon request by the Collateral Agent at any time, the Lenders will confirm in writing the Collateral Agent’s 's authority to release particular types or items of Collateral pursuant to this Section 10.08(b). (c) Without in any manner limiting the Collateral Agent’s 's authority to act without any specific or further authorization or consent by the Lenders (as set forth in Section 10.08(b)), each Lender agrees to confirm in writing, upon request by the Collateral Agent, the authority to release Collateral conferred upon the Collateral Agent under Section 10.08(b). Upon receipt by the Collateral Agent of confirmation from the Lenders of its authority to release any particular item or types of Collateral, and upon prior written request by any Loan Party, the Collateral Agent shall (and is hereby irrevocably authorized by the Lenders to) execute such documents as may be necessary ~~or reasonably requested by any Loan Party~~ to evidence the release of the Liens granted to the Collateral Agent for the benefit of the Agents and the Lenders upon such Collateral; provided, however, that (i) the Collateral Agent shall not be required to execute any such document on terms which, in the Collateral Agent’s 's opinion, would expose the Collateral Agent to liability or create any obligations or entail any consequence other than the release of such Liens without recourse or warranty, and (ii) such release shall not in any manner discharge, affect or impair the Obligations or any Lien upon (or obligations of any Loan Party in respect of) all interests in the Collateral retained by any Loan Party. (d) Anything contained in any of the Loan Documents to the contrary notwithstanding but subject to the Agreement Among Lenders, the Loan Parties, each Agent and each Lender hereby agree that (i) no Lender shall have any right individually to realize upon any of the Collateral under any Loan Document or to enforce any Guaranty, it being understood and agreed that all powers, rights and remedies under the Loan Documents may be exercised solely by the Collateral Agent for the benefit of the Lenders in accordance with the terms thereof, (ii) in the event of a foreclosure by the Collateral Agent on any of the Collateral pursuant to a public or private sale, the Administrative Agent, the Collateral Agent or any Lender may be the purchaser of any or all of such Collateral at any such sale and (iii) the Collateral Agent, as agent for and representative of the Agents and the Lenders (but not any other Agent or any Lender or Lenders in its or their respective individual capacities unless the Required Lenders shall otherwise agree in writing) shall be entitled (either directly or through one or more acquisition vehicles) for the purpose of bidding and making settlement or payment of the purchase price for all or any portion of the Collateral to be sold (A) at any public or private sale, (B) at any sale conducted by the Collateral Agent under the provisions of the Uniform Commercial Code (including pursuant to Sections 9-610 or 9-620 of the Uniform Commercial Code), (C) at any sale or foreclosure conducted by the Collateral Agent (whether by judicial action or otherwise) in accordance with applicable law or (D) any sale conducted pursuant to the provisions of any Debtor Relief Law (including Section 363 of the Bankruptcy Code), to use and apply all or any of the Obligations as a credit on account of the purchase price for any Collateral payable by the Collateral Agent at such sale. (e) The Collateral Agent shall have no obligation whatsoever to any Lender to assure that the Collateral exists or is owned by the Loan Parties or is cared for, protected or insured or has been encumbered or that the Lien granted to the Collateral Agent pursuant to this Agreement or any other Loan Document has been properly or sufficiently or lawfully created, perfected, protected or enforced or is entitled to any particular priority, or to exercise at all or in any particular manner or under any duty of care, disclosure or fidelity, or to continue exercising, any of the rights, authorities and powers granted or available to the Collateral Agent in this Section 10.08 or in any other Loan Document, it being understood and agreed that in respect of the Collateral, or any act, omission or event related thereto, the Collateral Agent may act in any manner it may deem appropriate, in its sole discretion, given the Collateral Agent’s own interest in the Collateral as one of the Lenders and that the Collateral Agent shall have no duty or liability whatsoever to any other Lender, except as otherwise provided herein and in the Agreement Among Lenders.and

Appears in 1 contract

Sources: Financing Agreement (Alj Regional Holdings Inc)

Collateral Matters. (a) ~~Each~~ The Collateral Agent ~~may~~ may, but shall be under no obligation to, from time to ~~time~~ time, at the written direction of the Required Lenders, make such disbursements and advances (“Collateral Agent Advances”) which ~~such Agent~~the Required Lenders, in ~~its~~ their sole discretion, ~~deems~~ deem necessary or desirable to preserve, protect, prepare for sale or lease or dispose of the Collateral or any portion thereof, to enhance the likelihood or maximize the amount of repayment by the ~~Borrowers~~ Borrower of the ~~Loans, Reimbursement Obligations, Letter of Credit Obligations~~ Term Loans and other Obligations or to pay any other amount chargeable to the ~~Borrowers~~ Borrower pursuant to the terms of this Agreement, ~~including, without limitation,~~ including costs, fees and expenses as described in Section 12.04. The Collateral Agent Advances shall be repayable on demand and be secured by the Collateral and shall bear interest at a rate per annum equal to the ~~rate then applicable to Revolving Loans that are~~ Reference ~~Rate Loans~~Rate. The ~~Agent making any~~ Collateral Agent Advances shall constitute Obligations hereunder. The Collateral Agent shall notify ~~the other Agent,~~ each Lender and the ~~Administrative~~ Borrower in writing of each such Collateral Agent Advance, which notice shall include a description of the purpose of such Collateral Agent Advance. Without limitation to its obligations pursuant to Section 10.05, each Lender agrees that it shall make available to the ~~Agent making any Agent Advances~~Collateral Agent, upon ~~such~~ the Collateral Agent’s demand, in ~~the currency in which the respective Agent Advance was made~~ Dollars in immediately available funds, the amount equal to such ~~Lender~~▇▇▇▇▇▇’s Pro Rata Share of each such Collateral Agent ~~Advance subject to the terms of, the Agreement Among Lenders, provided that any such amount advanced by a Lender shall be deemed a Loan hereunder~~Advance. If such funds are not made available to ~~such~~ the Collateral Agent by such Lender, ~~such~~ the Collateral Agent shall be entitled to recover such funds on demand from such Lender, together with interest thereon for each day from the date such payment was due until the date such amount is paid to ~~such~~ the Collateral Agent, at the Federal Funds ~~Effective~~ Rate for three Business Days and thereafter at the Reference Rate. (b) The Lenders hereby irrevocably authorize the Collateral Agent, at its option and in its discretion, to release any Lien granted to or held by the Collateral Agent upon any Collateral (i) upon termination of the ~~Total Commitment~~ Commitments and ~~Payment~~ payment and satisfaction in ~~Full~~ full in cash of all Loans and all other Obligations (other than Contingent Indemnity Obligations) in accordance with the ~~Obligations~~terms hereof; or (ii) constituting property being ~~sold~~ sold, transferred or disposed of in the ordinary course of any Loan Party’s business to any Person other than another Loan Party, to the extent such sale, transfer or ~~otherwise~~ other disposition is made in compliance with the terms of this Agreement and the other Loan Documents; or (iii) constituting property in which the Loan Parties owned no interest at the time the Lien was granted or at any time thereafter; or (iv) if approved, authorized or ratified in writing by the ~~applicable~~ Lenders in accordance with Section 12.02. Notwithstanding anything to the contrary contained herein or in any other Loan Document, upon the written request of the Borrower in connection with any Liens permitted by the Loan Documents, the Collateral Agent may, and the Lenders hereby irrevocably authorize the Collateral Agent, at its option and in its discretion to, take such actions as shall be required to subordinate the Lien on any Collateral to any Lien permitted under Section 7.02(a) to the extent such Lien is expressly permitted pursuant to Section ~~12.02. Upon request by~~ 7.02(a) to be senior in right of security to the ~~Collateral Agent at any time, the Lenders will confirm~~ Liens in ~~writing~~ favor of the Collateral Agent~~’s authority to release particular types or items of Collateral pursuant to this Section 10.08(b)~~. (c) ~~Without in any manner limiting the Collateral Agent’s authority to act without any specific or further authorization or consent by the Lenders (as set forth in Section 10.08(b)), each Lender~~ Each ▇▇▇▇▇▇ agrees to confirm in writing, upon request by the Collateral Agent, the authority to release Collateral conferred upon the Collateral Agent under Section 10.08(b). Upon ~~the~~ prior written request by any Loan Party, the Collateral Agent shall (and is hereby irrevocably authorized by the Lenders to) execute such documents as may be necessary ~~or reasonably requested by any Loan Party~~ to evidence the ~~release~~ release, in accordance with Section 10.08(b), of the Liens granted to the Collateral Agent for the benefit of the Agents and the ~~Lenders~~ Secured Parties upon such Collateral; provided, however, that (i) the Collateral Agent shall not be required to execute any such document on terms which, in the Collateral Agent’s opinion, would expose the Collateral Agent to liability or create any obligations or entail any consequence other than the release of such Liens without recourse or warranty, and (ii) such release shall not in any manner discharge, affect or impair the Obligations or any Lien upon (or obligations of any Loan Party in respect of) all interests in the Collateral retained by any Loan Party; provided, further, that prior to any release in accordance with this Section 10.08, the Collateral Agent may request the Borrower deliver a certificate of an Authorized Officer certifying that such transactions and releases are permitted by the Loan Documents (and the Collateral Agent may rely conclusively on such certificate without further inquiry). (d) Anything contained in any of the Loan Documents to the contrary ~~notwithstanding but subject to the Agreement Among Lenders~~notwithstanding, the Loan Parties, each Agent and each Lender hereby agree that (i) no Lender shall have any right individually to realize upon any of the Collateral under any Loan Document or to enforce any Guaranty, it being understood and agreed that all powers, rights and remedies under the Loan Documents may be exercised solely by the Collateral Agent acting at the written direction of the Required Lenders for the benefit of the Lenders in accordance with the terms thereof, (ii) in the event of a foreclosure by the Collateral Agent on any of the Collateral pursuant to a public or private sale, the Administrative Agent, the Collateral Agent or any Lender may be the purchaser of any or all of such Collateral at any such sale and (iii) the Collateral Agent, as agent for and representative of the Agents and the Lenders (but not any other Agent or any Lender or Lenders in its or their respective individual capacities unless the Required Lenders shall otherwise agree in writing) shall be entitled (either directly or through one or more acquisition vehicles) for the purpose of bidding and making settlement or payment of the purchase price for all or any portion of the Collateral to be sold (A) at any public or private sale, (B) at any sale conducted by the Collateral Agent under the provisions of the Uniform Commercial Code (including pursuant to Sections 9-610 or 9-620 of the Uniform Commercial Code), (C) at any sale or foreclosure conducted by the Collateral Agent (whether by judicial action or otherwise) in accordance with applicable law or (D) any sale conducted pursuant to the provisions of any Debtor Relief Law (including Section 363 of the Bankruptcy Code), to use and apply all or any of the Obligations as a credit on account of the purchase price for any Collateral payable by the Collateral Agent at such sale. (e) The Collateral Agent shall have no obligation whatsoever to any Lender to assure that the Collateral exists or is owned by the Loan Parties or is cared for, protected or insured or has been encumbered or that the Lien granted to the Collateral Agent pursuant to this Agreement or any other Loan Document has been properly or sufficiently or lawfully created, perfected, protected or enforced or is entitled to any particular priority, or to exercise at all or in any particular manner or under any duty of care, disclosure or fidelity, or to continue exercising, any of the rights, authorities and powers granted or available to the Collateral Agent in this Section 10.08 or in any other Loan Document, it being understood and agreed that in respect of the Collateral, or any act, omission or event related thereto, the Collateral Agent ~~may act in any manner it may deem appropriate, in its sole discretion, given the Collateral Agent’s own interest in the Collateral as one of the Lenders and that the Collateral Agent~~ shall have no duty or liability whatsoever to any other Lender, except as otherwise provided ~~herein and~~ herein. (f) Beyond the exercise of reasonable care in the ~~Agreement Among Lenders~~custody thereof, no Agent shall have any duty as to any Collateral in its possession or control or in the possession or control of any agent or bailee or any income thereon or as to preservation of rights against prior parties or any other rights pertaining thereto. No Agent shall be responsible for (i) perfecting, maintaining, monitoring, preserving or protecting the security interest or Liens granted under this Agreement, any other Loan Document or any agreement or instrument contemplated hereby or thereby, (ii) the filing, re-filing, recording, re-recording or continuing or any document, financing statement, mortgage, assignment, notice, instrument of further assurance or other instrument in any public office at any time or times or (iii) providing, maintaining, monitoring or preserving insurance on or the payment of taxes with respect to any of the Collateral. The actions described in items (i) through (iii) shall be the sole responsibility of the Borrower. The Collateral Agent shall be deemed to have exercised reasonable care in the custody of the Collateral in its possession if the Collateral is accorded treatment substantially equal to that which it accords its own property and shall not be liable or responsible for any loss or diminution in the value of any of the Collateral, by reason of the act or omission of any carrier, forwarding agency or other agent or bailee selected by the Collateral Agent in good faith. (g) No Agent shall be responsible for the existence, genuineness or value of any of the Collateral or for the validity, perfection, priority or enforceability of the Liens in any of the Collateral, whether impaired by operation of law or by reason of any of any action or omission to act on its part hereunder, except to the extent such action or omission constitutes gross negligence or willful misconduct on the part of such Agent (as determined by a final, nonappealable judgment by a court of competent jurisdiction), for the validity or sufficiency of the Collateral or any agreement or assignment contained therein, for the validity of the title to the Collateral, for insuring the Collateral or for the payment of taxes, charges, assessments or Liens upon the Collateral or otherwise as to the maintenance of the Collateral. The Agents hereby disclaim any representation or warranty to the present and future holders of the Obligations concerning the perfection of the Liens granted hereunder or in the value of any of the Collateral. (h) In the event that any Agent is required to acquire title to an asset for any reason, or take any managerial action of any kind in regard thereto, in order to carry out any fiduciary or trust obligation for the benefit of another, which in such Agent’s sole discretion may cause the Agent, to be considered an “owner or operator” under any Environmental Laws or otherwise cause the Agent to incur, or be exposed to, any liability under Environmental Law, (i) each Agent reserves the right, instead of taking such action, either to resign as Agent or to arrange for the transfer of the title or control of the asset to a court appointed receiver and (ii) no Agent will be liable to any Person for any Environmental Liabilities and Costs or any environmental liabilities or contribution actions under any federal, state or local law, rule or regulation by reason of such Agent’s actions and conduct as authorized, empowered and directed hereunder or relating to any kind of discharge or Release or threatened discharge or Release of any Hazardous Materials into the environment, unless and only to the extent that such liability results from such Agent’s gross negligence or willful misconduct as finally judicially determined in a court of competent jurisdiction.

Appears in 1 contract

Sources: First Lien Credit Agreement (Gannett Co., Inc.)

Collateral Matters. (a) ~~Each~~ Agent ~~may~~ may, at its option, from time to time, at any time on or after an Event of Default and for so long as the same is continuing or upon any other failure of a condition precedent to the Loans hereunder, make such disbursements and advances (“"Special Agent Advances”") which ~~such~~ Agent, in its ~~sole~~ good faith discretion, deems necessary or desirable either (i) to ~~preserve, protect, prepare for sale~~ preserve or ~~lease or dispose of~~ protect the Collateral or any portion ~~thereof,~~ thereof or (ii) to enhance the likelihood or maximize the amount of repayment by ~~the Borrowers~~ Borrower of the ~~Loans, Reimbursement~~ Loans and other Obligations, ~~Letter~~ provided that, the aggregate principal amount of ~~Credit Obligations and other Obligations~~ the Special Agent Advances pursuant to this clause (ii), plus the then outstanding principal amount of the additional Loans which Agent may make as set forth in Section 12.8 hereof, shall not exceed $10,000,000, or (iii) to pay any other amount chargeable to ~~the Borrowers~~ Borrower or Obligor pursuant to the terms of this ~~Agreement, including, without limitation,~~ Agreement or any of the other Financing Agreements consisting of costs, fees and ~~expenses as described in Section 12.04~~expenses. ~~The~~ Special Agent Advances shall be repayable on demand and be secured by the ~~Collateral and shall bear interest at a rate per annum equal to the rate then applicable to Revolving Loans that are Reference Rate Loans~~Collateral. ~~The Agent making any~~ Special Agent Advances shall not constitute Loans but shall otherwise constitute Obligations hereunder. Agent shall notify ~~the other Agent,~~ each Lender and ~~the Administrative~~ Borrower in writing of each such Special Agent Advance, which notice shall include a description of the purpose of such Special Agent Advance. Without limitation to of its obligations pursuant to Section ~~10.05~~6.10, each Lender agrees that it shall make available to ~~the Agent making any Agent Advances~~Agent, upon ~~such~~ Agent’s 's demand, ~~in the currency in which the respective Agent Advance was made~~ in immediately available funds, the amount equal to such Lender’s 's Pro Rata Share of each such Special Agent ~~Advance subject to the terms of, the Agreement Among Lenders, provided that any such amount advanced by a Lender shall be deemed a Loan hereunder~~Advance. If such funds are not made available to ~~such~~ Agent by such Lender, then such Lender shall be deemed a Defaulting Lender and Agent shall be entitled to recover such ~~funds~~ funds, on demand from such ~~Lender,~~ Lender together with interest thereon for each day from the date such payment was due until the date such amount is paid to ~~such Agent,~~ Agent at the Federal Funds ~~Effective~~ Rate for each day during such period (as published by the Federal Reserve Bank of New York or at Agent's option based on the arithmetic mean determined by Agent of the rates for the last transaction in overnight Federal funds arranged prior to 9:00 a.m. (New York City time) on that day by each of the three ~~Business Days~~ leading brokers of Federal funds transactions in New York City selected by Agent) and ~~thereafter~~ if such amounts are not paid within three (3) days of Agent's demand, at the ~~Reference Rate~~highest Interest Rate provided for in Section 3.1 hereof applicable to Prime Rate Loans. (b) ~~The~~ Lenders hereby irrevocably authorize ~~the Collateral~~ Agent, at its option and in its ~~discretion,~~ discretion to release any ~~Lien granted to~~ security interest in, mortgage or ~~held by~~ lien upon, any of the Collateral ~~Agent upon any Collateral~~ (i) upon termination of the ~~Total Commitment~~ Commitments and ~~Payment in Full~~ payment and satisfaction of all of the ~~Obligations;~~ Obligations and delivery of cash collateral to the extent required under Section 13.1 hereof, or (ii) constituting property being sold or disposed of in if Borrower certifies to Agent that the ~~ordinary course of any Loan Party’s business~~ sale or ~~otherwise~~ disposition is made in compliance with ~~the terms of this Agreement~~ Section 9.7 hereof (and ~~the other Loan Documents;~~ Agent may rely conclusively on any such certificate, without further inquiry), or (iii) constituting property in which ~~the Loan Parties owned no~~ Borrower or any Obligor did not own an interest at the time the ~~Lien~~ security interest, mortgage or lien was granted or at any time thereafter; , or (iv) having a value in the aggregate in any twelve (12) month period of less than $5,000,000 or (v) if required under the terms of any of the other Financing Agreements, including any intercreditor agreement, or (vi) if approved, authorized or ratified in writing by all of Lenders. Except as provided above, Agent will not release any security interest in, mortgage or lien upon, any of the ~~applicable Lenders required pursuant to Section 12.02~~Collateral without the prior written authorization of all of Lenders. Upon request by ~~the Collateral~~ Agent at any time, ~~the~~ Lenders will promptly confirm in writing ~~the Collateral~~ Agent’s 's authority to release particular types or items of Collateral pursuant to this ~~Section 10.08(b)~~Section. (c) Without in any manner limiting ~~the Collateral~~ Agent’s 's authority to act without any specific or further authorization or consent by the ~~Lenders (as set forth in Section 10.08(b))~~Required Lenders, each Lender agrees to confirm in writing, upon request by ~~the Collateral~~ Agent, the authority to release Collateral conferred upon ~~the Collateral~~ Agent under ~~Section 10.08(b)~~this Section. ~~Upon the prior written request by any Loan Party, the Collateral~~ Agent shall (and is hereby irrevocably authorized by ~~the~~ Lenders to) execute such documents as may be necessary ~~or reasonably requested by any Loan Party~~ to evidence the release of the ~~Liens~~ security interest, mortgage or liens granted to Agent upon any Collateral to the ~~Collateral Agent for the benefit of the Agents and the Lenders upon such Collateral~~extent set forth above; provided, ~~however~~THAT, ~~that~~ (i) ~~the Collateral~~ Agent shall not be required to execute any such document on terms which, in ~~the Collateral~~ Agent’s 's opinion, would expose ~~the Collateral~~ Agent to liability or create any obligations or entail any consequence other than the release of such ~~Liens~~ security interest, mortgage or liens without recourse or ~~warranty,~~ warranty and (ii) such release shall not in any manner discharge, affect or impair the Obligations or any ~~Lien~~ security interest, mortgage or lien upon (or obligations of Borrower or any ~~Loan Party~~ Obligor in respect of) ~~all interests in~~ the Collateral retained by ~~any Loan Party~~Borrower or such Obligor. (d) Anything contained in any of the Loan Documents to the contrary notwithstanding but subject to the Agreement Among Lenders, the Loan Parties, each Agent and each Lender hereby agree that (i) no Lender shall have any right individually to realize upon any of the Collateral under any Loan Document or to enforce any Guaranty, it being understood and agreed that all powers, rights and remedies under the Loan Documents may be exercised solely by the Collateral Agent for the benefit of the Lenders in accordance with the terms thereof, (ii) in the event of a foreclosure by the Collateral Agent on any of the Collateral pursuant to a public or private sale, the Administrative Agent, the Collateral Agent or any Lender may be the purchaser of any or all of such Collateral at any such sale and (iii) the Collateral Agent, as agent for and representative of the Agents and the Lenders (but not any other Agent or any Lender or Lenders in its or their respective individual capacities unless the Required Lenders shall otherwise agree in writing) shall be entitled (either directly or through one or more acquisition vehicles) for the purpose of bidding and making settlement or payment of the purchase price for all or any portion of the Collateral to be sold (A) at any public or private sale, (B) at any sale conducted by the Collateral Agent under the provisions of the Uniform Commercial Code (including pursuant to Sections 9-610 or 9-620 of the Uniform Commercial Code), (C) at any sale or foreclosure conducted by the Collateral Agent (whether by judicial action or otherwise) in accordance with applicable law or (D) any sale conducted pursuant to the provisions of any Debtor Relief Law (including Section 363 of the Bankruptcy Code), to use and apply all or any of the Obligations as a credit on account of the purchase price for any Collateral payable by the Collateral Agent at such sale. (e) The Collateral Agent shall have no obligation whatsoever to any Lender or any other Person to investigate, confirm or assure that the Collateral exists or is owned by ~~the Loan Parties~~ Borrower or any Obligor or is cared for, protected or insured or has been ~~encumbered~~ encumbered, or that any particular items of Collateral meet the eligibility criteria applicable in respect of the Loans hereunder, or whether any particular reserves are appropriate, or that the ~~Lien~~ liens and security interests granted to ~~the Collateral~~ Agent pursuant ~~to this Agreement~~ hereto or any ~~other Loan Document has~~ of the Financing Agreements or otherwise have been properly or sufficiently or lawfully created, perfected, protected or enforced or is are entitled to any particular priority, or to exercise at all or in any particular manner or under any duty of care, disclosure or fidelity, or to continue exercising, any of the rights, authorities and powers granted or available to ~~the Collateral~~ Agent in this ~~Section 10.08~~ Agreement or in any of the other ~~Loan Document~~Financing Agreements, it being understood and agreed that in respect of the Collateral, or any act, omission or event related thereto, ~~the Collateral~~ Agent may act in any manner it may deem appropriate, in its ~~sole~~ discretion, given ~~the Collateral~~ Agent’s 's own interest in the Collateral as ~~one of the Lenders~~ a Lender and that ~~the Collateral~~ Agent shall have no duty or liability whatsoever to any other Lender~~, except as otherwise provided herein and in the Agreement Among Lenders~~.

Appears in 1 contract

Sources: Loan and Security Agreement (Anchor Glass Container Corp /New)

Collateral Matters. (a) ~~Each~~ Agent ~~may~~ may, at its option, from time to time, at any time on or after an Event of Default and for so long as the same is continuing or upon any other failure of a condition precedent to the Loans and Letter of Credit Accommodations hereunder, make such disbursements and advances (“Special Agent Advances”) which ~~such~~ Agent, in its sole discretion, (i) deems necessary or desirable either to ~~preserve, protect, prepare for sale~~ preserve or ~~lease or dispose of~~ protect the Collateral or any portion ~~thereof,~~ thereof or (ii) to enhance the likelihood or maximize the amount of repayment by ~~the Borrowers~~ Borrower and Guarantors of the ~~Loans, Reimbursement~~ Loans and other Obligations, provided, that, the aggregate principal amount of the Special Agent Advances pursuant to this clause (ii), plus the then outstanding principal amount of the additional Loans and Letter of Credit ~~Obligations and other Obligations~~ Accommodations which Agent may make or provide as set forth in Section 12.8 hereof, shall not exceed the aggregate amount of ten (10%) percent of the Maximum Credit or (iii) to pay any other amount chargeable to ~~the Borrowers~~ Borrower or any Guarantor pursuant to the terms of this ~~Agreement, including, without limitation,~~ Agreement or any of the other Financing Agreements consisting of (A) costs, fees and expenses ~~as described in Section 12.04~~and (B) payments to any issuer of Letter of Credit Accommodations. ~~The~~ Special Agent Advances shall be repayable on demand and be together with all interest thereon shall constitute Obligations secured by the ~~Collateral and~~ Collateral. Special Agent Advances shall ~~bear interest~~ not constitute Loans but shall otherwise constitute Obligations hereunder. Interest on Special Agent Advances shall be payable at ~~a rate per annum equal to~~ the ~~rate~~ Interest Rate then applicable to ~~Revolving~~ Base Rate Loans ~~that are Reference Rate Loans. The Agent making any Agent Advances~~ and shall ~~notify the other Agent, each Lender and the Administrative Borrower in writing of each such Agent Advance, which notice shall include a description of the purpose of such Agent Advance~~be payable on demand. Without limitation to of its obligations pursuant to Section ~~10.05~~6.10, each Lender agrees that it shall make available to ~~the Agent making any Agent Advances~~Agent, upon ~~such~~ Agent’s demand, ~~in the currency in which the respective Agent Advance was made~~ in immediately available funds, the amount equal to such Lender’s Pro Rata Share of each such Special Agent ~~Advance subject to the terms of, the Agreement Among Lenders, provided that any such amount advanced by a Lender shall be deemed a Loan hereunder~~Advance. If such funds are not made available to ~~such~~ Agent by such Lender, such Lender shall be deemed a Defaulting Lender and Agent shall be entitled to recover such ~~funds~~ funds, on demand from such ~~Lender,~~ Lender together with interest thereon for each day from the date such payment was due until the date such amount is paid to ~~such Agent,~~ Agent at the Federal Funds ~~Effective~~ Rate for each day during such period (as published by the Federal Reserve Bank of New York or at Agent’s option based on the arithmetic mean determined by Agent of the rates for the last transaction in overnight Federal funds arranged prior to 9:00 a.m. (New York City time) on that day by each of the three ~~Business Days~~ leading brokers of Federal funds transactions in New York City selected by Agent) and ~~thereafter~~ if such amounts are not paid within three (3) days of Agent’s demand, at the ~~Reference Rate~~highest Interest Rate provided for in Section 3.1 hereof applicable to Base Rate Loans. (b) ~~The~~ Lenders hereby irrevocably authorize ~~the Collateral~~ Agent, at its option and in its ~~discretion~~discretion to release, ~~to release~~ or in the case of clause (v) of this subsection (b), subordinate, any ~~Lien granted to~~ security interest in, mortgage or ~~held by~~ lien upon, any of the Collateral ~~Agent upon any Collateral~~ (i) upon termination of the ~~Total Commitment~~ Commitments and ~~Payment in Full~~ payment and satisfaction of all of the ~~Obligations;~~ Obligations and delivery of cash collateral to the extent required under Section 13.1 below, or (ii) constituting property being sold or disposed of in if Borrower certifies to Agent that the ~~ordinary course of any Loan Party’s business~~ sale or ~~otherwise~~ disposition is made in compliance with ~~the terms of this Agreement~~ Section 9.7 hereof (and ~~the other Loan Documents;~~ Agent may rely conclusively on any such certificate, without further inquiry), or (iii) constituting property in which ~~the Loan Parties owned no~~ Borrower or any Guarantor did not own an interest at the time the ~~Lien~~ security interest, mortgage or lien was granted or at any time thereafter; , or (iv) having a value in the aggregate in any twelve (12) month period of less than $5,000,000, and to the extent Agent may release its security interest in and lien upon any such Collateral pursuant to the sale or other disposition thereof, such sale or other disposition shall be deemed consented to by Lenders, or (v) constituting property to be subject to Liens permitted by Section 9.8(b) to secure financing permitted by Section 9.9(b) (or subordinate if permitted by the Person providing such financing) or (vi) if required or permitted under the terms of any of the other Financing Agreements, including any intercreditor agreement, or (vii) approved, authorized or ratified in writing by all of Lenders. Except as provided above, Agent will not release any security interest in, mortgage or lien upon, any of the ~~applicable Lenders required pursuant to Section 12.02~~Collateral without the prior written authorization of all of Lenders. Upon request by ~~the Collateral~~ Agent at any time, ~~the~~ Lenders will promptly confirm in writing ~~the Collateral~~ Agent’s authority to release particular types or items of Collateral pursuant to this ~~Section 10.08(b)~~Section. (c) Without in any manner limiting ~~the Collateral~~ Agent’s authority to act without any specific or further authorization or consent by the ~~Lenders (as set forth in Section 10.08(b))~~Required Lenders, each Lender agrees to confirm in writing, upon request by ~~the Collateral~~ Agent, the authority to release Collateral conferred upon ~~the Collateral~~ Agent under ~~Section 10.08(b)~~this Section. ~~Upon the prior written request by any Loan Party, the Collateral~~ Agent shall (and is hereby irrevocably authorized by ~~the~~ Lenders to) execute such documents as may be necessary ~~or reasonably requested by any Loan Party~~ to evidence the release of the ~~Liens~~ security interest, mortgage or liens granted to Agent upon any Collateral to the ~~Collateral Agent for the benefit of the Agents and the Lenders upon such Collateral~~extent set forth above; provided, ~~however~~that, ~~that~~ (i) ~~the Collateral~~ Agent shall not be required to execute any such document on terms which, in ~~the Collateral~~ Agent’s opinion, would expose ~~the Collateral~~ Agent to liability or create any obligations or entail any consequence other than the release of such ~~Liens~~ security interest, mortgage or liens without recourse or ~~warranty,~~ warranty and (ii) such release shall not in any manner discharge, affect or impair the Obligations or any ~~Lien~~ security interest, mortgage or lien upon (or obligations of ~~any Loan Party~~ Borrower or Guarantors in respect of) ~~all interests in~~ the Collateral retained by ~~any Loan Party~~Borrower or Guarantors. (d) Anything contained in any of the Loan Documents to the contrary notwithstanding but subject to the Agreement Among Lenders, the Loan Parties, each Agent and each Lender hereby agree that (i) no Lender shall have any right individually to realize upon any of the Collateral under any Loan Document or to enforce any Guaranty, it being understood and agreed that all powers, rights and remedies under the Loan Documents may be exercised solely by the Collateral Agent for the benefit of the Lenders in accordance with the terms thereof, (ii) in the event of a foreclosure by the Collateral Agent on any of the Collateral pursuant to a public or private sale, the Administrative Agent, the Collateral Agent or any Lender may be the purchaser of any or all of such Collateral at any such sale and (iii) the Collateral Agent, as agent for and representative of the Agents and the Lenders (but not any other Agent or any Lender or Lenders in its or their respective individual capacities unless the Required Lenders shall otherwise agree in writing) shall be entitled (either directly or through one or more acquisition vehicles) for the purpose of bidding and making settlement or payment of the purchase price for all or any portion of the Collateral to be sold (A) at any public or private sale, (B) at any sale conducted by the Collateral Agent under the provisions of the Uniform Commercial Code (including pursuant to Sections 9-610 or 9-620 of the Uniform Commercial Code), (C) at any sale or foreclosure conducted by the Collateral Agent (whether by judicial action or otherwise) in accordance with applicable law or (D) any sale conducted pursuant to the provisions of any Debtor Relief Law (including Section 363 of the Bankruptcy Code), to use and apply all or any of the Obligations as a credit on account of the purchase price for any Collateral payable by the Collateral Agent at such sale. (e) The Collateral Agent shall have no obligation whatsoever to any Lender or any other Person to investigate, confirm or assure that the Collateral exists or is owned by ~~the Loan Parties~~ Borrower or any Guarantor or is cared for, protected or insured or has been ~~encumbered~~ encumbered, or that any particular items of Collateral meet the eligibility criteria applicable in respect of the Loans or Letter of Credit Accommodations hereunder, or whether any particular reserves are appropriate, or that the ~~Lien~~ liens and security interests granted to ~~the Collateral~~ Agent pursuant ~~to this Agreement~~ hereto or any ~~other Loan Document has~~ of the Financing Agreements or otherwise have been properly or sufficiently or lawfully created, perfected, protected or enforced or is are entitled to any particular priority, or to exercise at all or in any particular manner or under any duty of care, disclosure or fidelity, or to continue exercising, any of the rights, authorities and powers granted or available to ~~the Collateral~~ Agent in this ~~Section 10.08~~ Agreement or in any of the other ~~Loan Document~~Financing Agreements, it being understood and agreed that in respect of the Collateral, or any act, omission or event related thereto, subject to the ~~Collateral~~ other terms and conditions contained herein, Agent may act in any manner it may deem appropriate, in its ~~sole~~ discretion, given ~~the Collateral~~ Agent’s own interest in the Collateral as ~~one of the Lenders~~ a Lender and that ~~the Collateral~~ Agent shall have no duty or liability whatsoever to any other Lender. (e) Without limiting the generality of the foregoing, ~~except~~ each Lender (i) consents to the terms and provisions of the Frigidaire Intercreditor Agreement, the GE Credit Card Intercreditor Agreement and the Term Loan Intercreditor Agreement, (ii) agrees that it is and will be bound (as ~~otherwise provided herein~~ a Lender) by the terms and in conditions of the Frigidaire Intercreditor Agreement, the GE Credit Card Intercreditor Agreement ~~Among Lenders~~and the Term Loan Intercreditor Agreement, whether or not such Lender executes the Frigidaire Intercreditor Agreement, the GE Credit Card Intercreditor Agreement or the Term Loan Intercreditor Agreement, (iii) authorizes Agent to enter into the Term Loan Intercreditor Agreement, and (iv) will not take any actions contrary to the provisions of the Frigidaire Intercreditor Agreement, the GE Credit Card Intercreditor Agreement or the Term Loan Intercreditor Agreement.

Appears in 1 contract

Sources: Loan and Security Agreement (Hhgregg, Inc.)

Collateral Matters. (a) ~~Each~~ The Administrative Agent may from time to time make such disbursements and advances (“"Administrative Agent Advances”") which ~~such~~ the Administrative Agent, in its sole discretion, deems necessary or desirable to preserve, protect, prepare for sale or lease or dispose of the Collateral or any portion thereof, to enhance the likelihood or maximize the amount of repayment by the Borrowers of the ~~Loans, Reimbursement Obligations, Letter of Credit Obligations~~ Loans and other Obligations or to pay any other amount chargeable to the Borrowers pursuant to the terms of this Agreement, ~~including, without limitation,~~ including costs, fees and expenses as described in Section ~~12.04~~10.03 and costs and expenses incurred by Administrative Agent in performing any covenant or agreement required to be performed by the Borrowers which the Borrowers have failed to perform. The Administrative Agent Advances shall be repayable on demand and be secured by the ~~Collateral and shall bear interest at a rate per annum equal to the rate then applicable to Revolving Loans that are Reference Rate Loans~~Collateral. The ~~Agent making any~~ Administrative Agent Advances shall constitute Obligations hereunder which may be charged to the Loan Account in accordance with Section 2.07. The Administrative Agent shall notify ~~the other Agent,~~ each Lender and ~~the Administrative Borrower~~ SCG in writing of each such Administrative Agent Advance, which notice shall include a description of the purpose of such Administrative Agent Advance. Without limitation to its obligations pursuant to Section ~~10.05~~8.05, each Lender agrees that it shall make available to the ~~Agent making any Agent Advances~~Administrative Agent, upon ~~such~~ the Administrative Agent’s 's demand, in ~~the currency in which the respective Agent Advance was made~~ Dollars in immediately available funds, the amount equal to such Lender’s 's Pro Rata Share of each such Administrative Agent ~~Advance subject to the terms of, the Agreement Among Lenders, provided that any such amount advanced by a Lender shall be deemed a Loan hereunder~~Advance. If such funds are not made available to ~~such~~ the Administrative Agent by such Lender, ~~such~~ the Administrative Agent shall be entitled to recover such funds on demand from such Lender, together with interest thereon for each day from the date such payment was due until the date such amount is paid to ~~such~~ the Administrative Agent, at the Federal Funds ~~Effective~~ Rate for three (3) Business Days and thereafter at the ~~Reference~~ Base Rate. (b) The Lenders hereby irrevocably authorize the ~~Collateral~~ Administrative Agent, at its option and in its discretion, to release any Lien granted to or held by the ~~Collateral~~ Administrative Agent upon any Collateral upon ~~termination~~ payment and satisfaction of all Loans and all other Obligations which have matured and which the ~~Total Commitment~~ Administrative Agent has been notified in writing are then due and ~~Payment in Full of the Obligations~~payable; or constituting property being sold or disposed of ~~in the ordinary course of any Loan Party’s business or otherwise~~ in compliance with the terms of this Agreement and the other Loan Documents; or constituting property in which the Loan Parties owned no interest at the time the Lien was granted or at any time thereafter; or if approved, authorized or ratified in writing by the ~~applicable~~ Required Lenders or all Lenders if required pursuant to Section 12.02. Upon request by the Collateral Agent at any time, the Lenders will confirm in writing the Collateral Agent’s authority to release particular types or items of Collateral pursuant to this Section 10.08(b)hereunder. (c) Without in any manner limiting the ~~Collateral~~ Administrative Agent’s 's authority to act without any specific or further authorization or consent by the Lenders (as set forth in Section ~~10.08(b~~8.08(b)), each Lender agrees to confirm in writing, upon request by the ~~Collateral~~ Administrative Agent, the authority to release Collateral conferred upon the ~~Collateral~~ Administrative Agent under Section ~~10.08(b~~8.08(b). Upon receipt by the Administrative Agent of confirmation from the Lenders of its authority to release any particular item or types of Collateral, and upon prior written request by any Loan Party, the ~~Collateral~~ Administrative Agent shall (and is hereby irrevocably authorized by the Lenders to) execute such documents as may be necessary ~~or reasonably requested by any Loan Party~~ to evidence the release of the Liens granted to the ~~Collateral~~ Administrative Agent for the benefit of the ~~Agents~~ Administrative Agent and the Lenders upon such Collateral; provided, however, that (i) the ~~Collateral~~ Administrative Agent shall not be required to execute any such document on terms which, in the ~~Collateral~~ Administrative Agent’s 's opinion, would expose the ~~Collateral~~ Administrative Agent to liability or create any obligations or entail any consequence other than the release of such Liens without recourse or warranty, and (ii) such release shall not in any manner discharge, affect or impair the Obligations or any Lien upon ~~(or obligations of any Loan Party in respect of)~~ all interests in the Collateral retained by any Loan Party. (d) Anything contained in any of the Loan Documents to the contrary notwithstanding but subject to the Agreement Among Lenders, the Loan Parties, each Agent and each Lender hereby agree that (i) no Lender shall have any right individually to realize upon any of the Collateral under any Loan Document or to enforce any Guaranty, it being understood and agreed that all powers, rights and remedies under the Loan Documents may be exercised solely by the Collateral Agent for the benefit of the Lenders in accordance with the terms thereof, (ii) in the event of a foreclosure by the Collateral Agent on any of the Collateral pursuant to a public or private sale, the The Administrative Agent, the Collateral Agent or any Lender may be the purchaser of any or all of such Collateral at any such sale and (iii) the Collateral Agent, as agent for and representative of the Agents and the Lenders (but not any other Agent or any Lender or Lenders in its or their respective individual capacities unless the Required Lenders shall otherwise agree in writing) shall be entitled (either directly or through one or more acquisition vehicles) for the purpose of bidding and making settlement or payment of the purchase price for all or any portion of the Collateral to be sold (A) at any public or private sale, (B) at any sale conducted by the Collateral Agent under the provisions of the Uniform Commercial Code (including pursuant to Sections 9-610 or 9-620 of the Uniform Commercial Code), (C) at any sale or foreclosure conducted by the Collateral Agent (whether by judicial action or otherwise) in accordance with applicable law or (D) any sale conducted pursuant to the provisions of any Debtor Relief Law (including Section 363 of the Bankruptcy Code), to use and apply all or any of the Obligations as a credit on account of the purchase price for any Collateral payable by the Collateral Agent at such sale. (e) The Collateral Agent shall have no obligation whatsoever to any Lender to assure that the Collateral exists or is owned by the Loan Parties or is cared for, protected or insured or has been encumbered or that the Lien granted to the ~~Collateral~~ Administrative Agent pursuant to this Agreement or any other Loan Document has been properly or sufficiently or lawfully created, perfected, protected or enforced or is entitled to any particular priority, or to exercise at all or in any particular manner or under any duty of care, disclosure or fidelity, or to continue exercising, any of the rights, authorities and powers granted or available to the ~~Collateral~~ Administrative Agent in this Section ~~10.08~~ 8.08, elsewhere in this Agreement or in any other Loan Document, it being understood and agreed that in respect of the Collateral, or any act, omission or event related thereto, the ~~Collateral~~ Administrative Agent may act in any manner it may deem appropriate, in its sole discretion, given the ~~Collateral~~ Administrative Agent’s 's own interest in the Collateral as one of the Lenders and that the ~~Collateral~~ Administrative Agent shall have no duty or liability whatsoever to any other Lender, except as otherwise provided ~~herein and in the Agreement Among Lenders~~herein.

Appears in 1 contract

Sources: Credit Agreement (SCG Financial Acquisition Corp.)

Collateral Matters. (a) ~~Each~~ The Agent may from time to time make such disbursements and advances (“"Agent Advances”") which ~~such~~ the Agent, in its sole discretion, deems necessary or desirable to preserve, protect, prepare for sale or lease or dispose of the Collateral or any portion thereof, to enhance the likelihood or maximize the amount of repayment by the ~~Borrowers~~ Borrower of the ~~Loans, Reimbursement Obligations, Letter of Credit Obligations~~ Loans and other Obligations or to pay any other amount chargeable to the ~~Borrowers~~ Borrower pursuant to the terms of this Agreement, including, without limitation, costs, fees and expenses as described in Section 12.04. The Agent Advances shall be repayable on demand and be secured by the ~~Collateral and shall bear interest at a rate per annum equal to the rate then applicable to Revolving Loans that are Reference Rate Loans~~Collateral. The Agent ~~making any Agent~~ Advances shall constitute Obligations hereunder which may be charged to the Debt Service Reserve Account in accordance with Section 3.01. The Agent shall notify ~~the other Agent,~~ each Lender and ~~the Administrative~~ each Borrower in writing of each such Agent Advance, which notice shall include a description of the purpose of such Agent Advance. Without limitation to its obligations pursuant to Section ~~10.05~~11.05, each Lender agrees that it shall make available to the ~~Agent making any Agent Advances~~Agent, upon ~~such~~ the Agent’s 's demand, in ~~the currency in which the respective Agent Advance was made~~ Dollars in immediately available funds, the amount equal to such Lender’s 's Pro Rata Share of each such Agent ~~Advance subject to the terms of, the Agreement Among Lenders, provided that any such amount advanced by a Lender shall be deemed a Loan hereunder~~Advance. If such funds are not made available to ~~such~~ the Agent by such Lender, ~~such~~ the Agent shall be entitled to recover such funds on demand from such Lender, together with interest thereon for each day from the date such payment was due until the date such amount is paid to ~~such~~ the Agent, at the Federal Funds ~~Effective~~ Rate for three Business Days and thereafter at the Reference Rate. (b) The Lenders hereby irrevocably authorize the ~~Collateral~~ Agent, at its option and in its discretion, to release any Lien granted to or held by the ~~Collateral~~ Agent upon any Collateral upon ~~termination~~ payment and satisfaction of all Loans and all other Obligations which have matured and which the ~~Total Commitment~~ Agent has been notified in writing are then due and ~~Payment in Full of the Obligations~~payable; or constituting property being sold or disposed of ~~in the ordinary course of any Loan Party’s business or otherwise~~ in compliance with the terms of this Agreement and the other Loan Documents; or constituting property in which the Loan Parties owned no interest at the time the Lien was granted or at any time thereafter; or if approved, authorized or ratified in writing by the ~~applicable Lenders required pursuant to Section 12.02~~Lenders. Upon request by the ~~Collateral~~ Agent at any time, the Lenders will confirm in writing the ~~Collateral~~ Agent’s 's authority to release particular types or items of Collateral pursuant to this Section ~~10.08(b~~11.08(b). (c) ~~Without in any manner limiting the Collateral Agent’s authority to act without any specific or further authorization or consent~~ Upon receipt by the Agent of confirmation from the Lenders ~~(as set forth in Section 10.08(b)), each Lender agrees to confirm in writing, upon request by the Collateral Agent, the~~ of its authority to release ~~Collateral conferred~~ any particular item or types of Collateral, and upon ~~the Collateral Agent under Section 10.08(b). Upon the~~ prior written request by any Loan Party, the ~~Collateral~~ Agent shall (and is hereby irrevocably authorized by the Lenders to) execute such documents as may be necessary ~~or reasonably requested by any Loan Party~~ to evidence the release of the Liens granted to the ~~Collateral~~ Agent for the benefit of ~~the Agents and~~ the Lenders upon such Collateral; provided, however, that (ia) the ~~Collateral~~ Agent shall not be required to execute any such document on terms which, in the ~~Collateral~~ Agent’s 's opinion, would expose the ~~Collateral~~ Agent to liability or create any obligations or entail any consequence other than the release of such Liens without recourse or warranty, and (iib) such release shall not in any manner discharge, affect or impair the Obligations or any Lien upon (or obligations of any Loan Party in respect of) all interests in the Collateral retained by any Loan Party. (d) Anything contained in any of the Loan Documents to the contrary notwithstanding but subject to the Agreement Among Lenders, the Loan Parties, each Agent and each Lender hereby agree that (i) no Lender shall have any right individually to realize upon any of the Collateral under any Loan Document or to enforce any Guaranty, it being understood and agreed that all powers, rights and remedies under the Loan Documents may be exercised solely by the Collateral Agent for the benefit of the Lenders in accordance with the terms thereof, (ii) in the event of a foreclosure by the Collateral Agent on any of the Collateral pursuant to a public or private sale, the Administrative Agent, the Collateral Agent or any Lender may be the purchaser of any or all of such Collateral at any such sale and (iii) the Collateral Agent, as agent for and representative of the Agents and the Lenders (but not any other Agent or any Lender or Lenders in its or their respective individual capacities unless the Required Lenders shall otherwise agree in writing) shall be entitled (either directly or through one or more acquisition vehicles) for the purpose of bidding and making settlement or payment of the purchase price for all or any portion of the Collateral to be sold (A) at any public or private sale, (B) at any sale conducted by the Collateral Agent under the provisions of the Uniform Commercial Code (including pursuant to Sections 9-610 or 9-620 of the Uniform Commercial Code), (C) at any sale or foreclosure conducted by the Collateral Agent (whether by judicial action or otherwise) in accordance with applicable law or (D) any sale conducted pursuant to the provisions of any Debtor Relief Law (including Section 363 of the Bankruptcy Code), to use and apply all or any of the Obligations as a credit on account of the purchase price for any Collateral payable by the Collateral Agent at such sale. (e) The ~~Collateral~~ Agent shall have no obligation whatsoever to any Lender to assure that the Collateral exists or is owned by the Loan Parties or is cared for, protected or insured or has been encumbered or that the Lien granted to the ~~Collateral~~ Agent pursuant to this Agreement or any other Loan Document has been properly or sufficiently or lawfully created, perfected, protected or enforced or is entitled to any particular priority, or to exercise at all or in any particular manner or under any duty of care, disclosure or fidelity, or to continue exercising, any of the rights, authorities and powers granted or available to the ~~Collateral~~ Agent in this Section ~~10.08~~ 11.08(d) or in any other Loan Document, it being understood and agreed that in respect of the Collateral, or any act, omission or event related thereto, the ~~Collateral~~ Agent may act in any manner it may deem appropriate, in its sole discretion, given the ~~Collateral~~ Agent’s 's own interest in the Collateral as one of the Lenders and that the ~~Collateral~~ Agent shall have no duty or liability whatsoever to any other Lender, except as otherwise provided ~~herein and in the Agreement Among Lenders~~herein.

Appears in 1 contract

Sources: Credit Agreement (Deep Down, Inc.)

Appears in 1 contract

Sources: Financing Agreement (Russ Berrie & Co Inc)

Collateral Matters. (a) ~~Each~~ Subject to providing prior written notice to the Borrowers (provided, that, if (i) extenuating circumstances make the giving of such prior written notice impractical in the reasonable judgment of the Origination Agent or (ii) an Event of Default has occurred and is continuing, then, in the case of clause (i) or (ii) above, such prior notice shall not be required), the Origination Agent may from time to time make such disbursements and advances (“Origination Agent Advances”) which ~~such~~ the Origination Agent, in its ~~sole~~ reasonable discretion, deems necessary or desirable to preserve, protect, prepare for sale or lease or dispose of the Collateral or any portion thereof, to enhance the likelihood or maximize the amount of repayment by the Borrowers of the ~~Loans, Reimbursement Obligations, Letter of Credit Obligations~~ Loans and other Obligations or to pay any other amount chargeable to the Borrowers pursuant to the terms of this Agreement, including, without limitation, costs, fees and expenses as described in Section 12.04. The Origination Agent Advances shall be repayable on demand and be secured by the Collateral and shall bear interest at a rate per annum equal to the rate then applicable to ~~Revolving Loans that are Reference Rate~~ the Loans. The ~~Agent making any~~ Origination Agent Advances shall constitute Obligations hereunder which may be charged to the Loan Account in accordance with Section 4.01. The Origination Agent shall notify ~~the other Agent,~~ each Lender and the Administrative Borrower in writing of each such Origination Agent Advance, which notice shall include a description of the purpose of such Origination Agent Advance. Without limitation to its obligations pursuant to Section 10.05, each Lender agrees that it shall make available to the ~~Agent making any Agent Advances~~Origination Agent, upon ~~such~~ the Origination Agent’s demand, in ~~the currency in which the respective Agent Advance was made~~ Dollars in immediately available funds, the amount equal to such Lender’s Pro Rata Share of each such Origination Agent ~~Advance subject to the terms of, the Agreement Among Lenders, provided that any such amount advanced by a Lender shall be deemed a Loan hereunder~~Advance. If such funds are not made available to ~~such~~ the Origination Agent by such Lender, ~~such~~ the Origination Agent shall be entitled to recover such funds on demand from such Lender, together with interest thereon for each day from the date such payment was due until the date such amount is paid to ~~such~~ the Origination Agent, at the Federal Funds ~~Effective~~ Rate for three Business Days and thereafter at the ~~Reference Rate~~rate applicable to the Loans. (b) The Lenders hereby irrevocably authorize the Collateral Agent, at its option and in its discretion, to release any Lien granted to or held by the Collateral Agent upon any Collateral upon termination of the Total Term Loan Commitment and ~~Payment~~ payment and satisfaction of all Loans and all other Obligations (other than Contingent Indemnification Obligations) in ~~Full of~~ accordance with the ~~Obligations~~terms hereof; or constituting property being sold or disposed of in the ordinary course of any Loan Party’s business or otherwise in compliance with the terms of this Agreement and the other Loan Documents; or constituting property in which the Loan Parties owned no interest at the time the Lien was granted or at any time thereafter; or if approved, authorized or ratified in writing by the ~~applicable~~ Lenders ~~required pursuant to~~ in accordance with Section 12.02. Upon request by the Collateral Agent at any time, the Lenders will confirm in writing the Collateral Agent’s authority to release particular types or items of Collateral pursuant to this Section 10.08(b). (c) Without in any manner limiting the Collateral Agent’s authority to act without any specific or further authorization or consent by the Lenders (as set forth in Section 10.08(b)), each Lender agrees to confirm in writing, upon request by the Collateral Agent, the authority to release Collateral conferred upon the Collateral Agent under Section 10.08(b). Upon receipt by the Collateral Agent of confirmation from the Lenders of its authority to release any particular item or types of Collateral, and upon prior written request by any Loan Party, the Collateral Agent shall (and is hereby irrevocably authorized by the Lenders to) execute such documents as may be necessary ~~or reasonably requested by any Loan Party~~ to evidence the release of the Liens granted to the Collateral Agent for the benefit of the Agents and the Lenders upon such Collateral; provided, however, that (i) the Collateral Agent shall not be required to execute any such document on terms which, in the Collateral Agent’s opinion, would expose the Collateral Agent to liability or create any obligations or entail any consequence other than the release of such Liens without recourse or warranty, and (ii) such release shall not in any manner discharge, affect or impair the Obligations or any Lien upon (or obligations of any Loan Party in respect of) all interests in the Collateral retained by any Loan Party. (d) Anything contained in any of the Loan Documents to the contrary ~~notwithstanding but subject to the Agreement Among Lenders~~notwithstanding, the Loan Parties, each Agent and each Lender hereby agree that (i) no Lender shall have any right individually to realize upon any of the Collateral under any Loan Document or to enforce any Guaranty, it being understood and agreed that all powers, rights and remedies under the Loan Documents may be exercised solely by the Collateral Agent for the benefit of the Lenders in accordance with the terms thereof, (ii) in the event of a foreclosure by the Collateral Agent on any of the Collateral pursuant to a public or private sale, the Administrative Agent, the Collateral Agent or any Lender may be the purchaser of any or all of such Collateral at any such sale and (iii) the Collateral Agent, as agent for and representative of the Agents and the Lenders (but not any other Agent or any Lender or Lenders in its or their respective individual capacities unless the Required Lenders shall otherwise agree in writing) shall be entitled (either directly or through one or more acquisition vehicles) for the purpose of bidding and making settlement or payment of the purchase price for all or any portion of the Collateral to be sold (A) at any public or private sale, (B) at any sale conducted by the Collateral Agent under the provisions of the Uniform Commercial Code (including pursuant to Sections 9-610 or 9-620 of the Uniform Commercial Code), (C) at any sale or foreclosure conducted by the Collateral Agent (whether by judicial action or otherwise) in accordance with applicable law or (D) any sale conducted pursuant to the provisions of any Debtor Relief Law (including Section 363 of the Bankruptcy Code), to use and apply all or any of the Obligations as a credit on account of the purchase price for any Collateral payable by the Collateral Agent at such sale. (e) The Collateral Agent shall have no obligation whatsoever to any Lender to assure that the Collateral exists or is owned by the Loan Parties or is cared for, protected or insured or has been encumbered or that the Lien granted to the Collateral Agent pursuant to this Agreement or any other Loan Document has been properly or sufficiently or lawfully created, perfected, protected or enforced or is entitled to any particular priority, or to exercise at all or in any particular manner or under any duty of care, disclosure or fidelity, or to continue exercising, any of the rights, authorities and powers granted or available to the Collateral Agent in this Section 10.08 or in any other Loan Document, it being understood and agreed that in respect of the Collateral, or any act, omission or event related thereto, the Collateral Agent may act in any manner it may deem appropriate, in its sole discretion, given the Collateral Agent’s own interest in the Collateral as one of the Lenders and that the Collateral Agent shall have no duty or liability whatsoever to any other Lender, except as otherwise provided ~~herein and in the Agreement Among Lenders~~herein.

Appears in 1 contract

Sources: Financing Agreement (GP Investments Acquisition Corp.)

Collateral Matters. (a) ~~Each~~ The Administrative Agent may from time to ~~time~~ time, during the occurrence and continuance of an Event of Default, make such disbursements and advances (“"Agent Advances”") which ~~such~~ the Administrative Agent, in its sole discretion, deems necessary or desirable to ~~preserve, protect, prepare for sale~~ preserve or ~~lease or dispose of~~ protect the Collateral or any portion thereof, to enhance the likelihood or maximize the amount of repayment by the ~~Borrowers~~ Borrower of the ~~Loans, Reimbursement Obligations, Letter of Credit Obligations~~ Loans and other Obligations or to pay any other amount chargeable to the ~~Borrowers~~ Borrower pursuant to the terms of this Agreement, including, without limitation, costs, fees and expenses as described in Section ~~12.04~~10.06. The Administrative Agent Advances shall be repayable on demand and be secured by the ~~Collateral and shall bear interest at a rate per annum equal to the rate then applicable to Revolving Loans that are Reference Rate Loans~~Collateral. The ~~Agent making any~~ Administrative Agent Advances shall not constitute Loans but shall otherwise constitute Obligations hereunder. The Administrative Agent shall notify ~~the other Agent,~~ each Lender and the ~~Administrative~~ Borrower in writing of each such Administrative Agent Advance, which notice shall include a description of the purpose of such Administrative Agent Advance. Without limitation to its obligations pursuant to Section ~~10.05~~11.05, each Lender agrees that it shall make available to the ~~Agent making any Agent Advances~~Administrative Agent, upon ~~such~~ the Administrative Agent’s 's demand, in ~~the currency in which the respective Agent Advance was made~~ Dollars in immediately available funds, the amount equal to such Lender’s 's Pro Rata Share of each such Administrative Agent ~~Advance subject to the terms of, the Agreement Among Lenders, provided that any such amount advanced by a Lender shall be deemed a Loan hereunder~~Advance. If such funds are not made available to ~~such~~ the Administrative Agent by such ~~Lender, such~~ Lender the Administrative Agent shall be entitled to recover such ~~funds~~ funds, on demand from such ~~Lender,~~ Lender together with interest ~~thereon~~ thereon, for each day from the date such payment was due until the date such amount is paid to ~~such~~ the Administrative Agent, at the ~~Federal Funds Effective Rate~~ customary rate set by the Administrative Agent for the correction of errors among banks for three (3) Business Days and thereafter at the ~~Reference~~ Regular Rate. (b) The Lenders hereby irrevocably authorize the ~~Collateral~~ Administrative Agent, at its option and in its discretion, to release any Lien granted to or held by the ~~Collateral~~ Administrative Agent upon any Collateral upon termination of the ~~Total Commitment~~ Revolving Credit Commitments and ~~Payment~~ payment and satisfaction of all Loans, Reimbursement Obligations, other Letter of Credit Exposure (whether or not due) and all other Obligations which have matured and which the Administrative Agent has been notified in ~~Full of the Obligations~~writing are then due and payable; or constituting property being sold or disposed of in if the ~~ordinary course of any Loan Party’s business~~ Borrower certifies to the Administrative Agent that the sale or ~~otherwise~~ disposition is made in compliance with ~~the terms of this Agreement~~ Section 8.04(b) hereof (and the ~~other Loan Documents~~Administrative Agent may rely conclusively on any such certificate, without further inquiry); or constituting property in which the ~~Loan Parties~~ Borrower owned no interest at the time the Lien was granted or at any time thereafter; or if approved, authorized or ratified in writing by the ~~applicable Lenders required pursuant to Section 12.02~~Majority Lenders. Upon request by the ~~Collateral~~ Administrative Agent at any time, the Lenders will confirm in writing the ~~Collateral~~ Administrative Agent’s 's authority to release particular types or items of Collateral pursuant to this Section ~~10.08(b~~11.08(b). (c) Without in any manner limiting the ~~Collateral~~ Administrative Agent’s 's authority to act without any specific or further authorization or consent by the Majority Lenders (as set forth in Section ~~10.08(b~~11.08(b)), each Lender agrees to confirm in ~~writing,~~ writing upon request by the ~~Collateral~~ Administrative Agent, the authority to release Collateral conferred upon the ~~Collateral~~ Administrative Agent under Section ~~10.08(b~~11.08(b). ~~Upon~~ So long as no Event of Default is then continuing, upon receipt by the Administrative Agent of Confirmation from the Majority Lenders of its authority to release any particular item or types of Collateral, and upon at least five (5) Business Days' prior written request by ~~any Loan Party,~~ the ~~Collateral~~ Borrower the Administrative Agent shall (and is hereby irrevocably authorized by the Lenders to) execute such documents as may be necessary ~~or reasonably requested by any Loan Party~~ to evidence the release of the Liens granted to the ~~Collateral~~ Administrative Agent for the benefit of ~~the Agents and~~ the Lenders upon such Collateral; provided, however, that (i) the ~~Collateral~~ Administrative Agent shall not be required to execute any such document on terms which, in the ~~Collateral~~ Administrative Agent’s 's opinion, would expose the ~~Collateral~~ Administrative Agent to liability or create ~~any~~ an obligations or entail any consequence other than the release of such Liens without recourse or ~~warranty,~~ warranty and (ii) such release shall not in any manner discharge, affect or impair the Obligations or any Lien upon (or obligations of ~~any Loan Party~~ the Borrower in respect of) all interests in the Collateral retained by ~~any Loan Party~~the Borrower. (d) Anything contained in any of the Loan Documents to the contrary notwithstanding but subject to the Agreement Among Lenders, the Loan Parties, each Agent and each Lender hereby agree that (i) no Lender shall have any right individually to realize upon any of the Collateral under any Loan Document or to enforce any Guaranty, it being understood and agreed that all powers, rights and remedies under the Loan Documents may be exercised solely by the Collateral Agent for the benefit of the Lenders in accordance with the terms thereof, (ii) in the event of a foreclosure by the Collateral Agent on any of the Collateral pursuant to a public or private sale, the The Administrative Agent, the Collateral Agent or any Lender may be the purchaser of any or all of such Collateral at any such sale and (iii) the Collateral Agent, as agent for and representative of the Agents and the Lenders (but not any other Agent or any Lender or Lenders in its or their respective individual capacities unless the Required Lenders shall otherwise agree in writing) shall be entitled (either directly or through one or more acquisition vehicles) for the purpose of bidding and making settlement or payment of the purchase price for all or any portion of the Collateral to be sold (A) at any public or private sale, (B) at any sale conducted by the Collateral Agent under the provisions of the Uniform Commercial Code (including pursuant to Sections 9-610 or 9-620 of the Uniform Commercial Code), (C) at any sale or foreclosure conducted by the Collateral Agent (whether by judicial action or otherwise) in accordance with applicable law or (D) any sale conducted pursuant to the provisions of any Debtor Relief Law (including Section 363 of the Bankruptcy Code), to use and apply all or any of the Obligations as a credit on account of the purchase price for any Collateral payable by the Collateral Agent at such sale. (e) The Collateral Agent shall have no obligation whatsoever to any ~~Lender~~ Lenders to assure that the Collateral exists or is owned by the ~~Loan Parties~~ Borrower or is cared for, protected or insured or has been encumbered or that the Lien granted to the ~~Collateral~~ Administrative Agent pursuant to ~~this Agreement or any other Loan Document~~ the Security Documents has been properly or sufficiently or lawfully created, perfected, protected or enforced or is entitled to any particular priority, or to exercise at all or in any particular manner or under any duty of care, disclosure or fidelity, or to continue exercising, any of the rights, authorities and powers granted or available to the ~~Collateral~~ Administrative Agent in this Section ~~10.08~~ 11.08 or in any ~~other Loan Document~~of the Related Documents, it being understood and agreed that in respect of the Collateral, or any act, omission or event related thereto, the ~~Collateral~~ Administrative Agent may act in any manner it may deem appropriate, in its sole discretion, given the ~~Collateral~~ Administrative Agent’s 's own interest in the Collateral as one of the Lenders and that the ~~Collateral~~ Administrative Agent shall have no duty or liability whatsoever to any other Lender~~, except as otherwise provided herein and in the Agreement Among Lenders~~.

Appears in 1 contract

Sources: Revolving Credit Agreement (Sun Television & Appliances Inc)

Common use of Collateral Matters Clause in Contracts