Collateral Matters. (a) Lenders hereby irrevocably authorize and direct Agent to release any Liens upon any Collateral (and any such Liens shall be automatically released, without any action by Agent or any other Person), (i) upon the Termination Date; (ii) in respect of property of any Subsidiary being sold or disposed of or transferred (including property owned by any Subsidiary being sold or disposed of or transferred) if the sale or Disposition or transfer is made in compliance with this Agreement and the Loan Documents (or otherwise is not prohibited) (and Agent may, in its discretion, request, and rely conclusively without further inquiry on a certificate from the Borrower certifying as such prior to Agent taking any action to evidence such release) or such sale or Disposition is approved by the Requisite Lenders (or such greater number of Lenders as may be required under Section 12.2); (iii) to the extent the applicable Collateral is or becomes Excluded Property and/or Excluded Principal Property; (iv) to the extent the applicable Collateral constitutes property leased to Credit Parties under a lease which has expired or been terminated in a transaction permitted under this Agreement; (v) to the extent the Credit Party owning such Collateral is released from its Obligations hereunder (pursuant to Section 13.11 or otherwise); or (vi) as required by the terms of the ABL Intercreditor Agreement. Upon request by Agent or Parent Borrower at any time, Lenders will confirm in writing Agent’s authority to release any Lien upon particular types or items of Collateral pursuant to this Section 10.11. In addition, the Lenders hereby authorize Agent, to subordinate any Lien granted to or held by Agent upon any Collateral to any Lien on such asset permitted pursuant to paragraph (6)(C) of the definition of Permitted Lien. In addition, the Guaranty of the Obligations by, and the liens on the assets of, any Restricted Subsidiary which is designated as an Unrestricted Subsidiary will automatically be terminated and released at the time of such designation. (b) Promptly, and in any event not later than five (5) Business Days’ following written request by Parent Borrower, Agent shall (and is hereby irrevocably authorized and directed by Lenders to) execute such documents as may be necessary to evidence the release (or subordination) of its Liens upon such Collateral as contemplated by Section 10.11(a); provided, however, that (i) Agent shall not be required to execute any such document on terms which, in Agent’s opinion, would expose Agent to liability or create any 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 Liens (other than those expressly being released) upon (or obligations of Credit Parties in respect of) all interests retained by Credit Parties, including the proceeds of any sale, all of which shall continue to constitute part of the Collateral to the extent contemplated by the Collateral Documents. Co-Collateral Agent shall act in concert with Agent in matters delegated to the both of them under this Agreement; however, in the event of any disagreement or dispute between Agent and Co-Collateral Agent in any such matter, the determination or decision of Agent shall, in all cases, control.
Appears in 5 contracts
Sources: Revolving Loan Credit Agreement (XPO Logistics, Inc.), Revolving Loan Credit Agreement (XPO Logistics, Inc.), Revolving Loan Credit Agreement (XPO Logistics, Inc.)
Collateral Matters. (a) The Lenders (and each other Secured Party by their acceptance of the benefits of the Loan Documents shall be deemed to) hereby irrevocably authorize the Collateral Agent (and direct if applicable, any subagent appointed by the Collateral Agent under Section 13.2 or otherwise) to release any its Liens on the Collateral, and the Collateral Agent’s Liens upon any Collateral (and any such Liens shall be automatically released, without any action by Agent or any other Person), released (i) upon Full Payment of the Termination DateObligations; (ii) in respect upon a disposition of property of any Subsidiary being sold or disposed of or transferred (including property owned Collateral permitted by any Subsidiary being sold or disposed of or transferred) if the sale or Disposition or transfer is made in compliance with this Agreement and the Loan Documents (or otherwise Section 8.8 to a Person that is not prohibited) (and Agent may, in its discretion, request, and rely conclusively without further inquiry on a certificate from the Borrower certifying as such prior to Agent taking any action to evidence such release) or such sale or Disposition is approved by the Requisite Lenders (or such greater number of Lenders as may be required under Section 12.2)an Obligor; (iii) to if any such Collateral constitutes property in which the extent Obligors owned no interest at the applicable Collateral is time the Lien was granted or becomes Excluded Property and/or Excluded Principal Propertyat any time thereafter; (iv) to the extent the applicable if any such Collateral constitutes property leased to Credit Parties an Obligor under a lease which has expired or been terminated in a transaction permitted under this Agreement; (v) to the extent the Credit Party owning property constituting such Collateral is released owned by any Guarantor, upon the release of such Guarantor from its Obligations hereunder obligations under the Guarantee Agreement (pursuant to Section 13.11 or otherwisein accordance with the second succeeding sentence and the Guarantee Agreement); or (vi) as required by the terms Collateral Agent to effect any sale, transfer or other Disposition of Collateral in connection with any exercise of remedies of the ABL Intercreditor AgreementCollateral Agent pursuant to the Security Documents and (vii) to the extent such Collateral otherwise becomes an Excluded Stock or an Excluded Asset. Except as provided above, the Collateral Agent will not release any of the Collateral Agent’s Liens without the prior written authorization of the Required Lenders (or such other percentage of Lenders whose consent is required in accordance with Section 12.1); provided that, in addition to the foregoing, the Collateral Agent may, in its discretion, release such Collateral Agent’s Liens on Collateral valued in the aggregate not in excess of $2,500,000 during each Fiscal Year without the prior written authorization of any Lender, so long as all proceeds received in connection with such release are applied to the Obligations in accordance with Section 4.7 and, after giving effect to the application of such proceeds and the updating of the Borrowing Base, as the case may be, to reflect the deletion of any assets subject to such release, Availability shall be no less than the Availability immediately prior to such release. Upon request by the Collateral Agent or Parent the Borrower at any time, subject to the Borrower having certified to the Collateral Agent that the disposition is made in compliance with Section 8.8 (which the Collateral Agent may rely conclusively on any such certificate, without further inquiry), the Lenders will confirm in writing the Collateral Agent’s authority to release any Lien applicable Collateral Agent’s Liens upon particular types or items of Collateral pursuant to this Section 10.1113.10. In addition, the Lenders hereby irrevocably authorize Agent, (x) the Collateral Agent to subordinate any Lien on any property granted to or held by the Collateral Agent upon under any Collateral Loan Document to the holder of any Lien on such asset property that is permitted by Section 8.12(c) and (y) the Agent to release automatically any Guarantor from its obligations under the Guarantee Agreement if such Person ceases to be a Restricted Subsidiary as a result of a transaction permitted under this Agreement or such Person otherwise becomes an Excluded Subsidiary, in each case, solely to the extent such Subsidiary ceasing to constitute a Restricted Subsidiary or otherwise becoming an Excluded Subsidiary is not prohibited by this Agreement. Upon request by any Appointed Agent at any time, the Required Lenders will confirm in writing such Appointed Agent’s authority to release or subordinate its interest in particular types or items of property, or to release any Guarantor from its obligations pursuant to paragraph (6)(C) of the definition of Permitted Lien. In addition, the Guaranty of the Obligations by, and the liens on the assets of, any Restricted Subsidiary which is designated as an Unrestricted Subsidiary will automatically be terminated and released at the time of such designationthis Section 13.10(a).
(b) PromptlyUpon receipt by any Appointed Agent of any authorization required pursuant to Section 13.10(a) from the Lenders of such Appointed Agent’s authority to release or subordinate the applicable Collateral Agent’s Liens upon particular types or items of Collateral, or to release any Guarantor from its obligations under the Guarantee Agreement, and in any event not later than five upon at least three (53) Business Days’ following prior written request by Parent the Borrower, such Appointed Agent shall (and is hereby irrevocably authorized by the Lenders and directed by Lenders the other Secured Parties to) execute such documents as may be necessary to evidence the release (or subordination) of its such Collateral Agent’s Liens upon such Collateral as contemplated by Section 10.11(a)or to subordinate its interest therein, or to release such Guarantor from its obligations under the Guarantee Agreement; provided, however, that (i) such Appointed Agent shall not be required to execute any such document on terms which, in such Appointed Agent’s opinion, would expose such Appointed Agent to liability or create any 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 Liens (other than those expressly being released) upon (or obligations of Credit Parties the Obligors in respect of) all interests retained by Credit Partiesthe Obligors, including the proceeds of any sale, all of which shall continue to constitute part of the Collateral to the extent contemplated by the Collateral Documents. Co-such Collateral.
(c) The Collateral Agent shall have no obligation whatsoever to any of the Lenders to assure that the Collateral exists or is owned by the Obligors or is cared for, protected or insured or has been encumbered, or that the applicable Collateral Agent’s Liens have been properly or sufficiently or lawfully created, perfected, protected or enforced or 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 pursuant to any of the Loan 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 concert with Agent in matters delegated to the both of them under this Agreement; howeverany manner it may deem appropriate, in its sole discretion, given the event Collateral Agent’s own interest in the Collateral in its capacity as one of any disagreement or dispute between Agent the Lenders and Co-that the Collateral Agent in shall have no other duty or liability whatsoever to any such matter, Lender as to any of the determination or decision of Agent shall, in all cases, controlforegoing.
Appears in 5 contracts
Sources: Credit Agreement (ProPetro Holding Corp.), Restatement Agreement (ProPetro Holding Corp.), Credit Agreement (ProPetro Holding Corp.)
Collateral Matters. (a) Lenders hereby irrevocably authorize The Security Agreement, upon execution and direct Agent delivery thereof by the parties thereto, will create in favor of the Collateral Agent, for the benefit of the Secured Parties, a valid and enforceable (subject to release any Liens upon any enforceability that may be limited by Debtor Relief Laws or general principles of equity) security interest in the Collateral (and any such Liens shall be automatically released, without any action by Agent or any other Person), (i) upon when any Collateral constituting certificated securities (as defined in the Termination Date; UCC) is delivered to the Collateral Agent, together with instruments of transfer duly endorsed in blank, the security interest created under the Security Agreement will constitute a perfected security interest in all right, title and interest of the pledgors thereunder in such Collateral, prior and superior to all other security interests in such Collateral, and (ii) when financing statements in respect appropriate form are filed in the applicable filing offices, the security interest created under the Security Agreement will constitute a perfected security interest in all right, title and interest of property of any Subsidiary being sold or disposed of or transferred (including property owned by any Subsidiary being sold or disposed of or transferred) if the sale or Disposition or transfer is made in compliance with this Agreement and the Loan Documents (or otherwise is not prohibited) (and Agent may, Parties in its discretion, request, and rely conclusively without further inquiry on a certificate from the Borrower certifying as such prior to Agent taking any action to evidence such release) or such sale or Disposition is approved by the Requisite Lenders (or such greater number of Lenders as may be required under Section 12.2); (iii) remaining Collateral to the extent the applicable Collateral is or becomes Excluded Property and/or Excluded Principal Property; (iv) to the extent the applicable Collateral constitutes property leased to Credit Parties under perfection of a lease which has expired or been terminated security interest in a transaction permitted under this Agreement; (v) to the extent the Credit Party owning such Collateral is released from its Obligations hereunder can be obtained by filing UCC financing statements, prior and superior to all other security interests in (x) such Collateral (other than Pledged Equity or Pledged Collateral (as such terms are defined in the Security Documents) evidenced by certificates), except in the case of Permitted Liens which are prior as a matter of law and (y) Pledged Equity or Pledged Collateral evidenced by certificates, except in the case of Permitted Liens arising pursuant to Section 13.11 or otherwise); or (vi) as required by the terms of the ABL Intercreditor Agreement. Upon request by Agent or Parent Borrower at any time, Lenders will confirm in writing Agent’s authority to release any Lien upon particular types or items of Collateral pursuant to this Section 10.11. In addition, the Lenders hereby authorize Agent, to subordinate any Lien granted to or held by Agent upon any Collateral to any Lien on such asset permitted pursuant to paragraph (6)(C) of the definition of Permitted Lien. In addition, the Guaranty of the Obligations by, and the liens on the assets of, any Restricted Subsidiary which is designated as an Unrestricted Subsidiary will automatically be terminated and released at the time of such designationLegal Requirement.
(b) PromptlyEach Mortgage, upon execution and delivery thereof by the party or parties thereto, will create in any event not later than five (5) Business Days’ following written request by Parent Borrower, Agent shall (and is hereby irrevocably authorized and directed by Lenders to) execute such documents as may be necessary to evidence the release (or subordination) of its Liens upon such Collateral as contemplated by Section 10.11(a); provided, however, that (i) Agent shall not be required to execute any such document on terms which, in Agent’s opinion, would expose Agent to liability or create any 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 Liens (other than those expressly being released) upon (or obligations of Credit Parties in respect of) all interests retained by Credit Parties, including the proceeds of any sale, all of which shall continue to constitute part favor of the Collateral Agent, for the benefit of the Secured Parties, a valid and enforceable (subject to enforceability that may be limited by Debtor Relief Laws or general principles of equity) Lien on all the applicable mortgagor’s right, title and interest in and to the extent contemplated by applicable Mortgaged Property covered thereby and the Collateral Documents. Co-Collateral Agent shall act in concert with Agent in matters delegated to the both of them under this Agreement; howeverproceeds thereof, and when such Mortgage has been filed in the event jurisdiction(s) specified therein, such Mortgage will constitute a perfected Lien on all right, title and interest of the mortgagors in the Mortgaged Property covered thereby and the proceeds thereof, prior and superior to any disagreement or dispute between Agent and Co-Collateral Agent other Liens except in any such matter, the determination or decision case of Agent shall, in all cases, controlPermitted Liens which are prior as a matter of law.
Appears in 5 contracts
Sources: Credit Agreement (TransMontaigne Partners LLC), Credit Agreement (TransMontaigne Partners LLC), Credit Agreement (TransMontaigne Partners LLC)
Collateral Matters. (a) The Lenders (and each other Secured Party by their acceptance of the benefits of the Loan Documents shall be deemed to) hereby irrevocably authorize the Collateral Agent (and direct if applicable, any subagent appointed by the Collateral Agent under Section 13.2 or otherwise) to release any its Liens upon any on the Collateral (and any such Liens shall be automatically released, without any action by Agent or any other Person), (i) upon Full Payment of the Termination DateObligations; and (ii) in respect upon a disposition of property of any Subsidiary being sold or disposed of or transferred Collateral permitted by Section 8.8 to a Person that is not an Obligor; and (including property owned by any Subsidiary being sold or disposed of or transferrediii) if the sale percentage of Lenders required to consent to the Collateral being released hereunder, consent to the Collateral being released. Except as provided above, the Collateral Agent will not release any of the Collateral Agent’s Liens without the prior written authorization of the Required Lenders (or Disposition such other percentage of Lenders whose consent is required in accordance with Section 12.1). Upon request by the Collateral Agent or transfer the Borrower at any time, subject to the Borrower having certified to the Collateral Agent that the disposition is made in compliance with this Agreement and Section 8.8 (which the Loan Documents (or otherwise is not prohibited) (and Collateral Agent may, in its discretion, request, and may rely conclusively on any such certificate, without further inquiry on a certificate from inquiry), the Borrower certifying as such prior to Agent taking any action to evidence such release) or such sale or Disposition is approved by the Requisite Lenders (or such greater number of Lenders as may be required under Section 12.2); (iii) to the extent the applicable Collateral is or becomes Excluded Property and/or Excluded Principal Property; (iv) to the extent the applicable Collateral constitutes property leased to Credit Parties under a lease which has expired or been terminated in a transaction permitted under this Agreement; (v) to the extent the Credit Party owning such Collateral is released from its Obligations hereunder (pursuant to Section 13.11 or otherwise); or (vi) as required by the terms of the ABL Intercreditor Agreement. Upon request by Agent or Parent Borrower at any time, Lenders will confirm in writing the Collateral Agent’s authority to release any Lien applicable Collateral Agent’s Liens upon particular types or items of Collateral pursuant to this Section 10.1113.10. In addition, the Lenders (and each other Secured Party by their acceptance of the benefits of the Loan Documents shall be deemed to) hereby irrevocably authorize Agent, (w) the Collateral Agent to subordinate any Lien on any property granted to or held by the Collateral Agent upon under any Collateral Loan Document to the holder of any Lien on such asset property that is permitted by Section 8.12(c) or (q)(i) (as to Current Asset Collateral and, subject to exceeding certain caps, the Fixed Asset Collateral), and (y) so long as no Default or Event of Default has occurred and is continuing or would result therefrom, then, to the extent that the Collateral Agent obtains possession of any Collateral by operation of Section 13.12 of this Agreement that constitutes Collateral that Obligors are not required to deliver to Collateral Agent at such time pursuant to paragraph the terms hereof, the Security Documents or any other contractual arrangement with any Obligor, Collateral Agent shall (6)(Cto the extent permitted by applicable law or legal process) deliver such Collateral in accordance with the terms of the definition of Permitted Lien. In additionABL Intercreditor Agreement (and, as applicable, the Guaranty of the Obligations by, and the liens on Monarch Acquisition Intercreditor Agreement), or, if the assets ofABL Intercreditor Agreement and the Monarch Acquisition Intercreditor Agreement are not then in effect, to the applicable Obligor. Upon request by any Restricted Subsidiary which is designated as an Unrestricted Subsidiary Appointed Agent at any time, the Required Lenders will automatically be terminated and released at the time confirm in writing such Appointed Agent’s authority to release or subordinate its interest in particular types or items of such designationproperty, or to release any Guarantor from its obligations pursuant to this Section 13.10(a).
(b) PromptlyUpon receipt by any Appointed Agent of any authorization required pursuant to Section 13.10(a) from the Lenders of such Appointed Agent’s authority to release or subordinate the applicable Collateral Agent’s Liens upon particular types or items of Collateral, or to release any Guarantor from its obligations under the Guarantee Agreement, and in any event not later than five upon at least three (53) Business Days’ following prior written request by Parent the Borrower, such Appointed Agent shall (and is hereby irrevocably authorized by the Lenders and directed by Lenders the other Secured Parties to) execute such documents as may be necessary to evidence the release (or subordination) of its such Collateral Agent’s Liens upon such Collateral as contemplated by Section 10.11(a)or to subordinate its interest therein, or to release such Guarantor from its obligations under the Guarantee Agreement; provided, however, that (i) such Appointed Agent shall not be required to execute any such document on terms which, in such Appointed Agent’s opinion, would expose such Appointed Agent to liability or create any 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 Liens (other than those expressly being released) upon (or obligations of Credit Parties the Obligors in respect of) all interests retained by Credit Partiesthe Obligors, including the proceeds of any sale, all of which shall continue to constitute part of the Collateral to the extent contemplated by the Collateral Documents. Co-such Collateral.
(c) The Collateral Agent shall act have no obligation whatsoever to any of the Lenders to assure that the Collateral exists or is owned by the Obligors or is cared for, protected or insured or has been encumbered, or that the applicable Collateral Agent’s Liens have been properly or sufficiently or lawfully created, perfected, protected or enforced or are entitled to any particular priority, or to exercise at all or in concert with Agent in matters delegated 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 both of them under this Agreement; however, in the event of any disagreement or dispute between Agent and Co-Collateral Agent pursuant to any of the Loan Documents, it being understood and agreed that in respect of the Collateral, or any such matteract, omission or event related thereto, the determination Collateral Agent may act with the consent or decision at the direction of the Required Lenders and that the Collateral Agent shall, in all cases, controlshall have no other duty or liability whatsoever to any Lender as to any of the foregoing.
Appears in 4 contracts
Sources: Amendment to Credit Agreement and Guarantee Agreement (ProFrac Holding Corp.), Credit Agreement (ProFrac Holding Corp.), Credit Agreement (ProFrac Holding Corp.)
Collateral Matters. (a) The Lenders hereby irrevocably authorize the Agent, at its option and direct Agent in its sole discretion, to release any Agent’s Liens upon any Collateral (and any such Liens shall be automatically released, without any action by Agent or any other Person), (i) upon the Termination Datetermination of the Commitments and payment and satisfaction in full by Borrower of all Loans and reimbursement obligations in respect of Letters of Credit and Credit Support, and the termination of all outstanding Letters of Credit (whether or not any of such obligations are due) and all other Obligations; (ii) in respect of constituting property of any Subsidiary being sold or disposed of or transferred (including property owned by any Subsidiary being sold or disposed of or transferred) if the Borrower certifies to the Agent that the sale or Disposition or transfer disposition is made in compliance with this Agreement Section 7.9 (and the Loan Documents (or otherwise is not prohibited) (and Agent may, in its discretion, request, and may rely conclusively on any such certificate, without further inquiry on a certificate from the Borrower certifying as such prior to Agent taking any action to evidence such release) or such sale or Disposition is approved by the Requisite Lenders (or such greater number of Lenders as may be required under Section 12.2inquiry); (iii) to constituting property in which the extent Borrower owned no interest at the applicable Collateral is time the Lien was granted or becomes Excluded Property and/or Excluded Principal Propertyat any time thereafter; or (iv) to the extent the applicable Collateral constitutes constituting property leased to Credit Parties the Borrower under a lease which has expired or been terminated in a transaction permitted under this Agreement; (v) to . Except as provided above, the extent the Credit Party owning such Collateral is released from its Obligations hereunder (pursuant to Section 13.11 or otherwise); or (vi) as required by the terms Agent will not release any of the ABL Intercreditor AgreementAgent’s Liens without the prior written authorization of the Lenders; provided that the Agent may, in its discretion, release the Agent’s Liens on Collateral valued in the aggregate not to exceed $500,000 during each Fiscal Year without the prior written authorization of the Lenders and the Agent may release the Agent’s Liens on Collateral valued in the aggregate not to exceed $1,000,000 during each Fiscal Year with the prior written authorization of Required Lenders. Upon request by the Agent or Parent the Borrower at any time, the Lenders will confirm in writing the Agent’s authority to release any Lien Agent’s Liens upon particular types or items of Collateral pursuant to this Section 10.11. In addition, the Lenders hereby authorize Agent, to subordinate any Lien granted to or held by Agent upon any Collateral to any Lien on such asset permitted pursuant to paragraph (6)(C) of the definition of Permitted Lien. In addition, the Guaranty of the Obligations by, and the liens on the assets of, any Restricted Subsidiary which is designated as an Unrestricted Subsidiary will automatically be terminated and released at the time of such designation12.11.
(b) PromptlyUpon receipt by the Agent of any authorization required pursuant to Section 12.11(a) from the Lenders of the Agent’s authority to release Agent’s Liens upon particular types or items of Collateral, and in any event not later than upon at least five (5) Business Days’ following Days prior written request by Parent the Borrower, the Agent shall (and is hereby irrevocably authorized and directed by the Lenders to) execute such documents as may be necessary to evidence the release (or subordination) of its the Agent’s Liens upon such Collateral as contemplated by Section 10.11(a)Collateral; provided, however, that (i) the Agent shall not be required to execute any such document on terms which, in the Agent’s opinion, would expose the Agent to liability or create any 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 Liens (other than those expressly being released) upon (or obligations of Credit Parties the Borrower in respect of) all interests retained by Credit Partiesthe Borrower, including the proceeds of any sale, all of which shall continue to constitute part of the Collateral.
(c) The Agent shall have no obligation whatsoever to any of the Lenders to assure that the Collateral exists or is owned by the Borrower or is cared for, protected or insured or has been encumbered, or that the Agent’s Liens have been properly or sufficiently or lawfully created, perfected, protected or enforced or 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 extent contemplated by Agent pursuant to any of the Loan Documents, it being understood and agreed that in respect of the Collateral, or any act, omission or event related thereto, the Agent may act in any manner it may deem appropriate, in its sole discretion given the Agent’s own interest in the Collateral Documents. Co-Collateral in its capacity as one of the Lenders and that the Agent shall act in concert with Agent in matters delegated have no other duty or liability whatsoever to any Lender as to any of the both of them under this Agreement; however, in the event of any disagreement or dispute between Agent and Co-Collateral Agent in any such matter, the determination or decision of Agent shall, in all cases, controlforegoing.
Appears in 4 contracts
Sources: Credit Agreement (Omnova Solutions Inc), Credit Agreement (Omnova Solutions Inc), Credit Agreement (Omnova Solutions Inc)
Collateral Matters. (a) The Lenders (and each other Secured Party by their acceptance of the benefits of the Loan Documents shall be deemed to) hereby irrevocably authorize the Collateral Agent (and direct if applicable, any subagent appointed by the Collateral Agent under Section 13.2 or otherwise) to release any its Liens on the Collateral, and the Collateral Agent’s Liens upon any Collateral (and any such Liens shall be automatically released, without any action by Agent or any other Person), released (i) upon Full Payment of the Termination DateObligations; (ii) in respect upon a disposition of property of any Subsidiary being sold or disposed of or transferred (including property owned Collateral permitted by any Subsidiary being sold or disposed of or transferred) if the sale or Disposition or transfer is made in compliance with this Agreement and the Loan Documents (or otherwise Section 8.8 to a Person that is not prohibited) (and Agent may, in its discretion, request, and rely conclusively without further inquiry on a certificate from the Borrower certifying as such prior to Agent taking any action to evidence such release) or such sale or Disposition is approved by the Requisite Lenders (or such greater number of Lenders as may be required under Section 12.2)an Obligor; (iii) to if any such Collateral constitutes property in which the extent Obligors owned no interest at the applicable Collateral is time the Lien was granted or becomes Excluded Property and/or Excluded Principal Propertyat any time thereafter; (iv) to the extent the applicable if any such Collateral constitutes property leased to Credit Parties an Obligor under a lease which has expired or been terminated in a transaction permitted under this Agreement; (v) to the extent the Credit Party owning property constituting such Collateral is released owned by any Guarantor, upon the release of such Guarantor from its Obligations hereunder obligations under the Guarantee Agreement (pursuant to Section 13.11 or otherwisein accordance with the second succeeding sentence and the Guarantee Agreement); or (vi) as required by the terms Collateral Agent to effect any sale, transfer or other Disposition of Collateral in connection with any exercise of remedies of the ABL Intercreditor AgreementCollateral Agent pursuant to the Security Documents, (vii) to the extent such Collateral otherwise becomes an Excluded Stock or an Excluded Asset, and (viii) if the percentage of Lenders required to consent to the Collateral being released hereunder, so consents to the Collateral being released. Except as provided above, the Collateral Agent will not release any of the Collateral Agent’s Liens without the prior written authorization of the Required Lenders (or such other percentage of Lenders whose consent is required in accordance with Section 12.1); provided that, in addition to the foregoing, the Collateral Agent may, in its discretion, release such Collateral Agent’s Liens on Collateral valued in the aggregate not in excess of $1,000,000 during each Fiscal Year without the prior written authorization of any Lender, so long as all proceeds received in connection with such release are applied to the Obligations in accordance with Section 4.7 and, after giving effect to the application of such proceeds and the updating of the Borrowing Base, as the case may be, to reflect the deletion of any assets subject to such release, Availability shall be no less than the Availability immediately prior to such release. Upon request by the Collateral Agent or Parent the Borrower at any time, subject to the Borrower having certified to the Collateral Agent that the disposition is made in compliance with Section 8.8 (which the Collateral Agent may rely conclusively on any such certificate, without further inquiry), the Lenders will confirm in writing the Collateral Agent’s authority to release any Lien applicable Collateral Agent’s Liens upon particular types or items of Collateral pursuant to this Section 10.1113.10. In addition, the Lenders (and each other Secured Party by their acceptance of the benefits of the Loan Documents shall be deemed to) hereby irrevocably authorize Agent, (w) the Collateral Agent to subordinate any Lien on any property granted to or held by the Collateral Agent upon under any Collateral Loan Document to the holder of any Lien on such asset property that is permitted by Section 8.12(c) or (q) (as to Fixed Asset Collateral only), (x) the Agent to release automatically any Guarantor from its obligations under the Guarantee Agreement if such Person ceases to be a Restricted Subsidiary as a result of a transaction permitted under this Agreement or such Person otherwise becomes an Excluded Subsidiary, in each case, solely to the extent such Subsidiary ceasing to constitute a Restricted Subsidiary or otherwise becoming an Excluded Subsidiary is not prohibited by this Agreement, (y) so long as both (1) no Default or Event of Default has occurred and is continuing or would result therefrom and (2) no Out-of-Formula Condition has occurred and is continuing or would result therefrom, then, to the extent that the Collateral Agent obtains possession of any Collateral by operation of Section 13.12 of this Agreement that constitutes Collateral that Obligors are not required to deliver to Collateral Agent at such time pursuant to paragraph the terms hereof, the Security Documents or any other contractual arrangement with any Obligor, following the written request by Borrower, Collateral Agent shall (6)(Cto the extent not prohibited by applicable law or legal process) deliver such Collateral in accordance with the terms of the Intercreditor Agreement or, if no Intercreditor Agreement is then in effect, to the applicable Obligor, and (z) if after the date hereof Collateral Agent’s Lien has been expanded to include Fixed Asset Collateral in connection with incurrence of Debt pursuant to Section 8.12(q)(x) or (r) so long as all of the following conditions are satisfied (1) no Default or Event of Default has occurred and is continuing or would result therefrom, (2) no Out-of-Formula Condition has occurred and is continuing or would result therefrom, and (3) no Debt has been incurred in reliance on Section 8.12(q)(x) or (r) that remains outstanding (and no commitments for Debt that, if incurred would be incurred in reliance on Section 8.12(q)(x) or (r), remain outstanding) and no Liens are outstanding in reliance on clause (r) of the definition of Permitted Lien. In additionLiens, or, to the extent on account of Refinancing Debt, or outstanding commitments that, if incurred, would be Refinancing Debt, in each case incurred in reliance, directly or indirectly, on Section 8.12(q)(x) or (r)), clause (p) of the definition of “Permitted Liens”, promptly following the written request of the Borrower, the Guaranty Collateral Agent shall release Collateral Agent’s Liens on Fixed Assets Collateral (other than, in each case any Inventory or Fracturing Equipment Parts (as defined in the Initial Intercreditor Agreement)) at the expense of the Obligations byObligors. Upon request by any Appointed Agent at any time, and the liens on the assets ofRequired Lenders will confirm in writing such Appointed Agent’s authority to release or subordinate its interest in particular types or items of property, or to release any Restricted Subsidiary which is designated as an Unrestricted Subsidiary will automatically be terminated and released at the time of such designationGuarantor from its obligations pursuant to this Section 13.10(a).
(b) PromptlyUpon receipt by any Appointed Agent of any authorization required pursuant to Section 13.10(a) from the Lenders of such Appointed Agent’s authority to release or subordinate the applicable Collateral Agent’s Liens upon particular types or items of Collateral, or to release any Guarantor from its obligations under the Guarantee Agreement, and in any event not later than five upon at least three (53) Business Days’ following prior written request by Parent the Borrower, such Appointed Agent shall (and is hereby irrevocably authorized by the Lenders and directed by Lenders the other Secured Parties to) execute such documents as may be necessary to evidence the release (or subordination) of its such Collateral Agent’s Liens upon such Collateral as contemplated by Section 10.11(a)or to subordinate its interest therein, or to release such Guarantor from its obligations under the Guarantee Agreement; provided, however, that (i) such Appointed Agent shall not be required to execute any such document on terms which, in such Appointed Agent’s opinion, would expose such Appointed Agent to liability or create any 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 Liens (other than those expressly being released) upon (or obligations of Credit Parties the Obligors in respect of) all interests retained by Credit Partiesthe Obligors, including the proceeds of any sale, all of which shall continue to constitute part of the Collateral to the extent contemplated by the Collateral Documents. Co-such Collateral.
(c) The Collateral Agent shall have no obligation whatsoever to any of the Lenders to assure that the Collateral exists or is owned by the Obligors or is cared for, protected or insured or has been encumbered, or that the applicable Collateral Agent’s Liens have been properly or sufficiently or lawfully created, perfected, protected or enforced or 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 pursuant to any of the Loan 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 concert with Agent in matters delegated to the both of them under this Agreement; howeverany manner it may deem appropriate, in its sole discretion, given the event Collateral Agent’s own interest in the Collateral in its capacity as one of any disagreement or dispute between Agent the Lenders and Co-that the Collateral Agent in shall have no other duty or liability whatsoever to any such matter, Lender as to any of the determination or decision of Agent shall, in all cases, controlforegoing.
Appears in 4 contracts
Sources: Credit Agreement (ProFrac Holding Corp.), Credit Agreement (ProFrac Holding Corp.), Credit Agreement (ProFrac Holding Corp.)
Collateral Matters. (a) Lenders hereby irrevocably authorize The Collateral Agreement, upon execution and direct Agent to release any Liens upon any delivery thereof by the parties thereto, will create in favor of the Administrative Agent, for the benefit of the Credit Parties, a valid and enforceable security interest in the Collateral (as defined therein) and any such Liens shall be automatically released, without any action by Agent or any other Person), (i) upon when the Termination Date; Collateral (as defined therein) constituting certificated securities (as defined in the UCC) is delivered to the Administrative Agent, together with instruments of transfer duly endorsed in blank, the security interest created under the Collateral Agreement will constitute a fully perfected security interest in all right, title and interest of the pledgors thereunder in such Collateral, prior and superior in right to any other Person and (ii) when financing statements in respect appropriate form are filed in the applicable filing offices, the security interest created under the Collateral Agreement will constitute a fully perfected security interest in all right, title and interest of property of any Subsidiary being sold or disposed of or transferred (including property owned by any Subsidiary being sold or disposed of or transferred) if the sale or Disposition or transfer is made in compliance with this Agreement and the Loan Documents Parties in the remaining Collateral (or otherwise is not prohibited) (and Agent may, in its discretion, request, and rely conclusively without further inquiry on a certificate from the Borrower certifying as such prior to Agent taking any action to evidence such release) or such sale or Disposition is approved by the Requisite Lenders (or such greater number of Lenders as may be required under Section 12.2); (iiidefined therein) to the extent the applicable Collateral is or becomes Excluded Property and/or Excluded Principal Property; (iv) perfection can be obtained by filing UCC financing statements, prior and superior to the extent the applicable Collateral constitutes property leased to Credit Parties under a lease which has expired or been terminated in a transaction rights of any other Person, except for rights secured by Liens permitted under this Agreement; Section 7.03(b), in the case of each of clauses (vi) to the extent the Credit Party owning such Collateral is released from its Obligations hereunder and (pursuant to Section 13.11 or otherwiseii); or (vi) as required by the terms of the ABL Intercreditor Agreement. Upon request by Agent or Parent Borrower at any time, Lenders will confirm in writing Agent’s authority to release any Lien upon particular types or items of Collateral pursuant to this Section 10.11. In addition, the Lenders hereby authorize Agent, to subordinate any Lien granted to or held by Agent upon any Collateral to any Lien on such asset permitted pursuant to paragraph (6)(C) of the definition of Permitted Lien. In addition, the Guaranty of the Obligations by, and the liens on the assets of, any Restricted Subsidiary which is designated as an Unrestricted Subsidiary will automatically be terminated and released at the time of such designation.
(b) PromptlyEach Mortgage, upon execution and delivery thereof by the parties thereto, will create in favor of the Administrative Agent, for the benefit of the Credit Parties, a legal, valid and enforceable security interest in all the applicable mortgagor’s right, title and interest in and to the Mortgaged Properties subject thereto and the proceeds thereof except as enforceability may be limited by (a) bankruptcy, insolvency or other similar laws affecting creditors’ rights and (b) general principles of equity (regarding whether such enforceability is considered in a proceeding in equity or law), and when the Mortgages have been filed in the jurisdictions specified therein, the Mortgages will constitute a fully perfected security interest in all right, title and interest of the mortgagors in the Mortgaged Properties and the proceeds thereof, prior and superior in right to any event not later than five other Person, but subject to Liens permitted under Section 7.03(b).
(5c) Business Days’ following written request Upon the recordation of the IP Security Agreements with the United States Patent and Trademark Office or the United States Copyright Office, as applicable, and the filing of the financing statements referred to in paragraph (a) of this Section 6.21, the security interest created under the Collateral Agreement will constitute a fully perfected security interest in all right, title and interest of the Loan Parties in the Intellectual Property (as defined in the Collateral Agreement) in which a security interest may be perfected by Parent Borrowerfiling with the United States Patent and Trademark Office or the United States Copyright Office, Agent shall in each case prior and superior in right to any other Person, but subject to Liens permitted under Section 7.03(b) (it being understood that subsequent recordings in the United States Patent and is hereby irrevocably authorized and directed by Lenders to) execute such documents as Trademark Office or the United States Copyright Office may be necessary to evidence the release (or subordination) of its Liens upon perfect a security interest in such Collateral as contemplated by Section 10.11(a); provided, however, that (i) Agent shall not be required to execute any such document on terms which, in Agent’s opinion, would expose Agent to liability or create any 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 Liens (other than those expressly being released) upon (or obligations of Credit Parties in respect of) all interests retained by Credit Parties, including the proceeds of any sale, all of which shall continue to constitute part of the Collateral to the extent contemplated Intellectual Property acquired by the Collateral Documents. Co-Collateral Agent shall act in concert with Agent in matters delegated to Loan Parties after the both of them under this Agreement; however, in the event of any disagreement or dispute between Agent and Co-Collateral Agent in any such matter, the determination or decision of Agent shall, in all cases, controlFunding Date).
Appears in 4 contracts
Sources: Credit Agreement (Energizer SpinCo, Inc.), Credit Agreement (Energizer Holdings Inc), Escrow Agreement (Energizer SpinCo, Inc.)
Collateral Matters. (a) Lenders hereby irrevocably authorize The Security Agreement, upon execution and direct Agent delivery thereof by the parties thereto, will create in favor of the Collateral Agent, for the benefit of the Secured Parties, a valid and enforceable security interest in the Collateral and (i) when the Collateral constituting certificated securities (as defined in the UCC) is delivered to release any Liens upon any the Collateral (Agent, together with instruments of transfer duly endorsed in blank, the security interest created under the Security Agreement will constitute a fully perfected security interest in all right, title and any interest of the pledgors thereunder in such Liens shall be automatically releasedCollateral, without any action by Agent or prior and superior in right to any other Person), (i) upon the Termination Date; (ii) in when Control Agreements with respect of property of any Subsidiary being sold or disposed of or transferred (including property owned to Collateral constituting deposit accounts and securities accounts maintained by any Subsidiary being sold or disposed of or transferred) if the sale or Disposition or transfer is made in compliance with this Agreement and the Loan Documents (or otherwise is not prohibited) (Parties are executed and Agent maydelivered by the parties thereto, the security interest created under the Security Agreement will constitute a fully perfected security interest in its discretionall right, requesttitle and interest of the Loan Parties in such Collateral, prior and superior in right to any other Person, and rely conclusively without further inquiry on a certificate from the Borrower certifying as such prior to Agent taking any action to evidence such release) or such sale or Disposition is approved by the Requisite Lenders (or such greater number of Lenders as may be required under Section 12.2); (iii) when financing statements in appropriate form are filed in the applicable filing offices, the security interest created under the Security Agreement will constitute a fully perfected security interest in all right, title and interest of the Loan Parties in the remaining Collateral to the extent the applicable Collateral is or becomes Excluded Property and/or Excluded Principal Property; (iv) perfection can be obtained by filing UCC financing statements, prior and superior to the extent the applicable Collateral constitutes property leased to Credit Parties under a lease which has expired or been terminated in a transaction rights of any other Person, except for rights secured by Liens permitted under this Agreement; (v) to the extent the Credit Party owning such Collateral is released from its Obligations hereunder (pursuant to Section 13.11 or otherwise); or (vi) as required by the terms of the ABL Intercreditor Agreement. Upon request by Agent or Parent Borrower at any time, Lenders will confirm in writing Agent’s authority to release any Lien upon particular types or items of Collateral pursuant to this Section 10.11. In addition, the Lenders hereby authorize Agent, to subordinate any Lien granted to or held by Agent upon any Collateral to any Lien on such asset permitted pursuant to paragraph (6)(C) of the definition of Permitted Lien. In addition, the Guaranty of the Obligations by, and the liens on the assets of, any Restricted Subsidiary which is designated as an Unrestricted Subsidiary will automatically be terminated and released at the time of such designation6.01.
(b) PromptlyEach Mortgage, upon execution and delivery thereof by the parties thereto, will create in favor of the Collateral Agent, for the benefit of the Secured Parties, a legal, valid and enforceable security interest in all the applicable mortgagor’s right, title and interest in and to the Mortgaged Properties subject thereto and the proceeds thereof, and when the Mortgages have been filed in the jurisdictions specified therein, the Mortgages will constitute a fully perfected security interest in all right, title and interest of the mortgagors in the Mortgaged Properties and the proceeds thereof, prior and superior in right to any event not later than five other Person, but subject to Liens permitted under Section 6.01.
(5c) Business Days’ following written request Upon the recordation of intellectual property security agreements with the United States Patent and Trademark Office or the United States Copyright Office, as applicable, and the filing of the financing statements referred to in paragraph (a) of this Section, the security interest created under the Security Agreement will constitute a fully perfected security interest in all right, title and interest of the Loan Parties in patents, trademarks, copyrights and exclusive copyright licenses in which a security interest may be perfected by Parent Borrowerfiling in the United States of America, Agent shall in each case prior and superior in right to any other Person, but subject to Liens permitted under Section 6.01 (it being understood that subsequent recordings in the United States Patent and is hereby irrevocably authorized and directed by Lenders to) execute such documents as Trademark Office or the United States Copyright Office may be necessary to evidence perfect a security interest in patents, trademarks, copyrights and exclusive copyright licenses acquired by the release Loan Parties after the Closing Date).
(or subordinationd) of its Liens upon such Collateral as contemplated by Section 10.11(a); providedEach Security Document, however, that (i) Agent shall not be required to execute any such document on terms which, in Agent’s opinion, would expose Agent to liability or create any obligation or entail any consequence other than the release Intercreditor Agreement and any Security Document referred to in the preceding paragraphs of such Liens without recourse or warrantythis Section, upon execution and (ii) such release shall not delivery thereof by the parties thereto and the making of the filings and taking of the other actions provided for therein, will be effective under applicable law to create in any manner discharge, affect or impair the Obligations or any Liens (other than those expressly being released) upon (or obligations of Credit Parties in respect of) all interests retained by Credit Parties, including the proceeds of any sale, all of which shall continue to constitute part favor of the Collateral Agent, for the benefit of the Secured Parties, a valid and enforceable security interest in the Collateral subject thereto, and will constitute a fully perfected security interest in all right, title and interest of the Loan Parties in the Collateral subject thereto, prior and superior to the extent contemplated by the Collateral Documents. Co-Collateral Agent shall act in concert with Agent in matters delegated to the both of them under this Agreement; however, in the event rights of any disagreement or dispute between Agent and Co-Collateral Agent in any such matterother Person, the determination or decision of Agent shall, in all cases, controlexcept for rights secured by Liens permitted under Section 6.01.
Appears in 4 contracts
Sources: Continuing Covenant Agreement, Continuing Covenant Agreement (SemGroup Corp), Credit Agreement (SemGroup Corp)
Collateral Matters. At all times following the occurrence of the Collateral Event:
(a) Lenders hereby irrevocably authorize Execute any and direct Agent to release any all further documents, financing statements, agreements and instruments, and take all such further customary actions (including the filing and recording of financing statements, fixture filings and other documents and recordings of Liens upon any Collateral (and any such Liens shall be automatically released, without any action by Agent or any other Personin stock registries), (i) upon the Termination Date; (ii) in respect of property of any Subsidiary being sold or disposed of or transferred (including property owned by any Subsidiary being sold or disposed of or transferred) if the sale or Disposition or transfer is made in compliance with this Agreement and the Loan Documents (or otherwise is not prohibited) (and Agent may, in its discretion, request, and rely conclusively without further inquiry on a certificate from the Borrower certifying as such prior to Agent taking any action to evidence such release) or such sale or Disposition is approved by the Requisite Lenders (or such greater number of Lenders as that may be required under Section 12.2); (iii) any applicable law, or that the Administrative Agent may reasonably request, to cause the extent the applicable Collateral is or becomes Excluded Property and/or Excluded Principal Property; (iv) to the extent the applicable Collateral constitutes property leased to Credit Parties under a lease which has expired or been terminated in a transaction permitted under this Agreement; (v) to the extent the Credit Party owning such Collateral is released from its Obligations hereunder (pursuant to Section 13.11 or otherwise); or (vi) as required by the terms requirements of the ABL Intercreditor Agreement. Upon request by Agent or Parent Borrower at any time, Lenders will confirm in writing Agent’s authority to release any Lien upon particular types or items of Collateral pursuant to this Section 10.11. In addition, the Lenders hereby authorize Agent, to subordinate any Lien granted to or held by Agent upon any Collateral to any Lien on such asset permitted pursuant to paragraph (6)(C) occurrence of the definition of Permitted Lien. In addition, the Guaranty of the Obligations by, and the liens on the assets of, any Restricted Subsidiary which is designated as an Unrestricted Subsidiary will automatically be terminated and released at the time of such designationCollateral Event to remain satisfied.
(b) Promptly, and in If any event not later than five additional Guarantor or Foreign Subsidiary or FSHCO is formed or acquired (5including any Guarantor that is a Division Successor) Business Days’ following written request by Parent Borrower, Agent shall (and is hereby irrevocably authorized and directed by Lenders to) execute such documents as may be necessary to evidence the release (or subordination) of its Liens upon after such Collateral as contemplated by Section 10.11(a); providedEvent, howeveror if any additional Equity Interests of any Guarantor or Foreign Subsidiary or FSHCO are issued after such Collateral Event, that (i) notify the Administrative Agent shall not be required to execute any such document on terms which, in Agent’s opinion, would expose Agent to liability or create any obligation or entail any consequence other than the release of such Liens without recourse or warrantythereof, and (ii) within 30 Business Days after such release date or such longer period as the Administrative Agent shall not agree, (A) pledge all outstanding Equity Interests of such new Guarantor issued after such Collateral Event, pledge Equity Interests in such new Foreign Subsidiary or FSHCO issued after such Collateral Event up to an amount thereof that would qualify as “Collateral”, pledge all new Equity Interests of the Guarantor issued after such Collateral Event, pledge Equity Interests of the Foreign Subsidiary or FSHCO issued after such Collateral Event up to an amount thereof that, together with other Equity Interests in such Foreign Subsidiary or FSHCO that have previously been pledged, would qualify as “Collateral”, in each case to the Administrative Agent under the Collateral Agreement, except to the extent such Equity Interests constitute Excluded Assets, and (B) deliver to the Administrative Agent for the benefit of the Lenders and the Bank Product Providers all certificates or other instruments (if any) representing such Equity Interests, together with stock powers or other instruments of transfer with respect thereto endorsed in blank.
(c) If any manner dischargeadditional Guarantor or Foreign Subsidiary or FSHCO is formed or acquired (including any Guarantor that is a Division Successor) after the Collateral Event, affect deliver to the Administrative Agent within 30 Business Days after such date or impair such longer period as the Obligations or any Liens Administrative Agent shall agree, (i) a supplement to the Collateral Agreement, in the form specified therein, duly executed and delivered on behalf of such Credit Party and (ii) supplements to the other than those expressly being released) upon (or obligations Security Documents, if applicable, to cause the requirements of Credit Parties in respect of) all interests retained by Credit Parties, including the proceeds of any sale, all of which shall continue to constitute part occurrence of the Collateral Event to become satisfied with respect to such new Credit Party.
(d) Furnish to the extent contemplated by the Collateral Documents. Co-Collateral Administrative Agent shall act prompt written notice (and in concert with Agent in matters delegated to the both of them under this Agreement; however, in the any event within 30 days) of any disagreement change in (i) any Credit Party’s corporate or dispute between Agent and Co-Collateral Agent in organizational name, (ii) any such matterCredit Party’s organizational form or jurisdiction of organization , (iii) the determination location of any Credit Party’s chief executive office or decision of Agent shall, in all cases, control(iv) any Credit Party’s organizational identification number.
Appears in 4 contracts
Sources: Credit Agreement (Mednax, Inc.), Credit Agreement (Mednax, Inc.), Credit Agreement (Mednax, Inc.)
Collateral Matters. (a) Lenders hereby irrevocably authorize The Collateral Agreement, upon execution and direct Agent to release any Liens upon any delivery thereof by the parties thereto, will create in favor of the Administrative Agent, for the benefit of the Secured Parties, a valid and enforceable security interest in the Collateral (as defined therein) and any (i) when the Pledged Securities (as defined therein) constituting certificated securities (as defined in the Uniform Commercial Code) are delivered to the Administrative Agent, together with instruments of transfer duly endorsed in blank, the security interest created under the Collateral Agreement will constitute a fully perfected security interest in all right, title and interest of the pledgors thereunder in such Liens shall be automatically releasedPledged Securities (as defined in the Collateral Agreement), without any action by Agent or prior and superior in right to any other Person), (i) upon the Termination Date; and (ii) when financing statements in respect appropriate form are filed in the applicable filing offices, the security interest created under the Collateral Agreement will constitute a fully perfected security interest in all right, title and interest of property of any Subsidiary being sold or disposed of or transferred (including property owned by any Subsidiary being sold or disposed of or transferred) if the sale or Disposition or transfer is made in compliance with this Agreement and the Loan Documents Parties in the remaining Article 9 Collateral (or otherwise is not prohibited) (and Agent may, in its discretion, request, and rely conclusively without further inquiry on a certificate from the Borrower certifying as such prior to Agent taking any action to evidence such release) or such sale or Disposition is approved by the Requisite Lenders (or such greater number of Lenders as may be required under Section 12.2); (iiidefined therein) to the extent the applicable Collateral is or becomes Excluded Property and/or Excluded Principal Property; (iv) perfection can be obtained by filing Uniform Commercial Code financing statements, prior and superior to the extent the applicable Collateral constitutes property leased to Credit Parties under a lease which has expired or been terminated in a transaction rights of any other Person, except for rights secured by Liens permitted under this Agreement; (v) to the extent the Credit Party owning such Collateral is released from its Obligations hereunder (pursuant to Section 13.11 or otherwise); or (vi) as required by the terms of the ABL Intercreditor Agreement. Upon request by Agent or Parent Borrower at any time, Lenders will confirm in writing Agent’s authority to release any Lien upon particular types or items of Collateral pursuant to this Section 10.11. In addition, the Lenders hereby authorize Agent, to subordinate any Lien granted to or held by Agent upon any Collateral to any Lien on such asset permitted pursuant to paragraph (6)(C) of the definition of Permitted Lien. In addition, the Guaranty of the Obligations by, and the liens on the assets of, any Restricted Subsidiary which is designated as an Unrestricted Subsidiary will automatically be terminated and released at the time of such designation6.02.
(b) PromptlyEach Mortgage, upon execution and delivery thereof by the parties thereto, will create in favor of the Administrative Agent, for the benefit of the Secured Parties, a legal, valid and enforceable security interest in all the applicable mortgagor’s right, title and interest in and to the Mortgaged Properties subject thereto and the proceeds thereof, and when the Mortgages have been filed in the jurisdictions specified therein, the Mortgages will constitute a fully perfected security interest in all right, title and interest of the mortgagors in the Mortgaged Properties and the proceeds thereof, prior and superior in right to any event not later than five other Person, but subject to Liens permitted under Section 6.02.
(5c) Business Days’ following written request Upon the recordation of the Collateral Agreement (or a short-form security agreement in form and substance reasonably satisfactory to the Borrower and the Administrative Agent) with the United States Patent and Trademark Office or the United States Copyright Office, as applicable, and the filing of the financing statements referred to in paragraph (a) of this Section, the security interest created under the Collateral Agreement will constitute a fully perfected security interest in all right, title and interest of the Loan Parties in the Intellectual Property (as defined in the Collateral Agreement) in which a security interest may be perfected by Parent Borrowerfiling in the United States of America, Agent shall in each case prior and superior in right to any other Person, but subject to Liens permitted under Section 6.02 (it being understood and is hereby irrevocably authorized agreed that subsequent recordings in the United States Patent and directed by Lenders to) execute such documents as Trademark Office or the United States Copyright Office may be necessary to evidence the release (or subordination) of its Liens upon perfect a security interest in such Collateral as contemplated by Section 10.11(a); provided, however, that (i) Agent shall not be required to execute any such document on terms which, in Agent’s opinion, would expose Agent to liability or create any 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 Liens (other than those expressly being released) upon (or obligations of Credit Parties in respect of) all interests retained by Credit Parties, including the proceeds of any sale, all of which shall continue to constitute part of the Collateral to the extent contemplated Intellectual Property acquired by the Collateral Documents. Co-Collateral Agent shall act in concert with Agent in matters delegated to Loan Parties after the both of them under this Agreement; however, in the event of any disagreement or dispute between Agent and Co-Collateral Agent in any such matter, the determination or decision of Agent shall, in all cases, controlEffective Date).
Appears in 4 contracts
Sources: Credit Agreement (YETI Holdings, Inc.), Credit Agreement (YETI Holdings, Inc.), Credit Agreement (YETI Holdings, Inc.)
Collateral Matters. (a) The Lenders hereby irrevocably authorize the Administrative Agent and direct Agent the Canadian Agent, as applicable, to take actions to evidence the release of any Liens Lien upon any Collateral (and any such Liens shall be automatically released, without any action by Agent or any other Person), Collateral: (i) upon the Termination Datetermination of the Domestic Commitments and the Canadian Commitments, as applicable, and payment and satisfaction in full by the Domestic Borrowers of all Obligations and the Canadian Borrower of all Canadian Liabilities, as applicable and, if the Obligations have been accelerated and Liquidation has commenced, the Other Liabilities then due and payable (in any event other than contingent indemnity obligations with respect to then unasserted claims), all Letters of Credit shall have expired or terminated (or been collateralized in a manner satisfactory to the Issuing Banks) and all Letter of Credit Outstandings have been reduced to zero (or collateralized in a manner satisfactory to the Issuing Banks); (ii) in respect of constituting property of any Subsidiary being sold sold, transferred or disposed of or transferred (including property owned by any Subsidiary being sold or disposed of or transferred) if the sale or in a Permitted Disposition or transfer is made in compliance with other transaction permitted hereunder upon receipt by the Administrative Agent or the Canadian Agent, as applicable, of the Net Proceeds thereof to the extent required by this Agreement and (or, if no such Net Proceeds are required to be remitted to the Loan Documents (Administrative Agent or otherwise is not prohibited) (and Agent maythe Canadian Agent, in its discretionas applicable, request, and rely conclusively without further inquiry on a certificate from the Borrower certifying as upon consummation of such prior to Agent taking any action to evidence such release) or such sale or Disposition is approved by the Requisite Lenders (or such greater number of Lenders as may be required under Section 12.2transaction); (iii) to the extent the applicable such Collateral is owned by a Loan Party, upon the release of such Loan Party from its obligations under the Loan Documents to the extent such release occurs as a result of a Permitted Disposition or becomes Excluded Property and/or Excluded Principal Propertyother transaction permitted under SECTION 6.03, resulting in such Person ceasing to be a Loan Party; or (iv) upon request of the Lead Borrower, constituting Real Estate being transferred from a Domestic Loan Party to another Domestic Loan Party but only to the extent that after such transfer, no Event of Default exists. Except as provided above, the applicable Collateral constitutes property leased to Credit Parties under a lease which has expired Administrative Agent or been terminated in a transaction permitted under this Agreement; (v) to the extent the Credit Party owning such Collateral is released from its Obligations hereunder (pursuant to Section 13.11 or otherwise); or (vi) Canadian Agent, as required by the terms applicable, will not release any of the ABL Intercreditor AgreementAgent’s or Canadian Agent’s Liens without the prior written authorization of the Applicable Lenders. Upon request by the Administrative Agent, the Canadian Agent or Parent Borrower any Loan Party at any time, the Lenders will confirm in writing the Administrative Agent’s or the Canadian Agent’s authority to release any Lien Liens upon particular types or items of Collateral pursuant to this Section 10.11. In addition, the Lenders hereby authorize Agent, to subordinate any Lien granted to or held by Agent upon any Collateral to any Lien on such asset permitted pursuant to paragraph (6)(C) of the definition of Permitted Lien. In addition, the Guaranty of the Obligations by, and the liens on the assets of, any Restricted Subsidiary which is designated as an Unrestricted Subsidiary will automatically be terminated and released at the time of such designationSECTION 8.18.
(b) PromptlyThe Lenders hereby authorize the Administrative Agent and the Canadian Agent, as applicable, to take such actions, including making filings and entering into agreements and any amendments or supplements to any Security Document or Intercreditor Agreement, as may be necessary or desirable to reflect the intent of this Agreement and the refinancing of any Indebtedness permitted hereunder. Upon request by the Administrative Agent, the Canadian Agent or any Loan Party at any time, the Lenders will confirm in any event not later than five writing the Administrative Agent’s or the Canadian Agent’s authority to enter into such agreements, amendments or supplements.
(5c) Upon at least two (2) Business Days’ following prior written request by Parent the Lead Borrower or the Canadian Borrower, as applicable, the Administrative Agent or the Canadian Agent shall (and is hereby irrevocably authorized and directed by the Lenders to) execute such documents as may be necessary to evidence the release (or subordination) of its the Liens upon such any Collateral as contemplated by Section 10.11(adescribed in SECTION 8.18(a); provided, however, that (i) neither the Administrative Agent nor the Canadian Agent shall not be required to execute any such document on terms which, in Agent’s its reasonable opinion, would would, under Applicable Law, expose the Administrative Agent or the Canadian Agent to liability or create any obligation or entail any adverse 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 Obligations, the Other Liabilities, the Canadian Liabilities, or any Liens (other than those expressly being released) upon (or obligations of Credit Parties any Loan Party in respect of) all interests retained by Credit Partiesany Loan Party, including (without limitation) the proceeds of any sale, all of which shall continue to constitute part of the Collateral to the extent contemplated by the Collateral Documents. Co-Collateral Agent shall act in concert with Agent in matters delegated to the both of them under this Agreement; however, in the event of any disagreement or dispute between Agent and Co-Collateral Agent in any such matter, the determination or decision of Agent shall, in all cases, controlCollateral.
Appears in 3 contracts
Sources: Credit Agreement (Toys R Us Inc), Credit Agreement (Toys R Us Inc), Credit Agreement (Toys R Us Inc)
Collateral Matters. (a) The Lenders hereby irrevocably authorize and direct the Collateral Agent to release any Liens Lien upon any Collateral (and any such Liens shall be automatically released, without any action by Agent or any other Person), (i) upon the Termination Date; termination of the Commitments and payment and satisfaction in full of all Obligations (other than contingent obligations with respect to then unasserted claims), (ii) in respect of constituting property of any Subsidiary being sold sold, transferred or disposed of or transferred (including property owned by any Subsidiary being sold or disposed of or transferred) if the sale or in a Permitted Disposition or transfer is made in compliance with this Agreement and the Loan Documents (or otherwise to a Person that is not prohibited) (and Agent maya Loan Party, in its discretion, request, and rely conclusively without further inquiry on a certificate from the Borrower certifying as such prior to Agent taking any action to evidence such release) or such sale or Disposition is approved by the Requisite Lenders (or such greater number of Lenders as may be required under Section 12.2); (iii) which constitutes property subject to the extent proviso in the applicable Collateral is definition of “Collateral” in the Security Agreement or becomes Excluded Property and/or Excluded Principal Property; subject to the proviso in Section 2.1 of the Pledge Agreement, (iv) as provided in any Intercreditor Agreement, including the ABL Intercreditor Agreement with respect to the extent the applicable Revolver Priority Collateral constitutes property leased to Credit Parties under a lease which has expired or been terminated in a transaction permitted under this Agreement; and (v) as to the extent the Credit Party owning such Collateral is released of any Facility Guarantor, upon its release from its Obligations hereunder Facility Guarantee (pursuant to Section 13.11 or otherwiseincluding as a result of designation as an Unrestricted Subsidiary); or (vi) . Except as required by provided above, the terms Collateral Agent will not release any of the ABL Intercreditor AgreementCollateral Agent’s Liens without the prior written authorization of the Applicable Lenders. Upon request by any Agent or Parent Borrower any Loan Party at any time, the Lenders will confirm in writing the Collateral Agent’s authority to release any Lien Liens upon particular types or items of Collateral pursuant to this Section 10.11. In addition, the Lenders hereby authorize Agent, to subordinate any Lien granted to or held by Agent upon any Collateral to any Lien on such asset permitted pursuant to paragraph (6)(C) of the definition of Permitted Lien. In addition, the Guaranty of the Obligations by, and the liens on the assets of, any Restricted Subsidiary which is designated as an Unrestricted Subsidiary will automatically be terminated and released at the time of such designation8.16.
(b) Promptly, and in any event not later than five (5) Business Days’ following written request by Parent Borrower, The Collateral Agent shall (and is hereby irrevocably authorized and directed by the Lenders to) execute such documents as may be necessary to evidence the release (or subordination) of its the Liens upon such any Collateral as contemplated by described in Section 10.11(a8.16(a); provided, however, that (i) the Collateral Agent shall not be required to execute any such document on terms which, in Agent’s its reasonable opinion, would would, under Applicable Law, expose the Collateral Agent to liability or create any obligation or entail any adverse 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 Liens (other than those expressly being released) upon (or obligations of Credit Parties any Loan Party in respect of) all interests retained by Credit Partiesany Loan Party, including (without limitation) the proceeds of any sale, all of which shall continue to constitute part of the Collateral.
(c) Each Lender irrevocably authorizes each of the Administrative Agent and the Collateral Agent to (i) release any Guarantor from its obligations under a Facility Guarantee if such Person ceases to be a Restricted Subsidiary as a result of a transaction or designation permitted hereunder and (ii) upon the request of the Borrower and pursuant to documentation reasonably acceptable to the Administrative Agent and/or Collateral Agent, to subordinate any Lien on any property granted to or held by the Administrative Agent or the Collateral Agent under any Loan Document to the holder of any Lien on such property that is permitted under clause (f), (h) or (t) of the definition of Permitted Encumbrances.
(d) The Secured Parties hereby irrevocably authorize the Administrative Agent, at the direction of the Required Lenders, 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) and in such manner purchase (either directly or through one or more acquisition vehicles) all or any portion of the Collateral (a) at any sale thereof conducted under the provisions of the Bankruptcy Code, including under Sections 363, 1123 or 1129 of the Bankruptcy Code, or any similar laws in any other jurisdictions to which a Loan Party is subject, or (b) at any other sale, foreclosure or acceptance of collateral in lieu of debt conducted by (or with the consent or at the direction of) the Administrative Agent (whether by judicial action or otherwise) in accordance with any applicable law. In connection with any such credit bid and purchase, the Obligations owed to the Secured Parties shall be entitled to be, and shall be, credit bid by the Administrative Agent at the direction of the Required Lenders 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 (i) the Administrative Agent shall be authorized to form one or more acquisition vehicles and to assign any successful credit bid to such acquisition vehicle or vehicles (ii) each of the Secured Parties’ 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, (iii) the Administrative shall be authorized to adopt documents providing for the governance of the acquisition vehicle or vehicles (provided that any actions by the Administrative 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 9.02 of this Agreement), (iv) the Administrative Agent on behalf of such acquisition vehicle or vehicles shall be authorized to issue to each of the Secured Parties, ratably on account of the relevant Obligations which were credit bid, interests, whether as equity, partnership, 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 Secured Party or acquisition vehicle to take any further action, and (v) to the extent that Obligations that are assigned to an acquisition vehicle are not used to acquire Collateral 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 Secured Parties pro rata 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 Secured Party or any acquisition vehicle to take any further action. Notwithstanding that the ratable portion of the Obligations of each Secured Party are deemed assigned to the acquisition vehicle or vehicles as set forth in clause (ii) above, each Secured Party shall execute such documents and provide such information regarding the Secured Party (and/or any designee of the Secured Party which will receive interests in or debt instruments issued by such acquisition vehicle) as the Administrative Agent 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 the Collateral Documents. Co-Collateral Agent shall act in concert with Agent in matters delegated to the both of them under this Agreement; however, in the event of any disagreement or dispute between Agent and Co-Collateral Agent in any such matter, the determination or decision of Agent shall, in all cases, controlcredit bid.
Appears in 3 contracts
Sources: Credit Agreement (Burlington Stores, Inc.), Credit Agreement (Burlington Stores, Inc.), Credit Agreement (Burlington Stores, Inc.)
Collateral Matters. (a) The Lenders hereby irrevocably authorize the Agent, at its option and direct Agent in its sole discretion, to release any Agent's Liens upon any Collateral (and any such Liens shall be automatically released, without any action by Agent or any other Person)Collateral, (i) upon the Termination Datetermination of the Commitments and payment and satisfaction in full by Borrowers of all Loans; (ii) in respect of constituting property of any Subsidiary being sold or disposed of or transferred (including property owned by any Subsidiary being sold or disposed of or transferred) if the Borrowers certify to the Agent that the sale or Disposition or transfer disposition is made in compliance with this Agreement Section 7.9 (and the Loan Documents (or otherwise is not prohibited) (and Agent may, in its discretion, request, and may rely conclusively on any such certificate, without further inquiry on a certificate from the Borrower certifying as such prior to Agent taking any action to evidence such release) or such sale or Disposition is approved by the Requisite Lenders (or such greater number of Lenders as may be required under Section 12.2inquiry); (iii) to constituting property in which the extent Borrower Parties owned no interest at the applicable Collateral is time the Lien was granted or becomes Excluded Property and/or Excluded Principal Propertyat any time thereafter; or (iv) to the extent the applicable Collateral constitutes constituting property leased to Credit the Borrower Parties under a lease which has expired or been terminated in a transaction permitted under this Agreement; (v) to . Except as provided above, the extent the Credit Party owning such Collateral is released from its Obligations hereunder (pursuant to Section 13.11 or otherwise); or (vi) as required by the terms Agent will not release any of the ABL Intercreditor AgreementAgent's Liens without the prior written authorization of all Lenders; provided that the Agent may, in its discretion, release the Agent's Liens on Collateral valued in the aggregate not in excess of $500,000 during each Fiscal Year without the prior written authorization of the Lenders and the Agent may release the Agent's Liens on Collateral valued in the aggregate not in excess of $1,000,000 during each Fiscal Year with the prior written authorization of Required Lenders. Upon request by the Agent or Parent Borrower the Borrowers at any time, the Lenders will confirm in writing the Agent’s 's authority to release any Lien Agent's Liens upon particular types or items of Collateral pursuant to this Section 10.11. In addition, the Lenders hereby authorize Agent, to subordinate any Lien granted to or held by Agent upon any Collateral to any Lien on such asset permitted pursuant to paragraph (6)(C) of the definition of Permitted Lien. In addition, the Guaranty of the Obligations by, and the liens on the assets of, any Restricted Subsidiary which is designated as an Unrestricted Subsidiary will automatically be terminated and released at the time of such designation12.11.
(b) PromptlyUpon receipt by the Agent of any authorization required pursuant to Section 12.11(a) from the Lenders of the Agent's authority to release any Agent's Liens upon particular types or items of Collateral, and in any event not later than upon at least five (5) Business Days’ following ' prior written request by Parent Borrowerthe Borrowers, the Agent shall (and is hereby irrevocably authorized and directed by the Lenders to) execute such documents as may be necessary to evidence the release (or subordination) of its the Agent's Liens upon such Collateral as contemplated by Section 10.11(a)Collateral; provided, however, that (i) the Agent shall not be required to execute any such document on terms which, in the Agent’s 's opinion, would expose the Agent to liability or create any 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 Liens (other than those expressly being released) upon (or obligations of Credit the Borrower Parties in respect of) all interests retained by Credit Partiesany Borrower Party, including the proceeds of any sale, all of which shall continue to constitute part of the Collateral.
(c) The Agent shall have no obligation whatsoever to any of the Lenders to assure that the Collateral exists or is owned by the Borrower Parties or is cared for, protected or insured or has been encumbered, or that the Agent's Liens have been properly or sufficiently or lawfully created, perfected, protected or enforced or 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 pursuant to any of the Loan Documents, it being understood and agreed that in respect of the Collateral, or any act, omission or event related thereto, the Agent may act in any manner it may deem appropriate in its sole discretion given the Agent's own interest in the Collateral in its capacity as one of the Lenders and that the Agent shall have no other duty or liability whatsoever to any Lender as to any of the foregoing.
(d) The Agent agrees that the face of each promissory note evidencing the Obligations or any portion thereof and any agreement purporting to grant any security interest therefor shall be inscribed with a legend conspicuously indicating such promissory note or such security agreement is subject to the terms and provisions of the Intercreditor Agreement. Any promissory note evidencing any of the Obligations or any portion thereof, and any agreement granting any security interest therefor, which is hereafter executed will, on the date thereof, be inscribed with a similar legend. Upon the acceptance of any promissory note under the Exchange Offer, the Lender accepting such note shall be deemed to have accepted the terms and provisions of this Agreement, the Intercreditor Agreement or any other agreement executed in connection herewith or therewith.
(e) The Agent, the Lenders and the Company acknowledge and agree that this Agreement is subject to the terms and provisions of the Intercreditor Agreement and to the extent contemplated by there is a conflict between the Collateral Documents. Co-Collateral Agent shall act in concert with Agent in matters delegated to terms of this Agreement and the both terms of them under this the Intercreditor Agreement; however, in the event of any disagreement or dispute between Agent and Co-Collateral Agent in any such matter, the determination or decision terms of Agent shall, in all cases, the Intercreditor Agreement shall govern and control.
Appears in 3 contracts
Sources: Support Agreement (Salton Inc), Support Agreement (Salton Inc), Support Agreement (Salton Inc)
Collateral Matters. (a) Agent 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 Agent, in its sole discretion, (i) deems necessary or desirable either to preserve or protect the Collateral or any portion thereof; or (ii) to enhance the likelihood or maximize the amount of repayment by US Borrowers of the Loans and other Obligations; or (iii) to pay any other amount chargeable to US Borrowers pursuant to the terms of this Agreement or any of the other Financing Agreements consisting of costs, fees and expenses and payments to any issuer of Letter of Credit Accommodations provided, that, the aggregate principal amount of the Special Agent Advances and the Canadian Special Agent Advances shall not exceed US$4,000,000. Special Agent Advances and Canadian Special Agent Advances shall be repayable on demand and be secured by the Collateral. Special Agent Advances shall not constitute Loans but shall otherwise constitute Obligations hereunder.
(b) Tranche B Agent 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 Tranche B Agent Advances”) which Tranche B Agent, in its sole discretion, (i) deems necessary or desirable either to preserve or protect the Collateral or any portion thereof; or (ii) to enhance the likelihood or maximize the amount of repayment by US Borrowers of the Loans and other Obligations; provided, that, the aggregate principal amount of the Special Tranche B Agent Advances and the Canadian Special Tranche B Agent Advances shall not exceed US$2,150,000. Special Tranche B Agent Advances and Canadian Special Tranche B Agent Advances shall be repayable on demand and be secured by the Collateral. Special Tranche B Agent Advances shall not constitute Loans but shall otherwise constitute Obligations hereunder.
(c) US Lenders hereby irrevocably authorize Agent, at its option and direct Agent in its discretion to release any Liens Lien upon any of the Collateral (and any such Liens shall be automatically released, without any action by Agent or any other Person), (i) upon payment and satisfaction of all of the Termination Date; Obligations and delivery of cash collateral to the extent required under Section 11.1 below, or (ii) in respect of constituting property of any Subsidiary being sold or disposed of or transferred (including property owned by any Subsidiary being sold or disposed of or transferred) if US Borrowers certify to Agent that the sale or Disposition or transfer disposition is made in compliance with this Agreement and the Loan Documents (or otherwise is not prohibited) Section 8.7 hereof (and Agent may, in its discretion, request, and may rely conclusively on any such certificate, without further inquiry on a certificate from the Borrower certifying as such prior to Agent taking any action to evidence such release) inquiry), or such sale or Disposition is approved by the Requisite Lenders (or such greater number of Lenders as may be required under Section 12.2); (iii) to constituting property in which US Borrowers did not own an interest at the extent time the applicable Collateral is Lien was granted or becomes Excluded Property and/or Excluded Principal Property; at any time thereafter, or (iv) to the extent the applicable Collateral constitutes property leased to Credit Parties under a lease which has expired if required or been terminated in a transaction permitted under this Agreement; the terms of any of the other Financing Agreements, or (v) to the extent the Credit Party owning such Collateral is released from its Obligations hereunder (pursuant to Section 13.11 approved, authorized or otherwise); or (vi) ratified in writing by all US Lenders. Except as required by the terms provided above, Agent will not release any Lien upon any of the ABL Intercreditor AgreementCollateral without the prior written authorization of all of US Lenders. Upon request by Agent or Parent Borrower at any time, US Lenders will promptly confirm in writing Agent’s authority to release any Lien upon particular types or items of Collateral pursuant to this Section 10.11. In addition, the Lenders hereby authorize Agent, to subordinate any Lien granted to or held by Agent upon any Collateral to any Lien on such asset permitted pursuant to paragraph (6)(C) of the definition of Permitted Lien. In addition, the Guaranty of the Obligations by, and the liens on the assets of, any Restricted Subsidiary which is designated as an Unrestricted Subsidiary will automatically be terminated and released at the time of such designationSection.
(bd) PromptlyWithout any manner limiting Agent’s authority to act without any specific or further authorization or consent by US Lenders, and each US Lender agrees to confirm in any event not later than five (5) Business Days’ following written writing, upon request by Parent BorrowerAgent, the authority to release Collateral conferred upon Agent under this Section. Agent shall (and is hereby irrevocably authorized and directed by US Lenders to) execute such documents as may be necessary to evidence the release (or subordination) of its the Liens granted to Agent upon such any Collateral as contemplated by Section 10.11(a)to the extent set forth above; provided, howeverthat, that (i) Agent shall not be required to execute any such document on terms which, in Agent’s opinion, would expose Agent to liability or create any obligation 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 Liens (other than those expressly being released) Lien upon (or obligations of Credit Parties US Borrowers in respect of) all interests the Collateral retained by Credit PartiesUS Borrowers.
(e) Each of Agent and Tranche B Agent shall have no obligation whatsoever to any US Lender or any other Person to investigate, including confirm or assure that the proceeds Collateral exists or is owned by US Borrowers or is cared for, protected or insured or has been encumbered, or that any particular items of any sale, all of which shall continue to constitute part Collateral meet the eligibility criteria applicable in respect of the Collateral Loans or Letter of Credit Accommodations hereunder, or whether any particular reserves are appropriate, or that the liens and security interests granted to Agent pursuant hereto or any of the extent contemplated by Financing Agreements or otherwise have been properly or sufficiently or lawfully created, perfected, protected or enforced or 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 Agent in this Agreement or in any of the other Financing Agreements, it being understood and agreed that in respect of the Collateral, or any act, omission or event related thereto, each of Agent and Tranche B Agent may act in any manner it may deem appropriate, in its discretion, given its own interest in the Collateral Documents. Co-Collateral as a US Lender and that each of Agent and Tranche B Agent shall act in concert with Agent in matters delegated have no duty or liability whatsoever to the both of them under this Agreement; however, in the event of any disagreement or dispute between Agent and Co-Collateral Agent in any such matter, the determination or decision of Agent shall, in all cases, controlother US Lender.
Appears in 2 contracts
Sources: Us Loan Agreement (SMTC Corp), Us Loan Agreement (SMTC Corp)
Collateral Matters. (a) The Lenders (and each other Secured Party by their acceptance of the benefits of the Loan Documents shall be deemed to) hereby irrevocably authorize the Collateral Agent (and direct if applicable, any subagent appointed by the Collateral Agent under Section 13.2 or otherwise) to release any its Liens on the Collateral, and the Collateral Agent’s Liens upon any Collateral (and any such Liens shall be automatically released, without any action by Agent or any other Person), released (i) upon Full Payment of the Termination DateObligations; (ii) in respect upon a disposition of property of any Subsidiary being sold or disposed of or transferred (including property owned Collateral permitted by any Subsidiary being sold or disposed of or transferred) if the sale or Disposition or transfer is made in compliance with this Agreement and the Loan Documents (or otherwise Section 8.8 to a Person that is not prohibited) (and Agent may, in its discretion, request, and rely conclusively without further inquiry on a certificate from the Borrower certifying as such prior to Agent taking any action to evidence such release) or such sale or Disposition is approved by the Requisite Lenders (or such greater number of Lenders as may be required under Section 12.2)an Obligor; (iii) to if any such Collateral constitutes property in which the extent Obligors owned no interest at the applicable Collateral is time the Lien was granted or becomes Excluded Property and/or Excluded Principal Propertyat any time thereafter; (iv) to the extent the applicable if any such Collateral constitutes property leased to Credit Parties an Obligor under a lease which has expired or been terminated in a transaction permitted under this Agreement; (v) to the extent the Credit Party owning property constituting such Collateral is released owned by any Guarantor, upon the release of such Guarantor from its Obligations hereunder obligations under the Guarantee Agreement (pursuant to Section 13.11 or otherwisein accordance with the second succeeding sentence and the Guarantee Agreement); or (vi) as required by the terms Collateral Agent to effect any sale, transfer or other Disposition of Collateral in connection with any exercise of remedies of the ABL Intercreditor AgreementCollateral Agent pursuant to the Security Documents, and (vii) to the extent such Collateral otherwise becomes an Excluded Stock or an Excluded Asset. Except as provided above, the Collateral Agent will not release any of the Collateral Agent’s Liens without the prior written authorization of the Required Lenders (or such other percentage of Lenders whose consent is required in accordance with Section 12.1); provided that, in addition to the foregoing, the Collateral Agent may, in its discretion, release such Collateral Agent’s Liens on Collateral valued in the aggregate not in excess of $1,000,000 during each Fiscal Year without the prior written authorization of any Lender, so long as all proceeds received in connection with such release are applied to the Obligations in accordance with Section 4.7 and, after giving effect to the application of such proceeds and the updating of the Borrowing Base, as the case may be, to reflect the deletion of any assets subject to such release, Availability shall be no less than the Availability immediately prior to such release. Upon request by the Collateral Agent or Parent the Borrower at any time, subject to the Borrower having certified to the Collateral Agent that the disposition is made in compliance with Section 8.8 (which the Collateral Agent may rely conclusively on any such certificate, without further inquiry), the Lenders will confirm in writing the Collateral Agent’s authority to release any Lien applicable Collateral Agent’s Liens upon particular types or items of Collateral pursuant to this Section 10.1113.10. In addition, the Lenders (and each other Secured Party by their acceptance of the benefits of the Loan Documents shall be deemed to) hereby irrevocably authorize Agent, (w) the Collateral Agent to subordinate any Lien on any property granted to or held by the Collateral Agent upon under any Collateral Loan Document to the holder of any Lien on such asset property that is permitted by Section 8.12(c) or (q) (as to Fixed Asset Collateral only), (x) the Agent to release automatically any Guarantor from its obligations under the Guarantee Agreement if such Person ceases to be a Restricted Subsidiary as a result of a transaction permitted under this Agreement or such Person otherwise becomes an Excluded Subsidiary, in each case, solely to the extent such Subsidiary ceasing to constitute a Restricted Subsidiary or otherwise becoming an Excluded Subsidiary is not prohibited by this Agreement, (y) so long as both (1) no Default or Event of Default has occurred and is continuing or would result therefrom and (2) no Out-of-Formula Condition has occurred and is continuing or would result therefrom, then, to the extent that the Collateral Agent obtains possession of any Collateral by operation of Section 13.12 of this Agreement that constitutes Collateral that Obligors are not required to deliver to Collateral Agent at such time pursuant to paragraph the terms hereof, the Security Documents or any other contractual arrangement with any Obligor, following the written request by Borrower, Collateral Agent shall (6)(Cto the extent not prohibited by applicable law or legal process) deliver such Collateral in accordance with the terms of the Intercreditor Agreement or, if no Intercreditor Agreement is then in effect, to the applicable Obligor, and (z) if after the date hereof Collateral Agent’s Lien has been expanded to include Fixed Asset Collateral in connection with incurrence of Debt pursuant to Section 8.12(q)(x) or (r) so long as all of the following conditions are satisfied (1) no Default or Event of Default has occurred and is continuing or would result therefrom, (2) no Out-of-Formula Condition has occurred and is continuing or would result therefrom, and (3) no Debt has been incurred in reliance on Section 8.12(q)(x) or (r) that remains outstanding (and no commitments for Debt that, if incurred would be incurred in reliance on Section 8.12(q)(x) or (r), remain outstanding) and no Liens are outstanding in reliance on clause (r), clause (jj), or, to the extent on account of Refinancing Debt, or outstanding commitments that, if incurred, would be Refinancing Debt, in each case incurred in reliance, directly or indirectly, on Section 8.12(q)(x) or (r)), clause (p) of the definition of Permitted Lien. In additionLiens, promptly following the written request of the Borrower, the Guaranty Collateral Agent shall release Collateral Agent’s Liens on Fixed Assets Collateral at the expense of the Obligations byObligors. Upon request by any Appointed Agent at any time, and the liens on the assets ofRequired Lenders will confirm in writing such Appointed Agent’s authority to release or subordinate its interest in particular types or items of property, or to release any Restricted Subsidiary which is designated as an Unrestricted Subsidiary will automatically be terminated and released at the time of such designationGuarantor from its obligations pursuant to this Section 13.10(a).
(b) PromptlyUpon receipt by any Appointed Agent of any authorization required pursuant to Section 13.10(a) from the Lenders of such Appointed Agent’s authority to release or subordinate the applicable Collateral Agent’s Liens upon particular types or items of Collateral, or to release any Guarantor from its obligations under the Guarantee Agreement, and in any event not later than five upon at least three (53) Business Days’ following prior written request by Parent the Borrower, such Appointed Agent shall (and is hereby irrevocably authorized by the Lenders and directed by Lenders the other Secured Parties to) execute such documents as may be necessary to evidence the release (or subordination) of its such Collateral Agent’s Liens upon such Collateral as contemplated by Section 10.11(a)or to subordinate its interest therein, or to release such Guarantor from its obligations under the Guarantee Agreement; provided, however, that (i) such Appointed Agent shall not be required to execute any such document on terms which, in such Appointed Agent’s opinion, would expose such Appointed Agent to liability or create any 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 Liens (other than those expressly being released) upon (or obligations of Credit Parties the Obligors in respect of) all interests retained by Credit Partiesthe Obligors, including the proceeds of any sale, all of which shall continue to constitute part of the Collateral to the extent contemplated by the Collateral Documents. Co-such Collateral.
(c) The Collateral Agent shall have no obligation whatsoever to any of the Lenders to assure that the Collateral exists or is owned by the Obligors or is cared for, protected or insured or has been encumbered, or that the applicable Collateral Agent’s Liens have been properly or sufficiently or lawfully created, perfected, protected or enforced or 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 pursuant to any of the Loan 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 concert with Agent in matters delegated to the both of them under this Agreement; howeverany manner it may deem appropriate, in its sole discretion, given the event Collateral Agent’s own interest in the Collateral in its capacity as one of any disagreement or dispute between Agent the Lenders and Co-that the Collateral Agent in shall have no other duty or liability whatsoever to any such matter, Lender as to any of the determination or decision of Agent shall, in all cases, controlforegoing.
Appears in 2 contracts
Sources: Credit Agreement (ProFrac Holding Corp.), Credit Agreement (ProFrac Holding Corp.)
Collateral Matters. (a) Lenders hereby irrevocably authorize Agent, at its option and direct Agent in its sole discretion, to release any Liens Agent’s Lien upon any Collateral (and any such Liens shall be automatically released, without any action by Agent or any other Person), (i) upon the Termination Datetermination of the Commitments and payment and satisfaction in full by Borrowers of all Loans and reimbursement obligations in respect of Letters of Credit and related credit support, and the termination or cash collateralization of all outstanding Letters of Credit (whether or not any of such obligations are due) and all other Obligations (other than in indemnification and other contingent obligations for which no amount is due and owing and with respect to which no claim has been made), all in accordance with the provisions of Paragraph 3.2; (ii) in respect of constituting property of any Subsidiary being sold or disposed of or transferred (including property owned by any Subsidiary being sold or disposed of or transferred) if Borrowers certify to Agent that the sale or Disposition or transfer disposition is made in compliance with this Agreement and the Loan Documents (or otherwise is not prohibited) (and Agent may, in its discretion, request, and may rely conclusively on any such certificate, without further inquiry on a certificate from the Borrower certifying as such prior to Agent taking any action to evidence such release) or such sale or Disposition is approved by the Requisite Lenders (or such greater number of Lenders as may be required under Section 12.2inquiry); (iii) to constituting property in which Borrowers owned no interest at the extent time the applicable Collateral is Lien was granted or becomes Excluded Property and/or Excluded Principal Propertyat any time thereafter; or (iv) to the extent the applicable Collateral constitutes constituting property leased to Credit Parties Borrowers under a lease which has expired or been terminated in a transaction permitted under this Agreement; (v) to the extent the Credit Party owning such Collateral is released from its Obligations hereunder (pursuant to . Except as provided above or in Section 13.11 or otherwise); or (vi) as required by the terms 13.21, Agent will not release any of the ABL Intercreditor AgreementAgent’s Liens without the prior written authorization of Lenders. Upon request by Agent or Parent Borrower Borrowers at any time, Lenders will confirm in writing Agent’s authority to release any Lien Agent’s Liens upon particular types or items of Collateral pursuant to this Section 10.11. In addition, the Lenders hereby authorize Agent, to subordinate any Lien granted to or held by Agent upon any Collateral to any Lien on such asset permitted pursuant to paragraph (6)(C) of the definition of Permitted Lien. In addition, the Guaranty of the Obligations by, and the liens on the assets of, any Restricted Subsidiary which is designated as an Unrestricted Subsidiary will automatically be terminated and released at the time of such designationParagraph 12.10.
(b) PromptlyUpon receipt by Agent of any authorization required pursuant to subparagraph 12.10(a) from Lenders of Agent’s authority to release any Agent’s Liens upon particular types or items of Collateral, and in any event not later than upon at least five (5) Business Days’ following Days prior written request by Parent BorrowerBorrowers, Agent shall (and is hereby irrevocably authorized and directed by Lenders to) execute such documents as may be necessary to evidence the release (or subordination) of its the Agent’s Liens upon such Collateral as contemplated by Section 10.11(a)Collateral; provided, however, that (i) Agent shall not be required to execute any such document on terms which, in Agent’s opinion, would expose Agent to liability or create any 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 Liens (other than those expressly being released) upon (or obligations of Credit Parties Borrowers in respect of) all interests retained by Credit PartiesBorrowers, including the proceeds of any sale, all of which shall continue to constitute part of the Collateral Collateral.
(c) Agent shall have no obligation whatsoever to any of the extent contemplated by Lenders to assure that the Collateral exists or is owned by Borrowers or is cared for, protected or insured or has been encumbered, or that the Agent’s Liens have been properly or sufficiently or lawfully created, perfected, protected or enforced or 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 Agent pursuant to any of the Loan Documents. Co-, it being understood and agreed that in respect of the Collateral, or any act, omission or event related thereto, Agent may act in any manner it may deem appropriate, in its sole discretion given Agent’s own interest in the Collateral in its capacity as one of the Lenders and that Agent shall act in concert with Agent in matters delegated have no other duty or liability whatsoever to any Lender as to any of the both of them under this Agreement; however, in the event of any disagreement or dispute between Agent and Co-Collateral Agent in any such matter, the determination or decision of Agent shall, in all cases, controlforegoing.
Appears in 2 contracts
Sources: Loan and Security Agreement (Regional Management Corp.), Loan and Security Agreement (Regional Management Corp.)
Collateral Matters. (a) Lenders hereby irrevocably authorize Agent may, at its option, from time to time, at any time on or after an Event of Default and direct Agent to release any Liens for so long as the same is continuing or upon any Collateral other failure of a condition precedent to the Loans and Letter of Credit Accommodations hereunder, make such disbursements and advances (and any such Liens shall be automatically released“Special Agent Advances”) which Agent, without any action by Agent or any other Person)in its sole discretion, (i) upon deems necessary or desirable either to preserve or protect the Termination Date; Collateral or any portion thereof or (ii) to enhance the likelihood or maximize the amount of repayment by Borrowers and Guarantors of the Loans and other Obligations, provided, that, the aggregate principal amount of the Special Agent Advances pursuant to clauses (i) and (ii), plus the then outstanding principal amount of the additional Loans and Letter of Credit Accommodations which Agent may make or provide as set forth in respect Section 12.8 hereof, shall not exceed the aggregate amount of property five (5%) percent of any Subsidiary being sold the Maximum Credit and shall not cause the total principal amount of Loans and Letters of Credit Accommodations to exceed the Maximum Credit or disposed of or transferred (including property owned by any Subsidiary being sold or disposed of or transferred) if the sale or Disposition or transfer is made in compliance with this Agreement and the Loan Documents (or otherwise is not prohibited) (and Agent may, in its discretion, request, and rely conclusively without further inquiry on a certificate from the Borrower certifying as such prior to Agent taking any action to evidence such release) or such sale or Disposition is approved by the Requisite Lenders (or such greater number of Lenders as may be required under Section 12.2); (iii) to the extent the applicable Collateral is pay any other amount chargeable to any Borrower or becomes Excluded Property and/or Excluded Principal Property; (iv) Guarantor pursuant to the extent terms of this Agreement or any of the other Financing Agreements consisting of (A) costs, fees and expenses and (B) payments to any issuer of Letter of Credit Accommodations. Special Agent Advances shall be repayable on demand and together with all interest thereon shall constitute Obligations secured by the Collateral. Special Agent Advances shall not constitute Loans but shall otherwise constitute Obligations hereunder. Interest on Special Agent Advances shall be payable at the Interest Rate then applicable Collateral constitutes property leased to Credit Parties under a lease which has expired or been terminated in a transaction permitted under this Agreement; (v) to the extent the Credit Party owning such Collateral is released from Prime Rate Loans and shall be payable on demand. Without limitation of its Obligations hereunder (obligations pursuant to Section 13.11 or otherwise); or 6.10, each Lender agrees that it shall make available to Agent, upon Agent’s demand, in immediately available funds, the amount equal to such Lender’s Pro Rata Share of each such Special Agent Advance. If such funds are not made available to Agent by such Lender, such Lender shall be deemed a Defaulting Lender and 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 Agent at the Federal Funds Rate for each day during such period (vi) as required published by the terms Federal Reserve Bank of New York or at Agent’s option based on the arithmetic mean determined by Agent of the ABL Intercreditor Agreement. Upon request rates for the last transaction in overnight Federal funds arranged prior to 9:00 a.m. (New York City time) on that day by Agent or Parent Borrower at any time, Lenders will confirm each of the three leading brokers of Federal funds transactions in writing New York City selected by Agent) and if such amounts are not paid within three (3) days of Agent’s authority to release any Lien upon particular types or items of Collateral pursuant to this Section 10.11. In additiondemand, the Lenders hereby authorize Agent, to subordinate any Lien granted to or held by Agent upon any Collateral to any Lien on such asset permitted pursuant to paragraph (6)(C) of the definition of Permitted Lien. In addition, the Guaranty of the Obligations by, and the liens on the assets of, any Restricted Subsidiary which is designated as an Unrestricted Subsidiary will automatically be terminated and released at the time of such designationhighest Interest Rate provided for in Section 3.1 hereof applicable to Prime Rate Loans.
(b) Promptly, and in any event not later than five (5) Business Days’ following written request by Parent Borrower, Agent shall (and is hereby irrevocably authorized and directed by Lenders to) execute such documents as may be necessary to evidence the release (or subordination) of its Liens upon such Collateral as contemplated by Section 10.11(a); provided, however, that (i) Agent shall not be required to execute any such document on terms which, in Agent’s opinion, would expose Agent to liability or create any 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 Liens (other than those expressly being released) upon (or obligations of Credit Parties in respect of) all interests retained by Credit Parties, including the proceeds of any sale, all of which shall continue to constitute part of the Collateral to the extent contemplated by the Collateral Documents. Co-Collateral Agent shall act in concert with Agent in matters delegated to the both of them under this Agreement; however, in the event of any disagreement or dispute between Agent and Co-Collateral Agent in any such matter, the determination or decision of Agent shall, in all cases, control.
Appears in 2 contracts
Sources: Loan and Security Agreement (Atlantic Express Transportation Corp), Loan and Security Agreement (Atlantic Paratrans of Arizona, Inc.)
Collateral Matters. (a) Lenders The Agent may, but shall not be obligated to, from time to time make such disbursements and advances (“Agent Advances”) which 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 or to pay any other amount chargeable to the Issuer pursuant to the terms of this Agreement, including, without limitation, costs, fees and expenses as described in Sections 8.01(d) or 12.04; provided, that the Agent will provide notice to the Issuer at least 5 days prior to making any Agent Advances (unless giving such notice would prejudice the Agent’s ability to preserve and protect the Collateral, in which case the Agent will provide whatever notice is practicable). The Agent Advances shall be repayable on demand, shall bear interest as set forth in Section 2.04(a), and shall be secured by the Collateral. The Agent Advances shall constitute Obligations hereunder which may be charged to the Note Account in accordance with Section 4.02. All such “Agent Advances” shall be funded with monies made available by the Holders, as no provisions of this Agreement or any Note Document shall require the Agent to expand or risk its own funds or otherwise incur any financial liability in the performance of any of its duties hereunder or thereunder, or in the exercise of any of its rights or powers, unless it shall have reasonable grounds for believing that repayment of such funds or adequate indemnity against such risk or liability is assured to it.
(b) The Holders hereby irrevocably authorize the Agent, at its option and direct Agent in its discretion, to release any Liens Lien granted to or held by the Agent upon any Collateral (upon final payment and any such Liens shall be automatically released, without any action by Agent satisfaction of all Notes and all other Obligations; or any other Person), (i) upon the Termination Date; (ii) in respect of Collateral constituting property of any Subsidiary being sold or disposed of or transferred (including property owned by in the ordinary course of any Subsidiary being sold or disposed of or transferred) if the sale or Disposition or transfer is made Obligor’s business and in compliance with the terms of this Agreement and the Loan Documents (other Note Documents; or otherwise is not prohibited) (and Agent mayif approved, authorized or ratified in its discretion, request, and rely conclusively without further inquiry on a certificate from the Borrower certifying as such prior to Agent taking any action to evidence such release) or such sale or Disposition is approved writing by the Requisite Lenders (or such greater number of Lenders as may be required under Section 12.2); (iii) to the extent the applicable Collateral is or becomes Excluded Property and/or Excluded Principal Property; (iv) to the extent the applicable Collateral constitutes property leased to Credit Parties under a lease which has expired or been terminated in a transaction permitted under this Agreement; (v) to the extent the Credit Party owning such Collateral is released from its Obligations hereunder (pursuant to Section 13.11 or otherwise); or (vi) as required by the terms of the ABL Intercreditor AgreementRequired Holders. Upon request by the Agent or Parent Borrower at any time, Lenders the Holders will confirm in writing the Agent’s authority to release any Lien upon particular types or items of Collateral pursuant to this Section 10.11. In addition, the Lenders hereby authorize Agent, to subordinate any Lien granted to or held by Agent upon any Collateral to any Lien on such asset permitted pursuant to paragraph (6)(C) of the definition of Permitted Lien. In addition, the Guaranty of the Obligations by, and the liens on the assets of, any Restricted Subsidiary which is designated as an Unrestricted Subsidiary will automatically be terminated and released at the time of such designation10.07(b).
(bc) PromptlyWithout in any manner limiting the Agent’s authority to act without any specific or further authorization or consent by the Required Holders (as set forth in this Section 10.07(c)), each Holder agrees to confirm in writing, upon request by the Agent, the authority to release Collateral conferred upon the Agent under this Section 10.07. Upon receipt by the Agent of confirmation from the Holders of its authority to release any particular item or types of Collateral, and in any event not later than five (5) Business Days’ following upon prior written request by Parent Borrowerany Obligor, the Agent shall (and is hereby irrevocably authorized and directed by Lenders the Holders to) execute such documents as may be necessary to evidence the release (or subordination) of its the Liens granted to the Agent for the benefit of the Holders upon such Collateral as contemplated by Section 10.11(a)Collateral; provided, however, that (i) the Agent shall not be required to execute any such document on terms which, in the Agent’s opinion, would expose the Agent to liability or create any obligation 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 Liens (other than those expressly being released) Lien upon (or obligations of Credit Parties any Obligor in respect of) all interests in the Collateral retained by Credit Partiesany Obligor.
(d) The Agent shall have no obligation whatsoever to any Holder to assure that the Collateral exists or is owned by the Obligors or is cared for, including protected or insured or has been encumbered or that the proceeds Lien granted to the Agent pursuant to this Agreement or any other Note 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 sale, all of which shall continue to constitute part of the Collateral rights, authorities and powers granted or available to the extent contemplated by Agent in this Section 10.07 or in any other Note Document, it being understood and agreed that in respect of the Collateral, or any act, omission or event related thereto, the Agent may act in any manner it may deem appropriate, in its sole discretion, given the Agent’s own interest in the Collateral Documents. Co-Collateral if it also is one of the Holders and that the Agent shall act in concert with Agent in matters delegated have no duty or liability whatsoever to the both of them under this Agreement; howeverany other Holder, in the event of any disagreement or dispute between Agent and Co-Collateral Agent in any such matter, the determination or decision of Agent shall, in all cases, controlexcept as otherwise provided herein.
Appears in 2 contracts
Sources: Securities Purchase Agreement (FriendFinder Networks Inc.), Securities Purchase Agreement (FriendFinder Networks Inc.)
Collateral Matters. (a) Subject to the limitations in Section 12.8 hereof, Agent 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 Agent, in its sole discretion, deems necessary or desirable either (i) to preserve or protect the Collateral or any portion thereof or (ii) to enhance the likelihood or maximize the amount of repayment by Borrowers of the Loans and other Obligations, or (iii) to pay any other amount chargeable to Borrowers or Obligors pursuant to the terms of this Agreement or any of the other Financing Agreements consisting of (A) costs, fees and expenses and (B) payments to any issuer of Letter of Credit Accommodations; provided, that notwithstanding any provision to the contrary, Agent may make any such Special Agent Advances so long as: (a) the total principal amount of such Special Agent Advances together with the principal amount of the additional Revolving Loans and additional Letter of Credit Accommodations made pursuant to Section 12.11 hereof, shall not exceed the least of (i) $7,500,000, (ii) the sum of (x) the amount which, when added to all other Special Agent Advances, Revolving Loans and Letter of Credit Accommodations, would not cause the principal amount of all outstanding Special Agent Advances, Revolving Loans and Letter of Credit Accommodations to exceed the Borrowing Base and (y) if applicable, an amount equal to any reduction, made with the consent of all Lenders, of the Excess Availability required by Section 9.17 hereof, and (iii) the amount which would not cause the total principal amount of all Revolving Loans, Letter of Credit Accommodations and Special Agent Advances to exceed the Revolving Loan Limit. Special Agent Advances shall be repayable on demand and be secured by the Collateral. Special Agent Advances shall not constitute Revolving Loans but shall otherwise constitute Obligations hereunder. Agent shall notify Lenders and 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 of its obligations pursuant to Section 6.10 hereof, each Lender agrees that it shall make available to Agent, upon Agent’s demand, in immediately available funds, the amount equal to such Lender’s Pro Rata Share of each such Special Agent Advance. If such funds are not made available to Agent by such Lender, then such Lender shall be deemed a Defaulting Lender and 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 Agent at the Federal Funds 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 leading brokers of Federal funds transactions in New York City selected by Agent) and if such amounts are not paid within three (3) days of Agent’s demand, at the highest Revolving Loan Interest Rate provided for in Section 3.1 hereof applicable to Prime Rate Loans.
(b) Lenders hereby irrevocably authorize Agent, at its option and direct Agent in its discretion to release any Liens upon security interest in, mortgage or lien upon, any of the Collateral (and any such Liens shall be automatically released, without any action by Agent or any other Person), (i) upon termination of all of the Termination Date; Total Commitments of all Lenders and payment and satisfaction of all of the Obligations and delivery of cash collateral to the extent required under Section 14.1 below, or (ii) in respect of constituting property of any Subsidiary being sold or disposed of if the applicable Borrower or transferred (including property owned by any Subsidiary being sold or disposed of or transferred) if Guarantor certifies to Agent that the sale or Disposition or transfer disposition is made in compliance with this Agreement and the Loan Documents (or otherwise is not prohibited) Section 9.7 hereof (and Agent may, in its discretion, request, and may rely conclusively on any such certificate, without further inquiry on a certificate from the Borrower certifying as such prior to Agent taking any action to evidence such release) inquiry), or such sale or Disposition is approved by the Requisite Lenders (or such greater number of Lenders as may be required under Section 12.2); (iii) to constituting property in which no Borrower or Guarantor owned an interest at the extent time the applicable Collateral is security interest, mortgage or becomes Excluded Property and/or Excluded Principal Property; lien was granted or at any time thereafter, or (iv) to having a value in the extent the applicable Collateral constitutes property leased to Credit Parties under a lease which has expired aggregate in any twelve (12) month period of less than $1,000,000 or been terminated in a transaction permitted under this Agreement; (v) to if required or permitted under the extent terms of any of the Credit Party owning such Collateral is released from its Obligations hereunder (pursuant to Section 13.11 or otherwise); other Financing Agreements, including any intercreditor agreement, or (vi) if approved, authorized or ratified in writing by all of Lenders. Except as required by the terms provided above, Agent will not release any security interest in, mortgage or lien upon, any of the ABL Intercreditor AgreementCollateral without the prior written authorization of all of Lenders. Upon request by Agent or Parent Borrower at any time, Lenders will promptly confirm in writing Agent’s authority to release any Lien upon particular types or items of Collateral pursuant to this Section 10.11. In addition, the Lenders hereby authorize Agent, to subordinate any Lien granted to or held by Agent upon any Collateral to any Lien on such asset permitted pursuant to paragraph (6)(C) of the definition of Permitted Lien. In addition, the Guaranty of the Obligations by, and the liens on the assets of, any Restricted Subsidiary which is designated as an Unrestricted Subsidiary will automatically be terminated and released at the time of such designationSection.
(bc) PromptlyWithout any manner limiting Agent’s authority to act without any specific or further authorization or consent by the Required Lenders, and each Lender agrees to confirm in any event not later than five (5) Business Days’ following written writing, upon request by Parent BorrowerAgent, the authority to release Collateral conferred upon Agent under this Section. Agent shall (and is hereby irrevocably authorized and directed by Lenders to) execute such documents as may be necessary to evidence the release (of the security interest, mortgage or subordination) of its Liens liens granted to Agent upon such any Collateral as contemplated by Section 10.11(a)to the extent set forth above; provided, howeverthat, that (i) Agent shall not be required to execute any such document on terms which, in Agent’s opinion, would expose Agent to liability or create any obligation 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 Liens (other than those expressly being released) security interest, mortgage or lien upon (or obligations of Credit Parties any Borrower or any Guarantor in respect of) all interests the Collateral retained by Credit Partiessuch Borrower or such Guarantor.
(d) Agent shall have no obligation whatsoever to any Lender or any other Person to investigate, including confirm or assure that the proceeds Collateral exists or is owned by any Borrower or Guarantor or is cared for, protected or insured or has been encumbered, or that any particular items of any sale, all of which shall continue to constitute part Collateral meet the eligibility criteria applicable in respect of the Collateral Loans or Letter of Credit Accommodations hereunder, or whether any particular reserves are appropriate, or that the liens and security interests granted to Agent pursuant hereto or any of the extent contemplated by Financing Agreements or otherwise have been properly or sufficiently or lawfully created, perfected, protected or enforced or 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 Agent in this Agreement or in any of the other Financing Agreements, it being understood and agreed that in respect of the Collateral, or any act, omission or event related thereto, Agent may act in any manner it may deem appropriate, in its discretion, given Agent’s own interest in the Collateral Documents. Co-Collateral as a Lender and that Agent shall act in concert with Agent in matters delegated have no duty or liability whatsoever to the both of them under this Agreement; however, in the event of any disagreement or dispute between Agent and Co-Collateral Agent in any such matter, the determination or decision of Agent shall, in all cases, controlother Lender.
Appears in 2 contracts
Sources: Loan and Security Agreement (New York & Company, Inc.), Loan and Security Agreement (New York & Company, Inc.)
Collateral Matters. (a) Lenders The Agent may, but shall not be obligated to, from time to time make such disbursements and advances (“Agent Advances”) which the Agent, in its sole discretion, deems 87 necessary or desirable to preserve, protect, prepare for sale or lease or dispose of the Collateral or any portion thereof or to pay any other amount chargeable to the Issuer pursuant to the terms of this Agreement, including, without limitation, costs, fees and expenses as described in Sections 8.01(d) or 12.04; provided, that the Agent will provide notice to the Issuer at least 5 days prior to making any Agent Advances (unless giving such notice would prejudice the Agent’s ability to preserve and protect the Collateral, in which case the Agent will provide whatever notice is practicable). The Agent Advances shall be repayable on demand, shall bear interest as set forth in Section 2.04(a) or, as applicable, Section 2.04(b), and shall be secured by the Collateral. The Agent Advances shall constitute Obligations hereunder which may be charged to the Sellers’ Secured Note Account in accordance with Section 4.02. All such Agent Advances shall be funded with monies made available by the Holders, as no provisions of this Agreement or any Sellers’ Secured Note Document shall require the Agent to expand or risk its own funds or otherwise incur any financial liability in the performance of any of its duties hereunder or thereunder, or in the exercise of any of its rights or powers, unless it shall have reasonable grounds for believing that repayment of such funds or adequate indemnity against such risk or liability is assured to it.
(b) The Holders hereby irrevocably authorize the Agent, at its option and direct Agent in its discretion, to release any Liens Lien granted to or held by the Agent upon any Collateral (upon final payment and any such Liens shall be automatically released, without any action by Agent satisfaction of all Loans and all other Obligations; or any other Person), (i) upon the Termination Date; (ii) in respect of Collateral constituting property of any Subsidiary being sold or disposed of or transferred (including property owned by in the ordinary course of any Subsidiary being sold or disposed of or transferred) if the sale or Disposition or transfer is made Obligor’s business and in compliance with the terms of this Agreement and the Loan Documents (other Sellers’ Secured Note Documents; or otherwise is not prohibited) (and Agent mayif approved, authorized or ratified in its discretion, request, and rely conclusively without further inquiry on a certificate from the Borrower certifying as such prior to Agent taking any action to evidence such release) or such sale or Disposition is approved writing by the Requisite Lenders (or such greater number of Lenders as may be required under Section 12.2); (iii) to the extent the applicable Collateral is or becomes Excluded Property and/or Excluded Principal Property; (iv) to the extent the applicable Collateral constitutes property leased to Credit Parties under a lease which has expired or been terminated in a transaction permitted under this Agreement; (v) to the extent the Credit Party owning such Collateral is released from its Obligations hereunder (pursuant to Section 13.11 or otherwise); or (vi) as required by the terms of the ABL Intercreditor AgreementRequired Holders. Upon request by the Agent or Parent Borrower at any time, Lenders the Holders will confirm in writing the Agent’s authority to release any Lien upon particular types or items of Collateral pursuant to this Section 10.11. In addition, the Lenders hereby authorize Agent, to subordinate any Lien granted to or held by Agent upon any Collateral to any Lien on such asset permitted pursuant to paragraph (6)(C) of the definition of Permitted Lien. In addition, the Guaranty of the Obligations by, and the liens on the assets of, any Restricted Subsidiary which is designated as an Unrestricted Subsidiary will automatically be terminated and released at the time of such designation10.07(b).
(bc) PromptlyWithout in any manner limiting the Agent’s authority to act without any specific or further authorization or consent by the Required Holders (as set forth in this Section 10.07(c)), each Holder agrees to confirm in writing, upon request by the Agent, the authority to release Collateral conferred upon the Agent under this Section 10.07. Upon receipt by the Agent of confirmation from the Holders of its authority to release any particular item or types of Collateral, and in any event not later than five (5) Business Days’ following upon prior written request by Parent Borrowerany Obligor, the Agent shall (and is hereby irrevocably authorized and directed by Lenders the Holders to) execute such documents as may be necessary to evidence the release (or subordination) of its the Liens granted to the Agent for the benefit of the Holders upon such Collateral as contemplated by Section 10.11(a)Collateral; provided, however, that (i) the Agent shall not be required to execute any such document on terms which, in the Agent’s opinion, would expose the Agent to liability or create any obligation 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 Liens (other than those expressly being released) Lien upon (or obligations of Credit Parties any Obligor in respect of) all interests in the Collateral retained by Credit Partiesany Obligor.
(d) The Agent shall have no obligation whatsoever to any Holder to assure that the Collateral exists or is owned by the Obligors or is cared for, including protected or insured or has been encumbered or that the proceeds Lien granted to the Agent pursuant to this Agreement or any other Sellers’ Secured Note 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 sale, all of which shall continue to constitute part of the Collateral rights, authorities and powers granted or available to the extent contemplated by Agent in this Section 10.07 or in any other Sellers’ Secured Note Document, it being understood and agreed that in respect of the Collateral, or any act, omission or event related thereto, the Agent may act in any manner it may deem appropriate, in its sole discretion, given the Agent’s own interest in the Collateral Documents. Co-Collateral if it also is one of the Holders and that the Agent shall act in concert with Agent in matters delegated have no duty or liability whatsoever to the both of them under this Agreement; howeverany other Holder, in the event of any disagreement or dispute between Agent and Co-Collateral Agent in any such matter, the determination or decision of Agent shall, in all cases, controlexcept as otherwise provided herein.
Appears in 2 contracts
Sources: Securities Agreement (FriendFinder Networks Inc.), Securities Agreement (FriendFinder Networks Inc.)
Collateral Matters. (a) Lenders hereby irrevocably authorize and direct The Agent to release any Liens upon any Collateral (and any such Liens shall be automatically released, without any action by Agent or any other Person), have received:
(i) upon searches of Uniform Commercial Code filings in the Termination Date; jurisdiction of the chief executive office of each Credit Party and each jurisdiction where any Collateral is located or where a filing would need to be made in order to perfect the Collateral Agent's security interest in the Collateral, copies of the financing statements on file in such jurisdictions and evidence that no Liens exist other than Permitted Liens;
(ii) in respect of property of any Subsidiary being sold or disposed of or transferred (including property owned by any Subsidiary being sold or disposed of or transferred) if the sale or Disposition or transfer duly executed UCC financing statements for each appropriate jurisdiction as is made in compliance with this Agreement and the Loan Documents (or otherwise is not prohibited) (and Agent maynecessary, in its the Agent's sole discretion, request, and rely conclusively without further inquiry on a certificate from to perfect the Borrower certifying as such prior to Agent taking any action to evidence such release) or such sale or Disposition is approved by Collateral Agent's security interest in the Requisite Lenders (or such greater number of Lenders as may be required under Section 12.2); Collateral;
(iii) searches of ownership of intellectual property in the appropriate governmental offices and such patent/trademark/copyright filings as requested by the Agent in order to perfect the extent Collateral Agent's security interest in the applicable Collateral is or becomes Excluded Property and/or Excluded Principal Property; Collateral;
(iv) to all instruments and chattel paper in the extent the applicable Collateral constitutes property leased to Credit Parties under a lease which has expired or been terminated in a transaction permitted under this Agreement; (v) to the extent possession of the Credit Party owning such Collateral is released from its Obligations hereunder (pursuant to Section 13.11 Parties, together with allonges or otherwise); or (vi) as required by the terms of the ABL Intercreditor Agreement. Upon request by Agent or Parent Borrower at any time, Lenders will confirm in writing Agent’s authority to release any Lien upon particular types or items of Collateral pursuant to this Section 10.11. In addition, the Lenders hereby authorize Agent, to subordinate any Lien granted to or held by Agent upon any Collateral to any Lien on such asset permitted pursuant to paragraph (6)(C) of the definition of Permitted Lien. In addition, the Guaranty of the Obligations by, and the liens on the assets of, any Restricted Subsidiary which is designated as an Unrestricted Subsidiary will automatically be terminated and released at the time of such designation.
(b) Promptly, and in any event not later than five (5) Business Days’ following written request by Parent Borrower, Agent shall (and is hereby irrevocably authorized and directed by Lenders to) execute such documents assignments as may be necessary or appropriate to evidence perfect the release (or subordination) of its Liens upon such Collateral as contemplated by Section 10.11(a); provided, however, that (i) Agent shall not be required to execute any such document on terms which, Agent's security interest in Agent’s opinion, would expose Agent to liability or create any 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 Liens (other than those expressly being released) upon (or obligations of Credit Parties in respect of) all interests retained by Credit Parties, including the proceeds of any sale, all of which shall continue to constitute part of the Collateral to the extent contemplated by required under the Collateral Documents. Co-Collateral Agent shall act in concert with Agent in matters delegated to Security Agreement and/or the both of them under this Pledge Agreement; however;
(v) duly executed consents as are necessary, in the event Agent's sole discretion, to perfect the Collateral Agent's security interest in the Collateral; and
(vi) satisfactory evidence that (A) the Collateral Agent, on behalf of the Lenders, holds a perfected Lien on all Collateral and (B) none of the Collateral is subject to any disagreement or dispute between Agent and Co-Collateral Agent in any such matter, the determination or decision of Agent shall, in all cases, controlother Liens other than Permitted Liens.
Appears in 2 contracts
Sources: Credit Agreement (Sterile Recoveries Inc), Syndication Amendment and Assignment (Sterile Recoveries Inc)
Collateral Matters. (a) The Lenders hereby irrevocably authorize (and direct by entering into a Bank Product Agreement, each Bank Product Provider shall be deemed to authorize) Agent to release any Liens upon Lien on any Collateral (and any such Liens shall be automatically released, without any action by Agent or any other Person), (i) upon the Termination Date; termination of the Commitments and payment and satisfaction in full by the Loan Parties and their Subsidiaries of all of the Obligations, (ii) in respect of constituting property of any Subsidiary being sold or disposed of if a release is required or transferred (including property owned by any Subsidiary being sold or disposed of or transferred) desirable in connection therewith and if Borrowers certify to Agent that the sale or Disposition or transfer disposition is made in compliance with this Agreement and the Loan Documents (or otherwise is not prohibited) permitted under Section 6.5 (and Agent may, in its discretion, request, and may rely conclusively on any such certificate, without further inquiry on a certificate from the Borrower certifying as such prior to Agent taking any action to evidence such release) or such sale or Disposition is approved by the Requisite Lenders (or such greater number of Lenders as may be required under Section 12.2inquiry); , (iii) to constituting property in which no Loan Party or any of its Subsidiaries owned any interest at the extent the applicable Collateral is or becomes Excluded Property and/or Excluded Principal Property; time Agent’s Lien was granted nor at any time thereafter, (iv) to the extent the applicable Collateral constitutes constituting property leased or licensed to Credit Parties a Loan Party or its Subsidiaries under a lease which or license that has expired or been is terminated in a transaction permitted under this Agreement; , (v) as required to the extent the Credit Party owning effect any sale or other disposition of such Collateral is released from its Obligations hereunder (in connection with any exercise of remedies of the Agent and the Lenders pursuant to Section 13.11 or otherwise); 8, or (vi) in connection with a credit bid or purchase authorized under this Section 15.11. Except as required provided in the preceding sentence, the Agent will not release any Liens on Collateral without the prior written authorization of the Required Lenders; provided that (i) the Agent may in its discretion, release its Liens on Collateral valued in the aggregate not in excess of $10,000,000 during any calendar year without the prior written authorization of the Required Lenders (it being agreed that the Agent may rely conclusively on one or more certificates of the Borrowers as to the value of any Collateral to be so released, without further inquiry) and (ii) the Agent and the Lenders hereby agree that any such release of Liens shall be automatic upon Borrowers’ satisfaction of the requirements set forth in the immediately preceding Section 15.11(a)(ii) or upon the receipt by Agent of written authorization thereof from the Required Lenders; provided, further, that any release of any Borrower or any Guarantor from any obligation for the payment of money or any consent to the assignment or transfer by any Borrower or any Guarantor of any of its rights or duties under this Agreement or the other Loan Documents, in each case, in connection with a merger, liquidation, dissolution or sale of such Person expressly permitted by the terms hereof or the other Loan Documents, or to the extent authorized in writing by the Required Lenders, shall be automatic. In addition, the Lenders irrevocably authorize the Agent, at its option and in its discretion, upon request of the ABL Intercreditor Borrowers, to release any Lien on any Equipment granted to or held by the Agent under any Loan Document from and after the Third Amendment Effective Date. The Loan Parties and the 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 (a) consent to the sale of, credit bid, or purchase (either directly or indirectly through one or more entities) all or any portion of the Collateral at any sale thereof conducted under the provisions of the Bankruptcy Code, including Section 363 of the Bankruptcy Code, (b) credit bid or purchase (either directly or indirectly through one or more entities) all or any portion of the Collateral at any sale or other disposition thereof conducted under the provisions of the Code, including pursuant to Sections 9-610 or 9-620 of the Code, or (c) credit bid or purchase (either directly or indirectly through one or more entities) all or any portion of the Collateral at any other sale or foreclosure conducted or consented to by Agent in accordance with applicable law in any judicial action or proceeding or by the exercise of any legal or equitable remedy. In connection with any such credit bid or purchase, (i) the Obligations owed to the Lenders and the 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 impair or unduly delay the ability of Agent to credit bid or purchase at such sale or other disposition of the Collateral and, if such contingent or unliquidated claims cannot be estimated without impairing or unduly delaying the ability of Agent to credit bid at such sale or other disposition, then such claims shall be disregarded, not credit bid, and not entitled to any interest in the Collateral that is the subject of such credit bid or purchase) and the Lenders and the 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 Collateral that is the subject of such credit bid or purchase (or in the Equity Interests of the any entities that are used to consummate such credit bid or purchase), and (ii) Agent, based upon the instruction of the Required Lenders, may accept non-cash consideration, including debt and equity securities issued by any entities used to consummate such credit bid or purchase and in connection therewith Agent may reduce the Obligations owed to the Lenders and the Bank Product Providers (ratably based upon the proportion of their Obligations credit bid in relation to the aggregate amount of Obligations so credit bid) based upon the value of such non-cash consideration; provided, that Bank Product Obligations not entitled to the application set forth in Section 2.4(b)(iii)(J) shall not be entitled to be, and shall not be, credit bid, or used in the calculation of the ratable interest of the Lenders and Bank Product Providers in the Obligations which are credit bid. 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 the Bank Product Providers), or (z) otherwise, the Required Lenders (without requiring the authorization of the Bank Product Providers). Upon request by Agent or Parent Borrower Borrowers at any time, the Lenders will (and if so requested, the Bank Product Providers will) confirm in writing Agent’s authority to release any Lien upon such Liens on particular types or items of Collateral pursuant to this Section 10.11. In addition, the Lenders hereby authorize Agent, to subordinate any Lien granted to or held by Agent upon any Collateral to any Lien on such asset permitted pursuant to paragraph (6)(C) of the definition of Permitted Lien. In addition, the Guaranty of the Obligations by, and the liens on the assets of, any Restricted Subsidiary which is designated as an Unrestricted Subsidiary will automatically be terminated and released at the time of such designation.
(b) Promptly, and in any event not later than five (5) Business Days’ following written request by Parent Borrower, Agent shall (and is hereby irrevocably authorized and directed by Lenders to) execute such documents as may be necessary to evidence the release (or subordination) of its Liens upon such Collateral as contemplated by Section 10.11(a)15.11; provided, however, that (i1) anything to the contrary contained in any of the Loan Documents notwithstanding, Agent shall not be required to execute any document or take any action necessary to evidence such document release on terms whichthat, in Agent’s opinion, would could expose Agent to liability or create any obligation or entail any consequence other than the release of such Liens Lien without recourse recourse, representation, or warranty, and (ii2) such release shall not in any manner discharge, affect affect, or impair the Obligations or any Liens (other than those expressly being released) upon (or obligations of Credit Parties Borrowers in respect of) any and all interests retained by Credit Partiesany Borrower, including including, the proceeds of any sale, all of which shall continue to constitute part of the Collateral Collateral. Each Lender further hereby irrevocably authorizes (and by entering into a Bank Product Agreement, each Bank Product Provider shall be deemed to irrevocably authorize) Agent, at its option and in its sole discretion, to subordinate (by contract or otherwise) any Lien granted to or held by Agent on any property under any Loan Document (a) to the holder of any Permitted Lien on such property if such Permitted Lien secures purchase money Indebtedness (including Capitalized Lease Obligations) which constitute Permitted Indebtedness and (b) to the extent contemplated Agent has the authority under this Section 15.11 to release its Lien on such property. Notwithstanding the provisions of this Section 15.11, the 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 Collateral Documents. Co-Collateral Federal Emergency Management Agency to have special flood hazards.
(b) Agent shall have no obligation whatsoever to any of the Lenders (or the Bank Product Providers) (i) to verify or assure that the Collateral exists or is owned by a Loan Party or any of its Subsidiaries or is cared for, protected, or insured or has been encumbered, (ii) to verify or assure that Agent’s Liens have been properly or sufficiently or lawfully created, perfected, protected, or enforced or are entitled to any particular priority, (iii) to verify or assure that any particular items of Collateral meet the eligibility criteria applicable in respect thereof, (iv) to impose, maintain, increase, reduce, implement, or eliminate any particular reserve hereunder or to determine whether the amount of any reserve is appropriate or not, or (v) 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 any of the Loan Documents, it being understood and agreed that in respect of the Collateral, or any act, omission, or event related thereto, subject to the terms and conditions contained herein, Agent may act in concert with Agent in matters delegated to the both of them under this Agreement; howeverany manner it may deem appropriate, in its sole discretion given Agent’s own interest in the event Collateral in its capacity as one of the Lenders and that Agent shall have no other duty or liability whatsoever to any disagreement Lender (or dispute between Agent and Co-Collateral Agent in Bank Product Provider) as to any such matterof the foregoing, the determination or decision of Agent shall, in all cases, controlexcept as otherwise expressly provided herein.
Appears in 2 contracts
Sources: Credit Agreement (Kaiser Aluminum Corp), Credit Agreement (Kaiser Aluminum Corp)
Collateral Matters. (a) The Administrative Agent and the Collateral Agent are hereby authorized by each Lender, without the necessity of any notice to or further consent from any Lender, and without the obligation to take any such action, to take any action with respect to any Collateral or any Security Document which may from time to time be necessary to perfect and maintain perfected the Liens of the Security Documents.
(b) The Lenders hereby irrevocably authorize the Collateral Agent, at its option and direct Agent in its discretion, to release (and to execute and deliver such documents, instruments and agreements as the Collateral Agent may deem necessary to release) any Liens Lien granted to or held by the Collateral Agent upon any Collateral (and any such Liens shall be automatically released, without any action by Agent or any other Person), (i) upon termination of the Termination DateRevolving Loan Commitments and the full Cash Collateralization of the then outstanding L/C Obligations and the payment in full of all Loans and all other Obligations (other than contingent indemnity obligations to the extent no claim has been asserted) payable under this Agreement and under the other Credit Documents; (ii) in respect of constituting property of any Subsidiary being sold the Loan Parties which is sold, transferred or otherwise disposed of or transferred (including property owned in connection with any transaction not prohibited by any Subsidiary being sold or disposed of or transferred) if the sale or Disposition or transfer is made in compliance with this Agreement and or the Loan Documents (or otherwise is not prohibited) (and Agent may, in its discretion, request, and rely conclusively without further inquiry on a certificate from the Borrower certifying as such prior to Agent taking any action to evidence such release) or such sale or Disposition is approved by the Requisite Lenders (or such greater number of Lenders as may be required under Section 12.2)Credit Documents; (iii) to the extent the applicable Collateral is or becomes Excluded Property and/or Excluded Principal Property; (iv) to the extent the applicable Collateral constitutes constituting property leased to Credit the Loan Parties under a an operating lease which has expired or been terminated in a transaction permitted under not prohibited by this AgreementAgreement or the Credit Documents or which will concurrently expire and which has not been and is not intended by the Loan Parties to be, renewed or extended; (iv) consisting of an instrument, if the Indebtedness evidenced thereby has been paid in full; or (v) if approved or consented to by those of the extent the Credit Party owning such Collateral is released from its Obligations hereunder (pursuant to Section 13.11 or otherwise); or (vi) as Lenders required by the terms of the ABL Intercreditor AgreementSection 8.04. Upon request by the Collateral Agent or Parent Borrower at any timethe Administrative Agent, the Lenders will confirm in writing the Collateral Agent’s authority to release any Lien upon particular types or items of Collateral (and the Administrative Agent’s authority to direct the Collateral Agent to so release particular types or items of Collateral) pursuant to this Section 10.11. In addition, the Lenders hereby authorize Agent, to subordinate any Lien granted to or held by Agent upon any Collateral to any Lien on such asset permitted pursuant to paragraph (6)(C) of the definition of Permitted Lien. In addition, the Guaranty of the Obligations by, and the liens on the assets of, any Restricted Subsidiary which is designated as an Unrestricted Subsidiary will automatically be terminated and released at the time of such designation7.07.
(bc) PromptlyUnless all the Lenders otherwise consent in writing, any and in any event not later than five (5) Business Days’ following written request by Parent all cash collateral for the Obligations shall be released to the Borrower, Agent shall (and is hereby irrevocably authorized and directed by Lenders to) execute such documents as may be necessary to evidence the release (or subordination) of its Liens upon such Collateral as contemplated by Section 10.11(a); providedextent not applied to the Obligations, however, that only if (i) Agent shall not be required to execute any such document on terms which, in Agent’s opinion, would expose Agent to liability or create any obligation or entail any consequence other than the release of such Liens without recourse or warranty, and Revolving Loan Commitments have been terminated (ii) such release shall all Obligations have been paid in full and are no longer outstanding, including, without limitation, any L/C Obligations but not in any manner discharge, affect or impair the Obligations or any Liens (other than those expressly being released) upon (or obligations of Credit Parties in respect of) all interests retained by Credit Parties, including the proceeds of any sale, all of which shall continue to constitute part of the Collateral to the extent contemplated by the Collateral Documents. Co-Collateral Agent shall act in concert with Agent in matters delegated to the both of them under this Agreement; however, in the event of any disagreement or dispute between Agent and Co-Collateral Agent in any such matter, the determination or decision of Agent shall, in all cases, controlcontingent indemnification obligations.
Appears in 2 contracts
Sources: Credit Agreement (Genius Products Inc), Credit Agreement (Genius Products Inc)
Collateral Matters. At all times following the occurrence of the Collateral Event:
(a) Lenders hereby irrevocably authorize Execute any and direct Agent to release any all further documents, financing statements, agreements and instruments, and take all such further customary actions (including the filing and recording of financing statements, fixture filings and other documents and recordings of Liens upon any Collateral (and any such Liens shall be automatically released, without any action by Agent or any other Personin stock registries), (i) upon the Termination Date; (ii) in respect of property of any Subsidiary being sold or disposed of or transferred (including property owned by any Subsidiary being sold or disposed of or transferred) if the sale or Disposition or transfer is made in compliance with this Agreement and the Loan Documents (or otherwise is not prohibited) (and Agent may, in its discretion, request, and rely conclusively without further inquiry on a certificate from the Borrower certifying as such prior to Agent taking any action to evidence such release) or such sale or Disposition is approved by the Requisite Lenders (or such greater number of Lenders as that may be required under Section 12.2); (iii) any applicable law, or that the Administrative Agent may reasonably request, to cause the extent the applicable Collateral is or becomes Excluded Property and/or Excluded Principal Property; (iv) to the extent the applicable Collateral constitutes property leased to Credit Parties under a lease which has expired or been terminated in a transaction permitted under this Agreement; (v) to the extent the Credit Party owning such Collateral is released from its Obligations hereunder (pursuant to Section 13.11 or otherwise); or (vi) as required by the terms requirements of the ABL Intercreditor Agreement. Upon request by Agent or Parent Borrower at any time, Lenders will confirm in writing Agent’s authority to release any Lien upon particular types or items of Collateral pursuant to this Section 10.11. In addition, the Lenders hereby authorize Agent, to subordinate any Lien granted to or held by Agent upon any Collateral to any Lien on such asset permitted pursuant to paragraph (6)(C) occurrence of the definition of Permitted Lien. In addition, the Guaranty of the Obligations by, and the liens on the assets of, any Restricted Subsidiary which is designated as an Unrestricted Subsidiary will automatically be terminated and released at the time of such designationCollateral Event to remain satisfied.
(b) Promptly, and in If any event not later than five (5) Business Days’ following written request by Parent Borrower, Agent shall (and additional Guarantor or Foreign Subsidiary or FSHCO is hereby irrevocably authorized and directed by Lenders to) execute such documents as may be necessary to evidence the release (formed or subordination) of its Liens upon acquired after such Collateral as contemplated by Section 10.11(a); providedEvent, howeveror if any additional Equity Interests of any Guarantor or Foreign Subsidiary or FSHCO are issued after such Collateral Event, that (i) notify the Administrative Agent shall not be required to execute any such document on terms which, in Agent’s opinion, would expose Agent to liability or create any obligation or entail any consequence other than the release of such Liens without recourse or warrantythereof, and (ii) within 30 Business Days after such release date or such longer period as the Administrative Agent shall not agree, (A) pledge all outstanding Equity Interests of such new Guarantor issued after such Collateral Event, pledge Equity Interests in such new Foreign Subsidiary or FSHCO issued after such Collateral Event up to an amount thereof that would qualify as “Collateral”, pledge all new Equity Interests of the Guarantor issued after such Collateral Event, pledge Equity Interests of the Foreign Subsidiary or FSHCO issued after such Collateral Event up to an amount thereof that, together with other Equity Interests in such Foreign Subsidiary or FSHCO that have previously been pledged, would qualify as “Collateral”, in each case to the Administrative Agent under the Collateral Agreement, except to the extent such Equity Interests constitute Excluded Assets, and (B) deliver to the Administrative Agent for the benefit of the Lenders and the Bank Product Providers all certificates or other instruments (if any) representing such Equity Interests, together with stock powers or other instruments of transfer with respect thereto endorsed in blank.
(c) If any manner dischargeadditional Guarantor or Foreign Subsidiary or FSHCO is formed or acquired after the Collateral Event, affect deliver to the Administrative Agent within 30 Business Days after such date or impair such longer period as the Obligations or any Liens Administrative Agent shall agree, (i) a supplement to the Collateral Agreement, in the form specified therein, duly executed and delivered on behalf of such Credit Party and (ii) supplements to the other than those expressly being released) upon (or obligations Security Documents, if applicable, to cause the requirements of Credit Parties in respect of) all interests retained by Credit Parties, including the proceeds of any sale, all of which shall continue to constitute part occurrence of the Collateral Event to become satisfied with respect to such new Credit Party.
(d) Furnish to the extent contemplated by the Collateral Documents. Co-Collateral Administrative Agent shall act prompt written notice (and in concert with Agent in matters delegated to the both of them under this Agreement; however, in the any event within 30 days) of any disagreement change in (i) any Credit Party’s corporate or dispute between Agent and Co-Collateral Agent in organizational name, (ii) any such matterCredit Party’s organizational form or jurisdiction of organization, (iii) the determination location of any Credit Party’s chief executive office or decision of Agent shall, in all cases, control(iv) any Credit Party’s organizational identification number.
Appears in 2 contracts
Sources: Credit Agreement (Mednax, Inc.), Credit Agreement (Mednax, Inc.)
Collateral Matters. (a) Agent 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 Agent, in its sole discretion, (i) deems necessary or desirable either to preserve or protect the Collateral or any portion thereof or (ii) to enhance the likelihood or maximize the amount of repayment by Borrowers and Guarantors of the Loans and other Obligations, provided, that, (A) the aggregate outstanding 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 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, and (B) the aggregate outstanding principal amount of the Special Agent Advances pursuant to this clause (ii) plus the aggregate outstanding principal amount of Loans and Letter of Credit Accommodations shall not exceed the Maximum Credit, or (iii) to pay any other amount chargeable to any Borrower or Guarantor pursuant to the terms of this Agreement or any of the other Financing Agreements consisting of (A) costs, fees and expenses and (B) payments to Issuing Banks in respect of Letter of Credit Accommodations. Special Agent Advances shall be repayable on demand and together with all interest thereon shall constitute Obligations secured by the Collateral. Special Agent Advances shall not constitute Loans but shall otherwise constitute Obligations hereunder. Interest on Special Agent Advances shall be payable at the Interest Rate then applicable to Prime Rate Loans and shall be payable on demand. Without limitation of its obligations pursuant to Section 6.10 hereof, each Lender agrees that it shall make available to Agent, upon Agent’s demand, in immediately available funds, the amount equal to such Lender’s Pro Rata Share of each such Special Agent Advance. If such funds are not made available to Agent by such Lender, such Lender shall be deemed a Defaulting Lender and 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 Agent at the Federal Funds 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 leading brokers of Federal funds transactions in New York City selected by Agent) and if such amounts are not paid within three (3) days of Agent’s demand, at the highest Interest Rate provided for in Section 3.1 hereof applicable to Prime Rate Loans.
(b) Lenders hereby irrevocably authorize Agent, at its option and direct Agent in its discretion to release any Liens upon security interest in, mortgage or lien upon, any of the Collateral (and any such Liens shall be automatically released, without any action by Agent or any other Person), (i) upon termination of the Termination Date; Commitments and payment and satisfaction of all of the Obligations and delivery of cash collateral to the extent required under Section 13.1 below, or (ii) in respect of constituting property of any Subsidiary being sold or disposed of if Administrative Borrower or transferred (including property owned by any Subsidiary being sold Borrower or disposed of or transferred) if Guarantor certifies to Agent that the sale or Disposition or transfer disposition is made in compliance with this Agreement and the Loan Documents (or otherwise is not prohibited) Section 9.7 hereof (and Agent maymay rely conclusively on any such certificate, without further inquiry), or (iii) constituting property in its discretionwhich any Borrower or Guarantor did not own an interest at the time the security interest, requestmortgage 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 rely conclusively without further inquiry on a certificate from to the Borrower certifying as extent Agent may release its security interest in and lien upon any such prior Collateral pursuant to Agent taking any action to evidence such release) the sale or other disposition thereof, such sale or Disposition is approved other disposition shall be deemed consented to by the Requisite Lenders (Lenders, or such greater number of Lenders as may be required under Section 12.2); (iii) to the extent the applicable Collateral is or becomes Excluded Property and/or Excluded Principal Property; (iv) to the extent the applicable Collateral constitutes property leased to Credit Parties under a lease which has expired or been terminated in a transaction permitted under this Agreement; (v) to if required or permitted under the extent terms of any of the Credit Party owning such Collateral is released from its Obligations hereunder (pursuant to Section 13.11 or otherwise); other Financing Agreements, including any intercreditor agreement, or (vi) approved, authorized or ratified in writing by all of Lenders. Except as required by the terms provided above, Agent will not release any security interest in, mortgage or lien upon, any of the ABL Intercreditor AgreementCollateral without the prior written authorization of all of Lenders. Upon request by Agent or Parent Borrower at any time, Lenders will promptly confirm in writing Agent’s authority to release any Lien upon particular types or items of Collateral pursuant to this Section 10.11Section. In addition, no event shall the Lenders hereby authorize Agent, to subordinate consent or approval of any Lien granted to or held by Agent upon any Collateral Issuing Bank be required to any Lien on such asset permitted pursuant to paragraph (6)(C) release of the definition of Permitted Lien. In addition, the Guaranty of the Obligations by, and the liens on the assets of, any Restricted Subsidiary which is designated as an Unrestricted Subsidiary will automatically be terminated and released at the time of such designationCollateral.
(bc) PromptlyWithout any manner limiting Agent’s authority to act without any specific or further authorization or consent by the Required Lenders, and each Lender agrees to confirm in any event not later than five (5) Business Days’ following written writing, upon request by Parent BorrowerAgent, the authority to release Collateral conferred upon Agent under this Section. Agent shall (and is hereby irrevocably authorized and directed by Lenders to) execute such documents as may be necessary to evidence the release (of the security interest, mortgage or subordination) of its Liens liens granted to Agent upon such any Collateral as contemplated by Section 10.11(a)to the extent set forth above; provided, howeverthat, that (i) Agent shall not be required to execute any such document on terms which, in Agent’s opinion, would expose Agent to liability or create any obligation 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 Liens (other than those expressly being released) security interest, mortgage or lien upon (or obligations of Credit Parties any Borrower or Guarantor in respect of) all interests the Collateral retained by such Borrower or Guarantor.
(d) Agent shall have no obligation whatsoever to any Lender, Issuing Bank or any other Person to investigate, confirm or assure that the Collateral exists or is owned by any Borrower or Guarantor or is cared for, protected or insured or has been encumbered, or that any particular items of Collateral meet the eligibility criteria applicable in respect of the Loans or Letter of Credit PartiesAccommodations hereunder, including or whether any particular reserves are appropriate, or that the liens and security interests granted to Agent pursuant hereto or any of the Financing Agreements or otherwise have been properly or sufficiently or lawfully created, perfected, protected or enforced or 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 Agent in this Agreement or in any of the other Financing Agreements, it being understood and agreed that in respect of the Collateral, or any act, omission or event related thereto, subject to the other terms and conditions contained herein, Agent may act in any manner it may deem appropriate, in its discretion, given Agent’s own interest in the Collateral as a Lender and that Agent shall have no duty or liability whatsoever to any other Lender or Issuing Bank.
(e) Without limiting the generality of the foregoing, each Lender (i) authorizes Agent to enter into the Term B Loan 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 a Lender and, if applicable, a Bank Product Provider) by the terms and conditions of the Term B Loan Intercreditor Agreement, the Subordinated Noteholder Intercreditor Agreement, the WHX Intercreditor Agreement, the Intercompany Subordination Agreement and the Precious Metals Creditor Agreement, whether or not such Lender executes any such agreement.
(f) If Agent is obligated to pay the Purchase Price to the Precious Metals Consignor in accordance with the terms of the Precious Metals Creditor Agreement, then Borrowers (automatically and without any further action) shall be deemed to have requested a Revolving Loan (which is a Prime Rate Loan) on the date of such payment in an amount equal to the Purchase Price and the proceeds of such Revolving Loan shall be applied to pay the Purchase Price. The obligation of each Lender to deliver to Agent an amount equal to its Pro Rata Share of such Revolving Loan is absolute and unconditional notwithstanding the occurrence of any saleEvent of Default, all of which shall continue the failure to constitute part of the Collateral to the extent contemplated by the Collateral Documents. Co-Collateral Agent shall act satisfy any other condition set forth in concert with Agent in matters delegated to the both of them under this Agreement; however, in the Section 4 or any other event of any disagreement or dispute between Agent and Co-Collateral Agent in any such matter, the determination or decision of Agent shall, in all cases, controlcircumstance.
Appears in 2 contracts
Sources: Loan and Security Agreement (Handy & Harman Ltd.), Loan and Security Agreement (WHX Corp)
Collateral Matters. (a) The Lenders hereby irrevocably authorize the Collateral Agent, at its option and direct Agent in its discretion, to release any Liens Lien granted to or held by the Collateral Agent upon any Collateral upon termination of the Total Commitment and payment and satisfaction of all Loans and all other Obligations (and any such Liens shall be automatically released, without any action by Agent or any other Person), (i) upon the Termination Date; (iithan Contingent Loan Obligations) in respect of accordance with the terms hereof; or constituting property of any Subsidiary being sold or disposed of in the ordinary course of any Loan Party’s business or transferred (including property owned by any Subsidiary being sold or disposed of or transferred) if the sale or Disposition or transfer is made otherwise in compliance with the terms of this Agreement and the other Loan Documents (Documents; or otherwise is not prohibited) (and Agent mayconstituting 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 its discretion, request, and rely conclusively without further inquiry on a certificate from the Borrower certifying as such prior to Agent taking any action to evidence such release) or such sale or Disposition is approved writing by the Requisite Lenders (or such greater number of Lenders as may be required under in accordance with Section 12.2); (iii) to the extent the applicable Collateral is or becomes Excluded Property and/or Excluded Principal Property; (iv) to the extent the applicable Collateral constitutes property leased to Credit Parties under a lease which has expired or been terminated in a transaction permitted under this Agreement; (v) to the extent the Credit Party owning such Collateral is released from its Obligations hereunder (pursuant to Section 13.11 or otherwise); or (vi) as required by the terms of the ABL Intercreditor Agreement12.02. Upon request by the Collateral Agent or Parent Borrower at any time, the Lenders will confirm in writing the Collateral Agent’s authority to release any Lien upon particular types or items of Collateral pursuant to this Section 10.11. In addition, the Lenders hereby authorize Agent, to subordinate any Lien granted to or held by Agent upon any Collateral to any Lien on such asset permitted pursuant to paragraph (6)(C) of the definition of Permitted Lien. In addition, the Guaranty of the Obligations by, and the liens on the assets of, any Restricted Subsidiary which is designated as an Unrestricted Subsidiary will automatically be terminated and released at the time of such designation10.08(a).
(b) PromptlyWithout 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(a)), 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(a). Either without such confirmation (if the Collateral Agent has not requested such confirmation) or, upon receipt by the Collateral Agent of confirmation (if the Collateral Agent has requested such confirmation) from the Lenders of its authority to release any particular item or types of Collateral, and in any event not later than five (5) Business Days’ following upon prior written request by Parent Borrowerany Loan Party, the Collateral Agent shall (and is hereby irrevocably authorized and directed by the Lenders to) execute such documents as may be necessary to evidence the release (or subordination) of its the Liens granted to the Collateral Agent for the benefit of the Agents and the Lenders upon such Collateral as contemplated by Section 10.11(a)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 obligation 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 Liens (other than those expressly being released) Lien upon (or obligations of Credit Parties any Loan Party in respect of) all interests in the Collateral retained by Credit any Loan Party.
(c) Anything contained in any of the Loan Documents to the contrary notwithstanding, the Loan Parties, including each Agent and each Lender hereby agree that (i) no Lender shall have any right individually to realize upon any of the proceeds 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 sale, or all of which 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 continue to constitute part 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 the extent contemplated be sold (A) at any public or private sale, (B) at any sale conducted by the Collateral Documents. CoAgent 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.
(d) The Collateral Agent shall act in concert with Agent in matters delegated 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 both 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 them under this Agreement; howevercare, in disclosure or fidelity, or to continue exercising, any of the event of any disagreement rights, authorities and powers granted or dispute between Agent and Co-available to the Collateral Agent in this Section 10.08 or in any such matterother Loan Document, it being understood and agreed that in respect of the Collateral, or any act, omission or event related thereto, the determination or decision of Collateral Agent shallmay act in any manner it may deem appropriate, in all casesits sole discretion, controlgiven 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.
Appears in 2 contracts
Sources: Financing Agreement (Turtle Beach Corp), Financing Agreement (Turtle Beach Corp)
Collateral Matters. (a) Agent 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 Agent, in its sole discretion, (i) deems necessary or desirable either to preserve or protect the Collateral or any portion thereof or (ii) to enhance the likelihood or maximize the amount of repayment by Borrowers and Guarantors of the 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 five percent (5%) 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 and Letters of Credit, shall not exceed the Maximum Credit, except at Agent’s option, provided, that, to the extent that the aggregate principal amount of Special Agent Advances plus the then outstanding principal amount of the Loans and Letters of Credit exceed the Maximum Credit the Special Agent Advances that are in excess of the Maximum Credit shall be for the sole account and risk of Agent and notwithstanding anything to the contrary set forth below, no Lender shall have any obligation to provide its share of such Special Agent Advances in excess of the Maximum Credit, or (iii) to pay any other amount chargeable to any Borrower or Guarantor pursuant to the terms of this Agreement or any of the other Financing Agreements consisting of (A) costs, fees and expenses and (B) payments to Issuing Bank in respect of any Letter of Credit Obligations. The Special Agent Advances shall be repayable on demand and together with all interest thereon shall constitute Obligations secured by the Collateral. Special Agent Advances shall not constitute Loans but shall otherwise constitute Obligations hereunder. Interest on Special Agent Advances shall be payable at the Interest Rate then applicable to Base Rate Loans and shall be payable on demand. Without limitation of its obligations pursuant to Section 6.11, each Lender agrees that it shall make available to Agent, upon Agent’s demand, in immediately available funds, the amount equal to such Lender’s Pro Rata Share of each such Special Agent Advance. If such funds are not made available to Agent by such Lender, such Lender shall be deemed a Defaulting Lender and 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 Agent at the Federal Funds 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. (Charlotte, North Carolina time) on that day by each of the three leading brokers of Federal funds transactions in New York City selected by Agent) and if such amounts are not paid within three (3) days of Agent’s demand, at the highest Interest Rate provided for in Section 3.1 hereof applicable to Base Rate Loans. Required Lenders may at any time revoke Agent’s authority to make any further Special Agent Advances by written notice to Agent. Absent such revocation, Agent’s determination that funding of a Special Agent Advance is appropriate shall be conclusive.
(b) Lenders hereby irrevocably authorize Agent, at its option and direct Agent in its discretion to release any Liens upon security interest in, mortgage or Lien upon, any of the First Priority Collateral (and any such Liens shall be automatically released, without any action by Agent or any other Person), (i) upon termination of the Termination Date; Commitments and payment and satisfaction of all of the Obligations and delivery of cash collateral to the extent required under Section 13.1 below, or (ii) in respect of constituting property of any Subsidiary being sold or disposed of if Administrative Borrower or transferred (including property owned by any Subsidiary being sold Borrower or disposed of or transferred) if Guarantor certifies to Agent that the sale or Disposition or transfer disposition is made in compliance with this Agreement and the Loan Documents (or otherwise is not prohibited) Section 9.7 hereof (and Agent maymay rely conclusively on any such certificate, without further inquiry), or (iii) constituting property in its discretionwhich any Borrower or Guarantor did not own an interest at the time the security interest, requestmortgage 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 $8,000,000, and rely conclusively without further inquiry on a certificate from to the Borrower certifying as extent Agent may release its security interest in and Lien upon any such prior First Priority Collateral pursuant to Agent taking any action to evidence such release) the sale or other disposition thereof, such sale or Disposition is approved other disposition shall be deemed consented to by the Requisite Lenders (Lenders, or such greater number of Lenders as may be required under Section 12.2); (iii) to the extent the applicable Collateral is or becomes Excluded Property and/or Excluded Principal Property; (iv) to the extent the applicable Collateral constitutes property leased to Credit Parties under a lease which has expired or been terminated in a transaction permitted under this Agreement; (v) to if required or permitted under the extent terms of any of the Credit Party owning such Collateral is released from its Obligations hereunder (pursuant to Section 13.11 other Financing Agreements, including the Intercreditor Agreement, or otherwise); any other intercreditor agreement, or (vi) approved, authorized or ratified in writing by all of Lenders. Except as required by the terms provided above, Agent will not release any security interest in, mortgage or Lien upon, any of the ABL Intercreditor AgreementFirst Priority Collateral without the prior written authorization of all of Lenders. Upon request by Agent or Parent Borrower at any time, Lenders will promptly confirm in writing Agent’s authority to release any Lien upon particular types or items of Collateral pursuant to this Section 10.11Section. In additionno event shall the consent or approval of Issuing Bank to any release of Collateral be required. Further, the Lenders hereby irrevocably authorize Agent, Agent to subordinate release any security interest or Lien granted to or held by Agent upon any of the Notes Priority Collateral to any Lien on such asset the extent required or permitted pursuant to paragraph (6)(C) under the terms of the definition of Permitted Lien. In addition, the Guaranty of the Obligations by, and the liens on the assets of, any Restricted Subsidiary which is designated as an Unrestricted Subsidiary will automatically be terminated and released at the time of such designationIntercreditor Agreement.
(bc) PromptlyWithout any manner limiting Agent’s authority to act without any specific or further authorization or consent by the Required Lenders, and each Lender agrees to confirm in any event not later than five (5) Business Days’ following written writing, upon request by Parent BorrowerAgent, the authority to release Collateral conferred upon Agent under this Section. Agent shall (and is hereby irrevocably authorized and directed by Lenders to) execute such documents as may be necessary to evidence the release (of the security interest, mortgage or subordination) of its Liens granted to Agent upon such any Collateral as contemplated by Section 10.11(a)to the extent set forth above; provided, howeverthat, that (i) Agent shall not be required to execute any such document on terms which, in Agent’s opinion, would expose Agent to liability or create any obligation 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 Liens (other than those expressly being released) security interest, mortgage or Lien upon (or obligations of Credit Parties any Borrower or Guarantor in respect of) all interests the Collateral retained by Credit Partiessuch Borrower or Guarantor.
(d) Agent shall have no obligation whatsoever to any Lender, including Issuing Bank or any other Person to investigate, confirm or assure that the proceeds Collateral exists or is owned by any Borrower or Guarantor or is cared for, protected or insured or has been encumbered, or that any particular items of any sale, all of which shall continue to constitute part Collateral meet the eligibility criteria applicable in respect of the Collateral Loans or Letters of Credit hereunder, or whether any particular reserves are appropriate, or that the Liens and security interests granted to Agent pursuant hereto or any of the Financing Agreements or otherwise have been properly or sufficiently or lawfully created, perfected, protected or enforced or 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 Agent in this Agreement or in any of the other Financing Agreements, it being understood and agreed that in respect of the Collateral, or any act, omission or event related thereto, subject to the extent contemplated by other terms and conditions contained herein, Agent may act in any manner it may deem appropriate, in its discretion, given Agent’s own interest in the Collateral Documents. Co-Collateral as a Lender and that Agent shall act in concert with Agent in matters delegated have no duty or liability whatsoever to the both of them under this Agreement; however, in the event of any disagreement or dispute between Agent and Co-Collateral Agent in any such matter, the determination or decision of Agent shall, in all cases, controlother Secured Party.
Appears in 2 contracts
Sources: Loan and Security Agreement (Freedom Group, Inc.), Loan and Security Agreement (Freedom Group, Inc.)
Collateral Matters. (a) The Lenders (and each other Secured Party by their acceptance of the benefits of the Loan Documents shall be deemed to) hereby irrevocably authorize the Collateral Agent (and direct if applicable, any subagent appointed by the Collateral Agent under Section 13.2 or otherwise) to release any its Liens on the Collateral, and the Collateral Agent’s Liens upon any Collateral (and any such Liens shall be automatically released, without any action by Agent or any other Person), released (i) upon Full Payment of the Termination DateObligations; (ii) in respect upon a disposition of property of any Subsidiary being sold or disposed of or transferred (including property owned Collateral permitted by any Subsidiary being sold or disposed of or transferred) if the sale or Disposition or transfer is made in compliance with this Agreement and the Loan Documents (or otherwise Section 8.8 to a Person that is not prohibited) (and Agent may, in its discretion, request, and rely conclusively without further inquiry on a certificate from the Borrower certifying as such prior to Agent taking any action to evidence such release) or such sale or Disposition is approved by the Requisite Lenders (or such greater number of Lenders as may be required under Section 12.2)an Obligor; (iii) to if any such Collateral constitutes property in which the extent Obligors owned no interest at the applicable Collateral is time the Lien was granted or becomes Excluded Property and/or Excluded Principal Propertyat any time thereafter; (iv) to the extent the applicable if any such Collateral constitutes property leased to Credit Parties an Obligor under a lease which has expired or been terminated in a transaction permitted under this Agreement; (v) to the extent the Credit Party owning property constituting such Collateral is released owned by any Guarantor, upon the release of such Guarantor from its Obligations hereunder obligations under the Guarantee Agreement (pursuant to Section 13.11 or otherwisein accordance with the second succeeding sentence and the Guarantee Agreement); or (vi) as required by the terms Collateral Agent to effect any sale, transfer or other Disposition of Collateral in connection with any exercise of remedies of the ABL Intercreditor AgreementCollateral Agent pursuant to the Security Documents, (vii) to the extent such Collateral otherwise becomes an Excluded Stock or an Excluded Asset and (viii) if the percentage of Lenders required to consent to the Collateral being released hereunder, consent to the Collateral being released. Except as provided above, the Collateral Agent will not release any of the Collateral Agent’s Liens without the prior written authorization of the Required Lenders (or such other percentage of Lenders whose consent is required in accordance with Section 12.1). Upon request by the Collateral Agent or Parent the Borrower at any time, subject to the Borrower having certified to the Collateral Agent that the disposition is made in compliance with Section 8.8 (which the Collateral Agent may rely conclusively on any such certificate, without further inquiry), the Lenders will confirm in writing the Collateral Agent’s authority to release any Lien applicable Collateral Agent’s Liens upon particular types or items of Collateral pursuant to this Section 10.1113.10. In addition, the Lenders (and each other Secured Party by their acceptance of the benefits of the Loan Documents shall be deemed to) hereby irrevocably authorize Agent, (w) the Collateral Agent to subordinate any Lien on any property granted to or held by the Collateral Agent upon under any Collateral Loan Document to the holder of any Lien on such asset property that is permitted by Section 8.12(c) or (q) (as to Current Asset Collateral only), (x) the Agent to release automatically any Guarantor from its obligations under the Guarantee Agreement if such Person ceases to be a Restricted Subsidiary as a result of a transaction permitted under this Agreement or such Person otherwise becomes an Excluded Subsidiary, in each case, solely to the extent (1) such Subsidiary ceasing to constitute a Restricted Subsidiary or otherwise becoming an Excluded Subsidiary is permitted by this Agreement and in the case of a Subsidiary ceasing to constitute a Subsidiary, the Borrower will be deemed to make a new Investment in the residual equity retained directly or indirectly by the Borrower and (2) no Default or Event of Default has occurred or is continuing or would result therefrom and (y) so long as no Default or Event of Default has occurred and is continuing or would result therefrom, then, to the extent that the Collateral Agent obtains possession of any Collateral by operation of Section 13.12 of this Agreement that constitutes Collateral that Obligors are not required to deliver to Collateral Agent at such time pursuant to paragraph the terms hereof, the Security Documents or any other contractual arrangement with any Obligor, following the written request by Borrower, Collateral Agent shall (6)(Cto the extent permitted by applicable law or legal process) deliver such Collateral in accordance with the terms of the definition of Permitted LienABL Intercreditor Agreement or, if the ABL Intercreditor Agreement is not then in effect, to the applicable Obligor. In addition, the Guaranty Promptly upon consummation of the Obligations byFTS Distribution and Contribution Transaction, solely to the extent true, Borrower shall send a certificate to Agent confirming that FTS does not own any assets other than the Stock of Holdings, net operating losses with immaterial value and/or other property and assets with immaterial value (“FTS Distribution and Contribution Certificate”). Notwithstanding any other provisions set forth herein, upon the full and complete consummation of the FTS Distribution and Contribution Transaction and Agent’s receipt of the FTS Distribution and Contribution Certificate, (i) each of the FTS Pledge Agreements and the liens on the assets of, any Restricted Subsidiary which is designated as an Unrestricted Subsidiary will automatically FTS Control Agreements shall be deemed terminated and released (automatically and through no further action of any Person), (ii) FTS shall no longer be deemed to be party to the Security Agreement or any other Loan Document (automatically and through no further action of any Person), (iii) the Collateral Agent’s Liens on the Stock and assets of FTS (but not the Stock issued by or the assets of the FTS Subsidiaries) shall be deemed terminated and released (automatically and through no further action of any Person), and (iv) the Lenders (and each other Secured Party by their acceptance of the benefits of the Loan Documents) irrevocably authorize the Collateral Agent to (A) release its Liens on the Stock and assets of FTS (but not the Stock issued by or the assets of the FTS Subsidiaries), and (B) if reasonably requested by the Borrower, promptly execute, as applicable, and deliver to the Borrower any such additional instruments, terminations, lien releases, discharges of security interests, pledges and other similar discharge or release documents or other writings to effect or evidence such release and termination. Upon request by any Appointed Agent at any time, the time Required Lenders will confirm in writing such Appointed Agent’s authority to release or subordinate its interest in particular types or items of such designationproperty, or to release any Guarantor from its obligations pursuant to this Section 13.10(a).
(b) PromptlyUpon receipt by any Appointed Agent of any authorization required pursuant to Section 13.10(a) from the Lenders of such Appointed Agent’s authority to release or subordinate the applicable Collateral Agent’s Liens upon particular types or items of Collateral, or to release any Guarantor from its obligations under the Guarantee Agreement, and in any event not later than five upon at least three (53) Business Days’ following prior written request by Parent the Borrower, such Appointed Agent shall (and is hereby irrevocably authorized by the Lenders and directed by Lenders the other Secured Parties to) execute such documents as may be necessary to evidence the release (or subordination) of its such Collateral Agent’s Liens upon such Collateral as contemplated by Section 10.11(a)or to subordinate its interest therein, or to release such Guarantor from its obligations under the Guarantee Agreement; provided, however, that (i) such Appointed Agent shall not be required to execute any such document on terms which, in such Appointed Agent’s opinion, would expose such Appointed Agent to liability or create any 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 Liens (other than those expressly being released) upon (or obligations of Credit Parties the Obligors in respect of) all interests retained by Credit Partiesthe Obligors, including the proceeds of any sale, all of which shall continue to constitute part of the Collateral to the extent contemplated by the Collateral Documents. Co-such Collateral.
(c) The Collateral Agent shall act have no obligation whatsoever to any of the Lenders to assure that the Collateral exists or is owned by the Obligors or is cared for, protected or insured or has been encumbered, or that the applicable Collateral Agent’s Liens have been properly or sufficiently or lawfully created, perfected, protected or enforced or are entitled to any particular priority, or to exercise at all or in concert with Agent in matters delegated 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 both of them under this Agreement; however, in the event of any disagreement or dispute between Agent and Co-Collateral Agent pursuant to any of the Loan Documents, it being understood and agreed that in respect of the Collateral, or any such matteract, omission or event related thereto, the determination Collateral Agent may act with the consent or decision at the direction of the Required Lenders and that the Collateral Agent shall, in all cases, controlshall have no other duty or liability whatsoever to any Lender as to any of the foregoing.
Appears in 2 contracts
Sources: Term Loan Credit Agreement (ProFrac Holding Corp.), Term Loan Credit Agreement (ProFrac Holding Corp.)
Collateral Matters. (a) The Lenders hereby irrevocably authorize the Collateral Agent, at its option and direct Agent in its reasonable business judgment, to release any Liens Lien upon any Collateral (and any such Liens shall be automatically released, without any action by Agent or any other Person), (i) upon the Termination Datetermination of the Commitments and payment and satisfaction of all Loans and all other Obligations and which the Collateral Agent has been notified in writing are then due and payable; (ii) in respect of constituting property of any Subsidiary being sold or disposed of or transferred (including property owned by any Subsidiary being sold or disposed of or transferred) if the applicable Borrower certifies to the Collateral Agent that the sale or Disposition or transfer disposition is made in compliance with this Agreement Section ------- 6.03 (and the Loan Documents (or otherwise is not prohibited) (and Collateral Agent may, in its discretion, request, and may rely conclusively on any such certificate, ---- without further inquiry on a certificate from the Borrower certifying as such prior to Agent taking any action to evidence such release) or such sale or Disposition is approved by the Requisite Lenders (or such greater number of Lenders as may be required under Section 12.2inquiry); or (iii) to the extent the applicable Collateral is or becomes Excluded Property and/or Excluded Principal Property; (iv) to the extent the applicable Collateral constitutes constituting property leased to Credit Parties the applicable Borrower under a lease which has expired or been terminated in a transaction permitted under this Agreement; (v) Agreement or which will expire imminently and which has not been, and is not intended by such Borrower to be, renewed or extended and with respect to which such Borrower has not exercised any purchase option. Except as provided above, the extent the Credit Party owning such Collateral is released from its Obligations hereunder (pursuant to Section 13.11 Agent will not release or otherwise); or (vi) as required by the terms subordinate any of the ABL Intercreditor AgreementLiens without the prior written authorization of the Requisite Lenders; provided that the Collateral Agent may not release or -------- subordinate the Liens on Collateral valued in the aggregate in excess of $500,000 without the prior written authorization of the Requisite Lenders and may not release all or substantially all of the Collateral or subordinate the Liens thereon without the consent of the Lenders. Upon request by the Collateral Agent or Parent Borrower the Borrowers at any time, the Lenders will confirm in writing the Collateral Agent’s 's authority to release any Lien Liens upon particular types or items of Collateral pursuant to this Section 10.1110.08(a). In addition, the Lenders hereby authorize Agent, to subordinate any Lien granted to or held by Agent upon any Collateral to any Lien on such asset permitted pursuant to paragraph (6)(C) of the definition of Permitted Lien. In addition, the Guaranty of the Obligations by, and the liens on the assets of, any Restricted Subsidiary which is designated as an Unrestricted Subsidiary will automatically be terminated and released at the time of such designation.----------------
(b) PromptlyUpon receipt by the Collateral Agent of any authorization required pursuant to Section 10.08(a) from the Requisite Lenders or Lenders, as ---------------- applicable, of the Collateral Agent's authority to release any Liens upon particular types or items of Collateral, and in any event not later than upon at least five (5) Business Days’ following ' prior written request by Parent the applicable Borrower, and provided that no Event of Default has occurred and is then continuing, the Collateral Agent shall (and is hereby irrevocably authorized and directed by the Lenders to) execute such documents as may be necessary to evidence the release (or subordination) of its the Liens upon such Collateral as contemplated by Section 10.11(a)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 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 Liens (other than those expressly being released) upon (or obligations of Credit Parties the applicable Borrower in respect of) all interests retained by Credit Partiesthe applicable Borrower, including (without limitation) the proceeds of any sale, all of which shall continue to constitute part of the Collateral to the extent contemplated by the Collateral Documents. Co-Collateral.
(c) The Collateral Agent shall have no obligation whatsoever to any of the Lenders to assure that the Collateral exists or is owned by any Borrower or is cared for, protected or insured or has been encumbered, or, other than a duty to act without recklessness, willful misconduct or gross (but not mere) negligence, that the Liens have been properly or sufficiently or lawfully created, perfected, protected or enforced or 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 pursuant to this Section ------- 10.08 or pursuant to any of the Loan 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 concert with Agent in matters delegated to the both of them under this Agreement; howeverany manner it may deem appropriate, in its reasonable business judgment, given the event Collateral Agent's own interest in the Collateral in its capacity as one of any disagreement or dispute between Agent the Lenders and Co-that the Collateral Agent in shall have no other duty or liability whatsoever to any such matter, Lender as to any of the determination or decision of Agent shall, in all cases, controlforegoing.
Appears in 2 contracts
Sources: Loan and Security Agreement (Paetec Corp), Loan and Security Agreement (Paetec Corp)
Collateral Matters. (a) Lenders hereby irrevocably authorize Agent may, at its option, from time to time, at any time on or after an Event of Default and direct Agent to release any Liens for so long as the same is continuing or upon any Collateral other failure of a condition precedent to the Loans and Letters of Credit hereunder, make such disbursements and advances (and any such Liens shall be automatically released“Special Agent Advances”) which Agent, without any action by Agent or any other Person)in its sole discretion, (i) upon deems necessary or desirable either to preserve or protect the Termination Date; Collateral or any portion thereof or (ii) to enhance the likelihood or maximize the amount of repayment by Loan Parties of the Loans and other Obligations, provided that (A) the aggregate principal amount of the Special Agent Advances 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 respect Section 13.9 hereof, shall not exceed the amount equal to ten percent (10%) of property the Maximum Credit and (B) the aggregate principal amount of the Special Agent Advances outstanding at any Subsidiary being sold time, plus the then outstanding principal amount of the Loans and Letters of Credit, shall not exceed the Maximum Credit, except at Agent’s option, provided that to the extent that the aggregate principal amount of Special Agent Advances plus the then outstanding principal amount of the Loans and Letters of Credit exceed the Maximum Credit, the Special Agent Advances that are in excess of the Maximum Credit (“Excess Special Agent Advances”) shall be for the sole account and risk of Agent and notwithstanding anything to the contrary set forth below, no Lender shall have any obligation to provide its share of such Excess Special Agent Advances, or disposed of or transferred (including property owned by any Subsidiary being sold or disposed of or transferred) if the sale or Disposition or transfer is made in compliance with this Agreement and the Loan Documents (or otherwise is not prohibited) (and Agent may, in its discretion, request, and rely conclusively without further inquiry on a certificate from the Borrower certifying as such prior to Agent taking any action to evidence such release) or such sale or Disposition is approved by the Requisite Lenders (or such greater number of Lenders as may be required under Section 12.2); (iii) to the extent the applicable Collateral is or becomes Excluded Property and/or Excluded Principal Property; (iv) pay any other amount chargeable to any Loan Party pursuant to the extent terms of this Agreement or any of the other Loan Documents consisting of costs, fees and expenses and payments to Issuing Bank in respect of any Letter of Credit Obligations. The Special Agent Advances shall be repayable on demand and together with all interest thereon shall constitute Obligations secured by the Collateral. Special Agent Advances shall not constitute Loans but shall otherwise constitute Obligations hereunder. Interest on Special Agent Advances shall be payable at the Interest Rate then applicable Collateral constitutes property leased to Credit Parties under a lease which has expired or been terminated in a transaction permitted under this Agreement; (v) to the extent the Credit Party owning such Collateral is released from Base Rate Loans and shall be payable on demand. Without limitation of its Obligations hereunder (obligations pursuant to Section 13.11 or otherwise); or 6.11, each Lender agrees that it shall make available to Agent, upon Agent’s demand, in immediately available funds, the amount equal to such Lender’s Pro Rata Share of each such Special Agent Advance not to exceed such Lender’s Commitment. If such funds are not made available to Agent by such Lender, such Lender shall be deemed a Defaulting Lender and 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 Agent at the Federal Funds Rate for each day during such period (vi) as required published by the terms Federal Reserve Bank of New York or at Agent’s option based on the arithmetic mean determined by Agent of the ABL Intercreditor Agreementrates 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 leading brokers of Federal funds transactions in New York City selected by Agent) and if such amounts are not paid within three (3) days of Agent’s demand, at the highest Interest Rate provided for in Section 3.1 hereof applicable to Base Rate Loans. Upon request by Agent or Parent Borrower The Required Lenders may at any time, Lenders will confirm in writing time by written notice to Agent (x) revoke Agent’s authority to release any Lien upon particular types or items make further Special Agent Advances and (y) instruct Agent to demand repayment of Collateral pursuant to this Section 10.11outstanding Special Agent Advances from the Loan Parties. In additionAbsent such revocation, the Lenders hereby authorize Agent, to subordinate any Lien granted to or held by Agent upon any Collateral to any Lien on such asset permitted pursuant to paragraph (6)(C) of the definition of Permitted Lien. In addition, the Guaranty of the Obligations by, and the liens on the assets of, any Restricted Subsidiary which is designated as an Unrestricted Subsidiary will automatically be terminated and released at the time of such designation.
(b) Promptly, and in any event not later than five (5) Business Days’ following written request by Parent Borrower, Agent shall (and is hereby irrevocably authorized and directed by Lenders to) execute such documents as may be necessary to evidence the release (or subordination) of its Liens upon such Collateral as contemplated by Section 10.11(a); provided, however, that (i) Agent shall not be required to execute any such document on terms which, in Agent’s opinion, would expose determination that funding of a Special Agent to liability or create any obligation or entail any consequence other than the release of such Liens without recourse or warranty, and (ii) such release Advance is appropriate shall not in any manner discharge, affect or impair the Obligations or any Liens (other than those expressly being released) upon (or obligations of Credit Parties in respect of) all interests retained by Credit Parties, including the proceeds of any sale, all of which shall continue to constitute part of the Collateral to the extent contemplated by the Collateral Documents. Co-Collateral Agent shall act in concert with Agent in matters delegated to the both of them under this Agreement; however, in the event of any disagreement or dispute between Agent and Co-Collateral Agent in any such matter, the determination or decision of Agent shall, in all cases, controlbe conclusive.
Appears in 2 contracts
Sources: Loan and Security Agreement (Louisiana-Pacific Corp), Loan and Security Agreement (Louisiana-Pacific Corp)
Collateral Matters. (a) The Lenders (and each other Secured Party by their acceptance of the benefits of the Loan Documents shall be deemed to) hereby irrevocably authorize the Collateral Agent (and direct if applicable, any subagent appointed by the Collateral Agent under Section 13.2 or otherwise) to release any its Liens on the Collateral, and the Collateral Agent’s Liens upon any Collateral (and any such Liens shall be automatically released, without any action by Agent or any other Person), released (i) upon Full Payment of the Termination DateObligations; (ii) in respect upon a disposition of property of any Subsidiary being sold or disposed of or transferred (including property owned Collateral permitted by any Subsidiary being sold or disposed of or transferred) if the sale or Disposition or transfer is made in compliance with this Agreement and the Loan Documents (or otherwise Section 8.8 to a Person that is not prohibited) (and Agent may, in its discretion, request, and rely conclusively without further inquiry on a certificate from the Borrower certifying as such prior to Agent taking any action to evidence such release) or such sale or Disposition is approved by the Requisite Lenders (or such greater number of Lenders as may be required under Section 12.2)an Obligor; (iii) to if any such Collateral constitutes property in which the extent Obligors owned no interest at the applicable Collateral is time the Lien was granted or becomes Excluded Property and/or Excluded Principal Propertyat any time thereafter; (iv) to the extent the applicable if any such Collateral constitutes property leased to Credit Parties an Obligor under a lease which has expired or been terminated in a transaction permitted under this Agreement; (v) to the extent the Credit Party owning property constituting such Collateral is released owned by any Guarantor, upon the release of such Guarantor from its Obligations hereunder obligations under the Guarantee Agreement (pursuant to Section 13.11 or otherwisein accordance with the second succeeding sentence and the Guarantee Agreement); or (vi) as required by the terms Collateral Agent to effect any sale, transfer or other Disposition of Collateral in connection with any exercise of remedies of the ABL Intercreditor AgreementCollateral Agent pursuant to the Security Documents, and (vii) to the extent such Collateral otherwise becomes an Excluded Stock or an Excluded Asset. Except as provided above, the Collateral Agent will not release any of the Collateral Agent’s Liens without the prior written authorization of the Required Lenders (or such other percentage of Lenders whose consent is required in accordance with Section 12.1); provided that, in addition to the foregoing, the Collateral Agent may, in its discretion, release such Collateral Agent’s Liens on Collateral valued in the aggregate not in excess of $500,000 during each Fiscal Year without the prior written authorization of any Lender, so long as all proceeds received in connection with such release are applied to the Obligations in accordance with Section 4.6. Upon request by the Collateral Agent or Parent the Borrower at any time, subject to the Borrower having certified to the Collateral Agent that the disposition is made in compliance with Section 8.8 (which the Collateral Agent may rely conclusively on any such certificate, without further inquiry), the Lenders will confirm in writing the Collateral Agent’s authority to release any Lien applicable Collateral Agent’s Liens upon particular types or items of Collateral pursuant to this Section 10.1113.10. In addition, the Lenders (and each other Secured Party by their acceptance of the benefits of the Loan Documents shall be deemed to) hereby irrevocably authorize Agent, (w) the Collateral Agent to subordinate any Lien on any property granted to or held by the Collateral Agent upon under any Collateral Loan Document to the holder of any Lien on such asset property that is permitted by Section 8.12(c) or (q) (as to Current Asset Collateral only), (x) the Agent to release automatically any Guarantor from its obligations under the Guarantee Agreement if such Person ceases to be a Restricted Subsidiary as a result of a transaction permitted under this Agreement or such Person otherwise becomes an Excluded Subsidiary, in each case, solely to the extent such Subsidiary ceasing to constitute a Restricted Subsidiary or otherwise becoming an Excluded Subsidiary is not prohibited by this Agreement and (y) so long as no Default or Event of Default has occurred and is continuing or would result therefrom, then, to the extent that the Collateral Agent obtains possession of any Collateral by operation of Section 13.12 of this Agreement that constitutes Collateral that Obligors are not required to deliver to Collateral Agent at such time pursuant to paragraph the terms hereof, the Security Documents or any other contractual arrangement with any Obligor, following the written request by ▇▇▇▇▇▇▇▇, Collateral Agent shall (6)(Cto the extent not prohibited by applicable law or legal process) deliver such Collateral in accordance with the terms of the definition of Permitted LienABL Intercreditor Agreement or, if the ABL Intercreditor Agreement is not then in effect, to the applicable Obligor. In additionUpon request by any Appointed Agent at any time, the Guaranty Required Lenders will confirm in writing such Appointed Agent’s authority to release or subordinate its interest in particular types or items of the Obligations byproperty, and the liens on the assets of, or to release any Restricted Subsidiary which is designated as an Unrestricted Subsidiary will automatically be terminated and released at the time of such designationGuarantor from its obligations pursuant to this Section 13.10(a).
(b) PromptlyUpon receipt by any Appointed Agent of any authorization required pursuant to Section 13.10(a) from the Lenders of such Appointed Agent’s authority to release or subordinate the applicable Collateral Agent’s Liens upon particular types or items of Collateral, or to release any Guarantor from its obligations under the Guarantee Agreement, and in any event not later than five upon at least three (53) Business Days’ following prior written request by Parent the Borrower, such Appointed Agent shall (and is hereby irrevocably authorized by the Lenders and directed by Lenders the other Secured Parties to) execute such documents as may be necessary to evidence the release (or subordination) of its such Collateral Agent’s Liens upon such Collateral as contemplated by Section 10.11(a)or to subordinate its interest therein, or to release such Guarantor from its obligations under the Guarantee Agreement; provided, however, that (i) such Appointed Agent shall not be required to execute any such document on terms which, in such Appointed Agent’s opinion, would expose such Appointed Agent to liability or create any 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 Liens (other than those expressly being released) upon (or obligations of Credit Parties the Obligors in respect of) all interests retained by Credit Partiesthe Obligors, including the proceeds of any sale, all of which shall continue to constitute part of the Collateral to the extent contemplated by the Collateral Documents. Co-such Collateral.
(c) The Collateral Agent shall have no obligation whatsoever to any of the Lenders to assure that the Collateral exists or is owned by the Obligors or is cared for, protected or insured or has been encumbered, or that the applicable Collateral Agent’s Liens have been properly or sufficiently or lawfully created, perfected, protected or enforced or 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 pursuant to any of the Loan 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 concert with Agent in matters delegated to the both of them under this Agreement; howeverany manner it may deem appropriate, in its sole discretion, given the event Collateral Agent’s own interest in the Collateral in its capacity as one of any disagreement or dispute between Agent the Lenders and Co-that the Collateral Agent in shall have no other duty or liability whatsoever to any such matter, Lender as to any of the determination or decision of Agent shall, in all cases, controlforegoing.
Appears in 1 contract
Collateral Matters. (a) Lenders The Credit Providers hereby irrevocably authorize and direct the Collateral Agent to release any Guarantor that is permitted to wind-up, dissolve, liquidate, or merge out of existence under Section 8.9, and to release any Agent’s Liens upon any Collateral (i) upon (A) termination of the Commitments, (B) termination or collateralization as provided in Section 2.4(g) of all outstanding Letters of Credit (whether or not any of such obligations are due), and any such Liens shall be automatically released, without any action by Agent or any (C) the Borrowers’ payment and satisfaction in full of all Loans and other PersonObligations (other than indemnification obligations to the extent no claim with respect thereto has been asserted and remains unsatisfied), (i) upon the Termination Date; (ii) in respect of constituting property of any Subsidiary being sold or disposed of if the Obligated Party selling or transferred (including disposing of such property owned by any Subsidiary being sold or disposed of or transferred) if certifies to the Agents that the sale or Disposition or transfer disposition is made in compliance with this Agreement Section 8.9 (and the Loan Documents (or otherwise is not prohibited) (and Agent may, in its discretion, request, and Agents may rely conclusively on any such certification, without further inquiry on a certificate from the Borrower certifying as such prior to Agent taking any action to evidence such release) or such sale or Disposition is approved by the Requisite Lenders (or such greater number of Lenders as may be required under Section 12.2inquiry); , (iii) to constituting property in which no Obligated Party owned any interest at the extent time the applicable Collateral is Lien was granted or becomes Excluded Property and/or Excluded Principal Property; at any time thereafter, or (iv) to the extent the applicable Collateral constitutes constituting property leased to Credit Parties an Obligated Party under a lease which that has expired or been terminated in a transaction permitted under this Agreement; . Except as provided above, the Collateral Agent will not release any of the Agent’s Liens without the prior written authorization of the Majority Revolving Lenders (v) to or after the extent Revolving Facility Payment In Full, the Credit Party owning such Collateral is released from its Obligations hereunder (pursuant to Section 13.11 or otherwiseMajority Term Lenders); or (vi) as required by provided that the terms Collateral Agent may, in its discretion with the prior written authorization of the ABL Intercreditor Agreement. Upon request by Agent or Parent Borrower at any timeAdministrative Agent, Lenders will confirm in writing release the Agent’s authority to Liens on Collateral valued in the aggregate not in excess of $1,000,000 during each Fiscal Year without the prior written authorization of any Lender and the Collateral Agent may release any Lien upon particular types the Agent’s Liens on Collateral valued in the aggregate not in excess of $5,000,000 during each Fiscal Year with the prior written authorization of the Majority Revolving Lenders (or items of Collateral pursuant to this Section 10.11. after the Revolving Facility Payment In additionFull, the Lenders hereby authorize Majority Term Lenders) and the Administrative Agent; and provided, to subordinate any Lien granted to or held by further that, notwithstanding the immediately preceding sentence, after the Revolving Facility Payment In Full the Collateral Agent upon any Collateral to any may not release the Agent’s Lien on such asset permitted pursuant to paragraph (6)(C) of the definition of Permitted Lien. In addition, the Guaranty of the Obligations by, and the liens on the assets any cash collateral provided under any of, any Restricted Subsidiary which is designated as an Unrestricted Subsidiary will automatically be terminated and released at the time of such designation.
(b) Promptly, and in any event not later than five (5) Business Days’ following written request by Parent Borrower, Agent shall (and is hereby irrevocably authorized and directed by Lenders to) execute such documents as may be necessary to evidence the release (or subordination) of its Liens upon such Collateral as contemplated by Section 10.11(a); provided, however, that (i) Agent shall not be required to execute any such document on terms which, in Agent’s opinion, would expose Agent to liability or create any 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 Liens (other than those expressly being released) upon (or obligations of Credit Parties in respect of) all interests retained by Credit Parties, including the proceeds of any sale, all of which shall continue to constitute part of the Collateral to the extent contemplated by the Collateral Documents. Co-Collateral Agent shall act in concert with Agent in matters delegated to the both of them under this Agreement; however, in the event of any disagreement or dispute between Agent and Co-Collateral Agent in any such matter, the determination or decision of Agent shall, in all cases, control.
Appears in 1 contract
Collateral Matters. (a) 8.9.1. Except as specifically otherwise provided in any of the Collateral Documents, the Agent is hereby authorized on behalf of all of the Lenders, without assumption of any duty or obligation in respect of and without the necessity of any notice to or further consent from any other Lender, to take any action with respect to any Collateral or Collateral Documents that may be necessary to perfect and maintain perfected the Agent's Liens upon the Collateral.
8.9.2. The Lenders hereby irrevocably authorize and direct Agent the Agent, in its discretion, to release any Liens Lien held by the Agent upon any Collateral (a) from and after the day of termination of any such Liens shall be automatically released, without any action by Agent or any other Person), (i) upon Collateral Document pursuant to the Termination Dateterms thereof; (iib) in respect of constituting property of any Subsidiary being sold or disposed of or transferred (including property owned by any Subsidiary being sold or disposed of or transferred) if CI certifies to the Agent that the sale or Disposition or transfer disposition is made in compliance with this Agreement permitted under the relevant Collateral Document (and the Loan Documents (or otherwise is not prohibited) (and Agent may, in its discretion, request, and may rely conclusively on any such certificate, without further inquiry on a certificate from inquiry, unless notified to the Borrower certifying as such prior to Agent taking any action to evidence such release) or such sale or Disposition is approved contrary by the Requisite Lenders (or such greater number of Lenders as may be required under Section 12.2); (iii) to the extent the applicable Collateral is or becomes Excluded Property and/or Excluded Principal Property; (iv) to the extent the applicable Collateral constitutes property leased to Credit Parties under a lease which has expired or been terminated in a transaction permitted under this Agreement; (v) to the extent the Credit Party owning such Collateral is released from its Obligations hereunder (pursuant to Section 13.11 or otherwiseRequired Lenders); or (vic) as required by the terms of the ABL Intercreditor Agreement. Upon request by Agent if approved, authorized or Parent Borrower at any time, Lenders will confirm ratified in writing Agent’s authority to release any Lien upon particular types or items of Collateral pursuant to this by all Lender Parties in accordance with Section 10.11. In addition, the Lenders hereby authorize Agent, to subordinate any Lien granted to or held by Agent upon any Collateral to any Lien on such asset permitted pursuant to paragraph (6)(C) of the definition of Permitted Lien. In addition, the Guaranty of the Obligations by, and the liens on the assets of, any Restricted Subsidiary which is designated as an Unrestricted Subsidiary will automatically be terminated and released at the time of such designation.
(b) Promptly, and in any event not later than five (5) Business Days’ following written request by Parent Borrower, Agent shall (and is hereby irrevocably authorized and directed by Lenders to) execute such documents as may be necessary to evidence the release (or subordination) of its Liens upon such Collateral as contemplated by Section 10.11(a)9.3; provided, however, that (i) the Agent shall not be required to execute any such document documents on terms which, in Agent’s opinion, would expose Agent to liability or that create any 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 Liens (other than those expressly being released) upon (or obligations of Credit Parties the Borrowers in respect of) all interests assets retained by Credit Partiesthe Borrowers, including the proceeds of any saleAsset Disposition, all of which shall continue to constitute part of the Collateral. Upon request by the Agent at any time, the other Lender Parties will confirm in writing the Agent's authority to release particular types or items of Collateral pursuant to this Section 8.9.2.
8.9.3. The Agent shall have no obligation whatsoever to any other Lender Party or other Person to assure that the extent contemplated Collateral exists or is owned by a Borrower or (except as otherwise expressly required by the Collateral Documents) is cared for, protected or insured, or that the Liens of the Agent thereunder have been properly created, perfected, protected or enforced or are entitled to any particular priority.
8.9.4. Co-Except as otherwise provided in the Loan Documents, the Agent may act in any manner it deems appropriate in respect of the Collateral, in its discretion, given the Agent's own interest in the Collateral as a Lender, and the Agent shall act have no duty or liability whatsoever with respect thereto to any other Lender Party.
8.9.5. Each Lender hereby approves the form of the other Loan Documents attached as exhibits to this Agreement and hereby authorizes the Agent on its behalf to accept from the Borrowers and execute and deliver as Agent, the other Loan Documents in concert substantially the form of such exhibits, with such changes, additions or deletions as the Agent, in its discretion, may approve as necessary or appropriate, such approval to be conclusively evidenced by the Agent's acceptance or execution thereof. Each Lender also authorizes the Agent to accept, or execute and deliver, such additional documents (including financing statements, opinions, certificates and other documents in matters delegated form and substance satisfactory to the both Agent, in its discretion) in connection with the closing pursuant to Section 3.1 or any subsequent closing for the pledge of them any other Collateral or any additional guaranties as the Agent, in its discretion, may approve, such approval to be conclusively evidenced by the Agent's acceptance or execution thereof.
8.9.6. Each Lender Party agrees with and in favor of each other (which agreement shall not be for the benefit of any Borrower or Consolidated Subsidiary) that the Borrowers' obligations to such Lender Party under this Agreement; however, in Agreement and the event of other Loan Documents are not and shall not be secured by any disagreement real property collateral now or dispute between Agent and Co-Collateral Agent in any hereafter acquired by such matter, the determination or decision of Agent shall, in all cases, controlLender Party.
Appears in 1 contract
Collateral Matters. (a) The Lenders (and each other Secured Party by their acceptance of the benefits of the Loan Documents shall be deemed to) hereby irrevocably authorize the Collateral Agent (and direct if applicable, any subagent appointed by the Collateral Agent under Section 13.2 or otherwise) to release any its Liens on the Collateral, and the Collateral Agent’s Liens upon any Collateral (and any such Liens shall be automatically released, without any action by Agent or any other Person), released (i) upon Full Payment of the Termination DateObligations; (ii) in respect upon a disposition of property of any Subsidiary being sold or disposed of or transferred (including property owned Collateral permitted by any Subsidiary being sold or disposed of or transferred) if the sale or Disposition or transfer is made in compliance with this Agreement and the Loan Documents (or otherwise Section 8.8 to a Person that is not prohibited) (and Agent may, in its discretion, request, and rely conclusively without further inquiry on a certificate from the Borrower certifying as such prior to Agent taking any action to evidence such release) or such sale or Disposition is approved by the Requisite Lenders (or such greater number of Lenders as may be required under Section 12.2)an Obligor; (iii) to if any such Collateral constitutes property in which the extent Obligors owned no interest at the applicable Collateral is time the Lien was granted or becomes Excluded Property and/or Excluded Principal Propertyat any time thereafter; (iv) to the extent the applicable if any such Collateral constitutes property leased to Credit Parties an Obligor under a lease which has expired or been terminated in a transaction permitted under this Agreement; (v) to the extent the Credit Party owning property constituting such Collateral is released owned by any Guarantor (other than Holdings), upon the release of such Guarantor (other than Holdings) from its Obligations hereunder obligations under the Guarantee Agreement (pursuant to Section 13.11 or otherwisein accordance with the second succeeding sentence and the Guarantee Agreement); or (vi) as required by the terms Collateral Agent to effect any sale, transfer or other Disposition of Collateral in connection with any exercise of remedies of the ABL Intercreditor AgreementCollateral Agent pursuant to the Security Documents and (vii) to the extent such Collateral otherwise becomes an Excluded Stock or an Excluded Asset. Except as provided above, the Collateral Agent will not release any of the Collateral Agent’s Liens without the prior written authorization of the Required Lenders (or such other percentage of Lenders whose consent is required in accordance with Section 12.1); provided that, in addition to the foregoing, the Collateral Agent may, in its discretion, release such Collateral Agent’s Liens on Collateral valued in the aggregate not in excess of $2,500,000 during each Fiscal Year without the prior written authorization of any Lender, so long as all proceeds received in connection with such release are applied to the Obligations in accordance with Section 4.7 and, after giving effect to the application of such proceeds and the updating of the Borrowing Base, as the case may be, to reflect the deletion of any assets subject to such release, Availability shall be no less than the Availability immediately prior to such release. Upon request by the Collateral Agent or Parent the Borrower at any time, subject to the Borrower having certified to the Collateral Agent that the disposition is made in compliance with Section 8.8 (which the Collateral Agent may rely conclusively on any such certificate, without further inquiry), the Lenders will confirm in writing the Collateral Agent’s authority to release any Lien applicable Collateral Agent’s Liens upon particular types or items of Collateral pursuant to this Section 10.1113.10. In addition, the Lenders hereby irrevocably authorize Agent, (x) the Collateral Agent to subordinate any Lien on any property granted to or held by the Collateral Agent upon under any Collateral Loan Document to the holder of any Lien on such asset property that is permitted by Section 8.12(c) and (y) the Agent to release automatically any Guarantor (other than Holdings) from its obligations under the Guarantee Agreement if such Person ceases to be a Restricted Subsidiary as a result of a transaction permitted under this Agreement or such Person otherwise becomes an Excluded Subsidiary, in each case, solely to the extent such Subsidiary ceasing to constitute a Restricted Subsidiary or otherwise becoming an Excluded Subsidiary is not prohibited by this Agreement. Upon request by any Appointed Agent at any time, the Required Lenders will confirm in writing such Appointed Agent’s authority to release or subordinate its interest in particular types or items of property, or to release any Guarantor from its obligations pursuant to paragraph (6)(C) of the definition of Permitted Lien. In addition, the Guaranty of the Obligations by, and the liens on the assets of, any Restricted Subsidiary which is designated as an Unrestricted Subsidiary will automatically be terminated and released at the time of such designationthis Section 13.10(a).
(b) PromptlyUpon receipt by any Appointed Agent of any authorization required pursuant to Section 13.10(a) from the Lenders of such Appointed Agent’s authority to release or subordinate the applicable Collateral Agent’s Liens upon particular types or items of Collateral, or to release any Guarantor from its obligations under the Guarantee Agreement, and in any event not later than five upon at least three (53) Business Days’ following prior written request by Parent the Borrower, such Appointed Agent shall (and is hereby irrevocably authorized by the Lenders and directed by Lenders the other Secured Parties to) execute such documents as may be necessary to evidence the release (or subordination) of its such Collateral Agent’s Liens upon such Collateral as contemplated by Section 10.11(a)or to subordinate its interest therein, or to release such Guarantor from its obligations under the Guarantee Agreement; provided, however, that (i) such Appointed Agent shall not be required to execute any such document on terms which, in such Appointed Agent’s opinion, would expose such Appointed Agent to liability or create any 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 Liens (other than those expressly being released) upon (or obligations of Credit Parties the Obligors in respect of) all interests retained by Credit Partiesthe Obligors, including the proceeds of any sale, all of which shall continue to constitute part of the Collateral to the extent contemplated by the Collateral Documents. Co-such Collateral.
(c) The Collateral Agent shall have no obligation whatsoever to any of the Lenders to assure that the Collateral exists or is owned by the Obligors or is cared for, protected or insured or has been encumbered, or that the applicable Collateral Agent’s Liens have been properly or sufficiently or lawfully created, perfected, protected or enforced or 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 pursuant to any of the Loan 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 concert with Agent in matters delegated to the both of them under this Agreement; howeverany manner it may deem appropriate, in its sole discretion, given the event Collateral Agent’s own interest in the Collateral in its capacity as one of any disagreement or dispute between Agent the Lenders and Co-that the Collateral Agent in shall have no other duty or liability whatsoever to any such matter, Lender as to any of the determination or decision of Agent shall, in all cases, controlforegoing.
Appears in 1 contract
Collateral Matters. Each Lender (including in its capacity as a counterparty to a Secured Interest Rate Hedge Agreement) and each other Secured Party by its acceptance of the Collateral Documents irrevocably agrees:
(a) Lenders hereby irrevocably authorize and direct that any Lien on any property granted to or held by the Administrative Agent to release or the Collateral Agent under any Liens upon any Collateral (and any such Liens Loan Document shall be automatically released, without any action by Agent or any other Person), released (i) upon termination of the Termination Date; Aggregate Commitments and payment in full in cash of all Obligations (other than contingent indemnification obligations not yet accrued and payable) and the expiration or termination or cash collateralization of all Letters of Credit (or if such Letters of Credit have been backstopped by letters of credit reasonably satisfactory to the applicable L/C Issuers or deemed reissued under another agreement reasonably satisfactory to the applicable L/C Issuers), (ii) in respect of at the time the property of any Subsidiary being sold subject to such Lien is Disposed or disposed to be Disposed as part of or transferred (including property owned by in connection with any Subsidiary being sold Disposition permitted hereunder or disposed of under any other Loan Document to any Person other than a Person required to ▇▇▇▇▇ ▇ ▇▇▇▇ to the Administrative Agent or transferred) if the sale or Disposition or transfer is made in compliance with this Agreement and Collateral Agent under the Loan Documents (or, if such transferee is a Person required to ▇▇▇▇▇ ▇ ▇▇▇▇ to the Administrative Agent or the Collateral Agent on such asset, at the option of the Borrower, such Lien on such asset may still be released in connection with the transfer so long as (x) the transferee grants a new Lien to the Administrative Agent or Collateral Agent on such asset substantially concurrently with the transfer of such asset and (y) the priority of the new Lien is the same as that of the original Lien and the Lien of the Secured Parties on such asset is not impaired or otherwise is not prohibited) (adversely affected by such release and Agent may, in its discretion, request, and rely conclusively without further inquiry on a certificate from the Borrower certifying granting of such new Lien as such prior to Agent taking any action to evidence such release) or such sale or Disposition is approved reasonably determined by the Requisite Lenders (or such greater number of Lenders as may be required under Section 12.2Administrative Agent); , (iii) subject to Section 10.01, if the extent release of such Lien is approved, authorized or ratified in writing by the applicable Collateral is or becomes Excluded Property and/or Excluded Principal Property; Required Lenders, (iv) to the extent the applicable Collateral (and only for so long as) such property constitutes property leased to Credit Parties under a lease which has expired an “Excluded Asset” or been terminated in a transaction permitted under this Agreement; (v) to if the extent the Credit Party owning release of such Collateral Lien on such property is released from its Obligations hereunder (pursuant to Section 13.11 or otherwise); or (vi) as required by permitted under the terms of each applicable Collateral Document; and
(b) the ABL Collateral Agent may, without any further consent of any Lender, enter into (or enter into any supplement or amendment thereto, or an amendment and restatement or replacement thereof) (i) a First Lien Intercreditor AgreementAgreement with the applicable Other Debt Representatives with respect to Indebtedness permitted under Section 7.02 where such Indebtedness is secured by Permitted Liens that the Borrower elects to secure on a pari passu basis with the Liens securing the Obligations and/or (ii) a Junior Lien Intercreditor Agreement with the applicable Other Debt Representatives with respect to Indebtedness permitted under Section 7.02 where such Indebtedness is secured by Permitted Liens that the Borrower elects to secure on a junior basis to the Liens securing the Obligations. The Collateral Agent may rely exclusively on a certificate of a Responsible Officer of the Borrower as to whether any such other Liens are permitted. Any First Lien Intercreditor Agreement or any Junior Lien Intercreditor Agreement (or any supplement or amendment thereto, or amendment and restatement or replacement thereof) entered into by the Collateral Agent in accordance with the terms of this Agreement shall be binding on the Secured Parties. Upon request by the Administrative Agent or Parent Borrower the Collateral Agent at any time, the Required Lenders will confirm in writing the Administrative Agent’s or the Collateral Agent’s authority to release any Lien upon or subordinate its interest in particular types or items of property. In each case as specified in this Section 9.11, the Administrative Agent or the Collateral Agent will promptly upon the request of the Borrower (and each Lender irrevocably authorizes the Administrative Agent and the Collateral Agent to), at the Borrower’s expense, execute and deliver to the Borrower such documents as the Borrower may reasonably request to evidence the release or subordination of such item of Collateral from the assignment and security interest granted under the Collateral Documents, in each case in accordance with the terms of the Loan Documents and this Section 9.11 (and the Administrative Agent and the Collateral Agent may rely conclusively on a certificate of a Responsible Officer of the Borrower to that effect provided to it by the Borrower upon its reasonable request without further inquiry). Any execution and delivery of documents pursuant to this Section 10.11. In addition, the Lenders hereby authorize Agent, to subordinate any Lien granted shall be without recourse to or held warranty by the Administrative Agent upon any or the Collateral to any Lien on such asset permitted pursuant to paragraph (6)(C) Agent. For the avoidance of the definition of Permitted Lien. In additiondoubt, the Guaranty of the Obligations by, and the liens on the assets of, any Restricted Subsidiary which is designated as an Unrestricted Subsidiary will automatically be terminated and released at the time of such designation.
(b) Promptly, and in any event not later than five (5) Business Days’ following written request by Parent Borrower, Agent shall (and is hereby irrevocably authorized and directed by Lenders to) execute such documents as may be necessary to evidence the release (or subordination) of its Liens upon such Collateral as contemplated by Section 10.11(a); provided, however, that (i) Agent shall not be required to execute any such document on terms which, in Agent’s opinion, would expose Agent to liability or create any obligation or entail any consequence other than the no release of such Liens without recourse or warranty, and (ii) such release Collateral effected in the manner permitted by this Section 9.11 shall not in any manner discharge, affect or impair require the Obligations or any Liens (other than those expressly being released) upon (or obligations of Credit Parties in respect of) all interests retained by Credit Parties, including the proceeds consent of any sale, all holder of which shall continue to constitute part of the Collateral to the extent contemplated by the Collateral Documents. Co-Collateral Agent shall act in concert with Agent in matters delegated to the both of them obligations under this any Secured Interest Rate Hedge Agreement; however, in the event of any disagreement or dispute between Agent and Co-Collateral Agent in any such matter, the determination or decision of Agent shall, in all cases, control.
Appears in 1 contract
Collateral Matters. (a) The Lenders (and each other Secured Party by their acceptance of the benefits of the Loan Documents shall be deemed to) hereby irrevocably authorize the Collateral Agent (and direct if applicable, any subagent appointed by the Collateral Agent under Section 13.2 or otherwise) to release any its Liens on the Collateral, and the Collateral Agent’s Liens upon any Collateral (and any such Liens shall be automatically released, without any action by Agent or any other Person), released (i) upon Full Payment of the Termination DateObligations; (ii) in respect upon a disposition of property of any Subsidiary being sold or disposed of or transferred (including property owned Collateral permitted by any Subsidiary being sold or disposed of or transferred) if the sale or Disposition or transfer is made in compliance with this Agreement and the Loan Documents (or otherwise Section 8.8 to a Person that is not prohibited) (and Agent may, in its discretion, request, and rely conclusively without further inquiry on a certificate from the Borrower certifying as such prior to Agent taking any action to evidence such release) or such sale or Disposition is approved by the Requisite Lenders (or such greater number of Lenders as may be required under Section 12.2)an Obligor; (iii) to if any such Collateral constitutes property in which the extent Obligors owned no interest at the applicable Collateral is time the Lien was granted or becomes Excluded Property and/or Excluded Principal Propertyat any time thereafter; (iv) to the extent the applicable if any such Collateral constitutes property leased to Credit Parties an Obligor under a lease which has expired or been terminated in a transaction permitted under this Agreement; (v) to the extent the Credit Party owning property constituting such Collateral is released owned by any Guarantor, upon the release of such Guarantor from its Obligations hereunder obligations under the Guarantee Agreement (pursuant to Section 13.11 or otherwisein accordance with the second succeeding sentence and the Guarantee Agreement); or (vi) as required by the terms Collateral Agent to effect any sale, transfer or other Disposition of Collateral in connection with any exercise of remedies of the ABL Intercreditor AgreementCollateral Agent pursuant to the Security Documents, and (vii) to the extent such Collateral otherwise becomes an Excluded Stock or an Excluded Asset. Except as provided above, the Collateral Agent will not release any of the Collateral Agent’s Liens without the prior written authorization of the Required Lenders (or such other percentage of Lenders whose consent is required in accordance with Section 12.1); provided that, in addition to the foregoing, the Collateral Agent may, in its discretion, release such Collateral Agent’s Liens on Collateral valued in the aggregate not in excess of $1,000,000 during each Fiscal Year without the prior written authorization of any Lender, so long as all proceeds received in connection with such release are applied to the Obligations in accordance with Section 4.7 and, after giving effect to the application of such proceeds and the updating of the Borrowing Base, as the case may be, to reflect the deletion of any assets subject to such release, Availability shall be no less than the Availability immediately prior to such release. Upon request by the Collateral Agent or Parent the Borrower at any time, subject to the Borrower having certified to the Collateral Agent that the disposition is made in compliance with Section 8.8 (which the Collateral Agent may rely conclusively on any such certificate, without further inquiry), the Lenders will confirm in writing the Collateral Agent’s authority to release any Lien applicable Collateral Agent’s Liens upon particular types or items of Collateral pursuant to this Section 10.1113.10. In addition, the Lenders (and each other Secured Party by their acceptance of the benefits of the Loan Documents shall be deemed to) hereby irrevocably authorize Agent, (w) the Collateral Agent to subordinate any Lien on any property granted to or held by the Collateral Agent upon under any Collateral Loan Document to the holder of any Lien on such asset property that is permitted by Section 8.12(c) or (q) (as to Fixed Asset Collateral only), (x) the Agent to release automatically any Guarantor from its obligations under the Guarantee Agreement if such Person ceases to be a Restricted Subsidiary as a result of a transaction permitted under this Agreement or such Person otherwise becomes an Excluded Subsidiary, in each case, solely to the extent such Subsidiary ceasing to constitute a Restricted Subsidiary or otherwise becoming an Excluded Subsidiary is not prohibited by this Agreement, (y) so long as both (1) no Default or Event of Default has occurred and is continuing or would result therefrom and (2) no Out-of-Formula Condition has occurred and is continuing or would result therefrom, then, to the extent that the Collateral Agent obtains possession of any Collateral by operation of Section 13.12 of this Agreement that constitutes Collateral that Obligors are not required to deliver to Collateral Agent at such time pursuant to paragraph the terms hereof, the Security Documents or any other contractual arrangement with any Obligor, following the written request by Borrower, Collateral Agent shall (6)(Cto the extent not prohibited by applicable law or legal process) deliver such Collateral in accordance with the terms of the Intercreditor Agreement or, if no Intercreditor Agreement is then in effect, to the applicable Obligor, and (z) if after the date hereof Collateral Agent’s Lien has been expanded to include Fixed Asset Collateral in connection with incurrence of Debt pursuant to Section 8.12(q)(x) so long as all of the following conditions are satisfied (1) no Default or Event of Default has occurred and is continuing or would result therefrom, (2) no Out-of-Formula Condition has occurred and is continuing or would result therefrom, and (3) no Debt has been incurred in reliance on Section 8.12(q)(x) that remains outstanding (and no commitments for Debt that, if incurred would be incurred in reliance on Section 8.12(q)(x), remain outstanding) and no Liens are outstanding in reliance on clause (r), clause (jj), or, to the extent on account of Refinancing Debt, or outstanding commitments that, if incurred, would be Refinancing Debt, in each case incurred in reliance, directly or indirectly, on Section 8.12(q)(x)), clause (p) of the definition of Permitted Lien. In additionLiens, promptly following the written request of the Borrower, the Guaranty Collateral Agent shall release Collateral Agent’s Liens on Fixed Assets Collateral at the expense of the Obligations byObligors. Upon request by any Appointed Agent at any time, and the liens on the assets ofRequired Lenders will confirm in writing such Appointed Agent’s authority to release or subordinate its interest in particular types or items of property, or to release any Restricted Subsidiary which is designated as an Unrestricted Subsidiary will automatically be terminated and released at the time of such designationGuarantor from its obligations pursuant to this Section 13.10(a).
(b) PromptlyUpon receipt by any Appointed Agent of any authorization required pursuant to Section 13.10(a) from the Lenders of such Appointed Agent’s authority to release or subordinate the applicable Collateral Agent’s Liens upon particular types or items of Collateral, or to release any Guarantor from its obligations under the Guarantee Agreement, and in any event not later than five upon at least three (53) Business Days’ following prior written request by Parent the Borrower, such Appointed Agent shall (and is hereby irrevocably authorized by the Lenders and directed by Lenders the other Secured Parties to) execute such documents as may be necessary to evidence the release (or subordination) of its such Collateral Agent’s Liens upon such Collateral as contemplated by Section 10.11(a)or to subordinate its interest therein, or to release such Guarantor from its obligations under the Guarantee Agreement; provided, however, that (i) such Appointed Agent shall not be required to execute any such document on terms which, in such Appointed Agent’s opinion, would expose such Appointed Agent to liability or create any 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 Liens (other than those expressly being released) upon (or obligations of Credit Parties the Obligors in respect of) all interests retained by Credit Partiesthe Obligors, including the proceeds of any sale, all of which shall continue to constitute part of the Collateral to the extent contemplated by the Collateral Documents. Co-such Collateral.
(c) The Collateral Agent shall have no obligation whatsoever to any of the Lenders to assure that the Collateral exists or is owned by the Obligors or is cared for, protected or insured or has been encumbered, or that the applicable Collateral Agent’s Liens have been properly or sufficiently or lawfully created, perfected, protected or enforced or 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 pursuant to any of the Loan 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 concert with Agent in matters delegated to the both of them under this Agreement; howeverany manner it may deem appropriate, in its sole discretion, given the event Collateral Agent’s own interest in the Collateral in its capacity as one of any disagreement or dispute between Agent the Lenders and Co-that the Collateral Agent in shall have no other duty or liability whatsoever to any such matter, Lender as to any of the determination or decision of Agent shall, in all cases, controlforegoing.
Appears in 1 contract
Collateral Matters. (a) The Lenders hereby irrevocably authorize and direct the Collateral Agent to release any Liens Lien upon any Collateral (and any such Liens shall be automatically released, without any action by Agent or any other Person), (i) upon the Termination Date; termination of the Commitments and payment and satisfaction in full of all Obligations (other than contingent obligations with respect to then unasserted claims), (ii) in respect of constituting property of any Subsidiary being sold sold, transferred or disposed of or transferred (including property owned by any Subsidiary being sold or disposed of or transferred) if the sale or in a Permitted Disposition or transfer is made in compliance with this Agreement and the Loan Documents (or otherwise to a Person that is not prohibited) (and Agent maya Loan Party, in its discretion, request, and rely conclusively without further inquiry on a certificate from the Borrower certifying as such prior to Agent taking any action to evidence such release) or such sale or Disposition is approved by the Requisite Lenders (or such greater number of Lenders as may be required under Section 12.2); (iii) which constitutes property subject to the extent proviso in the applicable Collateral is definition of “Collateral” in the Security Agreement or becomes Excluded Property and/or Excluded Principal Property; subject to the proviso in SECTION 2.1 of the Pledge Agreement, (iv) as provided in any Intercreditor Agreement, including the ABL Intercreditor Agreement with respect to the extent the applicable Revolver Priority Collateral constitutes property leased to Credit Parties under a lease which has expired or been terminated in a transaction permitted under this Agreement; and (v) as to the extent the Credit Party owning such Collateral is released of any Facility Guarantor, upon its release from its Obligations hereunder Facility Guarantee (pursuant to Section 13.11 or otherwiseincluding as a result of designation as an Unrestricted Subsidiary); or (vi) . Except as required by provided above, the terms Collateral Agent will not release any of the ABL Intercreditor AgreementCollateral Agent’s Liens without the prior written authorization of the Applicable Lenders. Upon request by any Agent or Parent Borrower any Loan Party at any time, the Lenders will confirm in writing the Collateral Agent’s authority to release any Lien Liens upon particular types or items of Collateral pursuant to this Section 10.11. In addition, the Lenders hereby authorize Agent, to subordinate any Lien granted to or held by Agent upon any Collateral to any Lien on such asset permitted pursuant to paragraph (6)(C) of the definition of Permitted Lien. In addition, the Guaranty of the Obligations by, and the liens on the assets of, any Restricted Subsidiary which is designated as an Unrestricted Subsidiary will automatically be terminated and released at the time of such designationSECTION 8.16.
(b) Promptly, and in any event not later than five (5) Business Days’ following written request by Parent Borrower, The Collateral Agent shall (and is hereby irrevocably authorized and directed by the Lenders to) execute such documents as may be necessary to evidence the release (or subordination) of its the Liens upon such any Collateral as contemplated by Section 10.11(adescribed in SECTION 8.16(a); provided, however, that (i) the Collateral Agent shall not be required to execute any such document on terms which, in Agent’s its reasonable opinion, would would, under Applicable Law, expose the Collateral Agent to liability or create any obligation or entail any adverse 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 Liens (other than those expressly being released) upon (or obligations of Credit Parties any Loan Party in respect of) all interests retained by Credit Partiesany Loan Party, including (without limitation) the proceeds of any sale, all of which shall continue to constitute part of the Collateral.
(c) Each Lender irrevocably authorizes each of the Administrative Agent and the Collateral Agent to (i) release any Guarantor from its obligations under a Facility Guarantee if such Person ceases to be a Restricted Subsidiary as a result of a transaction or designation permitted hereunder and (ii) upon the request of the Borrower and pursuant to documentation reasonably acceptable to the Administrative Agent and/or Collateral Agent, to subordinate any Lien on any property granted to or held by the Administrative Agent or the Collateral Agent under any Loan Document to the holder of any Lien on such property that is permitted under clause (f), (h) or (t) of the definition of Permitted Encumbrances.
(d) The Secured Parties hereby irrevocably authorize the Administrative Agent, at the direction of the Required Lenders, 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) and in such manner purchase (either directly or through one or more acquisition vehicles) all or any portion of the Collateral (a) at any sale thereof conducted under the provisions of the Bankruptcy Code, including under Sections 363, 1123 or 1129 of the Bankruptcy Code, or any similar laws in any other jurisdictions to which a Loan Party is subject, or (b) at any other sale, foreclosure or acceptance of collateral in lieu of debt conducted by (or with the consent or at the direction of) the Administrative Agent (whether by judicial action or otherwise) in accordance with any applicable law. In connection with any such credit bid and purchase, the Obligations owed to the Secured Parties shall be entitled to be, and shall be, credit bid by the Administrative Agent at the direction of the Required Lenders
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 (i) the Administrative Agent shall be authorized to form one or more acquisition vehicles and to assign any successful credit bid to such acquisition vehicle or vehicles (ii) each of the Secured Parties’ 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, (iii) the Administrative shall be authorized to adopt documents providing for the governance of the acquisition vehicle or vehicles (provided that any actions by the Administrative 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 9.02 of this Agreement), (iv) the Administrative Agent on behalf of such acquisition vehicle or vehicles shall be authorized to issue to each of the Secured Parties, ratably on account of the relevant Obligations which were credit bid, interests, whether as equity, partnership, 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 Secured Party or acquisition vehicle to take any further action, and (v) to the extent that Obligations that are assigned to an acquisition vehicle are not used to acquire Collateral 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 Secured Parties pro rata 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 Secured Party or any acquisition vehicle to take any further action. Notwithstanding that the ratable portion of the Obligations of each Secured Party are deemed assigned to the acquisition vehicle or vehicles as set forth in clause (ii) above, each Secured Party shall execute such documents and provide such information regarding the Secured Party (and/or any designee of the Secured Party which will receive interests in or debt instruments issued by such acquisition vehicle) as the Administrative Agent 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 the Collateral Documents. Co-Collateral Agent shall act in concert with Agent in matters delegated to the both of them under this Agreement; however, in the event of any disagreement or dispute between Agent and Co-Collateral Agent in any such matter, the determination or decision of Agent shall, in all cases, controlcredit bid.
Appears in 1 contract
Collateral Matters. The Lenders irrevocably agree:
(a) Lenders hereby irrevocably authorize and direct that the Collateral Agent is authorized to release any Liens upon Lien on any property granted to or held by the Collateral (and Agent under any such Liens shall be automatically released, without any action by Agent or any other Person)Loan Document, (i) upon at the Termination Date; time the property subject to such Lien is pledged pursuant to Section 6.02(n)(x) or Section 6.02(n)(y) (but solely to the extent such property consists of Revolving Credit Priority Collateral and Hedging Agreements related to the value of such Revolving Credit Priority Collateral) or sold, leased, licensed, consigned, transferred or otherwise disposed of as part of or in connection with any Asset Sale permitted under Section 6.06 to any Person other than a Loan Party (provided that no Lien shall be released in any Series of Cash Neutral Transactions) (or, if such transferee is a Loan Party, the Collateral Agent is authorized to release such Lien on such asset in connection with the transfer so long as (w) except 972172.01-CHISR01A - MSW as permitted by Section 6.06(q) or Section 6.06(s), the transferee grants a new Lien to the Collateral Agent on such asset substantially concurrently with the transfer of such asset, (x) the transfer is between parties organized under the laws of different countries, (y) the priority of the new Lien is the same as that of the original Lien and (z) the Liens on such property held by or on behalf of the holders of Indebtedness under the Revolving Credit Loan Documents or any Permitted Revolving Credit Facility Refinancing, Permitted First Priority Refinancing Debt, Permitted Secured Priority Refinancing Debt, Additional Senior Secured Indebtedness and Junior Secured Indebtedness are also released), (ii) in respect of property of any Subsidiary being sold or disposed of or transferred (including property owned by any Subsidiary being sold or disposed of or transferred) subject to Section 11.02, if the sale release of such Lien is approved, authorized or Disposition or transfer is made ratified in compliance with this Agreement and the Loan Documents (or otherwise is not prohibited) (and Agent may, in its discretion, request, and rely conclusively without further inquiry on a certificate from the Borrower certifying as such prior to Agent taking any action to evidence such release) or such sale or Disposition is approved writing by the Requisite Required Lenders (or such greater other number of Lenders as may be whose consent is required under Section 12.211.02); , (iii) if the property subject to such Lien is owned by a Guarantor, upon release of such Guarantor from its obligations under its Guarantee pursuant to Section 7.09(a), (b) and (c), (iv) upon termination of all Commitments and the repayment in full of all outstanding principal and accrued interest with respect to the Loans, all Fees and other Obligations, (v) in connection with the grant of Liens permitted hereunder under Section 6.02(k) and subject to the Intercreditor Agreement, if the applicable Loan Party grants a Lien to the Collateral Agent or for the benefit of the Collateral Agent in a manner reasonably satisfactory to the Collateral Agent, substantially concurrently with the release of such asset, to the extent such release or termination and re-grant is necessary or advisable under applicable law, and (vi) to the extent such property is Excluded Property.
(b) to release or subordinate any Lien on any property granted to or held by the applicable Collateral Agent under any Loan Document to the holder of any Lien on such property that is or becomes Excluded Property and/or Excluded Principal Property; (iv) permitted by Section 6.02(i), to the extent the applicable Collateral constitutes property leased to Credit Parties under a lease which has expired or been terminated in a transaction permitted under this Agreement; (v) to the extent the Credit Party owning such Collateral is released from its Obligations hereunder (pursuant to Section 13.11 or otherwise); or (vi) as required by the terms of the ABL Intercreditor Agreement. Upon request obligations secured by such Liens; Each Lender irrevocably authorizes the Collateral Agent to, at each Co-Borrower’s expense, execute and deliver documents to authorize the release or Parent Borrower at any time, Lenders will confirm in writing Agent’s authority to release any Lien upon particular types or subordination of such items of Collateral pursuant to from the Liens granted under the Security Documents, in each case in accordance with the terms of the Loan Documents and this Section 10.11. In addition, the Lenders hereby authorize Agent, to subordinate any Lien granted to or held by Agent upon any Collateral to any Lien on such asset permitted pursuant to paragraph (6)(C) of the definition of Permitted Lien. In addition, the Guaranty of the Obligations by, and the liens on the assets of, any Restricted Subsidiary which is designated as an Unrestricted Subsidiary will automatically be terminated and released at the time of such designation11.29.
(b) Promptly, and in any event not later than five (5) Business Days’ following written request by Parent Borrower, Agent shall (and is hereby irrevocably authorized and directed by Lenders to) execute such documents as may be necessary to evidence the release (or subordination) of its Liens upon such Collateral as contemplated by Section 10.11(a); provided, however, that (i) Agent shall not be required to execute any such document on terms which, in Agent’s opinion, would expose Agent to liability or create any 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 Liens (other than those expressly being released) upon (or obligations of Credit Parties in respect of) all interests retained by Credit Parties, including the proceeds of any sale, all of which shall continue to constitute part of the Collateral to the extent contemplated by the Collateral Documents. Co-Collateral Agent shall act in concert with Agent in matters delegated to the both of them under this Agreement; however, in the event of any disagreement or dispute between Agent and Co-Collateral Agent in any such matter, the determination or decision of Agent shall, in all cases, control.
Appears in 1 contract
Sources: Credit Agreement (Novelis Inc.)
Collateral Matters. If any Collateral and Guarantee Trigger Event occurs:
(a) Lenders hereby irrevocably authorize The Security and direct Pledge Agreement, upon execution and delivery thereof by the parties thereto, will be effective to create in favor of the Collateral Agent to release any Liens upon any a valid and enforceable security interest in the Collateral (and any such Liens shall be automatically released, without any action by Agent or any other Person), (i) upon when the Termination Date; Collateral constituting certificated securities (as defined in the UCC), solely to the extent required by the Collateral and Guarantee Requirement, is delivered to the Collateral Agent, together with instruments of transfer duly endorsed in blank, the security interest created under the Security and Pledge Agreement will constitute a valid and perfected security interest in such Collateral (prior to all Liens on such Collateral, except for Liens (i) permitted by this Agreement which may have priority over the Liens of the Collateral Agent on such Collateral by operation of law (including the priority rules under the UCC) or (ii) which are otherwise permitted pursuant to Section 6.01 of this Agreement) and (ii) when financing statements in respect appropriate form are filed in the applicable filing offices, the security interest created under the Security and Pledge Agreement will constitute a valid and perfected security interest in the remaining Collateral (prior to all Liens on such Collateral, except for Liens (i) permitted by this Agreement which may have priority over the Liens of property the Collateral Agent on such Collateral by operation of any Subsidiary being sold or disposed of or transferred law (including property owned by any Subsidiary being sold or disposed of or transferred) if the sale or Disposition or transfer is made in compliance with this Agreement and priority rules under the Loan Documents (or otherwise is not prohibited) (and Agent may, in its discretion, request, and rely conclusively without further inquiry on a certificate from the Borrower certifying as such prior to Agent taking any action to evidence such releaseUCC) or such sale or Disposition is approved by the Requisite Lenders (or such greater number ii) which are otherwise permitted pursuant to Section 6.01 of Lenders as may be required under Section 12.2); (iiithis Agreement) to the extent the applicable Collateral is or becomes Excluded Property and/or Excluded Principal Property; (iv) to the extent the applicable Collateral constitutes property leased to Credit Parties under a lease which has expired or been terminated in a transaction permitted under this Agreement; (v) to the extent the Credit Party owning such Collateral is released from its Obligations hereunder (pursuant to Section 13.11 or otherwise); or (vi) as required perfection can be obtained by the terms of the ABL Intercreditor Agreement. Upon request by Agent or Parent Borrower at any time, Lenders will confirm in writing Agent’s authority to release any Lien upon particular types or items of Collateral pursuant to this Section 10.11. In addition, the Lenders hereby authorize Agent, to subordinate any Lien granted to or held by Agent upon any Collateral to any Lien on such asset permitted pursuant to paragraph (6)(C) of the definition of Permitted Lien. In addition, the Guaranty of the Obligations by, and the liens on the assets of, any Restricted Subsidiary which is designated as an Unrestricted Subsidiary will automatically be terminated and released at the time of such designationfiling UCC financing statements.
(b) PromptlyUpon the recordation of the IP Security Agreements with the United States Patent and Trademark Office or the United States Copyright Office, as applicable, and the filing of the financing statements referred to in any event not later than five clause (5a) Business Days’ following written request of this Section, the security interest created under the Security and Pledge Agreement will constitute a valid and perfected security interest in the Intellectual Property (as defined in the Security and Pledge Agreement) (prior to all Liens on such Collateral, except for Liens (i) permitted by Parent Borrower, this Agreement which may have priority over the Liens of the Collateral Agent shall on such Collateral by operation of law (including the priority rules under the UCC) or (ii) which are otherwise permitted pursuant to Section 6.01 of this Agreement) in which a security interest may be perfected by filing in the United States (it being understood that subsequent recordings in the United States Patent and is hereby irrevocably authorized and directed by Lenders to) execute such documents as Trademark Office or the United States Copyright Office may be necessary to evidence the release (or subordination) of its Liens upon perfect a security interest in such Collateral as contemplated by Section 10.11(a); provided, however, that (i) Agent shall not be required to execute any such document on terms which, in Agent’s opinion, would expose Agent to liability or create any 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 Liens (other than those expressly being released) upon (or obligations of Credit Parties in respect of) all interests retained by Credit Parties, including the proceeds of any sale, all of which shall continue to constitute part of the Collateral to the extent contemplated Intellectual Property acquired by the Loan Parties after the Initial Collateral Documents. Co-Collateral Agent shall act in concert with Agent in matters delegated to the both of them under this Agreement; however, in the event of any disagreement or dispute between Agent and Co-Collateral Agent in any such matter, the determination or decision of Agent shall, in all cases, controlGuarantee Requirement Satisfaction Date).
Appears in 1 contract
Collateral Matters. (a) The Lenders hereby irrevocably authorize the Administrative Agent, at its option and direct Agent in its discretion, to release any Liens upon Lien on any Collateral (i) upon termination of the Aggregate Commitments and payment in full of all Obligations (other than contingent indemnification obligations), (ii) that is Disposed of or to be Disposed of as part of or in connection with any Disposition permitted hereunder or under any other Loan Document, or (iii) subject to Section 11.01, if approved, authorized or ratified in writing by the Required Lenders.
(b) (i) In the event of (A) any Disposition of Collateral permitted pursuant to Section 7.05(b), (c) or (d) (if applicable) or (B) the granting of Liens on existing Collateral to secure the Revolving Credit Agreement, the Lenders and the Administrative Agent agree that the Secured Parties’ Lien on such Collateral automatically shall be released so long as (x) the Borrower shall have submitted to the Administrative Agent a Borrowing Base Report demonstrating that, after giving pro forma effect to any such Liens requested release of Collateral, the Total Outstandings shall not exceed the Borrowing Base and (y) in the case of any Released Containers (as defined below), the conditions set forth in Section 9.10(b)(ii) have been satisfied. In such event, the Administrative Agent, on behalf of the Secured Parties, shall be deemed to have released such Collateral from the Lien of the Collateral Documents, and the Administrative Agent shall, at Borrower’s request, within three (3) Business Days execute any documentation reasonably required to evidence such release.
(i) Subject to Section 9.10(b)(i), the Lenders and the Administrative Agent agree that the Lien on various Marine Containers included in the Marine Container Collateral (each such Released Marine Container, a “Released Container” and collectively, the “Released Containers”) and all Collateral specifically related to such Released Containers shall be automatically releasedreleased from time to time upon request of Borrower and satisfaction of all of the following conditions:
(A) Borrower shall provide replacement Marine Containers (each, without any action by Agent a “Substitute Container” and collectively, the “Substitute Containers”) in substitution for such Released Containers and the then aggregate Net Book Value of all Substitute Containers shall be not less than the then aggregate Net Book Value of all Released Containers,
(B) each Substitute Container shall be an Eligible Marine Container;
(C) on the date of such release, no Event of Default shall exist or any other Personwill exist after giving effect to such substitution;
(D) such Substitute Containers, on an aggregate basis, are not materially different from the Released Containers, on an aggregate basis, in terms of (i) type (e.g., refrigerated, dry freight or specials), (ii) off-hire percentage, and (iii) Weighted Average Age;
(E) the sum of the Net Book Value of such Substitute Containers, when added to the sum of the Net Book Values of all Substitute Containers added to the Collateral (1) since the date that was twelve months prior to such release (the “Lookback Date”), does not exceed an amount equal to ten percent (10%) of the aggregate Net Book Value of all Marine Container Collateral measured on the Lookback Date, or (2) since the last day of the Availability Period, does not exceed an amount equal to twenty five percent (25%) of the aggregate Net Book Value of all Marine Container Collateral measured on the last day of the Availability Period;
(F) on or prior to the date of such release, (i) upon the Termination Date; Borrower shall have delivered to the Administrative Agent a supplemental security agreement, in the form attached hereto as Exhibit K, with regard to such Substitute Containers, and (ii) the Administrative Agent shall have received (x) evidence that all filings, recordations, releases, and amendments to prior filings or recordations necessary or desirable to perfect the Lien on any Contributed Containers shall have been completed, and that all related filing and recording fees and taxes shall have been duly paid and (y) updates through the approximate date of such substitution of the lien searches referred to in Section 4.01(a)(iii)(B); and
(G) after giving effect to such substitution, (A) the sum of the Net Book Values of all Marine Collateral Containers that are on lease to any single Lessee (or sublessee) shall not exceed an amount equal to twenty five percent (25%) the aggregate Net Book Values of all Marine Collateral Containers (measured after giving effect to such substitution) and (B) the sum of the Net Book Values of all Marine Collateral Containers that are on lease to any two Lessees shall not exceed an amount equal to forty percent (40%) of all Marine Collateral Containers (measured after giving effect to such substitution). The criteria set forth in clauses (A) and (D) above shall be applied in aggregate with respect to each separate grouping of property of any Subsidiary being sold or disposed of or transferred Substitute Containers and Released Containers. The criteria set forth in clause (including property owned by any Subsidiary being sold or disposed of or transferredE) if above shall be applied on a cumulative basis for all Substitute Containers applicable to the sale or Disposition or transfer is made in compliance with this Agreement periods set forth therein and the Loan Documents criteria set forth in clause (or otherwise is not prohibitedG) (above shall be applied to all of the Marine Container Collateral, after giving effect to the addition of such Substitute Containers and release of the Released Containers. In such event, the Administrative Agent, on behalf of the Secured Parties, shall be deemed to have released such Collateral from the Lien of the Collateral Documents, and the Administrative Agent mayshall, in its discretion, at Borrower’s request, and rely conclusively without further inquiry on a certificate from the Borrower certifying as such prior to Agent taking within three (3) Business Days execute any action documentation reasonably required to evidence such release.
(c) or such sale or Disposition is approved by the Requisite Lenders (or such greater number of Lenders as may be required under Section 12.2); (iii) to the extent the applicable Collateral is or becomes Excluded Property and/or Excluded Principal Property; (iv) to the extent the applicable Collateral constitutes property leased to Credit Parties under a lease which has expired or been terminated in a transaction permitted under this Agreement; (v) to the extent the Credit Party owning such Collateral is released from its Obligations hereunder (pursuant to Section 13.11 or otherwise); or (vi) as required by the terms of the ABL Intercreditor Agreement. Upon request by the Administrative Agent or Parent Borrower at any time, the Required Lenders will confirm in writing the Administrative Agent’s authority to release any Lien upon particular types or items of its interest in Collateral pursuant to this Section 10.119.10. In additioneach case as specified in this Section 9.10, the Lenders hereby authorize AgentAdministrative Agent will, to subordinate any Lien granted to or held by Agent upon any Collateral to any Lien on such asset permitted pursuant to paragraph (6)(C) of the definition of Permitted Lien. In addition, the Guaranty of the Obligations by, and the liens on the assets of, any Restricted Subsidiary which is designated as an Unrestricted Subsidiary will automatically be terminated and released at the time of such designation.
(b) PromptlyBorrower’s expense, execute and in any event not later than five (5) Business Days’ following written request by Parent Borrower, Agent shall (and is hereby irrevocably authorized and directed by Lenders to) execute deliver to the applicable Loan Party such documents as such Loan Party may be necessary reasonably request to evidence the release (or subordination) of its Liens upon such Collateral as contemplated by from the Lien of the Collateral Documents, in accordance with the terms of the Loan Documents and this Section 10.11(a); provided, however, that (i) 9.10. The Administrative Agent shall not be required responsible for or have a duty to execute ascertain or inquire into any such document on terms whichrepresentation or warranty regarding the existence, in value or collectability of the Collateral, the existence, priority or perfection of the Administrative Agent’s opinionLien thereon, would expose Agent to liability or create any 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 Liens (other than those expressly being released) upon (certificate prepared by any Loan Party in connection therewith, nor shall the Administrative Agent be responsible or obligations of Credit Parties in respect of) all interests retained by Credit Parties, including liable to the proceeds of Lenders for any sale, all of which shall continue failure to constitute part monitor or maintain any portion of the Collateral to the extent contemplated by the Collateral Documents. Co-Collateral Agent shall act in concert with Agent in matters delegated to the both of them under this Agreement; however, in the event of any disagreement or dispute between Agent and Co-Collateral Agent in any such matter, the determination or decision of Agent shall, in all cases, controlCollateral.
Appears in 1 contract
Collateral Matters. Each Lender (including in its capacity as a counterparty to a Secured Loan Document Hedge Agreement or Treasury Services Agreement) and each other Secured Party by its acceptance of the Collateral Documents irrevocably agrees:
(a) Lenders hereby irrevocably authorize and direct that any Lien on any property granted to or held by the Administrative Agent to release or the Collateral Agent under any Liens upon any Collateral (and any such Liens Loan Document shall be automatically released, without any action by Agent or any other Person), released (i) upon termination of the Termination Date; Aggregate Commitments and payment in full of all Obligations (other than (x) obligations under Secured Hedge Agreements and Treasury Services Agreements not yet due and payable and (y) contingent indemnification obligations not yet accrued and payable), (ii) in respect of property of any Subsidiary being sold or disposed of or transferred (including property owned by any Subsidiary being sold or disposed of or transferred) if the sale or Disposition or transfer is made in compliance with this Agreement and the Loan Documents (or otherwise is not prohibited) (and Agent may[reserved], in its discretion, request, and rely conclusively without further inquiry on a certificate from the Borrower certifying as such prior to Agent taking any action to evidence such release) or such sale or Disposition is approved by the Requisite Lenders (or such greater number of Lenders as may be required under Section 12.2); (iii) subject to Section 10.01, if the extent release of such Lien is approved, authorized or ratified in writing by the applicable Collateral is or becomes Excluded Property and/or Excluded Principal Property; Required Lenders, (iv) to the extent the applicable Collateral (and only for so long as) such property constitutes property leased to Credit Parties under a lease which has expired an “Excluded Asset” or been terminated in a transaction permitted under this Agreement; (v) to if the extent the Credit Party owning release of such Collateral Lien on such property is released from its Obligations hereunder (pursuant to Section 13.11 or otherwise); or (vi) as required by permitted under the terms of the ABL Intercreditor Agreement. Upon request by Agent or Parent Borrower at any time, Lenders will confirm in writing Agent’s authority to release any Lien upon particular types or items of each applicable Collateral pursuant to this Section 10.11. In addition, the Lenders hereby authorize Agent, to subordinate any Lien granted to or held by Agent upon any Collateral to any Lien on such asset permitted pursuant to paragraph (6)(C) of the definition of Permitted Lien. In addition, the Guaranty of the Obligations by, and the liens on the assets of, any Restricted Subsidiary which is designated as an Unrestricted Subsidiary will automatically be terminated and released at the time of such designation.Document;
(b) Promptly[reserved];
(c) [reserved];
(d) [reserved]; and
(e) the Collateral Agent may, and in without any event not later than five (5) Business Days’ following written request by Parent Borrowerfurther consent of any Lender, Agent shall (and is hereby irrevocably authorized and directed by Lenders to) execute such documents as may be necessary to evidence the release enter into (or subordinationenter into any supplement or amendment thereto, or an amendment and restatement or replacement thereof) of its Liens upon such Collateral as contemplated by Section 10.11(a); provided, however, that (i) Agent shall not be required a First Lien Intercreditor Agreement with the applicable Other Debt Representatives with respect to execute any Indebtedness permitted under Section 7.03 where such document Indebtedness is secured by Liens permitted under Section 7.01 that the Borrower elects to secure on terms which, in Agent’s opinion, would expose Agent to liability or create any obligation or entail any consequence other than a pari passu basis with the release of such Liens without recourse or warranty, and securing the Obligations and/or (ii) a Junior Lien Intercreditor Agreement with the applicable Other Debt Representatives with respect to Indebtedness permitted under Section 7.03 where such release shall not in Indebtedness is secured by Liens permitted under Section 7.01 that the Borrower elects to secure on a junior basis to the Liens securing the Obligations. The Collateral Agent may rely exclusively on a certificate of a Responsible Officer of the Borrower as to whether any manner discharge, affect or impair the Obligations such other Liens are permitted. Any First Lien Intercreditor Agreement or any Liens (other than those expressly being released) upon Junior Lien Intercreditor Agreement (or obligations of Credit Parties in respect ofany supplement or amendment thereto, or amendment and restatement or replacement thereof) all interests retained by Credit Parties, including the proceeds of any sale, all of which shall continue to constitute part of the Collateral to the extent contemplated entered into by the Collateral Documents. Co-Collateral Agent shall act in concert with Agent in matters delegated to accordance with the both terms of them under this Agreement; however, in Agreement shall be binding on the event of any disagreement or dispute between Agent and Co-Collateral Agent in any such matter, the determination or decision of Agent shall, in all cases, controlSecured Parties.
Appears in 1 contract
Collateral Matters. (a) The Lenders hereby irrevocably authorize and direct the Collateral Agent to release any Liens Lien upon any Collateral (and any such Liens shall be automatically released, without any action by Agent or any other Person), (i) upon the Termination Date; termination of the Commitments and payment and satisfaction in full of all Obligations (other than contingent obligations with respect to then unasserted claims), (ii) in respect of constituting property of any Subsidiary being sold sold, transferred or disposed of or transferred (including property owned by any Subsidiary being sold or disposed of or transferred) if the sale or in a Permitted Disposition or transfer is made in compliance with this Agreement and the Loan Documents (or otherwise to a Person that is not prohibited) (and Agent maya Loan Party, in its discretion, request, and rely conclusively without further inquiry on a certificate from the Borrower certifying as such prior to Agent taking any action to evidence such release) or such sale or Disposition is approved by the Requisite Lenders (or such greater number of Lenders as may be required under Section 12.2); (iii) which constitutes property subject to the extent proviso in the applicable Collateral is definition of “Collateral” in the Security Agreement or becomes Excluded Property and/or Excluded Principal Property; subject to the proviso in SECTION 2.1 of the Pledge Agreement, (iv) as provided in any Intercreditor Agreement, including the ABL Intercreditor Agreement with respect to the extent the applicable Revolver Priority Collateral constitutes property leased to Credit Parties under a lease which has expired or been terminated in a transaction permitted under this Agreement; and (v) as to the extent the Credit Party owning such Collateral is released of any Facility Guarantor, upon its release from its Obligations hereunder Facility Guarantee (pursuant to Section 13.11 or otherwiseincluding as a result of designation as an Unrestricted Subsidiary); or (vi) . Except as required by provided above, the terms Collateral Agent will not release any of the ABL Intercreditor AgreementCollateral Agent’s Liens without the prior written authorization of the Applicable Lenders. Upon request by any Agent or Parent Borrower any Loan Party at any time, the Lenders will confirm in writing the Collateral Agent’s authority to release any Lien Liens upon particular types or items of Collateral pursuant to this Section 10.11. In addition, the Lenders hereby authorize Agent, to subordinate any Lien granted to or held by Agent upon any Collateral to any Lien on such asset permitted pursuant to paragraph (6)(C) of the definition of Permitted Lien. In addition, the Guaranty of the Obligations by, and the liens on the assets of, any Restricted Subsidiary which is designated as an Unrestricted Subsidiary will automatically be terminated and released at the time of such designationSECTION 8.16.
(b) Promptly, and in any event not later than five (5) Business Days’ following written request by Parent Borrower, The Collateral Agent shall (and is hereby irrevocably authorized and directed by the Lenders to) execute such documents as may be necessary to evidence the release (or subordination) of its the Liens upon such any Collateral as contemplated by Section 10.11(adescribed in SECTION 8.16(a); provided, however, that (i) the Collateral Agent shall not be required to execute any such document on terms which, in Agent’s its reasonable opinion, would would, under Applicable Law, expose the Collateral Agent to liability or create any obligation or entail any adverse 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 Liens (other than those expressly being released) upon (or obligations of Credit Parties any Loan Party in respect of) all interests retained by Credit Partiesany Loan Party, including (without limitation) the proceeds of any sale, all of which shall continue to constitute part of the Collateral.
(c) Each Lender irrevocably authorizes each of the Administrative Agent and the Collateral Agent to (i) release any Guarantor from its obligations under a Facility Guarantee if such Person ceases to be a Restricted Subsidiary as a result of a transaction or designation permitted hereunder and (ii) upon the request of the Borrower and pursuant to documentation reasonably acceptable to the Administrative Agent and/or Collateral Agent, to subordinate any Lien on any property granted to or held by the Administrative Agent or the Collateral Agent under any Loan Document to the holder of any Lien on such property that is permitted under clause (f), (h) or (t) of the definition of Permitted Encumbrances.
(d) The Secured Parties hereby irrevocably authorize the Administrative Agent, at the direction of the Required Lenders, 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) and in such manner purchase (either directly or through one or more acquisition vehicles) all or any portion of the Collateral (a) at any sale thereof conducted under the provisions of the Bankruptcy Code, including under Sections 363, 1123 or 1129 of the Bankruptcy Code, or any similar laws in any other jurisdictions to which a Loan Party is subject, or (b) at any other sale, foreclosure or acceptance of collateral in lieu of debt conducted by (or with the consent or at the direction of) the Administrative Agent (whether by judicial action or otherwise) in accordance with any applicable law. In connection with any such credit bid and purchase, the Obligations owed to the Secured Parties shall be entitled to be, and shall be, credit bid by the Administrative Agent at the direction of the Required Lenders 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 (i) the Administrative Agent shall be authorized to form one or more acquisition vehicles and to assign any successful credit bid to such acquisition vehicle or vehicles (ii) each of the Secured Parties’ 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, (iii) the Administrative shall be authorized to adopt documents providing for the governance of the acquisition vehicle or vehicles (provided that any actions by the Administrative 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 9.02 of this Agreement), (iv) the Administrative Agent on behalf of such acquisition vehicle or vehicles shall be authorized to issue to each of the Secured Parties, ratably on account of the relevant Obligations which were credit bid, interests, whether as equity, partnership, 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 Secured Party or acquisition vehicle to take any further action, and (v) to the extent that Obligations that are assigned to an acquisition vehicle are not used to acquire Collateral 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 Secured Parties pro rata 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 Secured Party or any acquisition vehicle to take any further action. Notwithstanding that the ratable portion of the Obligations of each Secured Party are deemed assigned to the acquisition vehicle or vehicles as set forth in clause (ii) above, each Secured Party shall execute such documents and provide such information regarding the Secured Party (and/or any designee of the Secured Party which will receive interests in or debt instruments issued by such acquisition vehicle) as the Administrative Agent 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 the Collateral Documents. Co-Collateral Agent shall act in concert with Agent in matters delegated to the both of them under this Agreement; however, in the event of any disagreement or dispute between Agent and Co-Collateral Agent in any such matter, the determination or decision of Agent shall, in all cases, controlcredit bid.
Appears in 1 contract
Collateral Matters. (a) The Lenders hereby irrevocably authorize and direct the Collateral Agent to release any Liens Lien upon any Collateral (Collateral, and any such Liens Lien shall automatically be automatically released, without any action by Agent or any other Person), (i) upon the Termination Date; termination of the Commitments and payment and satisfaction in full of all Obligations (other than contingent indemnity obligations with respect to then unasserted claims and the Other Liabilities that are permitted by the providers thereof to remain outstanding), all Letters of Credit shall have expired or terminated (or been cash collateralized or otherwise credit supported (including backstop letters of credit) in a manner reasonably satisfactory to the applicable Issuing Bank) and all Letter of Credit Outstandings have been reduced to zero (or been cash collateralized or otherwise credit supported (including backstop letters of credit) in a manner reasonably satisfactory to the applicable Issuing Bank), (ii) in respect of (x) constituting property of any Subsidiary being sold sold, transferred or disposed of or transferred (including property owned by any Subsidiary being sold or disposed of or transferred) if the sale or in a Permitted Disposition or transfer is made (y) which constitutes property subject to the proviso in compliance with this the definition of “Collateral” in the Security Agreement and or subject to the Loan Documents (or otherwise is not prohibited) (and Agent mayproviso in Section 2.1 of the Pledge Agreement, in its discretion, request, and rely conclusively without further inquiry on a certificate from the Borrower certifying as such prior to Agent taking any action to evidence such release) or such sale or Disposition is approved by the Requisite Lenders (or such greater number of Lenders as may be required under Section 12.2); (iii) as provided in any intercreditor agreement, including the Intercreditor Agreement with respect to the extent the applicable Collateral is or becomes Excluded Property and/or Excluded Principal Property; Term Loan Priority Collateral, and (iv) as to the extent the applicable Collateral constitutes property leased to Credit Parties under of any Facility Guarantor, upon its release from its Facility Guarantee as a lease which has expired or been terminated in result of a transaction or designation permitted under this Agreement; (v) to the extent the Credit Party owning such Collateral is released from its Obligations hereunder (pursuant to Section 13.11 or otherwiseincluding as a result of designation as an Unrestricted Subsidiary); or (vi) . Except as required by provided above, the terms Collateral Agent will not release any of the ABL Intercreditor AgreementCollateral Agent’s Liens without the prior written authorization of the Applicable Lenders. Upon request by any Agent or Parent Borrower any Loan Party at any time, the Lenders will confirm in writing the Collateral Agent’s authority to release any Lien Liens upon particular types or items of Collateral pursuant to this Section 10.11. In addition, the Lenders hereby authorize Agent, to subordinate any Lien granted to or held by Agent upon any Collateral to any Lien on such asset permitted pursuant to paragraph (6)(C) of the definition of Permitted Lien. In addition, the Guaranty of the Obligations by, and the liens on the assets of, any Restricted Subsidiary which is designated as an Unrestricted Subsidiary will automatically be terminated and released at the time of such designation8.16.
(b) Promptly, and in any event not later than five Upon at least two (52) Business Days’ following prior written request by Parent the Lead Borrower, the Collateral Agent shall (and is hereby irrevocably authorized and directed by the Lenders to) execute such documents as may be necessary to evidence the release (or subordination) of its the Liens upon such any Collateral as contemplated by described in Section 10.11(a8.16(a); provided, however, that (i) the Collateral Agent shall not be required to execute any such document on terms which, in Agent’s its reasonable opinion, would would, under Applicable Law, expose the Collateral Agent to liability or create any obligation or entail any adverse 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 Liens (other than those expressly being released) upon (or obligations of Credit Parties any Loan Party in respect of) all interests retained by Credit Partiesany Loan Party, including (without limitation) the proceeds of any sale, all of which shall continue to constitute part of the Collateral.
(c) Each Lender irrevocably authorizes each of the Administrative Agent and the Collateral Agent to (i) release any Facility Guarantor from its obligations under a Facility Guarantee if such Person ceases to be a Restricted Subsidiary as a result of a transaction or designation permitted hereunder, and (ii) upon the request of the Lead Borrower and pursuant to documentation reasonably acceptable to the extent contemplated Administrative Agent and/or Collateral Agent, to subordinate any Lien on any property granted to or held by the Collateral Documents. Co-Administrative Agent or the Collateral Agent shall act in concert with Agent in matters delegated under any Loan Document to the both of them under this Agreement; however, in the event holder of any disagreement Lien on such property that is permitted under clause (f), (h), (m), or dispute between Agent and Co-Collateral Agent in any such matter, (s) of the determination or decision definition of Agent shall, in all cases, controlPermitted Encumbrances.
Appears in 1 contract
Collateral Matters. (a) Lenders hereby irrevocably authorize Agent may, at its option, from time to time, at any time on or after an Event of Default and direct Agent to release any Liens for so long as the same is continuing or upon any Collateral other failure of a condition precedent to the Loans and Letter of Credit Accommodations hereunder, make such disbursements and advances (and any such Liens shall be automatically released“Special Agent Advances”) which Agent, without any action by Agent or any other Person)in its sole discretion, (i) upon deems necessary or desirable either to preserve or protect the Termination Date; Collateral or any portion thereof or (ii) in respect to enhance the likelihood or maximize the amount of property repayment by Borrowers and Guarantors of any Subsidiary being sold the Loans and other Obligations, or disposed of or transferred (including property owned by any Subsidiary being sold or disposed of or transferred) if the sale or Disposition or transfer is made in compliance with this Agreement and the Loan Documents (or otherwise is not prohibited) (and Agent may, in its discretion, request, and rely conclusively without further inquiry on a certificate from the Borrower certifying as such prior to Agent taking any action to evidence such release) or such sale or Disposition is approved by the Requisite Lenders (or such greater number of Lenders as may be required under Section 12.2); (iii) to the extent the applicable Collateral is pay any other amount chargeable to any Borrower or becomes Excluded Property and/or Excluded Principal Property; (iv) Guarantor pursuant to the extent terms of this Agreement or any of the applicable Collateral constitutes property leased other Financing Agreements consisting of (A) costs, fees and expenses and (B) payments to any issuer in respect of Letter of Credit Parties under a lease Accommodations which has expired or been terminated are issued in a transaction permitted under this Agreement; (v) to the extent the Credit Party owning such Collateral is released from its Obligations hereunder (pursuant to Section 13.11 or otherwise); or (vi) as required by accordance with the terms of the ABL Intercreditor other Sections of this Agreement. Upon request by Agent or Parent Borrower at any time, Lenders will confirm in writing Agent’s authority to release any Lien upon particular types or items of Collateral pursuant to this Section 10.11. In addition, the Lenders hereby authorize Agent, to subordinate any Lien granted to or held by Agent upon any Collateral to any Lien on such asset permitted pursuant to paragraph (6)(C) of the definition of Permitted Lien. In addition, the Guaranty of the Obligations by, and the liens on the assets of, any Restricted Subsidiary which is designated as an Unrestricted Subsidiary will automatically be terminated and released at the time of such designation.
(b) Promptly, and in any event not later than five (5) Business Days’ following written request by Parent Borrower, Agent shall (and is hereby irrevocably authorized and directed by Lenders to) execute such documents as may be necessary to evidence the release (or subordination) of its Liens upon such Collateral as contemplated by Section 10.11(a); provided, howeverthat, that (ithe total outstanding principal amount of the Special Agent Advances pursuant to Section 12.11(a)(i) Agent shall not be required to execute any such document on terms which, in Agent’s opinion, would expose Agent to liability or create any obligation or entail any consequence other than the release of such Liens without recourse or warranty, and (ii) such release hereof plus the total outstanding principal amount of the additional Loans and Letter of Credit Accommodations which Agent may make or provide as set forth in Section 12.8 hereof shall not in any manner dischargeexceed the aggregate amount equal to ten (10%) percent of the Maximum Credit; provided, affect or impair further, that, the Obligations or any Liens (other than those expressly being released) upon (or obligations total outstanding principal amount of Loans, Letter of Credit Parties Accommodations and the Special Agent Advances pursuant to Section 12.11(a)(i) and (ii) hereof shall not exceed the Maximum Credit. Special Agent Advances shall be repayable on demand and together with all interest thereon shall constitute Obligations secured by the Collateral. Special Agent Advances shall not constitute Loans but shall otherwise constitute Obligations hereunder. Interest on Special Agent Advances shall be payable at the Interest Rate then applicable to Prime Rate Loans and shall be payable on demand. Without limitation of its obligations pursuant to Section 6.10, each Lender agrees that it shall make available to Agent, upon Agent’s demand, in respect of) all interests retained immediately available funds, the amount equal to such Lender’s Pro Rata Share of each such Special Agent Advance. If such funds are not made available to Agent by Credit Partiessuch Lender, including such Lender shall be deemed a Defaulting Lender and Agent shall be entitled to recover such funds, on demand from such Lender together with interest thereon for each day from the proceeds date such payment was due until the date such amount is paid to Agent at the Federal Funds Rate for each day during such period (as published by the Federal Reserve Bank of any sale, all of which shall continue to constitute part New York or at Agent’s option based on the arithmetic mean determined by Agent of the Collateral 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 extent contemplated three leading brokers of Federal funds transactions in New York City selected by the Collateral Documents. Co-Collateral Agent shall act in concert with Agent in matters delegated to the both of them under this Agreement; however, in the event of any disagreement or dispute between Agent Agent) and Co-Collateral Agent in any if such matter, the determination or decision amounts are not paid within three (3) days of Agent shall‘s demand, at the highest Interest Rate provided for in all cases, controlSection 3.1 hereof applicable to Prime Rate Loans.
Appears in 1 contract
Sources: Loan and Security Agreement (Travelcenters of America LLC)
Collateral Matters. (a) The Lenders hereby irrevocably authorize the Collateral Agent (and direct if applicable, any subagent appointed by the Collateral Agent under Section 13.2 or otherwise), and the Collateral Agent (and if applicable, any subagent appointed by the Collateral Agent under Section 13.2 or otherwise) shall hereby have the obligation to release, subject to the satisfaction of any conditions to release (if any) set forth herein, including the continuance of the applicable Collateral Agent’s Lien in any proceeds of released Collateral, any such Collateral Agent’s Liens upon any Collateral (and any such Liens shall be automatically released, without any action by Agent or any other Person), (i) upon Full Payment of the Termination DateObligations; (ii) in respect of constituting property of any Subsidiary being sold or disposed of or transferred to a Person that is not an Obligor, if (including property owned by any Subsidiary being sold or disposed except sales of or transferreditems of Fleet Inventory in the ordinary course of business so long as such Collateral Agent’s Lien continues in the proceeds of such Collateral) if the sale or Disposition or transfer Borrower certifies to the Collateral Agent that the disposition is made in compliance with this Agreement Section 8.8 (and the Loan Documents (or otherwise is not prohibited) (and Collateral Agent may, in its discretion, request, and may rely conclusively on any such certificate, without further inquiry on a certificate from the Borrower certifying as such prior to Agent taking any action to evidence such release) or such sale or Disposition is approved by the Requisite Lenders (or such greater number of Lenders as may be required under Section 12.2inquiry); (iii) to constituting property in which the extent Obligors owned no interest at the applicable Collateral is time the Lien was granted or becomes Excluded Property and/or Excluded Principal Propertyat any time thereafter; (iv) to the extent the applicable Collateral constitutes constituting property leased to Credit Parties an Obligor under a lease which has expired or been terminated in a transaction permitted under this Agreement; (v) to the extent the Credit Party owning property constituting such Collateral is released owned by any Guarantor, upon the release of such Guarantor from its Obligations hereunder obligations under the Guarantee Agreement (pursuant to Section 13.11 or otherwisein accordance with the second succeeding sentence and the Guarantee Agreement); or (vi) as required by the terms Collateral Agent to effect any sale, transfer or other Disposition of Collateral in connection with any exercise of remedies of the ABL Intercreditor AgreementCollateral Agent pursuant to the Security Documents and (vii) to the extent such Collateral otherwise becomes an Excluded Stock or an Excluded Asset. Except provided above, the Collateral Agent will not release any of the Collateral Agent’s Liens without the prior written authorization of the Required Lenders (or such other percentage of Lenders whose consent is required in accordance with Section 12.1); provided that, in addition to the foregoing, the Collateral Agent may, in its discretion, release such Collateral Agent’s Liens on Collateral valued in the aggregate not in excess of $2,500,000 during each Fiscal Year without the prior written authorization of any Lender, so long as all proceeds received in connection with such release are applied to the Obligations in accordance with Section 4.7 and, after giving effect to the application of such proceeds and the updating of the Borrowing Base, as the case may be, to reflect the deletion of any assets subject to such release, Availability shall be no less than the Availability immediately prior to such release. Upon request by the Collateral Agent or Parent the Borrower at any time, the Lenders will confirm in writing the Collateral Agent’s authority to release any Lien applicable Collateral Agent’s Liens upon particular types or items of Collateral pursuant to this Section 10.1113.10. In addition, the Lenders hereby irrevocably authorize Agent, (x) the Collateral Agent to subordinate any Lien on any property granted to or held by the Collateral Agent upon under any Collateral Loan Document to the holder of any Lien on such asset property that is permitted pursuant by Section 8.12(c) and (y) the Agent to paragraph (6)(C) release any Guarantor from its obligations under the Guarantee Agreement if such Person ceases to be a Restricted Subsidiary as a result of a transaction permitted under this Agreement or such Person otherwise becomes an Excluded Subsidiary, in each case, solely to the extent such Subsidiary ceasing to constitute a Restricted Subsidiary or otherwise becoming an Excluded Subsidiary is not prohibited by this Agreement, or, in the case of a Previous Holdings, in accordance with the conditions set forth in the definition of Permitted LienHoldings and Section 8.27. In additionUpon request by any Appointed Agent at any time, the Guaranty Required Lenders will confirm in writing such Appointed Agent’s authority to release or subordinate its interest in particular types or items of the Obligations byproperty, and the liens on the assets of, or to release any Restricted Subsidiary which is designated as an Unrestricted Subsidiary will automatically be terminated and released at the time of such designationGuarantor from its obligations pursuant to this Section 13.10(a).
(b) PromptlyUpon receipt by any Appointed Agent of any authorization required pursuant to Section 13.10(a) from the Lenders of such Appointed Agent’s authority to release or subordinate the applicable Collateral Agent’s Liens upon particular types or items of Collateral, or to release any Guarantor from its obligations under the Guarantee Agreement, and in any event not later than upon at least five (5) Business Days’ following prior written request by Parent the Borrower, such Appointed Agent shall (and is hereby irrevocably authorized and directed by the Lenders to) execute such documents as may be necessary to evidence the release (or subordination) of its such Collateral Agent’s Liens upon such Collateral as contemplated by Section 10.11(a)or to subordinate its interest therein, or to release such Guarantor from its obligations under the Guarantee Agreement; provided, however, that (i) such Appointed Agent shall not be required to execute any such document on terms which, in such Appointed Agent’s opinion, would expose such Appointed Agent to liability or create any 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 Liens (other than those expressly being released) upon (or obligations of Credit Parties the Obligors in respect of) all interests retained by Credit Partiesthe Obligors, including the proceeds of any sale, all of which shall continue to constitute part of the Collateral to the extent contemplated by the Collateral Documents. Co-such Collateral.
(c) The Collateral Agent shall have no obligation whatsoever to any of the Lenders to assure that the Collateral exists or is owned by the Obligors or is cared for, protected or insured or has been encumbered, or that the applicable Collateral Agent’s Liens have been properly or sufficiently or lawfully created, perfected, protected or enforced or 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 pursuant to any of the Loan 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 concert with Agent in matters delegated to the both of them under this Agreement; howeverany manner it may deem appropriate, in its sole discretion, given the event Collateral Agent’s own interest in the Collateral in its capacity as one of any disagreement or dispute between Agent the Lenders and Co-that the Collateral Agent in shall have no other duty or liability whatsoever to any such matter, Lender as to any of the determination or decision of Agent shall, in all cases, controlforegoing.
Appears in 1 contract
Collateral Matters. (a) Lenders hereby irrevocably authorize Subject to Section 6.24, at all times Borrower shall, and direct Agent shall cause each other Loan Party, to release maintain an Acceptable Security Interest in Mortgaged Properties constituting at least (i) 95% of the PV 10 Value of the Loan Parties’ Proved Reserves and (ii) 95% of the book value of Oil and Gas Properties other than Proved Reserves as of Borrower’s most recently ended fiscal quarter (including the fiscal year end) for which its financial statements are available.
(b) With respect to any Liens upon Oil and Gas Property or other Property (including any interest of a Loan Party in Oil and Gas Properties acquired as the result of the formation of any pool or unit in accordance with Section 6.19) acquired after the Closing Date by any Loan Party as to which CAA Collateral Agent, for the benefit of the Secured Parties, does not have an Acceptable Security Interest (other than any Real Property not constituting an Oil and Gas Property unless otherwise requested by Collateral Agent), promptly, and in any such Liens shall be automatically released, without any action by Agent or any other Person)event within 30 days, (i) upon execute and deliver to CAA Collateral Agent (with copies to the Termination Date; Collateral Agent) such Security Documents or amendments to Security Documents and take all actions, including without limitation, the filing of any financing statements or Mortgages, as Collateral Agent deems necessary or advisable to grant to CAA Collateral Agent, for the benefit of the Secured Parties, an Acceptable Security Interest in such Property, and (ii) if such Property includes Oil and Gas Properties having any Proved Reserves, deliver to Collateral Agent Title Opinions and such other legal opinions relating to the matters described in clause (i) immediately preceding as Collateral Agent may reasonably request, which opinions shall be in form and substance, and from counsel, reasonably satisfactory to Collateral Agent; provided that unless any one Property or a series of Properties is acquired for a purchase price or other consideration in excess of an aggregate $50,000,000, Borrower shall not be required to take the actions specified in this Section 5.12(b) prior to the end of the fiscal quarter in which the acquisition occurs.
(c) With respect to any new Subsidiary created or acquired by any Loan Party or otherwise becoming a Subsidiary after the Closing Date (other than Unrestricted Subsidiary), promptly, and in any event within 20 days after such creation, acquisition or becoming a Subsidiary, (i) execute and deliver to CAA Collateral Agent (with copies to the Collateral Agent) such Security Documents or amendments to Security Documents as Collateral Agent deems necessary or advisable to grant to CAA Collateral Agent, for the benefit of property the Secured Parties, a perfected first priority Lien and security interest in the Capital Stock of any such new Subsidiary being sold or disposed of or transferred (including property that is owned by any Loan Party (subject only to the Permitted Lien in favor of Collateral Agent), (ii) deliver to CAA Collateral Agent (A) the certificates (if any) representing such Capital Stock, together with undated powers, in blank, executed and delivered by a duly authorized officer of the Loan Party owning such Capital Stock and (B) in the case of a Restricted Subsidiary being sold or disposed whose Capital Stock is a security that is not evidenced by certificates, an Instructions Agreement, substantially in the form of or transferredAnnex A to the Guarantee and Security Agreement, duly executed by such Restricted Subsidiary and each Loan Party owning such Capital Stock, (iii) if cause such new Restricted Subsidiary (A) to become a party to the sale or Disposition or transfer is made in compliance with this Guarantee and Security Agreement and the Loan any other applicable Security Documents (including Mortgages and Control Agreements) and (B) to take such other actions as are necessary or otherwise is not prohibited) (advisable to grant to CAA Collateral Agent for the benefit of the Secured Parties a perfected first priority Lien and Agent maysecurity interest in the Collateral described in the Guarantee and Security Agreement with respect to such new Restricted Subsidiary and, pursuant to Mortgages and Control Agreements, all Oil and Gas Properties and bank accounts owned by such Restricted Subsidiary, subject in its discretioneach case only to Permitted Liens, requestincluding the execution and delivery by all necessary third parties of any Control Agreements and Mortgages, and rely conclusively without further inquiry on a certificate from the Borrower certifying as filing of UCC financing statements in such prior to Agent taking any action to evidence such release) or such sale or Disposition is approved by the Requisite Lenders (or such greater number of Lenders jurisdictions as may be required under Section 12.2); (iii) to by the extent Guarantee and Security Agreement or by law, the applicable filing of any Mortgages in appropriate filing offices and the making of any other filings required by law or as may be requested by Collateral is or becomes Excluded Property and/or Excluded Principal Property; Agent, and (iv) if requested by Collateral Agent, deliver to Collateral Agent legal opinions (including Title Opinions) relating to the extent the applicable matters described above, which opinions shall be in form and substance, and from counsel, reasonably satisfactory to Collateral constitutes property leased to Credit Parties under a lease which has expired or been terminated in a transaction permitted under this Agreement; Agent.
(vd) to the extent the Credit Party owning such Collateral is released from its Obligations hereunder (pursuant to Section 13.11 or otherwise); or (vi) as required Notwithstanding that, by the terms of the ABL Intercreditor Agreement. Upon request by Agent or Parent Borrower at any time, Lenders will confirm in writing Agent’s authority to release any Lien upon particular types or items of Collateral pursuant to this Section 10.11. In additionvarious Security Documents, the Lenders hereby authorize Agent, Loan Parties are and will be assigning to subordinate any Lien granted to or held by CAA Collateral Agent upon any as further Collateral to any Lien on such asset permitted pursuant to paragraph (6)(C) all of the definition net proceeds of Permitted Lien. In additionproduction from the Mortgaged Properties covered by such Security Documents, so long as no Event of Default has occurred, the Guaranty of Loan Parties may continue to receive from the Obligations by, and the liens on the assets of, any Restricted Subsidiary which is designated as an Unrestricted Subsidiary will automatically be terminated and released at the time purchasers of such designation.
(b) Promptlyproduction all such proceeds, and in any event not later than five (5) Business Days’ following written request by Parent Borrower, Agent shall (and is hereby irrevocably authorized and directed by Lenders to) execute such documents as may be necessary to evidence the release (or subordination) of its Liens upon such Collateral as contemplated by Section 10.11(a); providedsubject, however, that (i) to the Liens created under the Security Documents, which Liens are hereby affirmed and ratified. Upon the occurrence and during the continuation of an Event of Default, CAA Collateral Agent shall not be required or Collateral Agent may exercise all rights and remedies granted under the Loan Documents subject to execute any such document on the terms which, in Agent’s opinion, would expose Agent to liability or create any 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 Liens (other than those expressly being released) upon (or obligations of Credit Parties in respect of) all interests retained by Credit Partiesthereof, including the right to obtain possession of all proceeds of production from such Mortgaged Properties then held by such Loan Parties or to receive directly from the purchasers of production all other proceeds of production. In no case shall any salefailure, all of which shall continue to constitute part of the whether intentioned or inadvertent, by CAA Collateral to the extent contemplated by the Collateral Documents. Co-Agent, Collateral Agent shall act or Lenders to collect directly any such proceeds of production from the Mortgaged Properties constitute in concert with Agent in matters delegated to the both of them under this Agreement; howeverany way a waiver, in the event remission or release of any disagreement or dispute between Agent of their rights under the Security Documents, nor shall any release of any proceeds of production from any Oil and Co-Gas Properties by CAA Collateral Agent, Collateral Agent in or Lenders to any such matterLoan Parties constitute a waiver, remission, or release of any other proceeds of production from any Oil and Gas Properties or of any rights of CAA Collateral Agent, Collateral Agent or Lenders to collect other proceeds of production from the determination or decision of Agent shall, in all cases, controlOil and Gas Properties thereafter.
Appears in 1 contract
Collateral Matters. The Lenders irrevocably agree:
(a) Lenders hereby irrevocably authorize and direct that the Collateral Agent is authorized to release any Liens upon Lien on any property granted to or held by the Collateral (and Agent under any such Liens shall be automatically released, without any action by Agent or any other Person)Loan Document, (i) upon at the Termination Date; time the property subject to such Lien is pledged pursuant to Section 6.02(n)(x) or Section 6.02(n)(y) (but solely to the extent such property consists of Revolving Credit Priority Collateral and Hedging Agreements related to the value of such Revolving Credit Priority Collateral) or sold, leased, licensed, consigned, transferred or otherwise disposed of as part of or in connection with any Asset Sale permitted under Section 6.06 to any Person other than a Loan Party (provided that no Lien shall be released in any Series of Cash Neutral Transactions) (or, if such transferee is a Loan Party, the Collateral Agent is authorized to release such Lien on such asset in connection with the transfer so long as (w) except as permitted by Section 6.06(q) or Section 6.06(s), the transferee grants a new Lien to the Collateral Agent on such asset substantially concurrently with the transfer of such asset, (x) the transfer is between parties organized under the laws of different countries, (y) the priority of the new Lien is the same as that of the original Lien and (z) the Liens on such property held by or on behalf of the holders of Indebtedness under the 1060441.101066947.03-CHISR01A - MSW Revolving Credit Loan Documents or any Permitted Revolving Credit Facility Refinancing, Permitted First Priority Refinancing Debt, Permitted Secured Priority Refinancing Debt, Additional Senior Secured Indebtedness and Junior Secured Indebtedness are also released), (ii) in respect of property of any Subsidiary being sold or disposed of or transferred (including property owned by any Subsidiary being sold or disposed of or transferred) subject to Section 11.02, if the sale release of such Lien is approved, authorized or Disposition or transfer is made ratified in compliance with this Agreement and the Loan Documents (or otherwise is not prohibited) (and Agent may, in its discretion, request, and rely conclusively without further inquiry on a certificate from the Borrower certifying as such prior to Agent taking any action to evidence such release) or such sale or Disposition is approved writing by the Requisite Required Lenders (or such greater other number of Lenders as may be whose consent is required under Section 12.211.02); , (iii) if the property subject to such Lien is owned by a Guarantor, upon release of such Guarantor from its obligations under its Guarantee pursuant to Section 7.09(a), (b) and (c), (iv) upon termination of all Commitments and the repayment in full of all outstanding principal and accrued interest with respect to the Loans, all Fees and other Obligations, (v) in connection with the grant of Liens permitted hereunder under Section 6.02(k) and subject to the Intercreditor Agreement, if the applicable Loan Party grants a Lien to the Collateral Agent or for the benefit of the Collateral Agent in a manner reasonably satisfactory to the Collateral Agent, substantially concurrently with the release of such asset, to the extent such release or termination and re-grant is necessary or advisable under applicable law, and (vi) to the extent such property is Excluded Property
(b) to release or subordinate any Lien on any property granted to or held by the applicable Collateral Agent under any Loan Document to the holder of any Lien on such property that is or becomes Excluded Property and/or Excluded Principal Property; (iv) permitted by Section 6.02(i), to the extent the applicable Collateral constitutes property leased to Credit Parties under a lease which has expired or been terminated in a transaction permitted under this Agreement; (v) to the extent the Credit Party owning such Collateral is released from its Obligations hereunder (pursuant to Section 13.11 or otherwise); or (vi) as required by the terms of the ABL Intercreditor Agreement. Upon request obligations secured by such Liens; and
(c) Notwithstanding any other provision of this Agreement or any other Loan Document to the contrary, the Administrative Agent may in its discretion, and shall at the direction of the Required Lenders, release any or all of the Mortgaged Properties located in the United States from the applicable Mortgages if the Administrative Agent has, or the Required Lenders have, reasonably determined that being secured by any such Mortgaged Properties or holding any of such Mortgages could be detrimental to the Administrative Agent or Parent Borrower the Lenders, and so long as the Administrative Agent shall have given the Designated Company written notice at any time, Lenders will confirm in writing Agent’s authority to release any Lien upon particular types or items of Collateral pursuant to this Section 10.11. In addition, the Lenders hereby authorize Agent, to subordinate any Lien granted to or held by Agent upon any Collateral least 5 days prior to any Lien on such asset permitted pursuant to paragraph (6)(C) of the definition of Permitted Lien. In addition, the Guaranty of the Obligations by, and the liens on the assets of, any Restricted Subsidiary which is designated as an Unrestricted Subsidiary will automatically be terminated and released at the time of such designation.
(b) Promptly, and in any event not later than five (5) Business Days’ following written request by Parent Borrower, Agent shall (and is hereby irrevocably authorized and directed by Lenders to) execute such documents as may be necessary to evidence the release (or subordination) of its Liens upon such Collateral as contemplated by Section 10.11(a)release; provided, however, that (i) the Administrative Agent shall not be required to execute give any such document on terms whichprior notice to the Designated Company if the Administrative Agent, in Agentits discretion, has determined that delay of such release would be detrimental to the Administrative Agent or the Lenders. Each Lender irrevocably authorizes the Collateral Agent to, at each Co-Borrower’s opinionexpense, would expose Agent execute and deliver documents to liability or create any obligation or entail any consequence other than authorize the release or subordination of such items of Collateral from the Liens without recourse or warrantygranted under the Security Documents, and (ii) such release shall not in any manner discharge, affect or impair each case in accordance with the Obligations or any Liens (other than those expressly being released) upon (or obligations of Credit Parties in respect of) all interests retained by Credit Parties, including the proceeds of any sale, all of which shall continue to constitute part terms of the Collateral to the extent contemplated by the Collateral Documents. Co-Collateral Agent shall act in concert with Agent in matters delegated to the both of them under Loan Documents and this Agreement; however, in the event of any disagreement or dispute between Agent and Co-Collateral Agent in any such matter, the determination or decision of Agent shall, in all cases, controlSection 11.29.
Appears in 1 contract
Sources: Credit Agreement (Novelis Inc.)
Collateral Matters. (a) Lenders The Secured Parties hereby irrevocably authorize (and direct by entering into a Bank Product Agreement, each Bank Product Provider shall be deemed to authorize) Administrative Agent to (1) release any Liens upon Lien on any Collateral (and any such Liens shall be automatically released, without any action by Agent or any other Person), (i) upon the Termination Date; termination of the Revolver Commitments and payment and satisfaction in full by Borrowers of all of the Obligations, (ii) in respect of constituting property of any Subsidiary being sold or disposed of if a release is required or transferred (including property owned by any Subsidiary being sold or disposed of or transferred) desirable in connection therewith and if Borrowers certify to Administrative Agent that the sale or Disposition or transfer disposition is made in compliance with this Agreement and the Loan Documents (or otherwise is not prohibited) permitted under Section 6.4 (and Administrative Agent may, in its discretion, request, and may rely conclusively on any such certificate, without further inquiry on a certificate from the Borrower certifying as such prior to Agent taking any action to evidence such release) or such sale or Disposition is approved by the Requisite Lenders (or such greater number of Lenders as may be required under Section 12.2inquiry); , (iii) to constituting property in which no Loan Party or their Restricted Subsidiaries owned any interest at the extent the applicable Collateral is or becomes Excluded Property and/or Excluded Principal Property; time Agent’s Lien was granted nor at any time thereafter, (iv) to the extent the applicable Collateral constitutes constituting property leased or licensed to Credit Parties a Loan Party or its Restricted Subsidiaries under a lease which or license that has expired or been is terminated in a transaction permitted under this Agreement, or (v) in connection with a credit bid or purchase authorized under this Section 15.11 and (2) to release any Guarantor from its obligations under the Loan Documents if such Guarantor ceases to be a Restricted Subsidiary of Parent pursuant to a transaction permitted by this Agreement; provided that (A) the release of Guarantors comprising all or substantially all of the credit support for the Obligations shall be subject to Section 14.1(a); provided, further, that any such release shall be (x) to a non-affiliated third party and (y) for a bona fide business purpose and (B) any Guarantor that becomes an Excluded Subsidiary on account of no longer being a Wholly-Owned Subsidiary shall not be released from its Guarantee pursuant to this Section 15.11 unless (x) no Event of Default has occurred and is continuing or would result therefrom and (y) such release shall constitute an Investment in a Subsidiary which is not a Guarantor and sufficient Investment capacity exists. The Loan Parties and the Secured Parties hereby irrevocably authorize (and by entering into a Bank Product Agreement, each Bank Product Provider shall be deemed to authorize) Administrative Agent, based upon the instruction of the Required Lenders, to (a) consent to the sale of, credit bid, or purchase (either directly or indirectly through one or more entities) all or any portion of the Collateral at any sale thereof conducted under the provisions of the Bankruptcy Code, including Section 363 of the Bankruptcy Code, (b) credit bid or purchase (either directly or indirectly through one or more entities) all or any portion of the Collateral at any sale or other disposition thereof conducted under the provisions of the Code, including pursuant to Sections 9-610 or 9-620 of the Code, or (c) credit bid or purchase (either directly or indirectly through one or more entities) all or any portion of the Collateral at any other sale or foreclosure conducted or consented to by Administrative Agent in accordance with applicable law in any judicial action or proceeding or by the exercise of any legal or equitable remedy. In connection with any such credit bid or purchase, (i) the Obligations owed to the Bank Product Providers and the other Secured Parties 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 impair or unduly delay the ability of Administrative Agent to credit bid or purchase at such sale or other disposition of the Collateral and, if such contingent or unliquidated claims cannot be estimated without impairing or unduly delaying the ability of Administrative Agent to credit bid at such sale or other disposition, then such claims shall be disregarded, not credit bid, and not entitled to any interest in the Collateral that
(b) Administrative Agent shall have no obligation whatsoever to any of the Secured Parties (i) to verify or assure that the Collateral exists or is owned by a Loan Party or their Restricted Subsidiaries or is cared for, protected, or insured or has been encumbered, (ii) to verify or assure that Agent’s Liens have been properly or sufficiently or lawfully created, perfected, protected, or enforced or are entitled to any particular priority, (iii) to verify or assure that any particular items of Collateral meet the eligibility criteria applicable in respect thereof, (iv) to impose, maintain, increase, reduce, implement, or eliminate any particular reserve hereunder or to determine whether the amount of any reserve is appropriate or not, or (v) 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 extent the Credit Party owning such Collateral is released from its Obligations hereunder (rights, authorities and powers granted or available to Administrative Agent pursuant to Section 13.11 any of the Loan Documents, it being understood and agreed that in respect of the Collateral, or otherwise); any act, omission, or (vi) as required by event related thereto, subject to the terms of the ABL Intercreditor Agreement. Upon request by and conditions contained herein, Administrative Agent or Parent Borrower at any time, Lenders will confirm in writing Agent’s authority to release any Lien upon particular types or items of Collateral pursuant to this Section 10.11. In addition, the Lenders hereby authorize Agent, to subordinate any Lien granted to or held by Agent upon any Collateral to any Lien on such asset permitted pursuant to paragraph (6)(C) of the definition of Permitted Lien. In addition, the Guaranty of the Obligations by, and the liens on the assets of, any Restricted Subsidiary which is designated as an Unrestricted Subsidiary will automatically be terminated and released at the time of such designation.
(b) Promptly, and in any event not later than five (5) Business Days’ following written request by Parent Borrower, Agent shall (and is hereby irrevocably authorized and directed by Lenders to) execute such documents as may be necessary to evidence the release (or subordination) of its Liens upon such Collateral as contemplated by Section 10.11(a); provided, however, that (i) Agent shall not be required to execute any such document on terms which, in Agent’s opinion, would expose Agent to liability or create any obligation or entail any consequence other than the release of such Liens without recourse or warranty, and (ii) such release shall not act in any manner dischargeit may deem appropriate, affect or impair in its sole discretion given Administrative Agent’s own interest in the Obligations or any Liens (other than those expressly being released) upon (or obligations of Credit Parties Collateral in respect of) all interests retained by Credit Parties, including the proceeds of any sale, all of which shall continue to constitute part its capacity as one of the Collateral to the extent contemplated by the Collateral Documents. Co-Collateral Lenders and that Administrative Agent shall act in concert with Agent in matters delegated have no other duty or liability whatsoever to any Secured Party as to any of the both of them under this Agreement; howeverforegoing, in the event of any disagreement or dispute between Agent and Co-Collateral Agent in any such matter, the determination or decision of Agent shall, in all cases, controlexcept as otherwise expressly provided herein.
Appears in 1 contract
Collateral Matters. (a) Lenders hereby irrevocably authorize Each Lender authorizes and direct directs the Collateral Agent to release enter into the Security Agreement for the benefit of the Lenders. Except as otherwise set forth herein, any action or exercise of powers by the Lenders under the Note Documents, together with such other powers as are reasonably incidental thereto, shall be authorized and binding upon all of the Lenders. Prior to an Event of Default, without notice to or consent from any Lender, the Collateral Agent may take any action necessary or advisable to perfect and maintain the perfection of the Liens upon any Collateral (and any such Liens shall be automatically released, without any action by Agent or any other Person), (i) upon the Termination Date; (ii) in respect of property of any Subsidiary being sold or disposed of or transferred (including property owned by any Subsidiary being sold or disposed of or transferred) if the sale or Disposition or transfer is made in compliance with this Agreement and the Loan Documents (or otherwise is not prohibited) (and Agent may, in its discretion, request, and rely conclusively without further inquiry on a certificate from the Borrower certifying as such prior to Agent taking any action to evidence such release) or such sale or Disposition is approved by the Requisite Lenders (or such greater number of Lenders as may be required under Section 12.2); (iii) to the extent the applicable Collateral is or becomes Excluded Property and/or Excluded Principal Property; (iv) to the extent the applicable Collateral constitutes property leased to Credit Parties under a lease which has expired or been terminated in a transaction permitted under this Agreement; (v) to the extent the Credit Party owning such Collateral is released from its Obligations hereunder (pursuant to Section 13.11 or otherwise); or (vi) as required by the terms of the ABL Intercreditor Agreement. Upon request by Agent or Parent Borrower at any time, Lenders will confirm in writing Agent’s authority to release any Lien upon particular types or items of Collateral pursuant to this Section 10.11. In addition, the Lenders hereby authorize Agent, to subordinate any Lien granted to or held by Agent upon any Collateral to any Lien on such asset permitted pursuant to paragraph (6)(C) of the definition of Permitted Lien. In addition, the Guaranty of the Obligations by, and the liens on the assets of, any Restricted Subsidiary which is designated as an Unrestricted Subsidiary will automatically be terminated and released at the time of such designationCollateral.
(b) Promptly, and in any event not later than five (5) Business Days’ following written request by Parent Borrower, The Collateral Agent shall (and have no obligation to assure that the Collateral exists or is hereby irrevocably authorized and directed owned by Lenders to) execute such documents as may be necessary to evidence the release (Company or subordination) any of its Liens upon Subsidiaries, that such Collateral as contemplated by Section 10.11(a); providedis cared for, howeverprotected or insured, or that (i) the Liens in the Collateral have been created, perfected, or have any particular priority. With respect to the Collateral, the Collateral Agent shall not be required to execute any such document on terms which, in Agent’s opinion, would expose Agent to liability or create any obligation or entail any consequence other than the release of such Liens without recourse or warranty, and (ii) such release shall not may act in any manner dischargeit may deem appropriate, affect or impair in its sole discretion, given the Obligations or any Liens (other than those expressly being released) upon (or obligations of Credit Parties Collateral Agent’s own interest in respect of) all interests retained by Credit Parties, including the proceeds of any sale, all of which shall continue to constitute part Collateral as one of the Collateral Lenders, and it shall have no duty or liability whatsoever to the extent contemplated by Lenders, except for its gross negligence or willful misconduct.
(c) In addition to the Collateral Documents. Co-Agent’s right to take actions on its own accord as permitted under this Agreement, the Collateral Agent shall take such action with respect to a Default or Event of Default as shall be directed by the Required Holders in writing. Until the Collateral Agent shall have received such written directions, the Collateral Agent may act in concert with Agent in matters delegated to the both of them under this Agreement; however, (or not act) as it deems advisable and in the best interests of the Lenders.
(d) In no event of any disagreement or dispute between Agent and Co-shall the Collateral Agent in be liable, directly or indirectly, for any special, indirect or consequential damages, even if the Collateral Agent has been advised of the possibility of such matter, the determination or decision of Agent shall, in all cases, controldamages.
Appears in 1 contract
Collateral Matters. (a) The Collateral Agent is hereby authorized by each Lender, without the necessity of any notice to or further consent from any Lender, and without the obligation to take any such action, to take any action with respect to any Collateral or any Security Document which may from time to time be necessary to perfect and maintain perfected the Liens of the Security Documents.
(b) The Lenders hereby irrevocably authorize and direct the Collateral Agent to release (and to execute and deliver such documents, instruments and agreements as the Collateral Agent may deem necessary to release) any Liens Lien granted to or held by the Collateral Agent upon any Collateral (and any such Liens shall be automatically released, without any action by Agent or any other Person), (i) upon (A) termination of the Termination DateCommitments, (B) the full Cash Collateralization of the then outstanding L/C Obligations, (C) either full Cash Collateralization of or other arrangements satisfactory to the obligees thereof in respect of Obligations under Lender Rate Contracts and Lender Bank Products and (D) the payment in full of all Loans and all other Obligations payable under this Agreement and under the other Credit Documents; (ii) in respect of constituting property of any Subsidiary being sold the Loan Parties which is sold, transferred or otherwise disposed of or transferred (including property owned in connection with any transaction permitted by any Subsidiary being sold or disposed of or transferred) if the sale or Disposition or transfer is made in compliance with this Agreement and or the Loan Documents (or otherwise is not prohibited) (and Agent may, in its discretion, request, and rely conclusively without further inquiry on a certificate from the Borrower certifying as such prior to Agent taking any action to evidence such release) or such sale or Disposition is approved by the Requisite Lenders (or such greater number of Lenders as may be required under Section 12.2)Credit Documents; (iii) to the extent the applicable Collateral is or becomes Excluded Property and/or Excluded Principal Property; (iv) to the extent the applicable Collateral constitutes constituting property leased to Credit the Loan Parties under a an operating lease which has expired or been terminated in a transaction permitted under not prohibited by this AgreementAgreement or the Credit Documents or which will concurrently expire and which has not been and is not intended by the Loan Parties to be, renewed or extended; (iv) consisting of an instrument, if the Indebtedness evidenced thereby has been paid in full; or (v) if approved or consented to by those of the extent the Credit Party owning such Collateral is released from its Obligations hereunder (pursuant to Section 13.11 or otherwise); or (vi) as Lenders required by Section 8.04. In the terms case of clause (ii) above involving a sale of a Guarantor, the ABL Intercreditor AgreementLenders also irrevocably authorize the Administrative Agent to release a Guarantor from the Guaranty. Upon request by Agent or Parent Borrower at any timethe Collateral Agent, the Lenders will confirm in writing the Collateral Agent’s authority to release any Lien upon particular types or items of Collateral pursuant to this Section 10.11. In addition, the Lenders hereby authorize Agent, to subordinate any Lien granted to or held by Agent upon any Collateral to any Lien on such asset permitted pursuant to paragraph (6)(C) of the definition of Permitted Lien. In addition, the Guaranty of the Obligations by, and the liens on the assets of, any Restricted Subsidiary which is designated as an Unrestricted Subsidiary will automatically be terminated and released at the time of such designation7.07.
(bc) PromptlyAny and all cash collateral for the Obligations shall be released to the Borrowers, to the extent not applied to the Obligations, only if (i) the Commitments have been terminated (ii) all Obligations (other than Obligations in respect of Lender Rate Contracts and Lender Bank Products) have been paid in full and are no longer outstanding, including, without limitation, any event not later than five L/C Obligations or any other contingent obligations and (5iii) Business Days’ following written request by Parent Borrower, Agent shall (Obligations in respect of Lender Rate Contracts and is hereby irrevocably authorized and directed by Lenders to) execute such documents as may be necessary Lender Bank Products have been either fully Cash Collateralized or other arrangements satisfactory to evidence the release (or subordination) of its Liens upon such Collateral as contemplated by Section 10.11(a)obligees thereof have been made; provided, however, that (iany cash Collateral posted by any Borrower under Sections 2.02(a), 2.02(g)(ii) Agent or 2.03(a) shall not be required to execute any released if no Event of Default then exists and the situation requiring such document on terms which, in Agent’s opinion, would expose Agent to liability or create any 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 Liens (other than those expressly being released) upon (or obligations of Credit Parties in respect of) all interests retained by Credit Parties, including the proceeds of any sale, all of which shall continue to constitute part of the cash Collateral to the extent contemplated by the Collateral Documents. Co-Collateral Agent shall act in concert with Agent in matters delegated to the both of them under this Agreement; however, in the event of any disagreement or dispute between Agent and Co-Collateral Agent in any such matter, the determination or decision of Agent shall, in all cases, controlno longer exists.
Appears in 1 contract
Collateral Matters. (a) The Lenders (and each other Secured Party by their acceptance of the benefits of the Loan Documents shall be deemed to) hereby irrevocably authorize the Collateral Agent (and direct if applicable, any subagent appointed by the Collateral Agent under Section 13.2 or otherwise) to release any its Liens on the Collateral, and the Collateral Agent’s Liens upon any Collateral (and any such Liens shall be automatically released, without any action by Agent or any other Person), released (i) upon Full Payment of the Termination DateObligations; (ii) in respect upon a disposition of property of any Subsidiary being sold or disposed of or transferred (including property owned Collateral permitted by any Subsidiary being sold or disposed of or transferred) if the sale or Disposition or transfer is made in compliance with this Agreement and the Loan Documents (or otherwise Section 8.8 to a Person that is not prohibited) (and Agent may, in its discretion, request, and rely conclusively without further inquiry on a certificate from the Borrower certifying as such prior to Agent taking any action to evidence such release) or such sale or Disposition is approved by the Requisite Lenders (or such greater number of Lenders as may be required under Section 12.2)an Obligor; (iii) to if any such Collateral constitutes property in which the extent Obligors owned no interest at the applicable Collateral is time the Lien was granted or becomes Excluded Property and/or Excluded Principal Propertyat any time thereafter; (iv) to the extent the applicable if any such Collateral constitutes property leased to Credit Parties an Obligor under a lease which has expired or been terminated in a transaction permitted under this Agreement; (v) to the extent the Credit Party owning property constituting such Collateral is released owned by any Guarantor, upon the release of such Guarantor from its Obligations hereunder obligations under the Guarantee Agreement (pursuant to Section 13.11 or otherwisein accordance with the second succeeding sentence and the Guarantee Agreement); or (vi) as required by the terms Collateral Agent to effect any sale, transfer or other Disposition of Collateral in connection with any exercise of remedies of the ABL Intercreditor AgreementCollateral Agent pursuant to the Security Documents, (vii) to the extent such Collateral otherwise becomes an Excluded Stock or an Excluded Asset and (viii) if the percentage of Lenders required to consent to the Collateral being released hereunder, consent to the Collateral being released. Except as provided above, the Collateral Agent will not release any of the Collateral Agent’s Liens without the prior written authorization of the Required Lenders (or such other percentage of Lenders whose consent is required in accordance with Section 12.1). Upon request by the Collateral Agent or Parent the Borrower at any time, subject to the Borrower having certified to the Collateral Agent that the disposition is made in compliance with Section 8.8 (which the Collateral Agent may rely conclusively on any such certificate, without further inquiry), the Lenders will confirm in writing the Collateral Agent’s authority to release any Lien applicable Collateral Agent’s Liens upon particular types or items of Collateral pursuant to this Section 10.1113.10. In addition, the Lenders (and each other Secured Party by their acceptance of the benefits of the Loan Documents shall be deemed to) hereby irrevocably authorize Agent, (w) the Collateral Agent to subordinate any Lien on any property granted to or held by the Collateral Agent upon under any Collateral Loan Document to the holder of any Lien on such asset property that is permitted by Section 8.12(c) or (q) (as to Current Asset Collateral only), (x) the Agent to release automatically any Guarantor from its obligations under the Guarantee Agreement if such Person ceases to be a Restricted Subsidiary as a result of a transaction permitted under this Agreement or such Person otherwise becomes an Excluded Subsidiary, in each case, solely to the extent (1) such Subsidiary ceasing to constitute a Restricted Subsidiary or otherwise becoming an Excluded Subsidiary is permitted by this Agreement and in the case of a Subsidiary ceasing to constitute a Subsidiary, the Borrower will be deemed to make a new Investment in the residual equity retained directly or indirectly by the Borrower and (2) no Default or Event of Default has occurred or is continuing or would result therefrom and (y) so long as no Default or Event of Default has occurred and is continuing or would result therefrom, then, to the extent that the Collateral Agent obtains possession of any Collateral by operation of Section 13.12 of this Agreement that constitutes Collateral that Obligors are not required to deliver to Collateral Agent at such time pursuant to paragraph the terms hereof, the Security Documents or any other contractual arrangement with any Obligor, following the written request by Borrower, Collateral Agent shall (6)(Cto the extent permitted by applicable law or legal process) deliver such Collateral in accordance with the terms of the definition of Permitted Lien. In additionABL Intercreditor Agreement (and, as applicable, the Guaranty Monarch Acquisition Intercreditor Agreement and the REV Energy Acquisition Intercreditor Agreement) or, if the ABL Intercreditor Agreement, the Monarch Acquisition Intercreditor Agreement and the REV Energy Acquisition Intercreditor Agreement are not then in effect, to the applicable Obligor. Promptly upon consummation of the Obligations byFTS Distribution and Contribution Transaction, solely to the extent true, Borrower shall send a certificate to Agent confirming that FTS does not own any assets other than the Stock of Holdings, net operating losses with immaterial value and/or other property and assets with immaterial value (“FTS Distribution and Contribution Certificate”). Notwithstanding any other provisions set forth herein, upon the full and complete consummation of the FTS Distribution and Contribution Transaction and Agent’s receipt of the FTS Distribution and Contribution Certificate, (i) each of the FTS Pledge Agreements and the liens on the assets of, any Restricted Subsidiary which is designated as an Unrestricted Subsidiary will automatically FTS Control Agreements shall be deemed terminated and released (automatically and through no further action of any Person), (ii) FTS shall no longer be deemed to be party to the Security Agreement or any other Loan Document (automatically and through no further action of any Person), (iii) the Collateral Agent’s Liens on the Stock and assets of FTS (but not the Stock issued by or the assets of the FTS Subsidiaries) shall be deemed terminated and released (automatically and through no further action of any Person), and (iv) the Lenders (and each other Secured Party by their acceptance of the benefits of the Loan Documents) irrevocably authorize the Collateral Agent to (A) release its Liens on the Stock and assets of FTS (but not the Stock issued by or the assets of the FTS Subsidiaries), and (B) if reasonably requested by the Borrower, promptly execute, as applicable, and deliver to the Borrower any such additional instruments, terminations, lien releases, discharges of security interests, pledges and other similar discharge or release documents or other writings to effect or evidence such release and termination. Upon request by any Appointed Agent at any time, the time Required Lenders will confirm in writing such Appointed Agent’s authority to release or subordinate its interest in particular types or items of such designationproperty, or to release any Guarantor from its obligations pursuant to this Section 13.10(a).
(b) PromptlyUpon receipt by any Appointed Agent of any authorization required pursuant to Section 13.10(a) from the Lenders of such Appointed Agent’s authority to release or subordinate the applicable Collateral Agent’s Liens upon particular types or items of Collateral, or to release any Guarantor from its obligations under the Guarantee Agreement, and in any event not later than five upon at least three (53) Business Days’ following prior written request by Parent the Borrower, such Appointed Agent shall (and is hereby irrevocably authorized by the Lenders and directed by Lenders the other Secured Parties to) execute such documents as may be necessary to evidence the release (or subordination) of its such Collateral Agent’s Liens upon such Collateral as contemplated by Section 10.11(a)or to subordinate its interest therein, or to release such Guarantor from its obligations under the Guarantee Agreement; provided, however, that (i) such Appointed Agent shall not be required to execute any such document on terms which, in such Appointed Agent’s opinion, would expose such Appointed Agent to liability or create any 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 Liens (other than those expressly being released) upon (or obligations of Credit Parties the Obligors in respect of) all interests retained by Credit Partiesthe Obligors, including the proceeds of any sale, all of which shall continue to constitute part of the Collateral to the extent contemplated by the Collateral Documents. Co-such Collateral.
(c) The Collateral Agent shall act have no obligation whatsoever to any of the Lenders to assure that the Collateral exists or is owned by the Obligors or is cared for, protected or insured or has been encumbered, or that the applicable Collateral Agent’s Liens have been properly or sufficiently or lawfully created, perfected, protected or enforced or are entitled to any particular priority, or to exercise at all or in concert with Agent in matters delegated 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 both of them under this Agreement; however, in the event of any disagreement or dispute between Agent and Co-Collateral Agent pursuant to any of the Loan Documents, it being understood and agreed that in respect of the Collateral, or any such matteract, omission or event related thereto, the determination Collateral Agent may act with the consent or decision at the direction of the Required Lenders and that the Collateral Agent shall, in all cases, controlshall have no other duty or liability whatsoever to any Lender as to any of the foregoing.
Appears in 1 contract
Collateral Matters. (a) The Lenders (and each other Secured Party by their acceptance of the benefits of the Loan Documents shall be deemed to) hereby irrevocably authorize the Collateral Agent (and direct if applicable, any subagent appointed by the Collateral Agent under Section 13.2 or otherwise) to release any its Liens on the Collateral, and the Collateral Agent’s Liens upon any Collateral (and any such Liens shall be automatically released, without any action by Agent or any other Person), released (i) upon Full Payment of the Termination DateObligations; (ii) in respect upon a disposition of property of any Subsidiary being sold or disposed of or transferred (including property owned Collateral permitted by any Subsidiary being sold or disposed of or transferred) if the sale or Disposition or transfer is made in compliance with this Agreement and the Loan Documents (or otherwise Section 8.8 to a Person that is not prohibited) (and Agent may, in its discretion, request, and rely conclusively without further inquiry on a certificate from the Borrower certifying as such prior to Agent taking any action to evidence such release) or such sale or Disposition is approved by the Requisite Lenders (or such greater number of Lenders as may be required under Section 12.2)an Obligor; (iii) to if any such Collateral constitutes property in which the extent Obligors owned no interest at the applicable Collateral is time the Lien was granted or becomes Excluded Property and/or Excluded Principal Propertyat any time thereafter; (iv) to the extent the applicable if any such Collateral constitutes property leased to Credit Parties an Obligor under a lease which has expired or been terminated in a transaction permitted under this Agreement; (v) to the extent the Credit Party owning property constituting such Collateral is released owned by any Guarantor, upon the release of such Guarantor from its Obligations hereunder obligations under the Guarantee Agreement (pursuant to Section 13.11 or otherwisein accordance with the second succeeding sentence and the Guarantee Agreement); or (vi) as required by the terms Collateral Agent to effect any sale, transfer or other Disposition of Collateral in connection with any exercise of remedies of the ABL Intercreditor AgreementCollateral Agent pursuant to the Security Documents and (vii) to the extent such Collateral otherwise becomes an Excluded Stock or an Excluded Asset. Except as provided above, the Collateral Agent will not release any of the Collateral Agent’s Liens without the prior written authorization of the Required Lenders (or such other percentage of Lenders whose consent is required in accordance with Section 12.1); provided that, in addition to the foregoing, the Collateral Agent may, in its discretion, release such Collateral Agent’s Liens on Collateral valued in the aggregate not in excess of $2,500,000 during each Fiscal Year without the prior written authorization of any Lender, so long as all proceeds received in connection with such release are applied to the Obligations in accordance with Section 4.7 and, after giving effect to the application of such proceeds and the updating of the Borrowing Base, as the case may be, to reflect the deletion of any assets subject to such release, Availability shall be no less than the Availability immediately prior to such release. Upon request by the 149 EXHIBIT 10.1
(b) Upon receipt by any Appointed Agent or Parent Borrower at of any time, authorization required pursuant to Section 13.10(a) from the Lenders will confirm in writing of such Appointed Agent’s authority to release any Lien or subordinate the applicable Collateral Agent’s Liens upon particular types or items of Collateral pursuant Collateral, or to this Section 10.11. In addition, release any Guarantor from its obligations under the Lenders hereby authorize Agent, to subordinate any Lien granted to or held by Agent upon any Collateral to any Lien on such asset permitted pursuant to paragraph (6)(C) of the definition of Permitted Lien. In addition, the Guaranty of the Obligations byGuarantee Agreement, and the liens on the assets of, any Restricted Subsidiary which is designated as an Unrestricted Subsidiary will automatically be terminated and released upon at the time of such designation.
least three (b) Promptly, and in any event not later than five (53) Business Days’ following prior written request by Parent the Borrower, such Appointed Agent shall (and is hereby irrevocably authorized by the Lenders and directed by Lenders the other Secured Parties to) execute such documents as may be necessary to evidence the release (or subordination) of its such Collateral Agent’s Liens upon such Collateral as contemplated by Section 10.11(a)or to subordinate its interest therein, or to release such Guarantor from its obligations under the Guarantee Agreement; provided, however, that (i) such Appointed Agent shall not be required to execute any such document on terms which, in such Appointed Agent’s opinion, would expose such Appointed Agent to liability or create any 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 Liens (other than those expressly being released) upon (or obligations of Credit Parties the Obligors in respect of) all interests retained by Credit Partiesthe Obligors, including the proceeds of any sale, all of which shall continue to constitute part of the Collateral to the extent contemplated by the Collateral Documents. Co-such Collateral.
(c) The Collateral Agent shall have no obligation whatsoever to any of the Lenders to assure that the Collateral exists or is owned by the Obligors or is cared for, protected or insured or has been encumbered, or that the applicable Collateral Agent’s Liens have been properly or sufficiently or lawfully created, perfected, protected or enforced or 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 pursuant to any of the Loan 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 concert with Agent in matters delegated to the both of them under this Agreement; howeverany manner it may deem appropriate, in its sole discretion, given the event Collateral Agent’s own interest in the Collateral in its capacity as one of any disagreement or dispute between Agent the Lenders and Co-that the Collateral Agent in shall have no other duty or liability whatsoever to any such matter, Lender as to any of the determination or decision of Agent shall, in all cases, controlforegoing.
Appears in 1 contract
Collateral Matters. The Lenders irrevocably agree:
(a) Lenders hereby irrevocably authorize and direct that the Collateral Agent is authorized to release any Lien on any property granted to or held by the Collateral Agent under any Loan Document, (i) at the time the property subject to such Lien is pledged pursuant to Section 6.02(n)(x) or Section 6.02(n)(y) (but solely to the extent such property consists of Revolving Credit Priority Collateral and Hedging Agreements related to the value of such Revolving Credit Priority Collateral) or sold, leased, licensed, consigned, transferred or otherwise disposed of as part of or in connection with any Asset Sale permitted under Section 6.06 to any Person other than a Loan Party (provided that no Lien shall be released in any Series of Cash Neutral Transactions) (or, if such transferee is a Loan Party, the Collateral Agent is authorized to release such Lien on such asset in connection with the transfer as provided in the second to last sentence of this Section 11.29(a) or so long as (w) except as permitted by Section 6.06(q) or Section 6.06(s), the transferee grants a new Lien to the Collateral Agent on such asset substantially concurrently with the transfer of such asset, (x) the transfer is between parties organized under the laws of different countries, (y) the priority of the new Lien is the same as that of the original Lien and (z) the Liens on such property held by or on behalf of the holders of Indebtedness under the Revolving Credit Loan Documents or any Permitted Revolving Credit Facility Refinancing, Permitted First Priority Refinancing Debt, Permitted Second Priority Refinancing Debt, Additional Senior Secured Indebtedness and Junior Secured Indebtedness are also released), (ii) subject to Section 11.02, if the release of such Lien is approved, authorized or ratified in writing by the Required Lenders (or such other number of Lenders whose consent is required under Section 11.02), (iii) if the property subject to such Lien is owned by a Guarantor, upon any release of such Guarantor from its obligations under its Guarantee pursuant to Section 7.09(a), (b) and (c), (iv) upon termination of all Commitments and the repayment in full of all outstanding principal and accrued interest with respect to the Loans, all Fees and other Obligations, (v) in connection with the grant of Liens permitted hereunder under Section 6.02(k) and subject to the Intercreditor Agreement, if the applicable Loan Party grants a Lien to the Collateral Agent or for the benefit of the Collateral Agent in a manner reasonably satisfactory to the Collateral Agent, substantially concurrently with the release of such asset, to the extent such release or termination and re-grant is necessary or advisable under applicable law, and (vi) to the extent such property is Excluded Property. Notwithstanding anything to the contrary above, if Intellectual Property or Real Property (and any such Liens related fixtures) that constitutes Collateral is transferred pursuant to a transaction permitted by the Loan Documents from a Loan Party to another Loan Party (other than AV Minerals or Holdings) and the applicable Intellectual Property or Real Property filing office requires the release of the existing Lien in favor of the Collateral Agent prior to reflecting the transfer in the register, then the Collateral Agent shall be automatically releasedpermitted, without the consent of any action by Agent Lender or any other Person), to release its Lien in respect of such Intellectual Property or Real Property (and related fixtures) in order to effect such transfer so long as (i) upon the Termination Date; Transfer Conditions are satisfied at the time of such transfer and the Designated Company shall have certified the same to the Administrative Agent and the Collateral Agent, (ii) in respect substantially concurrently with the effectiveness of property of any Subsidiary being sold or disposed of or transferred (including property owned by any Subsidiary being sold or disposed of or transferred) if such transfer, such Intellectual Property and/or Real Property is pledged to the sale or Disposition or transfer Collateral Agent to secure the Obligations on terms substantially the same as the pledge that is made in compliance with this Agreement and the Loan Documents (or otherwise is not prohibited) (and Agent may, in its discretion, request, and rely conclusively without further inquiry on a certificate from the Borrower certifying as such prior to Agent taking any action to evidence such release) or such sale or Disposition is approved released by the Requisite Lenders (or such greater number of Lenders as may be required under Section 12.2); Collateral Agent, (iii) the priority of the new Lien in favor of the Collateral Agent, whether pursuant to the Intercreditor Agreement or 272 otherwise, is the same as that of the original Lien, and (iv) the Liens on such Intellectual Property or Real Property (and related fixtures) in favor of holders of Indebtedness under the Revolving Credit Loan Documents or any Permitted Refinancing of any Indebtedness under the Revolving Credit Agreement, Permitted First Priority Refinancing Debt, Permitted Second Priority Refinancing Debt, Additional Senior Secured Indebtedness and Junior Secured Indebtedness are also released substantially concurrently with the release granted by the Collateral Agent. Notwithstanding the foregoing, where Intellectual Property and Real Property (and related fixtures) can be transferred pursuant to an assignment and assumption or similar agreement in a manner that would avoid the need to release the Liens in favor of the Collateral Agent as described in the preceding sentence, then the Loan Parties shall effect such transfer pursuant to an assignment and assumption or similar agreement.
(b) that the Collateral Agent is authorized to release or subordinate any Lien on any property granted to or held by the Collateral Agent under any Loan Document to the holder of any Lien on such property that is permitted by Section 6.02(i), to the extent the applicable Collateral is or becomes Excluded Property and/or Excluded Principal Property; (iv) to the extent the applicable Collateral constitutes property leased to Credit Parties under a lease which has expired or been terminated in a transaction permitted under this Agreement; (v) to the extent the Credit Party owning such Collateral is released from its Obligations hereunder (pursuant to Section 13.11 or otherwise); or (vi) as required by the terms of the ABL Intercreditor Agreement. Upon request obligations secured by such ▇▇▇▇▇;
(c) that the Collateral Agent or Parent Borrower at any time, Lenders will confirm in writing Agent’s authority is authorized to release any Lien upon particular types or items of Collateral pursuant to this Section 10.11. In addition, the Lenders hereby authorize Agent, to subordinate any Lien granted to or held by Agent upon any Collateral to any Lien on such asset permitted pursuant to paragraph (6)(C) of the definition of Permitted Lien. In addition, the Guaranty of the Obligations by, and the liens on the assets of, any Specified Restricted Subsidiary which is designated as an Unrestricted Subsidiary will automatically be terminated and released at the time of such designation.
(b) Promptly, and in any event not later than five (5) Business Days’ following written request by Parent Borrower, Agent shall (and is hereby irrevocably authorized and directed by Lenders to) execute such documents as may be necessary to evidence the release (or subordination) of its Liens upon such Collateral as contemplated by Section 10.11(a)Joint Owned Patents; provided, however, that (i) Agent shall not be required to execute any such document on terms which, in Agent’s opinion, would expose Agent to liability or create any 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 Liens (other than those expressly being released) upon (or obligations of Credit Parties in respect of) all interests retained by Credit Parties, including the proceeds of any sale, all of which shall continue to constitute part of the Collateral to the extent contemplated by the Collateral Documents. Co-Collateral Agent shall act in concert with Agent in matters delegated to the both of them under this Agreement; however, in the event of any disagreement or dispute between Agent and Co-Collateral Agent in any such matter, the determination or decision of Agent shall, in all cases, control.and
Appears in 1 contract
Sources: Credit Agreement (Novelis Inc.)
Collateral Matters. (a) The Lenders hereby and the Swap Providers irrevocably authorize the Administrative Agent, at its option and direct Agent in its discretion, to release any Liens upon Lien on any Collateral (and any such Liens shall be automatically released, without any action by Agent or any other Person), (i) upon termination of the Termination Date; Aggregate Commitments and payment in full of all Obligations (other than contingent indemnification obligations), (ii) in respect of property of any Subsidiary being sold or disposed that is Disposed of or transferred (including property owned by any Subsidiary being sold or disposed to be Disposed of as part of or transferredin connection with any Disposition permitted hereunder or under any other Loan Document, or (iii) subject to Section 11.01, if approved, authorized or ratified in writing by the sale Required Lenders.
(b) In the event of (A) any Disposition of Collateral permitted pursuant to Section 7.05(b), (c) or Disposition (d) (if applicable) or transfer is made in compliance with this (B) the granting of Liens on existing Collateral to secure the Revolving Credit Agreement or other Segregated Collateral Pool Debt, the Secured Parties agree that the Secured Parties’ Lien on such Collateral automatically shall be released so long as the Borrower shall have submitted to the Administrative Agent a Borrowing Base Certificate demonstrating that, after giving pro forma effect to any such requested release of Collateral, the Total Outstandings shall not exceed the Borrowing Base. In such event, the Administrative Agent, on behalf of the Secured Parties, shall be deemed to have released such Collateral from the Lien of the Collateral Documents, and the Loan Documents Administrative Agent shall, at Borrower’s request and expense, within three (or otherwise is not prohibited3) (and Agent may, in its discretion, request, and rely conclusively without further inquiry on a certificate from the Borrower certifying as such prior to Agent taking Business Days execute any action documentation reasonably required to evidence such release.
(c) or such sale or Disposition is approved by the Requisite Lenders (or such greater number of Lenders as may be required under Section 12.2); (iii) to the extent the applicable Collateral is or becomes Excluded Property and/or Excluded Principal Property; (iv) to the extent the applicable Collateral constitutes property leased to Credit Parties under a lease which has expired or been terminated in a transaction permitted under this Agreement; (v) to the extent the Credit Party owning such Collateral is released from its Obligations hereunder (pursuant to Section 13.11 or otherwise); or (vi) as required by the terms of the ABL Intercreditor Agreement. Upon request by the Administrative Agent or Parent Borrower at any time, the Required Lenders will confirm in writing the Administrative Agent’s authority to release any Lien upon particular types or items of its interest in Collateral pursuant to this Section 10.119.10. In additioneach case as specified in this Section 9.10, the Lenders hereby authorize AgentAdministrative Agent will, to subordinate any Lien granted to or held by Agent upon any Collateral to any Lien on such asset permitted pursuant to paragraph (6)(C) of the definition of Permitted Lien. In addition, the Guaranty of the Obligations by, and the liens on the assets of, any Restricted Subsidiary which is designated as an Unrestricted Subsidiary will automatically be terminated and released at the time of such designation.
(b) PromptlyBorrower’s expense, execute and in any event not later than five (5) Business Days’ following written request by Parent Borrower, Agent shall (and is hereby irrevocably authorized and directed by Lenders to) execute deliver to the applicable Loan Party such documents as such Loan Party may be necessary reasonably request to evidence the release (or subordination) of its Liens upon such Collateral as contemplated by from the Lien of the Collateral Documents, in accordance with the terms of the Loan Documents and this Section 10.11(a); provided, however, that (i) 9.10. The Administrative Agent shall not be required responsible for or have a duty to execute ascertain or inquire into any such document on terms whichrepresentation or warranty regarding the existence, in value or collectability of the Collateral, the existence, priority or perfection of the Administrative Agent’s opinionLien thereon, would expose Agent to liability or create any 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 Liens (certificate prepared by any Loan Party in connection therewith, nor shall the Administrative Agent be responsible or liable to any other than those expressly being released) upon (Secured Party for any failure to monitor or obligations of Credit Parties in respect of) all interests retained by Credit Parties, including the proceeds of maintain any sale, all of which shall continue to constitute part portion of the Collateral to the extent contemplated by the Collateral Documents. Co-Collateral Agent shall act in concert with Agent in matters delegated to the both of them under this Agreement; however, in the event of any disagreement or dispute between Agent and Co-Collateral Agent in any such matter, the determination or decision of Agent shall, in all cases, controlCollateral.
Appears in 1 contract
Sources: Revolving Credit Agreement (Textainer Group Holdings LTD)
Collateral Matters. (a) Subject to the limitations in Section 12.8 hereof, Agent 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 Agent, in its sole discretion, deems necessary or desirable either (i) to preserve or protect the Collateral or any portion thereof or (ii) to enhance the likelihood or maximize the amount of repayment by Borrowers of the Loans and other Obligations, or (iii) to pay any other amount chargeable to Borrowers or Obligors pursuant to the terms of this Agreement or any of the other Financing Agreements consisting of (A) costs, fees and expenses and (B) payments to Issuing Bank of Letter of Credit Accommodations; provided, that notwithstanding any provision to the contrary, Agent may make any such Special Agent Advances so long as: (a) the total principal amount of such Special Agent Advances together with the principal amount of the additional Revolving Loans and additional Letter of Credit Accommodations made pursuant to Section 12.11 hereof, shall not exceed the least of (i) $5,000,000, (ii) the sum of (x) the amount which, when added to all other Special Agent Advances, Revolving Loans and Letter of Credit Accommodations, would not cause the principal amount of all outstanding Special Agent Advances, Revolving Loans and Letter of Credit Accommodations to exceed the Borrowing Base and (y) if applicable, an amount equal to any reduction, made with the consent of all Lenders, of the Excess Availability required by Section 9.17 hereof, and (iii) the amount which would not cause the total principal amount of all Revolving Loans, Letter of Credit Accommodations and Special Agent Advances to exceed the Maximum Credit. Special Agent Advances shall be repayable on demand and be secured by the Collateral. Special Agent Advances shall not constitute Revolving Loans but shall otherwise constitute Obligations hereunder. Agent shall notify Lenders and 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 of its obligations pursuant to Section 6.10 hereof, each Lender agrees that it shall make available to Agent, upon Agent’s demand, in immediately available funds, the amount equal to such Lender’s Pro Rata Share of each such Special Agent Advance. If such funds are not made available to Agent by such Lender, then such Lender shall be deemed a Defaulting Lender and 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 Agent at the Federal Funds 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 leading brokers of Federal funds transactions in New York City selected by Agent) and if such amounts are not paid within three (3) days of Agent’s demand, at the highest Interest Rate provided for in Section 3.1 hereof applicable to Prime Rate Loans.
(b) Lenders hereby irrevocably authorize Agent, at its option and direct Agent in its discretion to release any Liens security interest in, mortgage or lien upon any Collateral (and any such Liens shall be automatically released, without any action by Agent or any other Person), (i) any of the Collateral upon termination of all of the Termination Date; Commitments of all Lenders and payment and satisfaction of all of the Obligations and delivery of cash collateral to the extent required under Section 14.1 below, or (ii) in respect any of the Collateral constituting property of any Subsidiary being sold or disposed of if the applicable Borrower or transferred (including property owned by any Subsidiary being sold or disposed of or transferred) if Guarantor certifies to Agent that the sale or Disposition or transfer disposition is made in compliance with this Agreement and the Loan Documents (or otherwise is not prohibited) Section 9.7 hereof (and Agent may, in its discretion, request, and may rely conclusively on any such certificate, without further inquiry on a certificate from the Borrower certifying as such prior to Agent taking any action to evidence such release) inquiry), or such sale or Disposition is approved by the Requisite Lenders (or such greater number of Lenders as may be required under Section 12.2); (iii) to any of the extent Collateral constituting property in which no Borrower or Guarantor owned an interest at the applicable Collateral is time the security interest, mortgage or becomes Excluded Property and/or Excluded Principal Property; lien was granted or at any time thereafter, or (iv) to any of the extent Collateral (other than Term Loan Priority Collateral without the applicable Collateral constitutes property leased to Credit Parties under prior written consent of the Required Term Loan Lenders) having a lease which has expired value in the aggregate in any twelve (12) month period of less than $1,000,000 or been terminated in a transaction permitted under this Agreement; (v) to any of the extent Collateral if required or permitted under the Credit Party owning such Collateral is released from its Obligations hereunder (pursuant to Section 13.11 or otherwise); terms of any of the other Financing Agreements, including any intercreditor agreement, or (vi) as required by the terms any of the ABL Intercreditor Agreement. Upon request by Agent or Parent Borrower at any time, Lenders will confirm in writing Agent’s authority to release any Lien upon particular types or items of Collateral pursuant to this Section 10.11. In addition, the Lenders hereby authorize Agent, to subordinate any Lien granted to or held by Agent upon any Collateral to any Lien on such asset permitted pursuant to paragraph (6)(C) of the definition of Permitted Lien. In addition, the Guaranty of the Obligations by, and the liens on the assets of, any Restricted Subsidiary which is designated as an Unrestricted Subsidiary will automatically be terminated and released at the time of such designation.
(b) Promptly, and in any event not later than five (5) Business Days’ following written request by Parent Borrower, Agent shall (and is hereby irrevocably authorized and directed by Lenders to) execute such documents as may be necessary to evidence the release (or subordination) of its Liens upon such Collateral as contemplated by Section 10.11(a); provided, however, that (i) Agent shall not be required to execute any such document on terms which, in Agent’s opinion, would expose Agent to liability or create any 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 Liens (other than those expressly being releasedTerm Loan Priority Collateral without the prior written consent of the Required Term Loan Lenders) upon (if approved, authorized or obligations of Credit Parties ratified in respect of) all interests retained writing by Credit Parties, including the proceeds of any sale, all of which shall continue to constitute part Lenders. Except as provided above, Agent will not release any security interest in, mortgage or lien upon, any of the Collateral to without the extent contemplated by the Collateral Documents. Co-Collateral Agent shall act in concert with Agent in matters delegated to the both prior written authorization of them under this Agreement; however, in the event of any disagreement or dispute between Agent and Co-Collateral Agent in any such matter, the determination or decision of Agent shall, in all cases, control.of
Appears in 1 contract
Sources: Loan and Security Agreement (New York & Company, Inc.)
Collateral Matters. (a) The Lenders hereby irrevocably authorize the Collateral Agent, at its option and direct Agent in its sole discretion, to release any Liens Lien upon any Collateral (and to terminate any such Liens shall be automatically released, without any action by Agent or any other Person), guarantee (i) upon the Termination Datetermination of the Commitments and payment and satisfaction in full of all Loans and reimbursement obligations in respect of Letters of Credit, and the termination of all outstanding Letters of Credit (whether or not any of such obligations are due) and all other Obligations (other than contingent indemnification and expense reimbursement obligations for which no claim has been made); (ii) in respect of constituting property of any Subsidiary being sold or disposed of (or transferred being encumbered pursuant to clause (including property owned by any Subsidiary being sold or disposed l) of or transferredthe Permitted Encumbrance definition) if the Loan Party disposing of such property certifies to the Collateral Agent that the sale or Disposition disposition (or transfer encumbrance) is made in compliance with this Agreement and the Loan Documents Section 6.03 (or otherwise is not prohibitedif applicable, a Permitted Encumbrance permitted under said clause (l)) (and the Collateral Agent may, in its discretion, request, and may rely conclusively on any such certification without further inquiry on a certificate from the Borrower certifying as such prior to Agent taking any action to evidence such release) or such sale or Disposition is approved by the Requisite Lenders (or such greater number of Lenders as may be required under Section 12.2inquiry); (iii) to constituting property in which no Loan Party owned any interest at the extent time the applicable Collateral is Lien was granted or becomes Excluded Property and/or Excluded Principal Propertyat any time thereafter; (iv) to the extent the applicable Collateral constitutes constituting property leased to Credit Parties a Loan Party under a lease which has expired or been terminated in a transaction permitted under this Agreement; or (v) to the extent the Credit Party owning such Collateral is released from its Obligations hereunder (pursuant to Section 13.11 or otherwise8.10(b); or . Except as provided above, the Collateral Agent will not release any of its Liens without the prior written authorization of the Lenders (vi) as required by Section 9.03); provided that the terms Collateral Agent may, in its discretion, release the Collateral Agent’s Liens on Collateral valued in the aggregate not in excess of $250,000 during each Fiscal Year without the ABL Intercreditor Agreementprior written authorization of any Lender. Upon request by the Collateral Agent or Parent Borrower the Borrowers at any time, the Lenders will confirm in writing the Collateral Agent’s authority to release any Lien Collateral Agent’s Liens upon particular types or items of Collateral pursuant to this Section 10.11. In addition, the Lenders hereby authorize Agent, to subordinate any Lien granted to or held by Agent upon any Collateral to any Lien on such asset permitted pursuant to paragraph (6)(C) of the definition of Permitted Lien. In addition, the Guaranty of the Obligations by, and the liens on the assets of, any Restricted Subsidiary which is designated as an Unrestricted Subsidiary will automatically be terminated and released at the time of such designation8.10.
(b) PromptlyIn the event that any Loan Party conveys, and in sells, leases, assigns, transfers or otherwise disposes of all or any event portion of any of the Capital Stock or assets of a Loan Party to a person that is not later than five (5) Business Days’ following written request by Parent Borrower, Agent shall (and is not required to become) a Loan Party, in each case in a transaction not prohibited by Section 6.03 and so long no Event of Default is then continuing or would result therefrom, the Collateral Agent shall promptly (and the Lenders hereby irrevocably authorized and directed by Lenders authorize the Collateral Agent to) take such action and execute any such documents as may be necessary reasonably requested by the Administrative Borrower and at the Administrative Borrower’s expense to evidence release, share or subordinate any Liens created by any Loan Document in respect of such assets or Capital Stock, and, in the release (or subordination) case of its Liens upon such Collateral as contemplated a disposition of the Capital Stock of any Subsidiary that is a Loan Party in a transaction not prohibited by Section 10.11(a6.03 and as a result of which such Subsidiary would cease to be a Loan Party, thus terminating such Subsidiary’s Guaranty obligation under the Guarantee and Collateral Agreement (other than with respect to obligations that expressly survive a termination); 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 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 affect, or impair the Obligations or any Liens (other than those expressly being released) upon (or obligations of Credit Parties the Borrowers in respect of) all interests retained by Credit Partiesthe Borrowers, including the proceeds of any sale, all of which shall continue to constitute part of the Collateral. In addition, the Collateral Agent agrees to take such actions as are reasonably requested by the Administrative Borrower and at the Administrative Borrower’s expense to terminate the Liens and security interests created by the Loan Documents when all the Obligations (other than in respect of contingent indemnification and expense reimbursement obligations for which no claim has been made) are paid in full and all Letters of Credit and Commitments are terminated, and upon receipt by the Administrative Agent, for the benefit of Agents and Lenders, of liability releases from the Loan Parties in form and substance satisfactory to the extent contemplated by Administrative Agent. Any representation, warranty or covenant contained in any Loan Document relating to any such Capital Stock, asset or Subsidiary of the Collateral DocumentsAdministrative Borrower shall no longer be deemed to be made once such Capital Stock or asset is so conveyed, sold, leased, assigned, transferred or disposed of. Co-Upon any release or termination in connection with the foregoing, the Collateral Agent shall (and is hereby authorized by the Lenders to) execute such documents as may reasonably requested by the Administrative Borrower to evidence the release of the Collateral Agent’s Liens upon such Collateral all without recourse or warranty. Notwithstanding the foregoing or the payment in full of the Obligations, Collateral Agent shall not be required to terminate its Liens in the Collateral unless, with respect to any loss or damage Agents may incur as a result of dishonored checks or other items of payment received by Agents from any Borrower or any Account Debtor and applied to the Obligations, Agents shall, at their option, (i) have received a written agreement satisfactory to Agents, executed by Administrative Borrower and by any Person whose loans or other advances to Borrowers are used in whole or in part to satisfy the Obligations, indemnifying the Agents and each Lender from any such loss or damage or (ii) have retained cash Collateral or other Collateral for such period of time as the Agents, in their reasonable discretion, may deem necessary to protect the Agent and each Lender from any such loss or damage.
(c) The Collateral Agent shall have no obligation whatsoever to any of the Lenders to assure that the Collateral exists or is owned by any Loan Party or is cared for, protected, or insured or has been encumbered, or that the Collateral Agent’s Liens have been properly or sufficiently or lawfully created, perfected, protected, or enforced or 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 pursuant to any of the Loan 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 concert with Agent in matters delegated to the both of them under this Agreement; howeverany manner it may deem appropriate, in its sole discretion, given the Collateral Agent’s own interest in the Collateral and its capacity as one of the Lenders, and that the Collateral Agent shall have no other duty or liability whatsoever to any Lender as to any of the foregoing.
(d) In the event of a foreclosure by any disagreement Agent on any of the Collateral pursuant to a public or dispute between private sale or any court ordered sale of the Collateral, such Agent or any Lender may be the purchaser of any or all of such Collateral at any such sale and Co-such Agent, as agent for and representative of Lenders (but not any Lender or Lenders in its or their respective individual capacities unless the Required Lenders shall otherwise agree in writing) shall be entitled, for the purpose of bidding and making settlement or payment of the purchase price for all or any portion of the Collateral sold at any such sale, to use and apply any of the Obligations as a credit on account of the purchase price for any Collateral payable by such Agent at such sale.
(e) Notwithstanding anything to the contrary contained herein or in any other Loan Document, the authority to enforce rights and remedies hereunder and under the other Loan Documents against the Loan Parties or any of them shall be vested exclusively in, and all actions and proceedings in connection with such enforcement shall be instituted and maintained exclusively by, the applicable Agent (or its agents or designees) in accordance with the Loan Documents for the benefit of the applicable Secured Parties; provided that the foregoing shall not prohibit (i) any Agent from exercising on its own behalf the rights and remedies that inure to its benefit (solely in its capacity as such Agent) hereunder and under the other Loan Documents, (ii) each of the Issuing Bank and the Swingline Lender from exercising the rights and remedies that inure to its benefit (solely in its capacity as such) hereunder and under the other Loan Documents, (iii) any Lender or Participant from exercising setoff rights in accordance with Section 9.09, (iv) any Lender from filing proofs of claim or appearing and filing pleadings on its own behalf during the pendency of a proceeding relative to any Loan Party under any Bankruptcy Code or other debtor relief law or (v) any Lender from exercising any express right or remedy of such Lender under the Loan Documents where an Agent does not have the power and authority under the Loan Documents to act on behalf of such Lender; and provided, further, that if at any time there is no Person acting as the Administrative Agent or the Collateral Agent hereunder and under the other Loan Documents, then (A) the Required Lenders shall have the rights otherwise ascribed to the applicable Agent pursuant to Section 8.10 and (B) in addition to the matters set forth in Section 8.10, any such matterLender may, with the consent of the Required Lenders, enforce any rights and remedies available to it and as authorized by the Required Lenders. Prior to the initial commencement of the exercise of the Collateral Agent’s secured creditor remedies as to the Rigs, the determination Collateral Agent shall endeavor to consult with the Lenders regarding the nature of the secured remedies it proposes to commence, provided that nothing in this sentence shall (i) confer any right or decision remedy in favor of Agent shallany Loan Party or (ii) confer any consent or blocking right in respect of the exercise, in all cases, controlthe manner of exercise or any other aspect related to such remedies.
Appears in 1 contract
Sources: Credit Agreement (Independence Contract Drilling, Inc.)
Collateral Matters. (a) The Lenders hereby irrevocably authorize the Collateral Agent, at its option and direct Agent in its discretion, to release any Liens Lien granted to or held by the Collateral Agent upon any Collateral upon termination of the Term Loan Commitments and payment and satisfaction of all Term Loans and all other Obligations (and any such Liens shall be automatically released, without any action by Agent or any other Person), (i) upon the Termination Date; (iithan Contingent Indemnity Obligations) in respect of accordance with the terms hereof; or constituting property of any Subsidiary being sold or disposed of in the ordinary course of any Loan Party’s business or transferred (including property owned by any Subsidiary being sold or disposed of or transferred) if the sale or Disposition or transfer is made otherwise in compliance with the terms of this Agreement and the other Loan Documents (Documents; or otherwise is not prohibited) (and Agent mayconstituting 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 its discretion, request, and rely conclusively without further inquiry on a certificate from the Borrower certifying as such prior to Agent taking any action to evidence such release) or such sale or Disposition is approved writing by the Requisite Lenders (or such greater number of Lenders as may be required under in accordance with Section 12.2); (iii) to the extent the applicable Collateral is or becomes Excluded Property and/or Excluded Principal Property; (iv) to the extent the applicable Collateral constitutes property leased to Credit Parties under a lease which has expired or been terminated in a transaction permitted under this Agreement; (v) to the extent the Credit Party owning such Collateral is released from its Obligations hereunder (pursuant to Section 13.11 or otherwise); or (vi) as required by the terms of the ABL Intercreditor Agreement12.02. Upon request by the Collateral Agent or Parent Borrower at any time, the Lenders will confirm in writing the Collateral Agent’s authority to release any Lien upon particular types or items of Collateral pursuant to this Section 10.11. In addition, the Lenders hereby authorize Agent, to subordinate any Lien granted to or held by Agent upon any Collateral to any Lien on such asset permitted pursuant to paragraph (6)(C) of the definition of Permitted Lien. In addition, the Guaranty of the Obligations by, and the liens on the assets of, any Restricted Subsidiary which is designated as an Unrestricted Subsidiary will automatically be terminated and released at the time of such designation10.08(a).
(b) PromptlyWithout 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(a)), 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(a). Upon receipt by the Collateral Agent of confirmation from the Lenders of its authority to release any particular item or types of Collateral, and in any event not later than five (5) Business Days’ following upon prior written request by Parent Borrowerany Loan Party, the Collateral Agent shall (and is hereby irrevocably authorized and directed by the Lenders to) execute such documents as may be necessary to evidence the release (or subordination) of its the Liens granted to the Collateral Agent for the benefit of the Agents and the Lenders upon such Collateral as contemplated by Section 10.11(a)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 obligation 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 Liens (other than those expressly being released) Lien upon (or obligations of Credit Parties any Loan Party in respect of) all interests in the Collateral retained by Credit any Loan Party.
(c) Anything contained in any of the Loan Documents to the contrary notwithstanding, the Loan Parties, including each Agent and each Lender hereby agree that (i) no Lender shall have any right individually to realize upon any of the proceeds 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 sale, or all of which 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 continue to constitute part 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 the extent contemplated be sold (A) at any public or private sale, (B) at any sale conducted by the Collateral Documents. CoAgent 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.
(d) The Collateral Agent shall act in concert with Agent in matters delegated 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 both 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 them under this Agreement; howevercare, in disclosure or fidelity, or to continue exercising, any of the event of any disagreement rights, authorities and powers granted or dispute between Agent and Co-available to the Collateral Agent in this Section 10.08 or in any such matterother Loan Document, it being understood and agreed that in respect of the Collateral, or any act, omission or event related thereto, the determination or decision of Collateral Agent shallmay act in any manner it may deem appropriate, in all casesits sole discretion, controlgiven 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.
Appears in 1 contract
Sources: Senior Secured Superpriority Priming Debtor in Possession Financing Agreement (AgileThought, Inc.)
Collateral Matters. (a) Agent 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 Agent, in its sole discretion, (i) deems necessary or desirable either to preserve or protect the Collateral or any portion thereof or (ii) to enhance the likelihood or maximize the amount of repayment by Borrowers of the 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 Accommodations which Agent may make or provide as set forth in Section 12.8 hereof, shall not exceed the aggregate amount of $7,500,000 or (iii) to pay any other amount chargeable to Borrowers pursuant to the terms of this Agreement or any of the other Financing Agreements consisting of (A) costs, fees and expenses and (B) payments to any issuer of Letter of Credit Accommodations; provided, that, the aggregate principal amount of the Special Agent Advances pursuant to clauses (i), (ii) and (iii) above outstanding at any time, plus the then outstanding amount of Loans and Letter of Credit Accommodations, shall not exceed the Maximum Credit. Special Agent Advances shall be repayable on demand and together with all interest thereon shall constitute Obligations secured by the Collateral. Special Agent Advances shall not constitute Loans but shall otherwise constitute Obligations hereunder. Interest on Special Agent Advances shall be payable at the Interest Rate then applicable to Prime Rate Loans and shall be payable on demand. Without limitation of its obligations pursuant to Section 6.10, each Lender agrees that it shall make available to Agent, upon Agent’s demand, in immediately available funds, the amount equal to such Lender’s Pro Rata Share of each such Special Agent Advance. If such funds are not made available to Agent by such Lender, such Lender shall be deemed a Defaulting Lender and 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 Agent at the Federal Funds 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 leading brokers of Federal funds transactions in New York City selected by Agent) and if such amounts are not paid within three (3) days of Agent’s demand, at the highest Interest Rate provided for in Section 3.1 hereof applicable to Prime Rate Loans.
(b) Lenders hereby irrevocably authorize Agent, at its option and direct Agent in its discretion to release any Liens upon security interest in, mortgage or lien upon, any of the Collateral (and any such Liens shall be automatically released, without any action by Agent or any other Person), (i) upon termination of the Termination Date; Commitments and payment and satisfaction of all of the Obligations and delivery of cash collateral to the extent required under Section 13.1 below, or (ii) in respect of constituting property of any Subsidiary being sold or disposed of or transferred (including property owned by any Subsidiary being sold or disposed of or transferred) if Borrowers certify to Agent that the sale or Disposition or transfer disposition is made in compliance with this Agreement and the Loan Documents (or otherwise is not prohibited) Section 9.7 hereof (and Agent maymay rely conclusively on any such certificate, without further inquiry), or (iii) constituting property in its discretionwhich any Borrower did not own an interest at the time the security interest, requestmortgage 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 rely conclusively without further inquiry on a certificate from to the Borrower certifying as extent Agent may release its security interest in and lien upon any such prior Collateral pursuant to Agent taking any action to evidence such release) the sale or other disposition thereof, such sale or Disposition is approved other disposition shall be deemed consented to by the Requisite Lenders (Lenders, or such greater number of Lenders as may be required under Section 12.2); (iii) to the extent the applicable Collateral is or becomes Excluded Property and/or Excluded Principal Property; (iv) to the extent the applicable Collateral constitutes property leased to Credit Parties under a lease which has expired or been terminated in a transaction permitted under this Agreement; (v) to if required or permitted under the extent terms of any of the Credit Party owning such Collateral is released from its Obligations hereunder (pursuant to Section 13.11 or otherwise); other Financing Agreements, including any intercreditor agreement, or (vi) approved, authorized or ratified in writing by all of Lenders. Except as required by the terms provided above, Agent will not release any security interest in, mortgage or lien upon, any of the ABL Intercreditor AgreementCollateral without the prior written authorization of all of Lenders. Upon request by Agent or Parent Borrower at any time, Lenders will promptly confirm in writing Agent’s authority to release any Lien upon particular types or items of Collateral pursuant to this Section 10.11Section. In addition, Nothing contained herein shall be construed to require the Lenders hereby authorize Agent, consent of any party providing a Hedge Agreement or any Bank Product Provider to subordinate any Lien granted to or held by Agent upon release of any Collateral to or termination of security interests in any Lien on such asset permitted pursuant to paragraph (6)(C) of the definition of Permitted Lien. In addition, the Guaranty of the Obligations by, and the liens on the assets of, any Restricted Subsidiary which is designated as an Unrestricted Subsidiary will automatically be terminated and released at the time of such designationCollateral.
(bc) PromptlyWithout any manner limiting Agent’s authority to act without any specific or further authorization or consent by the Required Lenders, and each Lender agrees to confirm in any event not later than five (5) Business Days’ following written writing, upon request by Parent BorrowerAgent, the authority to release Collateral conferred upon Agent under this Section. Agent shall (and is hereby irrevocably authorized and directed by Lenders to) execute such documents as may be necessary to evidence the release (of the security interest, mortgage or subordination) of its Liens liens granted to Agent upon such any Collateral as contemplated by Section 10.11(a)to the extent set forth above; provided, howeverthat, that (i) Agent shall not be required to execute any such document on terms which, in Agent’s opinion, would expose Agent to liability or create any obligation 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 Liens (other than those expressly being released) security interest, mortgage or lien upon (or obligations of Credit Parties any Borrower in respect of) all interests the Collateral retained by Credit PartiesBorrowers.
(d) Agent shall have no obligation whatsoever to any Lender or any other Person to investigate, including confirm or assure that the proceeds Collateral exists or is owned by any Borrower or is cared for, protected or insured or has been encumbered, or that any particular items of any sale, all of which shall continue to constitute part Collateral meet the eligibility criteria applicable in respect of the Collateral Loans or Letter of Credit Accommodations hereunder, or whether any particular reserves are appropriate, or that the liens and security interests granted to Agent pursuant hereto or any of the Financing Agreements or otherwise have been properly or sufficiently or lawfully created, perfected, protected or enforced or 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 Agent in this Agreement or in any of the other Financing Agreements, it being understood and agreed that in respect of the Collateral, or any act, omission or event related thereto, subject to the extent contemplated by other terms and conditions contained herein, Agent may act in any manner it may deem appropriate, in its discretion, given Agent’s own interest in the Collateral Documents. Co-Collateral as a Lender and that Agent shall act in concert with Agent in matters delegated have no duty or liability whatsoever to the both of them under this Agreement; however, in the event of any disagreement or dispute between Agent and Co-Collateral Agent in any such matter, the determination or decision of Agent shall, in all cases, controlother Lender.
Appears in 1 contract
Sources: Loan and Security Agreement (Haynes International Inc)
Collateral Matters. (a) Lenders hereby irrevocably authorize and direct Agent to release any Liens upon any Collateral (and any such Liens shall be automatically released, without any action by Agent or any other Person), (i) upon The Company agrees to use its best efforts, and to cause each applicable Subsidiary to use its best efforts, to deliver to the Termination Date; (ii) in respect Agent not later than April 15, 2003 all original vehicle titles for the vehicles set forth on Exhibit A of property of any Subsidiary being sold or disposed of or transferred (including property owned by any Subsidiary being sold or disposed of or transferred) if the sale or Disposition or transfer is made in compliance with this Agreement and the Loan Documents (or otherwise is not prohibitedofficer’s certificate required to be delivered pursuant to Section 4(e) (and Agent may, in its discretion, request, and rely conclusively without further inquiry on a certificate from the Borrower certifying as such prior to Agent taking any action to evidence such release) or such sale or Disposition is approved by the Requisite Lenders (or such greater number of Lenders as may be required under Section 12.2); (iii) to the extent the applicable Collateral is or becomes Excluded Property and/or Excluded Principal Property; (iv) not previously delivered to the extent the applicable Collateral constitutes property leased Agent) and to Credit Parties under a lease which has expired or been terminated in a transaction permitted under this Agreement; (v) to the extent the Credit Party owning take such Collateral is released from its Obligations hereunder (pursuant to Section 13.11 or otherwise); or (vi) as required by the terms of the ABL Intercreditor Agreement. Upon request by Agent or Parent Borrower at any time, Lenders will confirm in writing Agent’s authority to release any Lien upon particular types or items of Collateral pursuant to this Section 10.11. In addition, the Lenders hereby authorize Agent, to subordinate any Lien granted to or held by Agent upon any Collateral to any Lien on such asset permitted pursuant to paragraph (6)(C) of the definition of Permitted Lien. In addition, the Guaranty of the Obligations by, and the liens on the assets of, any Restricted Subsidiary which is designated as an Unrestricted Subsidiary will automatically be terminated and released at the time of such designation.
(b) Promptly, and in any event not later than five (5) Business Days’ following written request by Parent Borrower, Agent shall (and is hereby irrevocably authorized and directed by Lenders to) execute such documents other actions as may be necessary or advisable to evidence note the release (or subordination) lien of its Liens upon the Agent on each such Collateral as contemplated by Section 10.11(a)vehicle title; provided, however, provided that (i) Agent the foregoing shall not be required apply to execute any such document vehicle titles that have been lost or destroyed so long as (x) the Company provides a list of the applicable vehicles on terms whichor before April 15, in Agent’s opinion2003, would expose Agent to liability or create any obligation or entail any consequence other than (y) the release aggregate number of such Liens without recourse or warrantyvehicles is less than 75 and (z) the Company delivers a certificate certifying that it has sought the issuance of replacement vehicle titles for such vehicles from the appropriate governmental authorities and will, and will cause the applicable Subsidiaries to, deliver such replacement vehicle titles to the Agent promptly upon receipt.
(ii) The Company agrees (x) to execute and deliver, and to cause each applicable Subsidiary to execute and deliver, to the Agent a mortgage on each parcel of real estate owned by the Company or such release shall Subsidiary (to the extent not in previously delivered to the Agent) not later than April 15, 2003 and (y) to use its best efforts, and to cause each applicable Subsidiary use its best efforts, to execute and deliver to the Agent (and obtain any manner dischargenecessary landlord consent to) a leasehold mortgage on each parcel of real estate leased by the Company or such Subsidiary (to the extent not previously delivered to the Agent) not later than April 30, affect or impair the Obligations or any Liens 2003.
(iii) The Company agrees to use its best efforts, and to cause each applicable Subsidiary to use its best efforts, to cause each depository bank (other than those expressly any Bank) at which the Company or such Subsidiary maintains a deposit account to execute and deliver to the Agent not later than April 30, 2003 a blocked account agreement in form and substance satisfactory to the Agent, it being releasedunderstood that the Company shall, and shall cause each applicable Subsidiary to, close each account maintained with a depositary bank (other than any Bank) upon (which has not so delivered a blocked account agreement and cause the amounts deposited in such accounts to be deposited into accounts maintained with one or obligations of Credit Parties in respect of) all interests retained by Credit Parties, including the proceeds of any sale, all of which shall continue to constitute part more of the Collateral to the extent contemplated by the Collateral Documents. Co-Collateral Agent shall act in concert with Agent in matters delegated to the both of them under this Agreement; howeverBanks not later than May 31, in the event of any disagreement or dispute between Agent and Co-Collateral Agent in any such matter, the determination or decision of Agent shall, in all cases, control2003.
Appears in 1 contract
Sources: Credit Agreement (U S Liquids Inc)
Collateral Matters. (a) The Lenders hereby irrevocably authorize and direct the Collateral Agent to release any Liens Lien upon any Collateral (and any such Liens shall be automatically released, without any action by Agent or any other Person), (i) upon the Termination Date; termination of the Commitments and payment and satisfaction in full of all Obligations (other than contingent obligations with respect to then unasserted claims), (ii) in respect of constituting property of any Subsidiary being sold sold, transferred or disposed of or transferred (including property owned by any Subsidiary being sold or disposed of or transferred) if the sale or in a Permitted Disposition or transfer is made in compliance with this Agreement and the Loan Documents (or otherwise to a Person that is not prohibited) (and Agent maya Loan Party, in its discretion, request, and rely conclusively without further inquiry on a certificate from the Borrower certifying as such prior to Agent taking any action to evidence such release) or such sale or Disposition is approved by the Requisite Lenders (or such greater number of Lenders as may be required under Section 12.2); (iii) which constitutes property subject to the extent proviso in the applicable Collateral is definition of “Collateral” in the Security Agreement or becomes Excluded Property and/or Excluded Principal Property; subject to the proviso in Section 2.1 of the Pledge Agreement, (iv) as provided in any Intercreditor Agreement, including the ABL Intercreditor Agreement with respect to the extent the applicable Revolver Priority Collateral constitutes property leased to Credit Parties under a lease which has expired or been terminated in a transaction permitted under this Agreement; and (v) as to the extent the Credit Party owning such Collateral is released of any Facility Guarantor, upon its release from its Obligations hereunder Facility Guarantee (pursuant to Section 13.11 or otherwiseincluding as a result of designation as an Unrestricted Subsidiary); or (vi) . Except as required by provided above, the terms Collateral Agent will not release any of the ABL Intercreditor AgreementCollateral Agent’s Liens without the prior written authorization of the Applicable Lenders. Upon request by any Agent or Parent Borrower any Loan Party at any time, the Lenders will confirm in writing the Collateral Agent’s authority to release any Lien Liens upon particular types or items of Collateral pursuant to this Section 10.11. In addition, the Lenders hereby authorize Agent, to subordinate any Lien granted to or held by Agent upon any Collateral to any Lien on such asset permitted pursuant to paragraph (6)(C) of the definition of Permitted Lien. In addition, the Guaranty of the Obligations by, and the liens on the assets of, any Restricted Subsidiary which is designated as an Unrestricted Subsidiary will automatically be terminated and released at the time of such designation8.16.
(b) Promptly, and in any event not later than five (5) Business Days’ following written request by Parent Borrower, The Collateral Agent shall (and is hereby irrevocably authorized and directed by the Lenders to) execute such documents as may be necessary to evidence the release (or subordination) of its the Liens upon such any Collateral as contemplated by Section 10.11(a); provided, however, that (i) Agent shall not be required to execute any such document on terms which, described in Agent’s opinion, would expose Agent to liability or create any 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 Liens (other than those expressly being released) upon (or obligations of Credit Parties in respect of) all interests retained by Credit Parties, including the proceeds of any sale, all of which shall continue to constitute part of the Collateral to the extent contemplated by the Collateral Documents. Co-Collateral Agent shall act in concert with Agent in matters delegated to the both of them under this Agreement; however, in the event of any disagreement or dispute between Agent and Co-Collateral Agent in any such matter, the determination or decision of Agent shall, in all cases, control.Section
Appears in 1 contract
Collateral Matters. The Lenders irrevocably agree:
(a) Lenders hereby irrevocably authorize and direct The Collateral Agent is authorized to release any Lien on any property granted to or held by the Collateral Agent under any Loan Document, (i) at the time the property subject to such Lien is pledged pursuant to Section 6.02(n)(x) or Section 6.02(n)(y) (but solely to the extent such property consists of Revolving Credit Priority Collateral and Hedging Agreements related to the value of such Revolving Credit Priority Collateral) or sold, leased, licensed, consigned, transferred or otherwise disposed of as part of or in connection with any Permitted Pre-IPO Investment or any Asset Sale permitted under Section 6.06 to any Person other than a Loan Party (provided that no Lien shall be released in any Series of Cash Neutral Transactions) (or, if such transferee is a Loan Party, the Collateral Agent is authorized to release such Lien on such asset in connection with the transfer as provided in the second to last sentence of this Section 10.28(a) or so long as (w) except as permitted by Section 6.06(q) or Section 6.06(s), the transferee grants a new Lien to the Collateral Agent on such asset substantially concurrently with the transfer of such asset, (x) the transfer is between parties organized under the laws of different countries, (y) the priority of the new Lien is the same as that of the original Lien and (z) the Liens on such property held by or on behalf of the holders of Indebtedness under the Revolving Credit Loan Documents or any Permitted Revolving Credit Facility Refinancing, Permitted First Priority Refinancing Debt, Permitted Second Priority Refinancing Debt, Additional Senior Secured Indebtedness and Junior Secured Indebtedness are also released), (ii) subject to Section 10.02, if the release of such Lien is approved, authorized or ratified in writing by the Required Lenders (or such other number of Lenders whose consent is required under Section 10.02), (iii) if the property subject to such Lien is owned by a Guarantor, upon any release of such Guarantor from its obligations under its Guarantee pursuant to Section 7.09(a), (b), (c), (d), and (e), (iv) upon termination of all Commitments and the repayment in full of all outstanding principal and accrued interest with respect to the Loans, all Fees and other Obligations, (v) in connection with the grant of Liens permitted hereunder under Section 6.02(k) and subject to the Intercreditor Agreement, if the applicable Loan Party grants a Lien to the Collateral Agent or for the benefit of the Collateral Agent in a manner reasonably satisfactory to the Collateral Agent, substantially concurrently with the release of such asset, to the extent such release or termination and re-grant is necessary or advisable under applicable law, (vi) to the extent such property is Excluded 1304976.12A-NYCSR02A - MSW Property, and (vii) on or after the date that an Equal and Ratable Event occurs, but prior to a Qualified Intermediate IPO, with respect to Collateral granted by Holdings under the Security Documents to which Holdings is a party, subject to the applicable Holdings Intercreditor Agreements, to the extent provided in such Security Documents (including the release of all such Collateral granted by Holdings on the date that a Qualified Intermediate IPO is consummated). Notwithstanding anything to the contrary above, if Intellectual Property or Real Property (and any such Liens related fixtures) that constitutes Collateral is transferred pursuant to a transaction permitted by the Loan Documents from a Loan Party to another Loan Party and the applicable Intellectual Property or Real Property filing office requires the release of the existing Lien in favor of the Collateral Agent prior to reflecting the transfer in the register, then the Collateral Agent shall be automatically releasedpermitted, without the consent of any action by Agent Lender or any other Person), to release its Lien in respect of such Intellectual Property or Real Property (and related fixtures) in order to effect such transfer so long as (i) upon the Termination Date; Transfer Conditions are satisfied at the time of such transfer and Intermediate Holdings shall have certified the same to the Administrative Agent and the Collateral Agent, (ii) in respect substantially concurrently with the effectiveness of property of any Subsidiary being sold or disposed of or transferred (including property owned by any Subsidiary being sold or disposed of or transferred) if such transfer, such Intellectual Property and/or Real Property is pledged to the sale or Disposition or transfer Collateral Agent to secure the Obligations on terms substantially the same as the pledge that is made in compliance with this Agreement and the Loan Documents (or otherwise is not prohibited) (and Agent may, in its discretion, request, and rely conclusively without further inquiry on a certificate from the Borrower certifying as such prior to Agent taking any action to evidence such release) or such sale or Disposition is approved released by the Requisite Lenders (or such greater number of Lenders as may be required under Section 12.2); Collateral Agent, (iii) the priority of the new Lien in favor of the Collateral Agent, whether pursuant to the Intercreditor Agreement or otherwise, is the same as that of the original Lien, and (iv) the Liens on such Intellectual Property or Real Property (and related fixtures) in favor of holders of Indebtedness under the Revolving Credit Loan Documents or any Permitted Refinancing of any Indebtedness under the Revolving Credit Agreement, Permitted First Priority Refinancing Debt, Permitted Second Priority Refinancing Debt, Additional Senior Secured Indebtedness and Junior Secured Indebtedness are also released substantially concurrently with the release granted by the Collateral Agent. Notwithstanding the foregoing, where Intellectual Property and Real Property (and related fixtures) can be transferred pursuant to an assignment and assumption or similar agreement in a manner that would avoid the need to release the Liens in favor of the Collateral Agent as described in the preceding sentence, then the Loan Parties shall effect such transfer pursuant to an assignment and assumption or similar agreement.
(b) The Collateral Agent is authorized to release or subordinate any Lien on any property granted to or held by the Collateral Agent under any Loan Document to the holder of any Lien on such property that is permitted by Section 6.02(i), to the extent the applicable Collateral is or becomes Excluded Property and/or Excluded Principal Property; (iv) to the extent the applicable Collateral constitutes property leased to Credit Parties under a lease which has expired or been terminated in a transaction permitted under this Agreement; (v) to the extent the Credit Party owning such Collateral is released from its Obligations hereunder (pursuant to Section 13.11 or otherwise); or (vi) as required by the terms of the ABL Intercreditor Agreement. Upon request obligations secured by Agent or Parent Borrower at any time, Lenders will confirm in writing Agent’s authority to release any Lien upon particular types or items of Collateral pursuant to this Section 10.11. In addition, the Lenders hereby authorize Agent, to subordinate any Lien granted to or held by Agent upon any Collateral to any Lien on such asset permitted pursuant to paragraph (6)(C) of the definition of Permitted Lien. In addition, the Guaranty of the Obligations by, and the liens on the assets of, any Restricted Subsidiary which is designated as an Unrestricted Subsidiary will automatically be terminated and released at the time of such designationLiens.
(bc) PromptlyNotwithstanding any other provision of this Agreement or any other Loan Document to the contrary, the Administrative Agent may in its discretion, and shall at the direction of the Required Lenders, release any or all of the Mortgaged Properties located in the United States from the applicable Mortgages if the Administrative Agent has, or the Required Lenders have, reasonably determined that being secured by any event not later than five (5) Business Days’ following written request by Parent Borrowersuch Mortgaged Properties or holding any of such Mortgages could be detrimental to the Administrative Agent or the Lenders, and so long as the Administrative Agent shall (and is hereby irrevocably authorized and directed by Lenders to) execute have given Intermediate Holdings written notice at least five days prior to any such documents as may be necessary to evidence the release (or subordination) of its Liens upon such Collateral as contemplated by Section 10.11(a)release; provided, however, that (i) the Administrative Agent shall not be required to execute give any such document on terms whichprior notice to Intermediate Holdings if the Administrative Agent, in Agentits discretion, has determined that delay of such release would be detrimental to the Administrative Agent or the Lenders. 1304976.12A-NYCSR02A - MSW Each Lender irrevocably authorizes the Collateral Agent to, at the Borrower’s opinionexpense, would expose Agent execute and deliver documents to liability or create any obligation or entail any consequence other than authorize the release or subordination of such items of Collateral from the Liens without recourse or warrantygranted under the Security Documents, and (ii) such release shall not in any manner discharge, affect or impair each case in accordance with the Obligations or any Liens (other than those expressly being released) upon (or obligations of Credit Parties in respect of) all interests retained by Credit Parties, including the proceeds of any sale, all of which shall continue to constitute part terms of the Collateral to the extent contemplated by the Collateral Documents. Co-Collateral Agent shall act in concert with Agent in matters delegated to the both of them under Loan Documents and this Agreement; however, in the event of any disagreement or dispute between Agent and Co-Collateral Agent in any such matter, the determination or decision of Agent shall, in all cases, controlSection 10.28.
Appears in 1 contract
Sources: Credit Agreement (Novelis Inc.)
Collateral Matters. (a) The Lenders hereby irrevocably authorize and direct the Collateral Agent to release any Liens Lien upon any Collateral (and any such Liens shall be automatically released, without any action by Agent or any other Person), (i) upon the Termination Date; termination of the Commitments and payment and satisfaction in full of all Obligations (other than contingent obligations with respect to then unasserted claims), (ii) in respect of constituting property of any Subsidiary being sold sold, transferred or disposed of or transferred (including property owned by any Subsidiary being sold or disposed of or transferred) if the sale or in a Permitted Disposition or transfer is made in compliance with this Agreement and the Loan Documents (or otherwise to a Person that is not prohibited) (and Agent maya Loan Party, in its discretion, request, and rely conclusively without further inquiry on a certificate from the Borrower certifying as such prior to Agent taking any action to evidence such release) or such sale or Disposition is approved by the Requisite Lenders (or such greater number of Lenders as may be required under Section 12.2); (iii) which constitutes property subject to the extent proviso in the applicable Collateral is definition of “Collateral” in the Security Agreement or becomes Excluded Property and/or Excluded Principal Property; subject to the proviso in SECTION 2.1 of the Pledge Agreement, (iv) as provided in any Intercreditor Agreement, including the ABL Intercreditor Agreement with respect to the extent the applicable Revolver Priority Collateral constitutes property leased to Credit Parties under a lease which has expired or been terminated in a transaction permitted under this Agreement; and (v) as to the extent the Credit Party owning such Collateral is released of any Facility Guarantor, upon its release from its Obligations hereunder Facility Guarantee (pursuant to Section 13.11 or otherwiseincluding as a result of designation as an Unrestricted Subsidiary); or (vi) . Except as required by provided above, the terms Collateral Agent will not release any of the ABL Intercreditor AgreementCollateral Agent’s Liens without the prior written authorization of the Applicable Lenders. Upon request by any Agent or Parent Borrower any Loan Party at any time, the Lenders will confirm in writing the Collateral Agent’s authority to release any Lien Liens upon particular types or items of Collateral pursuant to this Section 10.11. In addition, the Lenders hereby authorize Agent, to subordinate any Lien granted to or held by Agent upon any Collateral to any Lien on such asset permitted pursuant to paragraph (6)(C) of the definition of Permitted Lien. In addition, the Guaranty of the Obligations by, and the liens on the assets of, any Restricted Subsidiary which is designated as an Unrestricted Subsidiary will automatically be terminated and released at the time of such designationSECTION 8.16.
(b) Promptly, and in any event not later than five (5) Business Days’ following written request by Parent Borrower, The Collateral Agent shall (and is hereby irrevocably authorized and directed by the Lenders to) execute such documents as may be necessary to evidence the release (or subordination) of its the Liens upon such any Collateral as contemplated by Section 10.11(adescribed in SECTION 8.16(a); provided, however, that (i) the Collateral Agent shall not be required to execute any such document on terms which, in Agent’s its reasonable opinion, would would, under Applicable Law, expose the Collateral Agent to liability or create any obligation or entail any adverse 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 Liens (other than those expressly being released) upon (or obligations of Credit Parties any Loan Party in respect of) all interests retained by Credit Partiesany Loan Party, including (without limitation) the proceeds of any sale, all of which shall continue to constitute part of the Collateral.
(c) Each Lender irrevocably authorizes each of the Administrative Agent and the Collateral Agent to (i) release any Guarantor from its obligations under a Facility Guarantee if such Person ceases to be a Restricted Subsidiary as a result of a transaction or designation permitted hereunder and (ii) upon the request of the Borrower and pursuant to documentation reasonably acceptable to the Administrative Agent and/or Collateral Agent, to subordinate any Lien on any property granted to or held by the Administrative Agent or the Collateral Agent under any Loan Document to the holder of any Lien on such property that is permitted under clause (f) or (h) of the definition of Permitted Encumbrances.
(d) The Secured Parties hereby irrevocably authorize the Administrative Agent, at the direction of the Required Lenders, 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) and in such manner purchase (either directly or through one or more acquisition vehicles) all or any portion of the Collateral (a) at any sale thereof conducted under the provisions of the Bankruptcy Code, including under Sections 363, 1123 or 1129 of the Bankruptcy Code, or any similar laws in any other jurisdictions to which a Loan Party is subject, or (b) at any other sale, foreclosure or acceptance of collateral in lieu of debt conducted by (or with the consent or at the direction of) the Administrative Agent (whether by judicial action or otherwise) in accordance with any applicable law. In connection with any such credit bid and purchase, the Obligations owed to the Secured Parties shall be entitled to be, and shall be, credit bid by the Administrative Agent at the direction of the Required Lenders 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 (i) the Administrative Agent shall be authorized to form one or more acquisition vehicles and to assign any successful credit bid to such acquisition vehicle or vehicles (ii) each of the Secured Parties’ 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, (iii) the Administrative shall be authorized to adopt documents providing for the governance of the acquisition vehicle or vehicles (provided that any actions by the Administrative 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 9.02 of this Agreement), (iv) the Administrative Agent on behalf of such acquisition vehicle or vehicles shall be authorized to issue to each of the Secured Parties, ratably on account of the relevant Obligations which were credit bid, interests, whether as equity, partnership, 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 Secured Party or acquisition vehicle to take any further action, and (v) to the extent that Obligations that are assigned to an acquisition vehicle are not used to acquire Collateral 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 Secured Parties pro rata 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 Secured Party or any acquisition vehicle to take any further action. Notwithstanding that the ratable portion of the Obligations of each Secured Party are deemed assigned to the acquisition vehicle or vehicles as set forth in clause (ii) above, each Secured Party shall execute such documents and provide such information regarding the Secured Party (and/or any designee of the Secured Party which will receive interests in or debt instruments issued by such acquisition vehicle) as the Administrative Agent 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 the Collateral Documents. Co-Collateral Agent shall act in concert with Agent in matters delegated to the both of them under this Agreement; however, in the event of any disagreement or dispute between Agent and Co-Collateral Agent in any such matter, the determination or decision of Agent shall, in all cases, controlcredit bid.
Appears in 1 contract
Collateral Matters. (a) The Lenders hereby irrevocably authorize and direct Agent to release any Liens upon agree that the Lien on any Collateral (and any such Liens shall be automatically released, without any action by Agent or any other Person), released (i) upon the Termination Date; termination of the Commitments and payment in full by Borrowers of all of the Obligations (other than Bank Product Obligations and contingent indemnification obligations not yet due and payable), (ii) in respect of property of any Subsidiary being to the extent such Collateral is sold or disposed of or transferred in a transaction permitted by Section 6.4 (including property owned by any Subsidiary being sold or disposed of or transferred) if provided that the Agent may request that the Borrowers certify to Agent that the sale or Disposition or transfer disposition is made in compliance with this Agreement and the Loan Documents (or otherwise is not prohibited) permitted under Section 6.4 (and Agent may, in its discretion, request, and may rely conclusively on any such certificate, without further inquiry on a certificate from the Borrower certifying as such prior to Agent taking any action to evidence such release) or such sale or Disposition is approved by the Requisite Lenders (or such greater number of Lenders as may be required under Section 12.2inquiry); ), (iii) to the extent such Collateral constitutes property in which no Loan Party owned any interest at the applicable Collateral is or becomes Excluded Property and/or Excluded Principal Property; time Agent’s Lien was granted nor at any time thereafter, (iv) to the extent the applicable such Collateral constitutes property leased or licensed to Credit Parties a Loan Party under a lease which or license that has expired or been is terminated in a transaction permitted under this Agreement; , (v) to the extent the Credit Party owning such Collateral becomes Excluded Assets, (vi) subject to Section 14.1, if the release of such Lien is approved, authorized or ratified in writing by the Required Lenders and (vii) in connection with a credit bid or purchase authorized under this Section 15.11. If any Guarantor ceases to be a Restricted Subsidiary, or becomes an Excluded Subsidiary, in each case as a result of a transaction or designation permitted hereunder (provided that the Agent may request that the Borrowers certify in writing that such transaction or designation is permitted hereunder), (i) such Subsidiary shall be automatically released from its Obligations hereunder obligations under the Guaranty and (pursuant ii) any Liens granted by such Subsidiary or Liens on the Equity Interests of such Subsidiary (to the extent such Equity Interests have become Excluded Assets or are being transferred to a Person that is not a Loan Party) shall be automatically released. In each case as specified in this Section 13.11 15.11(a), the Agent will promptly (and each Lender irrevocably authorizes the Agent to), at the applicable Borrower’s expense, execute and deliver to the applicable Loan Party such documents as such Loan Party may reasonably request to evidence the release of such item of Collateral from the Lien granted under the Guaranty and Security Agreement, or otherwise); or (vi) as required by to evidence the release of such Guarantor from its obligations under the Guaranty, in each case in accordance with the terms of the ABL Intercreditor Loan Documents and this Section 15.11(a).
(b) The Loan Parties and the 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 (a) consent to, credit bid or purchase (either directly or indirectly through one or more entities) all or any portion of the Collateral at any sale thereof conducted under the provisions of the Bankruptcy Code, including Section 363 of the Bankruptcy Code, (b) credit bid or purchase (either directly or indirectly through one or more entities) all or any portion of the Collateral at any sale or other disposition thereof conducted under the provisions of the Code, including pursuant to Sections 9-610 or 9-620 of the Code, or (c) credit bid or purchase (either directly or indirectly through one or more entities) all or any portion of the Collateral at any other sale or foreclosure conducted or consented to by Agent in accordance with applicable law in any judicial action or proceeding or by the exercise of any legal or equitable remedy. In connection with any such credit bid or purchase, (i) the Obligations owed to the Lenders and the 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 impair or unduly delay the ability of Agent to credit bid or purchase at such sale or other disposition of the Collateral and, if such contingent or unliquidated claims cannot be estimated without impairing or unduly delaying the ability of Agent to credit bid at such sale or other disposition, then such claims shall be disregarded, not credit bid, and not entitled to any interest in the Collateral that is the subject of such credit bid or purchase) and the Lenders and the 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 Collateral that is the subject of such credit bid or purchase (or in the Equity Interests of the any entities that are used to consummate such credit bid or purchase), and (ii) Agent, based upon the instruction of the Required Lenders, may accept non-cash consideration, including debt and equity securities issued by any entities used to consummate such credit bid or purchase and in connection therewith Agent may reduce the Obligations owed to the Lenders and the Bank Product Providers (ratably based upon the proportion of their Obligations credit bid in relation to the aggregate amount of Obligations so credit bid) based upon the value of such non-cash consideration. 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 the Bank Product Providers), or (z) otherwise, the Required Lenders (without requiring the authorization of the Bank Product Providers).
(c) Upon request by Agent or Parent Borrower Borrowers at any time, the Lenders will (and if so requested, the Bank Product Providers will) confirm in writing Agent’s authority to evidence the release of any Lien upon such Liens on particular types or items of Collateral pursuant to this Section 10.11. In addition, the Lenders hereby authorize Agent, to subordinate any Lien granted to or held by Agent upon any Collateral to any Lien on such asset permitted pursuant to paragraph (6)(C) of the definition of Permitted Lien. In addition, the Guaranty of the Obligations by, and the liens on the assets of, any Restricted Subsidiary which is designated as an Unrestricted Subsidiary will automatically be terminated and released at the time of such designation.
(b) Promptly, and in any event not later than five (5) Business Days’ following written request by Parent Borrower, Agent shall (and is hereby irrevocably authorized and directed by Lenders to) execute such documents as may be necessary to evidence the release (or subordination) of its Liens upon such Collateral as contemplated by Section 10.11(a)15.11; provided, however, that (i1) anything to the contrary contained in any of the Loan Documents notwithstanding, Agent shall not be required to execute any document or take any action necessary to evidence such document release on terms whichthat, in Agent’s opinion, would could expose Agent to liability or create any obligation or entail any consequence other than the release of such Liens Lien without recourse recourse, representation, or warranty, and (ii2) such release shall not in any manner discharge, affect affect, or impair the Obligations or any Liens (other than those expressly being released) upon (or obligations of Credit Parties Borrowers in respect of) any and all interests retained by Credit Partiesany Borrower, including including, the proceeds of any sale, all of which shall continue to constitute part of the Collateral Collateral. Each Lender further hereby irrevocably authorize (and by entering into a Bank Product Agreement, each Bank Product Provider shall be deemed to irrevocably authorize) Agent, at its option and in its sole discretion, to subordinate any Lien granted to or held by Agent under any Loan Document to the extent contemplated by holder of any Permitted Lien on such property if such Permitted Lien secures Permitted Purchase Money Indebtedness.
(d) Agent shall have no obligation whatsoever to any of the Lenders (or the Bank Product Providers) (i) to verify or assure that the Collateral exists or is owned by Loan Parties or their Subsidiaries or is cared for, protected, or insured or has been encumbered, (ii) to verify or assure that Agent’s Liens have been properly or sufficiently or lawfully created, perfected, protected, or enforced or are entitled to any particular priority, (iii) to impose, maintain, increase, reduce, implement, or eliminate any particular reserve hereunder or to determine whether the amount of any reserve is appropriate or not, or (iv) 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 any of the Loan Documents. Co-, it being understood and agreed that in respect of the Collateral, or any act, omission, or event related thereto, subject to the terms and conditions contained herein, Agent may act in any manner it may deem appropriate, in its sole discretion given Agent’s own interest in the Collateral in its capacity as one of the Lenders and that Agent shall act in concert with Agent in matters delegated have no other duty or liability whatsoever to any Lender (or Bank Product Provider) as to any of the both of them under this Agreement; howeverforegoing, in the event of any disagreement or dispute between Agent and Co-Collateral Agent in any such matter, the determination or decision of Agent shall, in all cases, controlexcept as otherwise expressly provided herein.
Appears in 1 contract
Sources: Credit Agreement (Paycor Hcm, Inc.)
Collateral Matters. (a) The Lenders (and each other Secured Party by their acceptance of the benefits of the Loan Documents shall be deemed to) hereby irrevocably authorize the Collateral Agent (and direct if applicable, any subagent appointed by the Collateral Agent under Section 13.2 or otherwise) to release any its Liens on the Collateral, and the Collateral Agent’s Liens upon any Collateral (and any such Liens shall be automatically released, without any action by Agent or any other Person), released (i) upon Full Payment of the Termination DateObligations; (ii) in respect upon a disposition of property of any Subsidiary being sold or disposed of or transferred (including property owned Collateral permitted by any Subsidiary being sold or disposed of or transferred) if the sale or Disposition or transfer is made in compliance with this Agreement and the Loan Documents (or otherwise Section 8.8 to a Person that is not prohibited) (and Agent may, in its discretion, request, and rely conclusively without further inquiry on a certificate from the Borrower certifying as such prior to Agent taking any action to evidence such release) or such sale or Disposition is approved by the Requisite Lenders (or such greater number of Lenders as may be required under Section 12.2)an Obligor; (iii) to if any such Collateral constitutes property in which the extent Obligors owned no interest at the applicable Collateral is time the Lien was granted or becomes Excluded Property and/or Excluded Principal Propertyat any time thereafter; (iv) to the extent the applicable if any such Collateral constitutes property leased to Credit Parties an Obligor under a lease which has expired or been terminated in a transaction permitted under this Agreement; (v) to the extent the Credit Party owning property constituting such Collateral is released owned by any Guarantor, upon the release of such Guarantor from its Obligations hereunder obligations under the Guarantee Agreement (pursuant to Section 13.11 or otherwisein accordance with the second succeeding sentence and the Guarantee Agreement); or (vi) as required by the terms Collateral Agent to effect any sale, transfer or other Disposition of Collateral in connection with any exercise of remedies of the ABL Intercreditor AgreementCollateral Agent pursuant to the Security Documents, (vii) to the extent such Collateral otherwise becomes an Excluded Stock or an Excluded Asset and (viii) if the percentage of Lenders required to consent to the Collateral being released hereunder, consent to the Collateral being released. Except as provided above, the Collateral Agent will not release any of the Collateral Agent’s Liens without the prior written authorization of the Required Lenders (or such other percentage of Lenders whose consent is required in accordance with Section 12.1). Upon request by the Collateral Agent or Parent the Borrower at any time, subject to the Borrower having certified to the Collateral Agent that the disposition is made in compliance with Section 8.8 (which the Collateral Agent may rely conclusively on any such certificate, without further inquiry), the Lenders will confirm in writing the Collateral Agent’s authority to release any Lien applicable Collateral Agent’s Liens upon particular types or items of Collateral pursuant to this Section 10.1113.10. In addition, the Lenders (and each other Secured Party by their acceptance of the benefits of the Loan Documents shall be deemed to) hereby irrevocably authorize Agent, (w) the Collateral Agent to subordinate any Lien on any property granted to or held by the Collateral Agent upon under any Collateral Loan Document to the holder of any Lien on such asset property that is permitted by Section 8.12(c) or (q) (as to Current Asset Collateral only), (x) the Agent to release automatically any Guarantor from its obligations under the Guarantee Agreement if such Person ceases to be a Restricted Subsidiary as a result of a transaction permitted under this Agreement or such Person otherwise becomes an Excluded Subsidiary, in each case, solely to the extent (1) such Subsidiary ceasing to constitute a Restricted Subsidiary or otherwise becoming an Excluded Subsidiary is permitted by this Agreement and in the case of a Subsidiary ceasing to constitute a Subsidiary, the Borrower will be deemed to make a new Investment in the residual equity retained directly or indirectly by the Borrower and (2) no Default or Event of Default has occurred or is continuing or would result therefrom and (y) so long as no Default or Event of Default has occurred and is continuing or would result therefrom, then, to the extent that the Collateral Agent obtains possession of any Collateral by operation of Section 13.12 of this Agreement that constitutes Collateral that Obligors are not required to deliver to Collateral Agent at such time pursuant to paragraph the terms hereof, the Security Documents or any other contractual arrangement with any Obligor, following the written request by Borrower, Collateral Agent shall (6)(Cto the extent permitted by applicable law or legal process) deliver such Collateral in accordance with the terms of the definition of Permitted LienABL Intercreditor Agreement ([**]) or, if the ABL Intercreditor Agreement is and [**] are not then in effect, to the applicable Obligor. In addition, the Guaranty Promptly upon consummation of the Obligations byFTS Distribution and Contribution Transaction, solely to the extent true, Borrower shall send a certificate to Agent confirming that FTS does not own any assets other than the Stock of Holdings, net operating losses with immaterial value and/or other property and assets with immaterial value (“FTS Distribution and Contribution Certificate”). Notwithstanding any other provisions set forth herein, upon the full and complete consummation of the FTS Distribution and Contribution Transaction and Agent’s receipt of the FTS Distribution and Contribution Certificate, (i) each of the FTS Pledge Agreements and the liens on the assets of, any Restricted Subsidiary which is designated as an Unrestricted Subsidiary will automatically FTS Control Agreements shall be deemed terminated and released (automatically and through no further action of any Person), (ii) FTS shall no longer be deemed to be party to the Security Agreement or any other Loan Document (automatically and through no further action of any Person), (iii) the Collateral Agent’s Liens on the Stock and assets of FTS (but not the Stock issued by or the assets of the FTS Subsidiaries) shall be deemed terminated and released (automatically and through no further action of any Person), and (iv) the Lenders (and each other Secured Party by their acceptance of the benefits of the Loan Documents) irrevocably authorize the Collateral Agent to (A) release its Liens on the Stock and assets of FTS (but not the Stock issued by or the assets of the FTS Subsidiaries), and (B) if reasonably requested by the Borrower, promptly execute, as applicable, and deliver to the Borrower any such additional instruments, terminations, lien releases, discharges of security interests, pledges and other similar discharge or release documents or other writings to effect or evidence such release and termination. Upon request by any Appointed Agent at any time, the time Required Lenders will confirm in writing such Appointed Agent’s authority to release or subordinate its interest in particular types or items of such designationproperty, or to release any Guarantor from its obligations pursuant to this Section 13.10(a).
(b) PromptlyUpon receipt by any Appointed Agent of any authorization required pursuant to Section 13.10(a) from the Lenders of such Appointed Agent’s authority to release or subordinate the applicable Collateral Agent’s Liens upon particular types or items of Collateral, or to release any Guarantor from its obligations under the Guarantee Agreement, and in any event not later than five upon at least three (53) Business Days’ following prior written request by Parent the Borrower, such Appointed Agent shall (and is hereby irrevocably authorized by the Lenders and directed by Lenders the other Secured Parties to) execute such documents as may be necessary to evidence the release (or subordination) of its such Collateral Agent’s Liens upon such Collateral as contemplated by Section 10.11(a)or to subordinate its interest therein, or to release such Guarantor from its obligations under the Guarantee Agreement; provided, however, that (i) such Appointed Agent shall not be required to execute any such document on terms which, in such Appointed Agent’s opinion, would expose such Appointed Agent to liability or create any 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 Liens (other than those expressly being released) upon (or obligations of Credit Parties the Obligors in respect of) all interests retained by Credit Partiesthe Obligors, including the proceeds of any sale, all of which shall continue to constitute part of the Collateral to the extent contemplated by the Collateral Documents. Co-such Collateral.
(c) The Collateral Agent shall act have no obligation whatsoever to any of the Lenders to assure that the Collateral exists or is owned by the Obligors or is cared for, protected or insured or has been encumbered, or that the applicable Collateral Agent’s Liens have been properly or sufficiently or lawfully created, perfected, protected or enforced or are entitled to any particular priority, or to exercise at all or in concert with Agent in matters delegated 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 both of them under this Agreement; however, in the event of any disagreement or dispute between Agent and Co-Collateral Agent pursuant to any of the Loan Documents, it being understood and agreed that in respect of the Collateral, or any such matteract, omission or event related thereto, the determination Collateral Agent may act with the consent or decision at the direction of the Required Lenders and that the Collateral Agent shall, in all cases, controlshall have no other duty or liability whatsoever to any Lender as to any of the foregoing.
Appears in 1 contract
Collateral Matters. (a) Lenders hereby irrevocably authorize and direct Agent to release any Liens upon any Collateral (and any such Liens shall be automatically released, without any action by Agent or any other Person), (i) upon The Collateral Agent shall have received:
(A) updated searches of UCC filings in the Termination Date; (ii) in respect jurisdiction of property the chief executive office of each Loan Party and each jurisdiction where any Subsidiary being sold Collateral is located or disposed of or transferred (including property owned by any Subsidiary being sold or disposed of or transferred) if the sale or Disposition or transfer is where a filing would need to be made in compliance with this Agreement order to perfect the Collateral Agent's security interest in the Collateral, copies of the financing statements on file in such jurisdictions and the Loan Documents evidence that no Liens exist other than Permitted Liens;
(or otherwise B) any additional UCC financing statements for each appropriate jurisdiction as is not prohibited) (and Agent maynecessary, in its the Collateral Agent's sole discretion, request, to perfect the Collateral Agent's security interest in the Collateral;
(C) updated searches of ownership of intellectual property in the appropriate governmental offices and rely conclusively without further inquiry on a certificate from such patent/trademark/copyright filings as requested by the Collateral Agent in order to perfect the Collateral Agent's security interest in the Collateral;
(D) evidence that all stock certificates evidencing the capital stock of the Borrower certifying as such prior to Agent taking any action to evidence such release) or such sale or Disposition is approved by the Requisite Lenders (or such greater number of Lenders as may be required under Section 12.2); (iii) pledged to the extent the applicable Collateral is or becomes Excluded Property and/or Excluded Principal Property; (iv) Agent pursuant to the extent the applicable Collateral constitutes property leased to Credit Parties under a lease which has expired or Subdebt Parent Pledge Agreement, together with duly executed in blank undated stock powers attached thereto, have been terminated in a transaction permitted under this Agreement; (v) delivered to the extent the Credit Party owning such Collateral is released from its Obligations hereunder (pursuant to Section 13.11 or otherwise); or (vi) as required by the terms of the ABL Intercreditor Agreement. Upon request by Agent or Parent Borrower at any time, Lenders will confirm in writing Agent’s authority to release any Lien upon particular types or items of Collateral pursuant to this Section 10.11. In addition, the Lenders hereby authorize Control Agent, to subordinate any Lien granted to or held by the Control Agent, which shall hold such item for the benefit of the Collateral Agent upon any Collateral to any Lien on such asset permitted and the Lenders pursuant to paragraph the Intercreditor Agreement;
(6)(CE) updated certificates of insurance as requested by the Collateral Agent showing evidence of the definition of Permitted Lien. In addition, the Guaranty of the Obligations by, and the liens on the assets of, any Restricted Subsidiary which is designated as an Unrestricted Subsidiary will automatically be terminated and released at the time of such designationinsurance policies required by Section 7.10.
(b) Promptly, and in any event not later than five (5) Business Days’ following written request by Parent Borrower, Agent shall (and is hereby irrevocably authorized and directed by Lenders to) execute such documents as may be necessary to evidence the release (or subordination) of its Liens upon such Collateral as contemplated by Section 10.11(a); provided, however, that (i) Agent shall not be required to execute any such document on terms which, in Agent’s opinion, would expose Agent to liability or create any obligation or entail any consequence other than the release of such Liens without recourse or warranty, and (iiF) such release shall not in any manner dischargeadditional, affect or impair duly executed account control agreements as requested by the Obligations or any Liens (other than those expressly being released) upon (or obligations of Credit Parties in Collateral Agent with respect of) all interests retained by Credit Parties, including the proceeds of any sale, all of to Collateral for which shall continue to constitute part a control agreement is required for perfection of the Collateral to Agent's security interest under the extent contemplated by the Collateral Documents. Co-Collateral Agent shall act in concert with Agent in matters delegated to the both of them under this Agreement; however, in the event of any disagreement or dispute between Agent and Co-Collateral Agent in any such matter, the determination or decision of Agent shall, in all cases, controlUniform Commercial Code.
Appears in 1 contract
Collateral Matters. (a) Lenders hereby irrevocably authorize Agent may, at its option, from time to time, at any time on or after an Event of Default and direct Agent to release any Liens for so long as the same is continuing or upon any Collateral other failure of a condition precedent to the Loans and Letters of Credit hereunder, make such disbursements and advances (and any such Liens shall be automatically released“Special Agent Advances”) which Agent, without any action by Agent or any other Person)in its sole discretion, (i) upon deems necessary or desirable either to preserve or protect the Termination Date; Collateral or any portion thereof or (ii) to enhance the likelihood or maximize the amount of repayment by Borrowers and Guarantors of the 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 respect Section 12.8 hereof, shall not exceed the US Dollar Equivalent of property $25,000,000 and (B) the aggregate principal amount of the Special Agent Advances pursuant to this clause (ii) outstanding at any Subsidiary being sold or disposed time, plus the then outstanding principal amount of or transferred (including property owned by any Subsidiary being sold or disposed of or transferred) if the sale or Disposition or transfer is made in compliance with this Agreement Loans and the Loan Documents (Letter of Credit Obligations, shall not exceed the Maximum Credit, or otherwise is not prohibited) (and Agent may, in its discretion, request, and rely conclusively without further inquiry on a certificate from the Borrower certifying as such prior to Agent taking any action to evidence such release) or such sale or Disposition is approved by the Requisite Lenders (or such greater number of Lenders as may be required under Section 12.2); (iii) to the extent the applicable Collateral is pay any other amount chargeable to any Borrower or becomes Excluded Property and/or Excluded Principal Property; (iv) Guarantor pursuant to the extent terms of this Agreement or any of the other Financing Agreements consisting of (A) costs, fees and expenses and (B) payments to Issuing Bank in respect of any Letter of Credit Obligations. The Special Agent Advances shall be repayable on demand (but not later than ninety (90) days following the making thereof, unless otherwise so approved by Required Lenders) and together with all interest thereon shall constitute Obligations secured by the Collateral. Special Agent Advances shall not constitute Loans but shall otherwise constitute Obligations hereunder. Interest on Special Agent Advances shall be payable at the Interest Rate then applicable Collateral constitutes property leased to Credit Parties under a lease which has expired or been terminated in a transaction permitted under this Agreement; (v) to the extent the Credit Party owning such Collateral is released from Base Rate Loans and shall be payable on demand. Without limitation of its Obligations hereunder (obligations pursuant to Section 13.11 or otherwise); or 6.11, each Lender agrees that it shall make available to Agent, upon Agent’s demand, in immediately available funds, the amount equal to such Lender’s Pro Rata Share of each such Special Agent Advance. If such funds are not made available to Agent by such Lender, such Lender shall be deemed a Defaulting Lender and 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 Agent at the Federal Funds Rate for each day during such period (vi) as required published by the terms Federal Reserve Bank of New York or at Agent’s option based on the arithmetic mean determined by Agent of the ABL Intercreditor Agreement. Upon request rates for the last transaction in overnight Federal funds arranged prior to 9:00 a.m. (Central time) on that day by Agent or Parent Borrower at any time, Lenders will confirm each of the three leading brokers of Federal funds transactions in writing New York City selected by Agent) and if such amounts are not paid within three (3) days of Agent’s authority to release any Lien upon particular types or items of Collateral pursuant to this Section 10.11. In additiondemand, the Lenders hereby authorize Agent, to subordinate any Lien granted to or held by Agent upon any Collateral to any Lien on such asset permitted pursuant to paragraph (6)(C) of the definition of Permitted Lien. In addition, the Guaranty of the Obligations by, and the liens on the assets of, any Restricted Subsidiary which is designated as an Unrestricted Subsidiary will automatically be terminated and released at the time of such designationhighest Interest Rate provided for in Section 3.1 hereof applicable to Base Rate Loans.
(b) Promptly, and in any event not later than five (5) Business Days’ following written request by Parent Borrower, Agent shall (and is hereby irrevocably authorized and directed by Lenders to) execute such documents as may be necessary to evidence the release (or subordination) of its Liens upon such Collateral as contemplated by Section 10.11(a); provided, however, that (i) Agent shall not be required to execute any such document on terms which, in Agent’s opinion, would expose Agent to liability or create any 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 Liens (other than those expressly being released) upon (or obligations of Credit Parties in respect of) all interests retained by Credit Parties, including the proceeds of any sale, all of which shall continue to constitute part of the Collateral to the extent contemplated by the Collateral Documents. Co-Collateral Agent shall act in concert with Agent in matters delegated to the both of them under this Agreement; however, in the event of any disagreement or dispute between Agent and Co-Collateral Agent in any such matter, the determination or decision of Agent shall, in all cases, control.
Appears in 1 contract
Collateral Matters. (a) Lenders hereby irrevocably authorize and direct Agent to release The Collateral shall be released automatically from any Liens securing any Obligations upon any Collateral (and any such Liens the Termination Date. In addition, the Collateral, or a portion thereof, as the case may be, shall be released automatically released, without from any action by Agent or Liens securing any other Person), Obligations as follows:
(i) upon the Termination Date; (ii) in respect of property any sale or other disposition of any Subsidiary being sold or disposed Collateral (and, in the case of or transferred (including property owned any such disposition the proceeds of which are required to be applied to any mandatory prepayment of the Obligations under any Loan Document, the receipt by any Subsidiary being sold or disposed Loan Party of or transferredthe proceeds thereof), (A) if pursuant to the sale or Disposition or transfer is made exercise of remedies by the Collateral Agent in compliance accordance with this Agreement and the Loan Documents other applicable Security Documents, (or otherwise is not prohibitedB) (and Agent may, in its discretion, request, and rely conclusively without further inquiry on a certificate from the Borrower certifying as such prior to Agent taking any action to evidence such release) or such sale or Disposition is approved by the Requisite Lenders (or such greater number of Lenders as may be required under Section 12.2); (iii) to the extent the applicable Collateral is or becomes Excluded Property and/or Excluded Principal Property; (iv) to the extent the applicable Collateral constitutes property leased to Credit Parties under a lease which has expired or been terminated in a transaction permitted under this Agreement; (v) to the extent the Credit Party owning such Collateral is released from its Obligations hereunder (pursuant to Section 13.11 363 of the Bankruptcy Code in connection with a bankruptcy or otherwise); insolvency proceeding or other similar action with respect to any Loan Party, or (viC) as required permitted by the terms of the ABL Intercreditor Agreement. Upon request by Agent Loan Documents; provided that the Liens on any such Collateral securing any Obligations shall attach to the proceeds of such Collateral; or Parent Borrower at any time, Lenders will confirm in writing Agent’s authority to release any Lien upon particular types or items of Collateral pursuant to this Section 10.11. In addition, the Lenders hereby authorize Agent, to subordinate any Lien granted to or held by Agent (ii) upon any Collateral to any Lien on such asset permitted pursuant to paragraph (6)(C) of the definition of Permitted Lien. In addition, the Guaranty of the Obligations by, and the liens on the assets of, any Restricted Subsidiary which is designated as becoming an Unrestricted Subsidiary will automatically be terminated and released at the time of such designationExcluded Asset.
(b) PromptlyEach of the Secured Parties hereby authorizes the Collateral Agent to release any Lien on any Collateral in the circumstances described in Section 9.16(a). Any other release of any Lien encumbering any Collateral shall be made by the Collateral Agent at the direction of Required Lenders, subject to Section 10.5.
(c) In each case as specified in Section 9.16(a), the Collateral Agent will, at the Borrower’s expense, execute and in any event not later than five (5) Business Days’ following written request by Parent Borrower, Agent shall (and is hereby irrevocably authorized and directed by Lenders to) execute deliver to the Borrower such documents as the Borrower may be necessary reasonably request to evidence the release (or subordination) of its Liens upon such Collateral as contemplated by Section 10.11(a); provided, however, that (i) Agent shall not be required to execute any such document on terms which, in Agent’s opinion, would expose Agent to liability or create any obligation or entail any consequence other than the release of such Liens without recourse or warranty, item of Collateral from the assignment and (ii) such release shall not in any manner discharge, affect or impair security interest granted under the Obligations or any Liens (other than those expressly being released) upon (or obligations of Credit Parties in respect of) all interests retained by Credit Parties, including the proceeds of any sale, all of which shall continue to constitute part of the Collateral to the extent contemplated by the Collateral Security Documents. Co-Collateral Agent shall act in concert with Agent in matters delegated to the both of them under this Agreement; however, in the event of any disagreement or dispute between Agent and Co-Collateral Agent in any such matter, the determination or decision of Agent shall, in all cases, control.
Appears in 1 contract
Sources: Collateral Agency, Security and Depositary Agreement (Applied Digital Corp.)
Collateral Matters. (a) Lenders hereby irrevocably authorize Subject to the limitations in Section 12.8 hereof, Agent may, at its option, from time to time, at any time on or after an Event of Default and direct Agent to release any Liens for so long as the same is continuing or upon any Collateral other failure of a condition precedent to the Revolving Loans and Letter of Credit Accommodations hereunder, make such disbursements and advances (and any such Liens shall be automatically released“Special Agent Advances”) which Agent, without any action by Agent in its sole discretion, deems necessary or any other Person), desirable either (i) upon to preserve or protect the Termination Date; Collateral or any portion thereof or (ii) in respect to enhance the likelihood or maximize the amount of property repayment by Borrowers of any Subsidiary being sold the Loans and other Obligations, or disposed of or transferred (including property owned by any Subsidiary being sold or disposed of or transferred) if the sale or Disposition or transfer is made in compliance with this Agreement and the Loan Documents (or otherwise is not prohibited) (and Agent may, in its discretion, request, and rely conclusively without further inquiry on a certificate from the Borrower certifying as such prior to Agent taking any action to evidence such release) or such sale or Disposition is approved by the Requisite Lenders (or such greater number of Lenders as may be required under Section 12.2); (iii) to the extent the applicable Collateral is pay any other amount chargeable to Borrowers or becomes Excluded Property and/or Excluded Principal Property; (iv) Obligors pursuant to the extent terms of this Agreement or any of the applicable Collateral constitutes property leased other Financing Agreements consisting of (A) costs, fees and expenses and (B) payments to Issuing Bank of Letter of Credit Parties under a lease which has expired or been terminated in a transaction permitted under this AgreementAccommodations; (v) provided, that notwithstanding any provision to the extent contrary, Agent may make any such Special Agent Advances so long as: (a) the total principal amount of such Special Agent Advances together with the principal amount of the additional Revolving Loans and additional Letter of Credit Party owning such Collateral is released from its Obligations hereunder (Accommodations made pursuant to Section 13.11 or otherwise); or (vi) as required by 12.11 hereof, shall not exceed the terms least of the ABL Intercreditor Agreement. Upon request by Agent or Parent Borrower at any time, Lenders will confirm in writing Agent’s authority to release any Lien upon particular types or items of Collateral pursuant to this Section 10.11. In addition, the Lenders hereby authorize Agent, to subordinate any Lien granted to or held by Agent upon any Collateral to any Lien on such asset permitted pursuant to paragraph (6)(C) of the definition of Permitted Lien. In addition, the Guaranty of the Obligations by, and the liens on the assets of, any Restricted Subsidiary which is designated as an Unrestricted Subsidiary will automatically be terminated and released at the time of such designation.
(b) Promptly, and in any event not later than five (5) Business Days’ following written request by Parent Borrower, Agent shall (and is hereby irrevocably authorized and directed by Lenders to) execute such documents as may be necessary to evidence the release (or subordination) of its Liens upon such Collateral as contemplated by Section 10.11(a); provided, however, that (i) Agent shall not be required to execute any such document on terms $7,500,000, (ii) the sum of (x) the amount which, in Agent’s opinionwhen added to all other Special Agent Advances, Revolving Loans and Letter of Credit Accommodations, would expose not cause the principal amount of all outstanding Special Agent Advances, Revolving Loans and Letter of Credit Accommodations to liability or create exceed the Borrowing Base and (y) if applicable, an amount equal to any obligation or entail any consequence other than reduction, made with the release consent of such Liens without recourse or warrantyall Lenders, of the Excess Availability required by Section 9.17 hereof, and (iiiii) such release the amount which would not cause the total principal amount of all Revolving Loans, Letter of Credit Accommodations and Special Agent Advances to exceed the Maximum Credit. Special Agent Advances shall be repayable on demand and be secured by the Collateral. Special Agent Advances shall not constitute Revolving Loans but shall otherwise constitute Obligations hereunder. Agent shall notify Lenders and Borrowers in any manner dischargewriting of each such Special Agent Advance, affect or impair the Obligations or any Liens (other than those expressly being released) upon (or obligations of Credit Parties in respect of) all interests retained by Credit Parties, including the proceeds of any sale, all of which notice shall continue to constitute part include a description of the Collateral purpose of such Special Agent Advance. Without limitation of its obligations pursuant to Section 6.10 hereof, each Lender agrees that it shall make available to Agent, upon Agent’s demand, in immediately available funds, the extent contemplated amount equal to such Lender’s Pro Rata Share of each such Special Agent Advance. If such funds are not made available to Agent by such Lender, then such Lender shall be deemed a Defaulting Lender and 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 Agent at the Federal Funds Rate for each day during such period (as published by the Collateral Documents. Co-Collateral Federal Reserve Bank of New York or at Agent’s option based on the arithmetic mean determined by Agent shall act of the rates for the last transaction in concert with Agent overnight Federal funds arranged prior to 9:00 a.m. (New York City time) on that day by each of the three leading brokers of Federal funds transactions in matters delegated New York City selected by Agent) and if such amounts are not paid within three (3) days of Agent’s demand, at the highest Interest Rate provided for in Section 3.1 hereof applicable to the both of them under this Agreement; however, in the event of any disagreement or dispute between Agent and Co-Collateral Agent in any such matter, the determination or decision of Agent shall, in all cases, controlPrime Rate Loans.
Appears in 1 contract
Sources: Loan and Security Agreement (New York & Company, Inc.)
Collateral Matters. (a) The Lenders hereby irrevocably authorize the Collateral Agent, at its option and direct Agent in its sole discretion, to release any Liens Lien upon any Collateral (and to terminate any such Liens shall be automatically released, without any action by Agent or any other Person), guarantee (i) upon the Termination Datetermination of the Commitments and payment and satisfaction in full of all Loans and reimbursement obligations in respect of Letters of Credit, and the termination of all outstanding Letters of Credit (whether or not any of such obligations are due) and all other Obligations (other than contingent indemnification and expense reimbursement obligations for which no claim has been made); (ii) in respect of constituting property of any Subsidiary being sold or disposed of (or transferred being encumbered pursuant to clause (including property owned by any Subsidiary being sold or disposed l) of or transferredthe Permitted Encumbrance definition) if the Loan Party disposing of such property certifies to the Collateral Agent that the sale or Disposition disposition (or transfer encumbrance) is made in compliance with this Agreement and the Loan Documents Section 6.03 (or otherwise is not prohibitedif applicable, a Permitted Encumbrance permitted under said clause (l)) (and the Collateral Agent may, in its discretion, request, and may rely conclusively on any such certification without further inquiry on a certificate from the Borrower certifying as such prior to Agent taking any action to evidence such release) or such sale or Disposition is approved by the Requisite Lenders (or such greater number of Lenders as may be required under Section 12.2inquiry); (iii) to constituting property in which no Loan Party owned any interest at the extent time the applicable Collateral is Lien was granted or becomes Excluded Property and/or Excluded Principal Propertyat any time thereafter; (iv) to the extent the applicable Collateral constitutes constituting property leased to Credit Parties a Loan Party under a lease which has expired or been terminated in a transaction permitted under this Agreement; or (v) to the extent the Credit Party owning such Collateral is released from its Obligations hereunder (pursuant to Section 13.11 or otherwise8.10(b); or . Except as provided above, the Collateral Agent will not release any of its Liens without the prior written authorization of the Lenders (vi) as required by Section 9.03); provided that the terms Collateral Agent may, in its discretion, release the Collateral Agent’s Liens on Collateral valued in the aggregate not in excess of $250,000 during each Fiscal Year without the ABL Intercreditor Agreementprior written authorization of any Lender. Upon request by the Collateral Agent or Parent Borrower the Borrowers at any time, the Lenders will confirm in writing the Collateral Agent’s authority to release any Lien Collateral Agent’s Liens upon particular types or items of Collateral pursuant to this Section 10.11. In addition, the Lenders hereby authorize Agent, to subordinate any Lien granted to or held by Agent upon any Collateral to any Lien on such asset permitted pursuant to paragraph (6)(C) of the definition of Permitted Lien. In addition, the Guaranty of the Obligations by, and the liens on the assets of, any Restricted Subsidiary which is designated as an Unrestricted Subsidiary will automatically be terminated and released at the time of such designation8.10.
(b) PromptlyIn the event that any Loan Party conveys, and in sells, leases, assigns, transfers or otherwise disposes of all or any event portion of any of the Capital Stock or assets of a Loan Party to a person that is not later than five (5) Business Days’ following written request by Parent Borrower, Agent shall (and is not required to become) a Loan Party, in each case in a transaction not prohibited by Section 6.03 and so long no Event of Default is then continuing or would result therefrom, the Collateral Agent shall promptly (and the Lenders hereby irrevocably authorized and directed by Lenders authorize the Collateral Agent to) take such action and execute any such documents as may be necessary reasonably requested by the Administrative Borrower and at the Administrative Borrower’s expense to evidence release, share or subordinate any Liens created by any Loan Document in respect of such assets or Capital Stock, and, in the release (or subordination) case of its Liens upon such Collateral as contemplated a disposition of the Capital Stock of any Subsidiary that is a Loan Party in a transaction not prohibited by Section 10.11(a6.03 and as a result of which such Subsidiary would cease to be a Loan Party, thus terminating such Subsidiary’s Guaranty obligation under the Guarantee and Collateral Agreement (other than with respect to obligations that expressly survive a termination); #33621191 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 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 affect, or impair the Obligations or any Liens (other than those expressly being released) upon (or obligations of Credit Parties the Borrowers in respect of) all interests retained by Credit Partiesthe Borrowers, including the proceeds of any sale, all of which shall continue to constitute part of the Collateral. In addition, the Collateral Agent agrees to take such actions as are reasonably requested by the Administrative Borrower and at the Administrative Borrower’s expense to terminate the Liens and security interests created by the Loan Documents when all the Obligations (other than in respect of contingent indemnification and expense reimbursement obligations for which no claim has been made) are paid in full and all Letters of Credit and Commitments are terminated, and upon receipt by the Administrative Agent, for the benefit of Agents and Lenders, of liability releases from the Loan Parties in form and substance satisfactory to the extent contemplated by Administrative Agent. Any representation, warranty or covenant contained in any Loan Document relating to any such Capital Stock, asset or Subsidiary of the Collateral DocumentsAdministrative Borrower shall no longer be deemed to be made once such Capital Stock or asset is so conveyed, sold, leased, assigned, transferred or disposed of. Co-Upon any release or termination in connection with the foregoing, the Collateral Agent shall (and is hereby authorized by the Lenders to) execute such documents as may reasonably requested by the Administrative Borrower to evidence the release of the Collateral Agent’s Liens upon such Collateral all without recourse or warranty. Notwithstanding the foregoing or the payment in full of the Obligations, Collateral Agent shall not be required to terminate its Liens in the Collateral unless, with respect to any loss or damage Agents may incur as a result of dishonored checks or other items of payment received by Agents from any Borrower or any Account Debtor and applied to the Obligations, Agents shall, at their option, (i) have received a written agreement satisfactory to Agents, executed by Administrative Borrower and by any Person whose loans or other advances to Borrowers are used in whole or in part to satisfy the Obligations, indemnifying the Agents and each Lender from any such loss or damage or (ii) have retained cash Collateral or other Collateral for such period of time as the Agents, in their reasonable discretion, may deem necessary to protect the Agent and each Lender from any such loss or damage.
(c) The Collateral Agent shall have no obligation whatsoever to any of the Lenders to assure that the Collateral exists or is owned by any Loan Party or is cared for, protected, or insured or has been encumbered, or that the Collateral Agent’s Liens have been properly or sufficiently or lawfully created, perfected, protected, or enforced or 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 pursuant to any of the Loan 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 concert with Agent in matters delegated to the both of them under this Agreement; howeverany manner it may deem appropriate, in its sole discretion, given the Collateral Agent’s own interest in the Collateral and its capacity as one of the Lenders, and that the Collateral Agent shall have no other duty or liability whatsoever to any Lender as to any of the foregoing.
(d) In the event of a foreclosure by any disagreement Agent on any of the Collateral pursuant to a public or dispute between private sale or any court ordered sale of the Collateral, such Agent or any Lender may be the purchaser of any or all of such Collateral at any such sale and Co-such Agent, as agent for #33621191 and representative of Lenders (but not any Lender or Lenders in its or their respective individual capacities unless the Required Lenders shall otherwise agree in writing) shall be entitled, for the purpose of bidding and making settlement or payment of the purchase price for all or any portion of the Collateral sold at any such sale, to use and apply any of the Obligations as a credit on account of the purchase price for any Collateral payable by such Agent at such sale.
(e) Notwithstanding anything to the contrary contained herein or in any other Loan Document, the authority to enforce rights and remedies hereunder and under the other Loan Documents against the Loan Parties or any of them shall be vested exclusively in, and all actions and proceedings in connection with such enforcement shall be instituted and maintained exclusively by, the applicable Agent (or its agents or designees) in accordance with the Loan Documents for the benefit of the applicable Secured Parties; provided that the foregoing shall not prohibit (i) any Agent from exercising on its own behalf the rights and remedies that inure to its benefit (solely in its capacity as such Agent) hereunder and under the other Loan Documents, (ii) each of the Issuing Bank and the Swingline Lender from exercising the rights and remedies that inure to its benefit (solely in its capacity as such) hereunder and under the other Loan Documents, (iii) any Lender or Participant from exercising setoff rights in accordance with Section 9.09, (iv) any Lender from filing proofs of claim or appearing and filing pleadings on its own behalf during the pendency of a proceeding relative to any Loan Party under any Bankruptcy Code or other debtor relief law or (v) any Lender from exercising any express right or remedy of such Lender under the Loan Documents where an Agent does not have the power and authority under the Loan Documents to act on behalf of such Lender; and provided, further, that if at any time there is no Person acting as the Administrative Agent or the Collateral Agent hereunder and under the other Loan Documents, then (A) the Required Lenders shall have the rights otherwise ascribed to the applicable Agent pursuant to Section 8.10 and (B) in addition to the matters set forth in Section 8.10, any such matterLender may, with the consent of the Required Lenders, enforce any rights and remedies available to it and as authorized by the Required Lenders. Prior to the initial commencement of the exercise of the Collateral Agent’s secured creditor remedies as to the Rigs, the determination Collateral Agent shall endeavor to consult with the Lenders regarding the nature of the secured remedies it proposes to commence, provided that nothing in this sentence shall (i) confer any right or decision remedy in favor of Agent shallany Loan Party or (ii) confer any consent or blocking right in respect of the exercise, in all cases, controlthe manner of exercise or any other aspect related to such remedies.
Appears in 1 contract
Sources: Credit Agreement (Independence Contract Drilling, Inc.)
Collateral Matters. The Lenders irrevocably agree:
(a) Lenders hereby irrevocably authorize and direct that the Collateral Agent is authorized to release any Liens upon Lien on any property granted to or held by the Collateral (and Agent under any such Liens shall be automatically released, without any action by Agent or any other Person)Loan Document, (i) upon at the Termination Date; time the property subject to such Lien is pledged pursuant to Section 6.02(n)(x) or Section 6.02(n)(y) (but solely to the extent such property consists of Revolving Credit Priority Collateral and Hedging Agreements related to the value of such Revolving Credit Priority Collateral) or sold, leased, licensed, consigned, transferred or otherwise disposed of as part of or in connection with any Asset Sale permitted under Section 6.06 to any Person other than a Loan Party (provided that no Lien shall be released in any Series of Cash Neutral Transactions) (or, if such transferee is a Loan Party, the Collateral Agent is authorized to release such Lien on such asset in connection with the transfer so long as (w) except as permitted by Section 6.06(q) or Section 6.06(s), the transferee grants a new Lien to the Collateral Agent on such asset substantially concurrently with the transfer of such asset, (x) the transfer is between parties organized under the laws of different countries, (y) the priority of the new Lien is the same as that of the original Lien and (z) the Liens on such property held by or on behalf of the holders of Indebtedness under the Revolving Credit Loan Documents or any Permitted Revolving Credit Facility Refinancing, Permitted First Priority Refinancing Debt, Permitted Secured Priority Refinancing Debt, Additional Senior Secured Indebtedness and Junior Secured Indebtedness are also released), (ii) in respect of property of any Subsidiary being sold or disposed of or transferred (including property owned by any Subsidiary being sold or disposed of or transferred) subject to Section 11.02, if the sale release of such Lien is approved, authorized or Disposition or transfer is made ratified in compliance with this Agreement and the Loan Documents (or otherwise is not prohibited) (and Agent may, in its discretion, request, and rely conclusively without further inquiry on a certificate from the Borrower certifying as such prior to Agent taking any action to evidence such release) or such sale or Disposition is approved writing by the Requisite Required Lenders (or such greater other number of Lenders as may be whose consent is required under Section 12.211.02); , (iii) if the property subject to such Lien is owned by a Guarantor, upon release of such Guarantor from its obligations under its Guarantee pursuant to Section 7.09, (iv) upon termination of all Commitments and the repayment in full of all outstanding principal and accrued interest with respect to the Loans, all Fees and other Obligations, (v) in connection with the grant of Liens permitted hereunder under Section 6.02(k) and subject to the Intercreditor Agreement, if the applicable Loan Party grants a Lien to the Collateral Agent or for the benefit of the Collateral Agent in a manner reasonably satisfactory to the Collateral Agent, substantially concurrently with the release of such asset, to the extent such release or termination and re-grant is necessary or advisable under applicable law; and (vi) to the extent such property is Excluded Property.
(b) to release or subordinate any Lien on any property granted to or held by the applicable Collateral Agent under any Loan Document to the holder of any Lien on such property that is or becomes Excluded Property and/or Excluded Principal Property; (iv) permitted by Section 6.02(i), to the extent the applicable Collateral constitutes property leased to Credit Parties under a lease which has expired or been terminated in a transaction permitted under this Agreement; (v) to the extent the Credit Party owning such Collateral is released from its Obligations hereunder (pursuant to Section 13.11 or otherwise); or (vi) as required by the terms of the ABL Intercreditor Agreement. Upon request obligations secured by such Liens; Each Lender irrevocably authorizes the Collateral Agent to, at the Borrower’s expense, execute and deliver documents to authorize the release or Parent Borrower at any time, Lenders will confirm in writing Agent’s authority to release any Lien upon particular types or subordination of such items of Collateral pursuant to from the Liens granted under the Security Documents, in each case in accordance with the terms of the Loan Documents and this Section 10.11. In addition, the Lenders hereby authorize Agent, to subordinate any Lien granted to or held by Agent upon any Collateral to any Lien on such asset permitted pursuant to paragraph (6)(C) of the definition of Permitted Lien. In addition, the Guaranty of the Obligations by, and the liens on the assets of, any Restricted Subsidiary which is designated as an Unrestricted Subsidiary will automatically be terminated and released at the time of such designation11.29.
(b) Promptly, and in any event not later than five (5) Business Days’ following written request by Parent Borrower, Agent shall (and is hereby irrevocably authorized and directed by Lenders to) execute such documents as may be necessary to evidence the release (or subordination) of its Liens upon such Collateral as contemplated by Section 10.11(a); provided, however, that (i) Agent shall not be required to execute any such document on terms which, in Agent’s opinion, would expose Agent to liability or create any 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 Liens (other than those expressly being released) upon (or obligations of Credit Parties in respect of) all interests retained by Credit Parties, including the proceeds of any sale, all of which shall continue to constitute part of the Collateral to the extent contemplated by the Collateral Documents. Co-Collateral Agent shall act in concert with Agent in matters delegated to the both of them under this Agreement; however, in the event of any disagreement or dispute between Agent and Co-Collateral Agent in any such matter, the determination or decision of Agent shall, in all cases, control.
Appears in 1 contract
Collateral Matters. (a) Lenders hereby irrevocably authorize Agent may, at its option, from time to time, at any time on or after an Event of Default and direct Agent to release any Liens for so long as the same is continuing or upon any Collateral other failure of a condition precedent to the Loans and Letters of Credit hereunder, make such disbursements and advances (and any such Liens shall be automatically released“Special Agent Advances”) which Agent, without any action by Agent or any other Person)in its sole discretion, (i) upon deems necessary or desirable either to preserve or protect the Termination Date; Collateral or any portion thereof or (ii) to enhance the likelihood or maximize the amount of repayment by Borrowers and Guarantors of the 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 then outstanding principal amount of the additional Loans and Letters of Credit which Agent may make or provide as set forth in respect Section 14.8 hereof, shall not exceed the amount equal to ten (10%) percent of property the Maximum Credit and (B) the aggregate principal amount of the Special Agent Advances pursuant to this clause (ii) outstanding at any Subsidiary being sold time, plus then outstanding principal amount of the Loans, shall not exceed the Maximum Credit, except at Agent’s option; provided, that, to the extent that the aggregate principal amount of Special Agent Advances plus then outstanding principal amount of the Loans exceed the Maximum Credit the Special Agent Advances that are in excess of the Maximum Credit shall be for the sole account and risk of Agent and notwithstanding anything to the contrary set forth below, no Lender shall have any obligation to provide its share of such Special Agent Advances in excess of the Maximum Credit, or disposed of or transferred (including property owned by any Subsidiary being sold or disposed of or transferred) if the sale or Disposition or transfer is made in compliance with this Agreement and the Loan Documents (or otherwise is not prohibited) (and Agent may, in its discretion, request, and rely conclusively without further inquiry on a certificate from the Borrower certifying as such prior to Agent taking any action to evidence such release) or such sale or Disposition is approved by the Requisite Lenders (or such greater number of Lenders as may be required under Section 12.2); (iii) to the extent the applicable Collateral is pay any other amount chargeable to any Borrower or becomes Excluded Property and/or Excluded Principal Property; (iv) Guarantor pursuant to the extent terms of this Agreement or any of the other Loan Documents consisting of (A) costs, fees and expenses and (B) payments to Issuing Banks in respect of any Letter of Credit Obligations. The Special Agent Advances shall be repayable on demand and together with all interest thereon shall constitute Obligations secured by the Collateral. Special Agent Advances shall not constitute Loans but shall otherwise constitute Obligations hereunder. Interest on Special Agent Advances shall be payable at the Interest Rate then applicable Collateral constitutes property leased to Credit Parties under a lease which has expired or been terminated in a transaction permitted under this Agreement; (v) to the extent the Credit Party owning such Collateral is released from Base Rate Loans and shall be payable on demand. Without limitation of its Obligations hereunder (obligations pursuant to Section 13.11 or otherwise); or 6.13, each Lender agrees that it shall make available to Agent, upon Agent’s demand, in immediately available funds, the amount equal to such Lender’s Pro Rata Share of each such Special Agent Advance. If such funds are not made available to Agent by such Lender, such Lender shall be deemed a Defaulting Lender and 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 Agent at the Federal Funds Rate for each day during such period (vi) as required published by the terms Federal Reserve Bank of New York or at Agent’s option based on the arithmetic mean determined by Agent of the ABL Intercreditor Agreement. Upon request rates for the last transaction in overnight Federal funds arranged prior to 9:00 a.m. on that day by Agent or Parent Borrower at any time, Lenders will confirm each of the three leading brokers of Federal funds transactions in writing New York City selected by Agent) and if such amounts are not paid within three (3) Business Days of Agent’s authority to release any Lien upon particular types or items of Collateral pursuant to this Section 10.11. In additiondemand, the Lenders hereby authorize Agent, to subordinate any Lien granted to or held by Agent upon any Collateral to any Lien on such asset permitted pursuant to paragraph (6)(C) of the definition of Permitted Lien. In addition, the Guaranty of the Obligations by, and the liens on the assets of, any Restricted Subsidiary which is designated as an Unrestricted Subsidiary will automatically be terminated and released at the time of such designationhighest Interest Rate provided for in Section 3.1 hereof applicable to Base Rate Loans.
(b) Promptly, and in any event not later than five (5) Business Days’ following written request by Parent Borrower, Agent shall (and is hereby irrevocably authorized and directed by Lenders to) execute such documents as may be necessary to evidence the release (or subordination) of its Liens upon such Collateral as contemplated by Section 10.11(a); provided, however, that (i) Agent shall not be required to execute any such document on terms which, in Agent’s opinion, would expose Agent to liability or create any 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 Liens (other than those expressly being released) upon (or obligations of Credit Parties in respect of) all interests retained by Credit Parties, including the proceeds of any sale, all of which shall continue to constitute part of the Collateral to the extent contemplated by the Collateral Documents. Co-Collateral Agent shall act in concert with Agent in matters delegated to the both of them under this Agreement; however, in the event of any disagreement or dispute between Agent and Co-Collateral Agent in any such matter, the determination or decision of Agent shall, in all cases, control.
Appears in 1 contract
Sources: Loan and Security Agreement (Nu Horizons Electronics Corp)
Collateral Matters. (a) Lenders hereby irrevocably authorize and direct Agent The applicable requirements of Section 6.20 of the Credit Agreement shall complied with substantially concurrently with the consummation of the Specified Transactions on the Specified Acquisition Tranche Funding Date with respect to release any Liens upon any subsidiaries organized in, or Collateral (and any such Liens shall be automatically releasedlocated in, without any action by Agent or any other Person), (i) upon the Termination DateUnited States that are a part of the Specified Acquisition Targets; (ii) in respect of property of any Subsidiary being sold or disposed of or transferred (including property owned by any Subsidiary being sold or disposed of or transferred) if the sale or Disposition or transfer is made in compliance with this Agreement and the Loan Documents (or otherwise is not prohibited) (and Agent may, in its discretion, request, and rely conclusively without further inquiry on a certificate from the Borrower certifying as such prior to Agent taking any action to evidence such release) or such sale or Disposition is approved by the Requisite Lenders (or such greater number of Lenders as may be required under Section 12.2); (iii) provided that to the extent any security interest in the intended Collateral (other than any Collateral the security interest in which may be perfected by the filing of a UCC financing statement in the applicable Collateral UCC filing office or the delivery of certificates evidencing Equity Interests in the Specified Acquisition Targets (except for any Specified Acquisition Target with respect to which the Parent has not received such certificates from the Specified Acquisition Sellers after the use of commercially reasonable efforts to obtain such certificates)) is not provided on the Specified Acquisition Tranche Funding Date after the Parent’s use of commercially reasonable efforts to do so without undue burden or becomes Excluded Property and/or Excluded Principal Property; expense, the provision of such EXECUTION VERSION perfected security interest(s) shall not constitute a condition precedent to the funding of the Specified Acquisition Loans but (iv) to the extent the applicable perfected Collateral constitutes property leased to Credit Parties is required under a lease which has expired or been terminated in a transaction permitted under this Agreement; (v) to the extent the Credit Party owning such Collateral is released from its Obligations hereunder (pursuant to Section 13.11 Agreement or otherwise); or (vithe other Loan Documents) as required by the terms of the ABL Intercreditor Agreement. Upon request by Agent or Parent Borrower at any time, Lenders will confirm in writing Agent’s authority to release any Lien upon particular types or items of Collateral pursuant to this Section 10.11. In addition, the Lenders hereby authorize Agent, to subordinate any Lien granted to or held by Agent upon any Collateral to any Lien on such asset permitted pursuant to paragraph (6)(C) of the definition of Permitted Lien. In addition, the Guaranty of the Obligations by, and the liens on the assets of, any Restricted Subsidiary which is designated as an Unrestricted Subsidiary will automatically be terminated and released at the time of such designation.
(b) Promptly, and in any event not later than five (5) Business Days’ following written request by Parent Borrower, Agent shall (and is hereby irrevocably authorized and directed by Lenders to) execute such documents as may be necessary to evidence the release (or subordination) of its Liens upon such Collateral as contemplated by Section 10.11(a); provided, however, that (i) Agent shall not be required to execute be delivered after the Specified Acquisition Tranche Funding Date pursuant to any such document applicable requirements of Section 6.20 of the Credit Agreement. To the extent any security interest in the intended Collateral is not provided on terms whichthe Specified Acquisition Tranche Funding Date after the Parent’s use of commercially reasonable efforts to do so without undue burden or expense, in Agent’s opinion, would expose Agent to liability or create any obligation or entail any consequence other than the release provision of such Liens without recourse or warranty, and (iiperfected security interest(s) such release shall not in any manner discharge, affect or impair constitute a condition precedent to the Obligations or any Liens (other than those expressly being released) upon (or obligations of Credit Parties in respect of) all interests retained by Credit Parties, including the proceeds of any sale, all of which shall continue to constitute part funding of the Collateral Specified Acquisition Loans but shall be required to be delivered after the extent contemplated by Specified Acquisition Tranche Funding Date pursuant to arrangements and timing to be mutually agreed between the Collateral Documents. Co-Collateral Agent shall act in concert with Agent in matters delegated to Parent and the both of them under this Agreement; however, in the event of any disagreement or dispute between Agent and Co-Collateral Agent in any such matter, the determination or decision of Agent shall, in all cases, controlAdministrative Agent.
Appears in 1 contract
Sources: Specified Acquisition Loan Joinder (Casella Waste Systems Inc)
Collateral Matters. (a) Lenders hereby irrevocably authorize Agent may, at its option, from time to time, at any time on or after an Event of Default and direct Agent to release any Liens for so long as the same is continuing or upon any Collateral other failure of a condition precedent to the Loans and Letter of Credit Accommodations hereunder, make such disbursements and advances (and any such Liens shall be automatically released“Special Agent Advances”) which Agent, without any action by Agent in its sole discretion, deems necessary or any other Person), desirable either (i) upon to preserve or protect the Termination Date; Collateral or any portion thereof, (ii) in respect to enhance the likelihood or maximize the amount of property repayment by Borrowers and Guarantors of any Subsidiary being sold the Loans and other Obligations or disposed of or transferred (including property owned by any Subsidiary being sold or disposed of or transferred) if the sale or Disposition or transfer is made in compliance with this Agreement and the Loan Documents (or otherwise is not prohibited) (and Agent may, in its discretion, request, and rely conclusively without further inquiry on a certificate from the Borrower certifying as such prior to Agent taking any action to evidence such release) or such sale or Disposition is approved by the Requisite Lenders (or such greater number of Lenders as may be required under Section 12.2); (iii) to the extent the applicable Collateral is pay any other amount chargeable to any Borrower or becomes Excluded Property and/or Excluded Principal Property; (iv) to the extent the applicable Collateral constitutes property leased to Credit Parties under a lease which has expired or been terminated in a transaction permitted under this Agreement; (v) to the extent the Credit Party owning such Collateral is released from its Obligations hereunder (Guarantor pursuant to Section 13.11 or otherwise); or (vi) as required by the terms of this Agreement or any of the ABL Intercreditor Agreement. Upon request by Agent or Parent Borrower at any timeother Financing Agreements consisting of costs, Lenders will confirm in writing Agent’s authority to release any Lien upon particular types or items of Collateral pursuant to this Section 10.11. In addition, the Lenders hereby authorize Agent, to subordinate any Lien granted to or held by Agent upon any Collateral fees and expenses and payments to any Lien on such asset permitted pursuant to paragraph (6)(C) issuer of the definition Letter of Permitted Lien. In addition, the Guaranty of the Obligations by, and the liens on the assets of, any Restricted Subsidiary which is designated as an Unrestricted Subsidiary will automatically be terminated and released at the time of such designation.
(b) Promptly, and in any event not later than five (5) Business Days’ following written request by Parent Borrower, Agent shall (and is hereby irrevocably authorized and directed by Lenders to) execute such documents as may be necessary to evidence the release (or subordination) of its Liens upon such Collateral as contemplated by Section 10.11(a)Credit Accommodations; provided, howeverthat, that the aggregate principal amount of the Special Agent Advances pursuant to clauses (i) Agent shall not be required to execute any such document on terms which, in Agent’s opinion, would expose Agent to liability or create any obligation or entail any consequence other than the release of such Liens without recourse or warranty, and (ii) such release above, plus the then outstanding principal amount of the additional Loans and Letter of Credit Accommodations which Agent may make or provide as set forth in Section 12.8 hereof, shall not in any manner discharge, affect or impair exceed an amount equal to the Obligations or any Liens lesser of (other than those expressly being releasedi) upon the US Dollar Equivalent of US$4,500,000 and (or obligations of Credit Parties in respect ofii) all interests retained by Credit Parties, including the proceeds of any sale, all of which shall continue to constitute part ten (10%) percent of the Collateral to the extent contemplated Borrowing Base at any time. Special Agent Advances shall be repayable on demand and be secured by the Collateral DocumentsCollateral. Co-Collateral Special Agent Advances shall not constitute Loans but shall otherwise constitute Obligations hereunder. Agent shall act notify each Lender and Administrative Borrower in concert with writing of each such Special Agent in matters delegated Advance, which notice shall include a description of the purpose of such Special Agent Advance. Without limitation of its obligations pursuant to the both of them under this Agreement; howeverSection 6.13, each Lender agrees that it shall make available to Agent, upon Agent’s demand, in the event of any disagreement or dispute between Agent and Co-Collateral Agent in any such matterimmediately available funds, the determination amount equal to such Lender’s Pro Rata Share of each such Special Agent Advance. If such funds are not made available to Agent by such Lender, 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 Agent at the Federal Funds Rate for each day during such period (as published by the Federal Reserve Bank of New York or decision at Agent’s option based on the arithmetic mean determined by Agent of Agent shallthe 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 leading brokers of Federal funds transactions in New York City selected by Agent) and if such amounts are not paid within three (3) days of Agent’s demand, at the highest Interest Rate provided for in all cases, controlSection 3.1 hereof applicable to Revolving Loans consisting of US Prime Rate Loans.
Appears in 1 contract
Sources: Loan and Security Agreement (Catalina Lighting Inc)
Collateral Matters. (a) The Lenders (and each other Secured Party by their acceptance of the benefits of the Loan Documents shall be deemed to) hereby irrevocably authorize the Collateral Agent (and direct if applicable, any subagent appointed by the Collateral Agent under Section 13.2 or otherwise) to release any its Liens on the Collateral, and the Collateral Agent’s Liens upon any Collateral (and any such Liens shall be automatically released, without any action by Agent or any other Person), released (i) upon Full Payment of the Termination DateObligations; (ii) in respect upon a disposition of property of any Subsidiary being sold or disposed of or transferred (including property owned Collateral permitted by any Subsidiary being sold or disposed of or transferred) if the sale or Disposition or transfer is made in compliance with this Agreement and the Loan Documents (or otherwise Section 8.8 to a Person that is not prohibited) (and Agent may, in its discretion, request, and rely conclusively without further inquiry on a certificate from the Borrower certifying as such prior to Agent taking any action to evidence such release) or such sale or Disposition is approved by the Requisite Lenders (or such greater number of Lenders as may be required under Section 12.2)an Obligor; (iii) to if any such Collateral constitutes property in which the extent Obligors owned no interest at the applicable Collateral is time the Lien was granted or becomes Excluded Property and/or Excluded Principal Propertyat any time thereafter; (iv) to the extent the applicable if any such Collateral constitutes property leased to Credit Parties an Obligor under a lease which has expired or been terminated in a transaction permitted under this Agreement; (v) to the extent the Credit Party owning property constituting such Collateral is released owned by any Guarantor, upon the release of such Guarantor from its Obligations hereunder obligations under the Guarantee Agreement (pursuant to Section 13.11 or otherwisein accordance with the second succeeding sentence and the Guarantee Agreement); or (vi) as required by the terms Collateral Agent to effect any sale, transfer or other Disposition of Collateral in connection with any exercise of remedies of the ABL Intercreditor AgreementCollateral Agent pursuant to the Security Documents, (vii) to the extent such Collateral otherwise becomes an Excluded Stock or an Excluded Asset, and (viii) if the percentage of Lenders required to consent to the Collateral being released hereunder, so consents to the Collateral being released. Except as provided above, the Collateral Agent will not release any of the Collateral Agent’s Liens without the prior written authorization of the Required Lenders (or such other percentage of Lenders whose consent is required in accordance with Section 12.1); provided that, in addition to the foregoing, the Collateral Agent may, in its discretion, release such Collateral Agent’s Liens on Collateral valued in the aggregate not in excess of $1,000,000 during each Fiscal Year without the prior written authorization of any Lender, so long as all proceeds received in connection with such release are applied to the Obligations in accordance with Section 4.7 and, after giving effect to the application of such proceeds and the updating of the Borrowing Base, as the case may be, to reflect the deletion of any assets subject to such release, Availability shall be no less than the Availability immediately prior to such release. Upon request by the Collateral Agent or Parent the Borrower at any time, subject to the Borrower having certified to the Collateral Agent that the disposition is made in compliance with Section 8.8 (which the Collateral Agent may rely conclusively on any such certificate, without further inquiry), the Lenders will confirm in writing the Collateral Agent’s authority to release any Lien applicable Collateral Agent’s Liens upon particular types or items of Collateral pursuant to this Section 10.1113.10. In addition, the Lenders (and each other Secured Party by their acceptance of the benefits of the Loan Documents shall be deemed to) hereby irrevocably authorize Agent, (w) the Collateral Agent to subordinate any Lien on any property granted to or held by the Collateral Agent upon under any Collateral Loan Document to the holder of any Lien on such asset property that is permitted by Section 8.12(c) or (q) (as to Fixed Asset Collateral only), (x) the Agent to release automatically any Guarantor from its obligations under the Guarantee Agreement if such Person ceases to be a Restricted Subsidiary as a result of a transaction permitted under this Agreement or such Person otherwise becomes an Excluded Subsidiary, in each case, solely to the extent such Subsidiary ceasing to constitute a Restricted Subsidiary or otherwise becoming an Excluded Subsidiary is not prohibited by this Agreement, (y) so long as both (1) no Default or Event of Default has occurred and is continuing or would result therefrom and (2) no Out-of-Formula Condition has occurred and is continuing or would result therefrom, then, to the extent that the Collateral Agent obtains possession of any Collateral by operation of Section 13.12 of this Agreement that constitutes Collateral that Obligors are not required to deliver to Collateral Agent at such time pursuant to paragraph the terms hereof, the Security Documents or any other contractual arrangement with any Obligor, following the written request by Borrower, Collateral Agent shall (6)(Cto the extent not prohibited by applicable law or legal process) deliver such Collateral in accordance with the terms of the applicable Intercreditor Agreement or, if no applicable Intercreditor Agreement is then in effect, to the applicable Obligor, and (z) if after the date hereof Collateral Agent’s Lien has been expanded to include Fixed Asset Collateral in connection with incurrence of Debt pursuant to Section 8.12(q)(x) or (r) so long as all of the following conditions are satisfied (1) no Default or Event of Default has occurred and is continuing or would result therefrom, (2) no Out-of-Formula Condition has occurred and is continuing or would result therefrom, and (3) no Debt has been incurred in reliance on Section 8.12(q)(x) or (r) that remains outstanding (and no commitments for Debt that, if incurred would be incurred in reliance on Section 8.12(q)(x) or (r), remain outstanding) and no Liens are outstanding in reliance on clause (r) of the definition of Permitted Lien. In additionLiens, or, to the extent on account of Refinancing Debt, or outstanding commitments that, if incurred, would be Refinancing Debt, in each case incurred in reliance, directly or indirectly, on Section 8.12(q)(x) or (r)), clause (p) of the definition of “Permitted Liens”, promptly following the written request of the Borrower, the Guaranty Collateral Agent shall release Collateral Agent’s Liens on Fixed Assets Collateral (other than, in each case any Inventory or Fracturing Equipment Parts (as defined in the Initial Intercreditor Agreement)) at the expense of the Obligations byObligors. Upon request by any Appointed Agent at any time, and the liens on the assets ofRequired Lenders will confirm in writing such Appointed Agent’s authority to release or subordinate its interest in particular types or items of property, or to release any Restricted Subsidiary which is designated as an Unrestricted Subsidiary will automatically be terminated and released at the time of such designationGuarantor from its obligations pursuant to this Section 13.10(a).
(b) PromptlyUpon receipt by any Appointed Agent of any authorization required pursuant to Section 13.10(a) from the Lenders of such Appointed Agent’s authority to release or subordinate the applicable Collateral Agent’s Liens upon particular types or items of Collateral, or to release any Guarantor from its obligations under the Guarantee Agreement, and in any event not later than five upon at least three (53) Business Days’ following prior written request by Parent the Borrower, such Appointed Agent shall (and is hereby irrevocably authorized by the Lenders and directed by Lenders the other Secured Parties to) execute such documents as may be necessary to evidence the release (or subordination) of its such Collateral Agent’s Liens upon such Collateral as contemplated by Section 10.11(a)or to subordinate its interest therein, or to release such Guarantor from its obligations under the Guarantee Agreement; provided, however, that (i) such Appointed Agent shall not be required to execute any such document on terms which, in such Appointed Agent’s opinion, would expose such Appointed Agent to liability or create any 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 Liens (other than those expressly being released) upon (or obligations of Credit Parties the Obligors in respect of) all interests retained by Credit Partiesthe Obligors, including the proceeds of any sale, all of which shall continue to constitute part of the Collateral to the extent contemplated by the Collateral Documents. Co-such Collateral.
(c) The Collateral Agent shall have no obligation whatsoever to any of the Lenders to assure that the Collateral exists or is owned by the Obligors or is cared for, protected or insured or has been encumbered, or that the applicable Collateral Agent’s Liens have been properly or sufficiently or lawfully created, perfected, protected or enforced or 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 pursuant to any of the Loan 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 concert with Agent in matters delegated to the both of them under this Agreement; howeverany manner it may deem appropriate, in its sole discretion, given the event Collateral Agent’s own interest in the Collateral in its capacity as one of any disagreement or dispute between Agent the Lenders and Co-that the Collateral Agent in shall have no other duty or liability whatsoever to any such matter, Lender as to any of the determination or decision of Agent shall, in all cases, controlforegoing.
Appears in 1 contract
Collateral Matters. (a) The Lenders hereby irrevocably authorize the Agent, at its option and direct Agent in its sole discretion, to release any Agent’s Liens upon any Collateral (and any such Liens shall be automatically released, without any action by Agent or any other Person), (i) upon the Termination Datetermination of the Commitments and payment and satisfaction in full in immediately available funds by Borrowers of all Loans and reimbursement obligations in respect of Letters of Credit and Credit Support, and the termination of all outstanding Letters of Credit (whether or not any of such obligations are due) and all other Obligations; (ii) in respect of property of any Subsidiary constituting Property being distributed, transferred, sold or otherwise disposed of or transferred (including property owned by any Subsidiary being sold or disposed of or transferred) if the sale or Disposition or transfer is made in compliance with this Agreement and Section 7.9; provided, that the Loan Documents (or otherwise is not prohibited) (and Borrowers shall promptly notify the Agent mayof any distribution, in its discretiontransfer, request, and rely conclusively without further inquiry on a certificate from the Borrower certifying as such prior to Agent taking any action to evidence such release) or such sale or Disposition is approved by the Requisite Lenders (or other disposition of such greater number Property having a value in excess of Lenders as may be required under Section 12.2); $2,000,000, (iii) to constituting Property in which the extent Borrowers owned no interest at the applicable Collateral is time the Lien was granted or becomes Excluded Property and/or Excluded Principal Propertyat any time thereafter; or (iv) to the extent the applicable Collateral constitutes property constituting Property leased to Credit Parties a Borrower under a lease which has expired or been terminated in a transaction permitted under this Agreement. Except as provided above, the Agent will not release any of the Agent’s Liens without the prior written authorization of the Lenders; provided that (vA) the Agent may, in its discretion, release the Agent’s Liens on Collateral valued in the aggregate not in excess of the lesser of 5% of Availability or $2,000,000 during each Fiscal Year without the prior written authorization of the Lenders, (B) the Agent may release the Agent’s Liens on Collateral valued in the aggregate not in excess of $3,000,000 during each Fiscal Year with the prior written authorization of Required Lenders, and (C) the Agent may release the Agent’s Liens on Collateral which constitutes “First Priority Collateral”, as such term is defined in the Senior Secured Notes Indenture as in effect on the date hereof, if required pursuant to the extent the Credit Party owning such Collateral is released from its Obligations hereunder (pursuant to Section 13.11 or otherwise); or (vi) as required by the terms of the ABL Intercreditor Agreement. Upon request by the Agent or Parent Borrower the Borrowers at any time, the Lenders will confirm in writing the Agent’s authority to release any Lien Agent’s Liens upon particular types or items of Collateral pursuant to this Section 10.11. In addition, the Lenders hereby authorize Agent, to subordinate any Lien granted to or held by Agent upon any Collateral to any Lien on such asset permitted pursuant to paragraph (6)(C) of the definition of Permitted Lien. In addition, the Guaranty of the Obligations by, and the liens on the assets of, any Restricted Subsidiary which is designated as an Unrestricted Subsidiary will automatically be terminated and released at the time of such designation12.11.
(b) PromptlyUpon receipt by the Agent of any authorization required pursuant to Section 12.11(a) from the Lenders of the Agent’s authority to release Agent’s Liens upon particular types or items of Collateral, and in any event not later than upon at least five (5) Business Days’ following Days prior written request by Parent Borrowerthe Borrowers, the Agent shall (and is hereby irrevocably authorized and directed by the Lenders to) execute such documents as may be necessary to evidence the release (or subordination) of its the Agent’s Liens upon such Collateral as contemplated by Section 10.11(a)Collateral; provided, however, that (i) the Agent shall not be required to execute any such document on terms which, in the Agent’s opinion, would expose the Agent to liability or create any 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 Liens (other than those expressly being released) upon (or obligations of Credit Parties the Borrowers in respect of) all interests retained by Credit Partiesthe Borrowers, including the proceeds of any sale, all of which shall continue to constitute part of the Collateral.
(c) The Agent shall have no obligation whatsoever to any of the Lenders to assure that the Collateral exists or is owned by the Borrowers or is cared for, protected or insured or has been encumbered, or that the Agent’s Liens have been properly or sufficiently or lawfully created, perfected, protected or enforced or 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 extent contemplated by Agent pursuant to any of the Loan Documents, it being understood and agreed that in respect of the Collateral, or any act, omission or event related thereto, the Agent may act in any manner it may deem appropriate, in its sole discretion given the Agent’s own interest in the Collateral Documents. Co-Collateral in its capacity as one of the Lenders and that the Agent shall act in concert with Agent in matters delegated have no other duty or liability whatsoever to any Lender as to any of the both of them under this Agreement; however, in the event of any disagreement or dispute between Agent and Co-Collateral Agent in any such matter, the determination or decision of Agent shall, in all cases, controlforegoing.
Appears in 1 contract
Sources: Credit Agreement (Unifi Inc)
Collateral Matters. (a) Lenders hereby irrevocably authorize Each of the Collateral Documents creates (or will create, as the case may be), as security for the Obligations purported to be secured thereby, subject to the provisions hereof and direct thereof, a legal, valid and enforceable security interest in all the Collateral subject to such Collateral Document (or comparable interest under foreign law in the case of foreign Collateral) and each such Collateral Document shall constituteconstitutes either (x) a fully perfected Lien on, and security interest in, all of the Collateral subject to such Collateral Document (except for Collateral for which the absence or failure of the Lien on such Collateral to be perfected would not constitute an Event of Default under Section 9.01(l)) or (b) a floating charge, fixed charge or security interest, as specified in the applicable Collateral Document, with respect to all of the Collateral subject to such Collateral Document, in each case in favor of the relevant Collateral Agent and subject to release any no other Liens upon any except Permitted Liens. The pledgor or assignor, as the case may be, under each Collateral (Document has good title to all Collateral subject thereto free and any such clear of all Liens shall be automatically released, without any action by Agent other than Permitted Liens. No filings or any other Person)recordings are required in order to perfect the security interests created under the Collateral Documents except, (i) upon with respect to the Termination Domestic Credit Parties, for filings or recordings listed on Schedule 6.21 (as amended by each Perfection Certificate delivered to the Administrative Agent after the ClosingAmendment No. 2 Effective Date; ), all of which shall have been made on or prior to the ClosingAmendment No. 2 Effective Date except as otherwise expressly provided in Schedule 6.21 (or such Perfection Certificates, as applicable) and (ii) in with respect of property of any Subsidiary being sold or disposed of or transferred (including property owned by any Subsidiary being sold or disposed of or transferred) if the sale or Disposition or transfer is made in compliance with this Agreement and the Loan Documents (or otherwise is not prohibited) (and Agent may, in its discretion, request, and rely conclusively without further inquiry on a certificate from the Borrower certifying as such prior to Agent taking any action to evidence such release) or such sale or Disposition is approved by the Requisite Lenders (or such greater number of Lenders as may be required under Section 12.2); (iii) to the extent Foreign Credit Parties, the filings or recordings listed in a schedule to the applicable Collateral is or becomes Excluded Property and/or Excluded Principal Property; (iv) Documents similar in purpose to the extent schedule described in the applicable Collateral constitutes property leased to Credit Parties under a lease which has expired or been terminated in a transaction permitted under this Agreement; foregoing clause (v) to the extent the Credit Party owning such Collateral is released from its Obligations hereunder (pursuant to Section 13.11 or otherwisei); or (vi) as required by the terms of the ABL Intercreditor Agreement. Upon request by Agent or Parent Borrower at any time, Lenders will confirm in writing Agent’s authority to release any Lien upon particular types or items of Collateral pursuant to this Section 10.11. In addition, the Lenders hereby authorize Agent, to subordinate any Lien granted to or held by Agent upon any Collateral to any Lien on such asset permitted pursuant to paragraph (6)(C) of the definition of Permitted Lien. In addition, the Guaranty of the Obligations by, and the liens on the assets of, any Restricted Subsidiary which is designated as an Unrestricted Subsidiary will automatically be terminated and released at the time of such designation.
(b) PromptlyWhen the U.S. Security Agreement (or a short-form version thereof) is filed in the United States Patent and Trademark Office and the United States Copyright Office, the security interest created thereunder shall constitute a fully perfected Lien on, and security interest in, all right, title and interest of the Domestic Credit Parties in the Intellectual Property (as such term is defined in the U.S. Security Agreement) in which a security interest may be perfected by filing, recording or registering a security agreement, financing statement or analogous document in the United States Patent and Trademark Office or the United States Copyright Office, as applicable, in each case prior and superior in right to any event not later other Person, other than five with respect to the rights of Persons pursuant to Permitted Liens (5) Business Days’ following written request by Parent Borrower, Agent shall (it being understood that subsequent recordings in the United States Patent and is hereby irrevocably authorized Trademark Office and directed by Lenders to) execute such documents as the United States Copyright Office may be necessary to evidence perfect a lien on registered trademarks, trademark applications and copyrights acquired by the release Domestic Credit Parties after the Amendment No. 2 Effective Date hereof).
(or subordinationc) of its Liens upon such Collateral as contemplated by Section 10.11(aThe requirements set forth in Sections 5.01(b); provided, however7.12, 7.13 and 7.14 are satisfied.
(d) Notwithstanding the foregoing, it is agreed that (i) Agent the Credit Parties shall not be required to execute any such document on terms which, enter into control agreements with respect to their deposit accounts and securities accounts in order to perfect the AdministrativeCollateral Agent’s opinion, would expose Agent to liability or create any obligation or entail any consequence other than Lien on 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 Liens (other than those expressly being released) upon (or obligations of Credit Parties in respect of) all interests retained by Credit Parties, including the proceeds of any sale, all of which shall continue to constitute part of the Collateral to the extent contemplated by the Collateral Documents. Co-Collateral Agent shall act in concert with Agent in matters delegated to the both of them under this Agreement; however, in the event of any disagreement or dispute between Agent and Co-Collateral Agent in any such matter, the determination or decision of Agent shall, in all cases, controlCollateral.
Appears in 1 contract
Collateral Matters. (a) The Lenders hereby irrevocably authorize and direct the Collateral Agent to release any Liens Lien upon any Collateral (and any such Liens shall be automatically released, without any action by Agent or any other Person), (i) upon the Termination Date; termination of the Commitments and payment and satisfaction in full of all Obligations (other than contingent obligations with respect to then unasserted claims), (ii) in respect of constituting property of any Subsidiary being sold sold, transferred or disposed of or transferred (including property owned by any Subsidiary being sold or disposed of or transferred) if the sale or in a Permitted Disposition or transfer is made in compliance with this Agreement and the Loan Documents (or otherwise to a Person that is not prohibited) (and Agent maya Loan Party, in its discretion, request, and rely conclusively without further inquiry on a certificate from the Borrower certifying as such prior to Agent taking any action to evidence such release) or such sale or Disposition is approved by the Requisite Lenders (or such greater number of Lenders as may be required under Section 12.2); (iii) which constitutes property subject to the extent proviso in the applicable Collateral is definition of “Collateral” in the Security Agreement or becomes Excluded Property and/or Excluded Principal Property; subject to the proviso in SECTION 2.1 of the Pledge Agreement, (iv) as provided in any Intercreditor Agreement, including the ABL Intercreditor Agreement with respect to the extent the applicable Revolver Priority Collateral constitutes property leased to Credit Parties under a lease which has expired or been terminated in a transaction permitted under this Agreement; and (v) as to the extent the Credit Party owning such Collateral is released of any Facility Guarantor, upon its release from its Obligations hereunder Facility Guarantee (pursuant to Section 13.11 or otherwiseincluding as a result of designation as an Unrestricted Subsidiary); or (vi) . Except as required by provided above, the terms Collateral Agent will not release any of the ABL Intercreditor AgreementCollateral Agent’s Liens without the prior written authorization of the Applicable Lenders. Upon request by any Agent or Parent Borrower any Loan Party at any time, the Lenders will confirm in writing the Collateral Agent’s authority to release any Lien Liens upon particular types or items of Collateral pursuant to this Section 10.11. In addition, the Lenders hereby authorize Agent, to subordinate any Lien granted to or held by Agent upon any Collateral to any Lien on such asset permitted pursuant to paragraph (6)(C) of the definition of Permitted Lien. In addition, the Guaranty of the Obligations by, and the liens on the assets of, any Restricted Subsidiary which is designated as an Unrestricted Subsidiary will automatically be terminated and released at the time of such designationSECTION 8.16.
(b) Promptly, and in any event not later than five (5) Business Days’ following written request by Parent Borrower, The Collateral Agent shall (and is hereby irrevocably authorized and directed by the Lenders to) execute such documents as may be necessary to evidence the release (or subordination) of its the Liens upon such any Collateral as contemplated by Section 10.11(adescribed in SECTION 8.16(a); provided, however, that (i) the Collateral Agent shall not be required to execute any such document on terms which, in Agent’s its reasonable opinion, would would, under Applicable Law, expose the Collateral Agent to liability or create any obligation or entail any adverse 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 Liens (other than those expressly being released) upon (or obligations of Credit Parties any Loan Party in respect of) all interests retained by Credit Partiesany Loan Party, including (without limitation) the proceeds of any sale, all of which shall continue to constitute part of the Collateral.
(c) Each Lender irrevocably authorizes each of the Administrative Agent and the Collateral Agent to (i) release any Guarantor from its obligations under a Facility Guarantee if such Person ceases to be a Restricted Subsidiary as a result of a transaction or designation permitted hereunder and (ii) upon the request of the Borrower and pursuant to documentation reasonably acceptable to the Administrative Agent and/or Collateral Agent, to subordinate any Lien on any property granted to or held by the Administrative Agent or the Collateral Agent under any Loan Document to the holder of any Lien on such property that is permitted under clause (f), (h) or (ht) of the definition of Permitted Encumbrances.
(d) The Secured Parties hereby irrevocably authorize the Administrative Agent, at the direction of the Required Lenders, 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) and in such manner purchase (either directly or through one or more acquisition vehicles) all or any portion of the Collateral (a) at any sale thereof conducted under the provisions of the Bankruptcy Code, including under Sections 363, 1123 or 1129 of the Bankruptcy Code, or any similar laws in any other jurisdictions to which a Loan Party is subject, or (b) at any other sale, foreclosure or acceptance of collateral in lieu of debt conducted by (or with the consent or at the direction of) the Administrative Agent (whether by judicial action or otherwise) in accordance with any applicable law. In connection with any such credit bid and purchase, the Obligations owed to the Secured Parties shall be entitled to be, and shall be, credit bid by the Administrative Agent at the direction of the Required Lenders 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 (i) the Administrative Agent shall be authorized to form one or more acquisition vehicles and to assign any successful credit bid to such acquisition vehicle or vehicles (ii) each of the Secured Parties’ 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, (iii) the Administrative shall be authorized to adopt documents providing for the governance of the acquisition vehicle or vehicles (provided that any actions by the Administrative 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 9.02 of this Agreement), (iv) the Administrative Agent on behalf of such acquisition vehicle or vehicles shall be authorized to issue to each of the Secured Parties, ratably on account of the relevant Obligations which were credit bid, interests, whether as equity, partnership, 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 Secured Party or acquisition vehicle to take any further action, and (v) to the extent that Obligations that are assigned to an acquisition vehicle are not used to acquire Collateral 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 Secured Parties pro rata 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 Secured Party or any acquisition vehicle to take any further action. Notwithstanding that the ratable portion of the Obligations of each Secured Party are deemed assigned to the acquisition vehicle or vehicles as set forth in clause (ii) above, each Secured Party shall execute such documents and provide such information regarding the Secured Party (and/or any designee of the Secured Party which will receive interests in or debt instruments issued by such acquisition vehicle) as the Administrative Agent 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 the Collateral Documents. Co-Collateral Agent shall act in concert with Agent in matters delegated to the both of them under this Agreement; however, in the event of any disagreement or dispute between Agent and Co-Collateral Agent in any such matter, the determination or decision of Agent shall, in all cases, controlcredit bid.
Appears in 1 contract
Collateral Matters. (a) The Lenders hereby irrevocably authorize and direct the Collateral Agent to release any Liens upon Lien on any property granted to or held by the Collateral (and Agent under any such Liens shall be automatically released, without any action by Agent or any other Person), Financing Document for the benefit of the Senior Secured Parties (i) upon the Termination occurrence of the Discharge Date; , (ii) if approved, authorized or ratified in respect of property of any Subsidiary being sold or disposed of or transferred writing in accordance with Section 11.01 (including property owned by any Subsidiary being sold or disposed of or transferred) if the sale or Disposition or transfer is made in compliance with this Agreement and the Loan Documents (or otherwise is not prohibited) (and Agent mayAmendments, in its discretion, request, and rely conclusively without further inquiry on a certificate from the Borrower certifying as such prior to Agent taking any action to evidence such releaseEtc.) or such sale or Disposition is approved by the Requisite Lenders (or such greater number of Lenders as may be required under Section 12.2); (iii) to the extent the applicable Collateral is or becomes Excluded Property and/or Excluded Principal Property; (iv) to the extent the applicable Collateral constitutes property leased to Credit Parties under a lease which has expired or been terminated in a transaction as permitted under this Agreement; (v) to the extent the Credit Party owning such Collateral is released from its Obligations hereunder (pursuant to Section 13.11 or otherwise); or (vi) as required by the terms of the ABL Intercreditor Agreement. Financing Documents (including as contemplated by Section 7.02(f) (Negative Covenants – Asset Dispositions)).
(b) Upon request by the Collateral Agent or Parent Borrower at any time and from time to time, the Lenders will confirm in writing the Collateral Agent’s authority to release any Lien upon its interest in particular types or items of Collateral property pursuant to this Section 10.1110.10. In additioneach case as specified in this Section 10.10, the Lenders hereby authorize AgentCollateral Agent will, to subordinate any Lien granted to or held by Agent upon any Collateral to any Lien on such asset permitted pursuant to paragraph (6)(C) of the definition of Permitted Lien. In addition, the Guaranty of the Obligations by, and the liens on the assets of, any Restricted Subsidiary which is designated as an Unrestricted Subsidiary will automatically be terminated and released at the time of such designation.
(b) PromptlyBorrowers’ expense, execute and in any event not later than five (5) Business Days’ following written request by Parent Borrower, Agent shall (and is hereby irrevocably authorized and directed by Lenders to) execute deliver to the applicable Loan Party such documents as such Person may be necessary reasonably request to evidence the release (or subordination) of its Liens upon such Collateral as contemplated by Section 10.11(a); provided, however, that (i) Agent shall not be required to execute any such document on terms which, in Agent’s opinion, would expose Agent to liability or create any obligation or entail any consequence other than the release of such Liens without recourse or warranty, item of Collateral in accordance with the terms of the Financing Documents and this Section 10.10.
(iic) such release shall not in any manner discharge, affect or impair Except for the Obligations or any Liens (other than those expressly being released) upon (or obligations of Credit Parties in respect of) all interests retained by Credit Parties, including the proceeds safe custody of any sale, all of which shall continue to constitute part Collateral in its possession and the accounting for moneys actually received by it hereunder or under any of the Collateral other Financing Documents to which it is party, the extent contemplated by the Collateral Documents. Co-Collateral Agent shall act in concert have no duty as to any Collateral, as to ascertaining or taking action with respect to calls, conversions, exchanges, maturities, tenders or other matters relative to any Collateral, whether or not the Collateral Agent in matters delegated is deemed to have knowledge of such matters, or as to taking of any necessary steps to preserve rights against any parties or any other rights pertaining to any Collateral (including the both filing of them under this Agreement; however, UCC continuation statements). The Collateral Agent shall be deemed to have exercised appropriate and due care in the event custody and preservation of any disagreement or dispute between Agent and Co-Collateral Agent in any its possession if such matter, the determination or decision of Agent shall, in all cases, controlCollateral is accorded treatment substantially equal to that which other collateral agents accord similar property.
Appears in 1 contract
Sources: Debt Agreement
Collateral Matters. (a) The Lenders hereby irrevocably authorize the Collateral Agent, at its option and direct Agent in its sole discretion, to release any Agent’s Liens upon any Collateral (and any such Liens shall be automatically released, without any action by Agent or any other Person), (i) upon the Termination Datetermination of the Commitments and payment and satisfaction in full by the Borrowers of all Loans and reimbursement obligations in respect of Letters of Credit, and the termination of all outstanding Letters of Credit (whether or not any of such obligations are due) and all other Obligations (other than contingent indemnification Obligations under this Agreement for which no liability then exists); (ii) in respect of constituting property of any Subsidiary being sold or disposed of or transferred (including property owned by any Subsidiary being sold or disposed of or transferred) if the Borrowers certify to the Collateral Agent that the sale or Disposition or transfer disposition is made in compliance with this Agreement Section 7.9 (and the Loan Documents (or otherwise is not prohibited) (and Collateral Agent may, in its discretion, request, and may rely conclusively on any such certificate, without further inquiry on a certificate from the Borrower certifying as such prior to Agent taking any action to evidence such release) or such sale or Disposition is approved by the Requisite Lenders (or such greater number of Lenders as may be required under Section 12.2inquiry); (iii) to constituting property in which the extent Borrowers owned no interest at the applicable Collateral is time the Lien was granted or becomes Excluded Property and/or Excluded Principal Propertyat any time thereafter; or (iv) to the extent the applicable Collateral constitutes constituting property leased to Credit Parties a Borrower under a lease which has expired or been terminated in a transaction permitted under this Agreement; (v) to . Except as provided above, the extent the Credit Party owning such Collateral is released from its Obligations hereunder (pursuant to Section 13.11 or otherwise); or (vi) as required by the terms Agent will not release any of the ABL Intercreditor AgreementCollateral Agent’s Liens without the prior written authorization of the Lenders; provided that the Collateral Agent may, in its discretion, release the Agent’s Liens on Collateral valued in the aggregate not in excess of $500,000 during each Fiscal Year. Upon request by the Collateral Agent or Parent Borrower the Borrowers’ Agent at any time, the Lenders will confirm in writing the Collateral Agent’s authority to release any Lien Agent’s Liens upon particular types or items of Collateral pursuant to this Section 10.11. In addition, the Lenders hereby authorize Agent, to subordinate any Lien granted to or held by Agent upon any Collateral to any Lien on such asset permitted pursuant to paragraph (6)(C) of the definition of Permitted Lien. In addition, the Guaranty of the Obligations by, and the liens on the assets of, any Restricted Subsidiary which is designated as an Unrestricted Subsidiary will automatically be terminated and released at the time of such designation12.11.
(b) PromptlyUpon receipt by the Collateral Agent of any authorization required pursuant to Section 12.11(a) from the Lenders of the Collateral Agent’s authority to release Agent’s Liens upon particular types or items of Collateral, and in any event not later than upon at least five (5) Business Days’ following Days prior written request by Parent Borrowerthe Borrowers’ Agent, the Collateral Agent shall (and is hereby irrevocably authorized and directed by the Lenders to) execute such documents as may be necessary to evidence the release (or subordination) of its the Collateral Agent’s Liens upon such Collateral as contemplated by Section 10.11(a)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 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 Liens (other than those expressly being released) upon (or obligations of Credit Parties the Borrowers in respect of) all interests retained by Credit Partiesthe Borrowers, including the proceeds of any sale, all of which shall continue to constitute part of the Collateral to the extent contemplated by the Collateral Documents. Co-Collateral.
(c) The Collateral Agent shall have no obligation whatsoever to any of the Lenders to assure that the Collateral exists or is owned by the Borrowers or is cared for, protected or insured or has been encumbered, or that the Collateral Agent’s Liens have been properly or sufficiently or lawfully created, perfected, protected or enforced or 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 pursuant to any of the Loan 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 concert with Agent in matters delegated to the both of them under this Agreement; howeverany manner it may deem appropriate, in its sole discretion given the event Collateral Agent’s own interest in the Collateral in its capacity as one of any disagreement or dispute between Agent the Lenders and Co-that the Collateral Agent in shall have no other duty or liability whatsoever to any such matter, Lender as to any of the determination or decision of Agent shall, in all cases, controlforegoing.
Appears in 1 contract
Collateral Matters. (a) The Lenders hereby irrevocably authorize and direct the Collateral Agent to release any Liens Lien upon any Collateral (and any such Liens shall be automatically released, without any action by Agent or any other Person), (i) upon the Termination Date; termination of the Commitments and payment and satisfaction in full of all Obligations (other than contingent obligations with respect to then unasserted claims), (ii) in respect of constituting property of any Subsidiary being sold sold, transferred or disposed of or transferred (including property owned by any Subsidiary being sold or disposed of or transferred) if the sale or in a Permitted Disposition or transfer is made in compliance with this Agreement and the Loan Documents (or otherwise to a Person that is not prohibited) (and Agent maya Loan Party, in its discretion, request, and rely conclusively without further inquiry on a certificate from the Borrower certifying as such prior to Agent taking any action to evidence such release) or such sale or Disposition is approved by the Requisite Lenders (or such greater number of Lenders as may be required under Section 12.2); (iii) which constitutes property subject to the extent proviso in the applicable Collateral is definition of “Collateral” in the Security Agreement or becomes Excluded Property and/or Excluded Principal Property; subject to the proviso in SECTION 2.1 of the Pledge Agreement, (iv) as provided in any Intercreditor Agreement, including the ABL Intercreditor Agreement with respect to the extent the applicable Revolver Priority Collateral constitutes property leased to Credit Parties under a lease which has expired or been terminated in a transaction permitted under this Agreement; and (v) as to the extent the Credit Party owning such Collateral is released of any Facility Guarantor, upon its release from its Obligations hereunder Facility Guarantee (pursuant to Section 13.11 or otherwiseincluding as a result of designation as an Unrestricted Subsidiary); or (vi) . Except as required by provided above, the terms Collateral Agent will not release any of the ABL Intercreditor AgreementCollateral Agent’s Liens without the prior written authorization of the Applicable Lenders. Upon request by any Agent or Parent Borrower any Loan Party at any time, the Lenders will confirm in writing the Collateral Agent’s authority to release any Lien Liens upon particular types or items of Collateral pursuant to this Section 10.11. In addition, the Lenders hereby authorize Agent, to subordinate any Lien granted to or held by Agent upon any Collateral to any Lien on such asset permitted pursuant to paragraph (6)(C) of the definition of Permitted Lien. In addition, the Guaranty of the Obligations by, and the liens on the assets of, any Restricted Subsidiary which is designated as an Unrestricted Subsidiary will automatically be terminated and released at the time of such designationSECTION 8.16.
(b) Promptly, and in any event not later than five (5) Business Days’ following written request by Parent Borrower, The Collateral Agent shall (and is hereby irrevocably authorized and directed by the Lenders to) execute such documents as may be necessary to evidence the release (or subordination) of its the Liens upon such any Collateral as contemplated by Section 10.11(adescribed in SECTION 8.16(a); provided, however, that (i) the Collateral Agent shall not be required to execute any such document on terms which, in Agent’s its reasonable opinion, would would, under Applicable Law, expose the Collateral Agent to liability or create any obligation or entail any adverse 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 Liens (other than those expressly being released) upon (or obligations of Credit Parties any Loan Party in respect of) all interests retained by Credit Partiesany Loan Party, including (without limitation) the proceeds of any sale, all of which shall continue to constitute part of the Collateral.
(c) Each Lender irrevocably authorizes each of the Administrative Agent and the Collateral Agent to (i) release any Guarantor from its obligations under a Facility Guarantee if such Person ceases to be a Restricted Subsidiary as a result of a transaction or designation permitted hereunder and (ii) upon the request of the Borrower and pursuant to documentation reasonably acceptable to the extent contemplated Administrative Agent and/or Collateral Agent, to subordinate any Lien on any property granted to or held by the Collateral Documents. Co-Administrative Agent or the Collateral Agent shall act in concert with Agent in matters delegated under any Loan Document to the both of them under this Agreement; however, in the event holder of any disagreement Lien on such property that is permitted under clause (f) or dispute between Agent and Co-Collateral Agent in any such matter, (h) of the determination or decision definition of Agent shall, in all cases, controlPermitted Encumbrances.
Appears in 1 contract
Collateral Matters. (a) Lenders hereby The Lender irrevocably authorize and direct authorizes the Collateral Agent to release any Liens upon Lien on any property granted to or held by the Collateral (and Agent under any such Liens shall be automatically released, without any action by Agent or any other Person), Loan Document for the benefit of the Lender (i) upon the Termination Date; occurrence of the date on which all amounts payable in respect of the Obligations have been irrevocably and indefeasibly paid in full in cash (other than obligations under the Loan Documents that by their terms survive and with respect to which no claim has been made by the Lender), (ii) if approved, authorized or ratified in respect of property of any Subsidiary being sold writing in accordance with Section 9.1 or disposed of or transferred (including property owned by any Subsidiary being sold or disposed of or transferred) if the sale or Disposition or transfer is made in compliance with this Agreement and the Loan Documents (or otherwise is not prohibited) (and Agent may, in its discretion, request, and rely conclusively without further inquiry on a certificate from the Borrower certifying as such prior to Agent taking any action to evidence such release) or such sale or Disposition is approved by the Requisite Lenders (or such greater number of Lenders as may be required under Section 12.2); (iii) to the extent the applicable Collateral is or becomes Excluded Property and/or Excluded Principal Property; (iv) to the extent the applicable Collateral constitutes property leased to Credit Parties under a lease which has expired or been terminated in a transaction as permitted under this Agreement; (v) to the extent the Credit Party owning such Collateral is released from its Obligations hereunder (pursuant to Section 13.11 or otherwise); or (vi) as required by the terms of the ABL Intercreditor Agreement. Loan Documents.
(b) Upon request by the Collateral Agent or Parent Borrower at any time and from time to time, Lenders the Lender will confirm in writing the Collateral Agent’s authority to release any Lien upon its interest in particular types or items of Collateral property pursuant to this Section 10.118.11. In additioneach case as specified in this Section 8.11, the Lenders hereby authorize AgentCollateral Agent will, to subordinate any Lien granted to or held by Agent upon any Collateral to any Lien on such asset permitted pursuant to paragraph (6)(C) of the definition of Permitted Lien. In addition, the Guaranty of the Obligations by, and the liens on the assets of, any Restricted Subsidiary which is designated as an Unrestricted Subsidiary will automatically be terminated and released at the time of such designation.
(b) PromptlyBorrower’s expense, execute and in any event not later than five (5) Business Days’ following written request by Parent Borrowerdeliver to the Borrower or the Pledgor, Agent shall (and is hereby irrevocably authorized and directed by Lenders to) execute as the case may be, such documents as such Person may be necessary reasonably request to evidence the release (or subordination) of its Liens upon such Collateral as contemplated by Section 10.11(a); provided, however, that (i) Agent shall not be required to execute any such document on terms which, in Agent’s opinion, would expose Agent to liability or create any obligation or entail any consequence other than the release of such Liens without recourse or warranty, item of Collateral from the assignment and security interest granted under the Security Documents in accordance with the terms of the Loan Documents and this Section 8.11.
(iic) such release shall not in any manner discharge, affect or impair Except for the Obligations or any Liens (other than those expressly being released) upon (or obligations of Credit Parties in respect of) all interests retained by Credit Parties, including the proceeds safe custody of any sale, all of which shall continue to constitute part Collateral in its possession and the accounting for moneys actually received by it hereunder or under any of the Collateral other Loan Documents to which it is party, the extent contemplated by the Collateral Documents. Co-Collateral Agent shall act in concert with have no duty as to any Collateral, as to ascertaining or taking action on other matters relative to any Collateral, whether or not the Collateral Agent in matters delegated is deemed to have knowledge of such matters, or as to taking any necessary steps to preserve rights against any parties or any other rights pertaining to any Collateral (including the both filing of them under this Agreement; however, UCC continuation statements). The Collateral Agent shall be deemed to have exercised appropriate and due care in the event custody and preservation of any disagreement or dispute between Agent and Co-Collateral Agent in any its possession if such matter, the determination or decision of Agent shall, in all cases, controlCollateral is accorded treatment substantially equal to that which other collateral agents accord similar property.
Appears in 1 contract
Sources: Credit Agreement (Northwestern Corp)
Collateral Matters. (a) The Lenders (and each other Secured Party by their acceptance of the benefits of the Loan Documents shall be deemed to) hereby irrevocably authorize the Collateral Agent (and direct if applicable, any subagent appointed by the Collateral Agent to release any under Section 13.2 or otherwise), and the Collateral Agent’s Liens upon any Collateral (and any such Liens shall be automatically released, without any action by Agent or any other Person), released (i) upon Full Payment of the Termination DateObligations; (ii) in respect of constituting property of any Subsidiary being sold or disposed of or transferred (including property owned by any Subsidiary being sold or disposed of or transferred) if the sale or Disposition or transfer is made in compliance with this Agreement and the Loan Documents (or otherwise to a Person that is not prohibited) (and Agent may, in its discretion, request, and rely conclusively without further inquiry on a certificate from the Borrower certifying as such prior to Agent taking any action to evidence such release) or such sale or Disposition is approved by the Requisite Lenders (or such greater number of Lenders as may be required under Section 12.2)an Obligor; (iii) to constituting property in which the extent Obligors owned no interest at the applicable Collateral is time the Lien was granted or becomes Excluded Property and/or Excluded Principal Propertyat any time thereafter; (iv) to the extent the applicable Collateral constitutes constituting property leased to Credit Parties an Obligor under a lease which has expired or been terminated in a transaction permitted under this Agreement; (v) to the extent the Credit Party owning property constituting such Collateral is released owned by any Guarantor, upon the release of such Guarantor from its Obligations hereunder obligations under the Guarantee Agreement (pursuant to Section 13.11 or otherwisein accordance with the second succeeding sentence and the Guarantee Agreement); or (vi) as required by the terms Collateral Agent to effect any sale, transfer or other Disposition of Collateral in connection with any exercise of remedies of the ABL Intercreditor AgreementCollateral Agent pursuant to the Security Documents and (vii) to the extent such Collateral otherwise becomes an Excluded Stock or an Excluded Asset. Except provided above, the Collateral Agent will not release any of the Collateral Agent’s Liens without the prior written authorization of the Required Lenders (or such other percentage of Lenders whose consent is required in accordance with Section 12.1); provided that, in addition to the foregoing, the Collateral Agent may, in its discretion, release such Collateral Agent’s Liens on Collateral valued in the aggregate not in excess of $2,500,000 during each Fiscal Year without the prior written authorization of any Lender, so long as all proceeds received in connection with such release are applied to the Obligations in accordance with Section 4.7 and, after giving effect to the application of such proceeds and the updating of the Borrowing Base, as the case may be, to reflect the deletion of any assets subject to such release, Availability shall be no less than the Availability immediately prior to such release. Upon request by the Collateral Agent or Parent the Borrower at any time, subject to the Borrower having certified to the Collateral Agent that the disposition is made in compliance with Section 8.8 (which the Collateral Agent may rely conclusively on any such certificate, without further inquiry), the Lenders will confirm in writing the Collateral Agent’s authority to release any Lien applicable Collateral Agent’s Liens upon particular types or items of Collateral pursuant to this Section 10.1113.10. In addition, the Lenders hereby irrevocably authorize Agent, (x) the Collateral Agent to subordinate any Lien on any property granted to or held by the Collateral Agent upon under any Collateral Loan Document to the holder of any Lien on such asset property that is permitted by Section 8.12(c) and (y) the Agent to release automatically any Guarantor from its obligations under the Guarantee Agreement if such Person ceases to be a Restricted Subsidiary as a result of a transaction permitted under this Agreement or such Person otherwise becomes an Excluded Subsidiary, in each case, solely to the extent such Subsidiary ceasing to constitute a Restricted Subsidiary or otherwise becoming an Excluded Subsidiary is not prohibited by this Agreement. Upon request by any Appointed Agent at any time, the Required Lenders will confirm in writing such Appointed Agent’s authority to release or subordinate its interest in particular types or items of property, or to release any Guarantor from its obligations pursuant to paragraph (6)(C) of the definition of Permitted Lien. In addition, the Guaranty of the Obligations by, and the liens on the assets of, any Restricted Subsidiary which is designated as an Unrestricted Subsidiary will automatically be terminated and released at the time of such designationthis Section 13.10(a).
(b) PromptlyUpon receipt by any Appointed Agent of any authorization required pursuant to Section 13.10(a) from the Lenders of such Appointed Agent’s authority to release or subordinate the applicable Collateral Agent’s Liens upon particular types or items of Collateral, or to release any Guarantor from its obligations under the Guarantee Agreement, and in any event not later than five upon at least three (53) Business Days’ following prior written request by Parent the Borrower, such Appointed Agent shall (and is hereby irrevocably authorized by the Lenders and directed by Lenders the other Secured Parties to) execute such documents as may be necessary to evidence the release (or subordination) of its such Collateral Agent’s Liens upon such Collateral as contemplated by Section 10.11(a)or to subordinate its interest therein, or to release such Guarantor from its obligations under the Guarantee Agreement; provided, however, that (i) such Appointed Agent shall not be required to execute any such document on terms which, in such Appointed Agent’s opinion, would expose such Appointed Agent to liability or create any 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 Liens (other than those expressly being released) upon (or obligations of Credit Parties the Obligors in respect of) all interests retained by Credit Partiesthe Obligors, including the proceeds of any sale, all of which shall continue to constitute part of the Collateral to the extent contemplated by the Collateral Documents. Co-such Collateral.
(c) The Collateral Agent shall have no obligation whatsoever to any of the Lenders to assure that the Collateral exists or is owned by the Obligors or is cared for, protected or insured or has been encumbered, or that the applicable Collateral Agent’s Liens have been properly or sufficiently or lawfully created, perfected, protected or enforced or 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 pursuant to any of the Loan 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 concert with Agent in matters delegated to the both of them under this Agreement; howeverany manner it may deem appropriate, in its sole discretion, given the event Collateral Agent’s own interest in the Collateral in its capacity as one of any disagreement or dispute between Agent the Lenders and Co-that the Collateral Agent in shall have no other duty or liability whatsoever to any such matter, Lender as to any of the determination or decision of Agent shall, in all cases, controlforegoing.
Appears in 1 contract
Collateral Matters. (a) Lenders hereby The Purchasers irrevocably authorize agree that, from and direct after the execution and delivery of the Collateral Documents pursuant to Section 6.13, any Lien on any property granted to or held by the Collateral Agent to release under any Liens upon any Collateral (and any such Liens Note Document for the benefit of the Secured Parties shall be automatically released, without any action by Agent or any other Person), released (i) upon payment in full of all Obligations (it being understood and agreed that the Termination Date; conversion in full of a Note by the Holder thereof shall be deemed, for purposes of this Section 9.6, to be a repayment of the entire outstanding principal amount (including all capitalized interest) of such Note together with any unpaid accrued interest thereon on the date of such conversion), (ii) in respect of property of any Subsidiary being sold or disposed of or transferred (including property owned by any Subsidiary being sold or disposed of or transferred) subject to Section 10.9, if the sale release of such Lien is approved, authorized or Disposition or transfer is made ratified in compliance with this Agreement and the Loan Documents (or otherwise is not prohibited) (and Agent may, in its discretion, request, and rely conclusively without further inquiry on a certificate from the Borrower certifying as such prior to Agent taking any action to evidence such release) or such sale or Disposition is approved writing by the Requisite Lenders (Purchasers or such greater number of Lenders as may be required under Section 12.2); (iii) to upon the extent the applicable sale, transfer or other disposition of any Collateral that is or becomes Excluded Property and/or Excluded Principal Property; (iv) to the extent the applicable Collateral constitutes property leased to Credit Parties under a lease which has expired or been terminated in a transaction permitted under this Agreement; (v) to the extent the Credit Party owning such Collateral is released from its Obligations hereunder (pursuant to Section 13.11 or otherwise); or (vi) as required not prohibited by the terms of the ABL Intercreditor AgreementNote Documents. Upon request by the Collateral Agent or Parent Borrower at any timetime from and after the execution and delivery of the Collateral Documents pursuant to Section 6.13, Lenders the Purchasers will confirm in writing the Collateral Agent’s authority to release any Lien upon particular types or items of property. In each case as specified in this Section 9.7, the Collateral Agent will, from and after the execution and delivery of the Collateral Documents pursuant to this Section 10.11. In addition6.13, promptly (and each Purchaser irrevocably authorizes the Lenders hereby authorize AgentCollateral Agent to), to subordinate any Lien granted to or held by Agent upon any Collateral to any Lien on such asset permitted pursuant to paragraph (6)(C) of the definition of Permitted Lien. In addition, the Guaranty of the Obligations by, and the liens on the assets of, any Restricted Subsidiary which is designated as an Unrestricted Subsidiary will automatically be terminated and released at the time of such designation.
(b) PromptlyCompany’s expense, execute and in any event not later than five (5) Business Days’ following written request by Parent Borrower, Agent shall (and is hereby irrevocably authorized and directed by Lenders to) execute deliver to the Company such documents as the Company may be necessary reasonably request to evidence the release (or subordination) of its Liens upon such item of Collateral as contemplated by Section 10.11(a); providedfrom the assignment and security interest granted under the Note Documents. In connection with any such release, however, that (i) the Collateral Agent shall not be required entitled to execute any such document on terms which, in Agent’s opinion, would expose Agent to liability or create any obligation or entail any consequence other than a certificate of a Responsible Officer of the release of such Liens without recourse or warranty, and (ii) Company stating that such release is authorized and permitted by the Note Documents, upon which the Collateral Agent may conclusively rely. Each party to this Agreement acknowledges and agrees that the Agents shall not in any manner dischargehave an obligation to file financing statements, affect amendments to financing statements, or impair continuation statements, or to perfect or maintain the Obligations or any Liens (other than those expressly being released) upon (or obligations of Credit Parties in respect of) all interests retained by Credit Parties, including the proceeds of any sale, all of which shall continue to constitute part perfection of the Collateral to Agent’s Lien on the extent contemplated by the Collateral Documents. Co-Collateral Agent shall act in concert with Agent in matters delegated to the both of them under this Agreement; however, in the event of any disagreement or dispute between Agent and Co-Collateral Agent in any such matter, the determination or decision of Agent shall, in all cases, controlCollateral.
Appears in 1 contract
Sources: Convertible Note Purchase Agreement (Power & Digital Infrastructure Acquisition Corp.)
Collateral Matters. The Lenders irrevocably agree:
(a) Lenders hereby irrevocably authorize and direct that the Collateral Agent is authorized to release any Liens upon Lien on any property granted to or held by the Collateral (and Agent under any such Liens shall be automatically released, without any action by Agent or any other Person)Loan Document, (i) upon at the Termination Date; time the property subject to such Lien is pledged pursuant to Section 6.02(n)(x) or Section 6.02(n)(y) (but solely to the extent such property consists of Revolving Credit Priority Collateral and Hedging Agreements related to the value of such Revolving Credit Priority Collateral) or sold, leased, licensed, consigned, transferred or otherwise disposed of as part of or in connection with any Asset Sale permitted under Section 6.06 to any Person other than a Loan Party (provided that no Lien shall be released in any Series of Cash Neutral Transactions) (or, if such transferee is a Loan Party, the Collateral Agent is authorized to release such Lien on such asset in connection with the transfer so long as (w) the transferee grants a new Lien to the Collateral Agent on such asset substantially concurrently with the transfer of such asset, (x) the transfer is between parties organized under the laws of different countries, (y) the priority of the new Lien is the same as that of the original Lien and (z) the Liens on such property held by or on behalf of the holders of Indebtedness under the Revolving Credit Loan Documents or any Permitted Revolving Credit Facility Refinancing, Permitted First Priority Refinancing Debt, Permitted Secured Priority Refinancing Debt, Additional Senior Secured Indebtedness and Junior Secured Indebtedness are also released), (ii) in respect of property of any Subsidiary being sold or disposed of or transferred (including property owned by any Subsidiary being sold or disposed of or transferred) subject to Section 11.02, if the sale release of such Lien is approved, authorized or Disposition or transfer is made ratified in compliance with this Agreement and the Loan Documents (or otherwise is not prohibited) (and Agent may, in its discretion, request, and rely conclusively without further inquiry on a certificate from the Borrower certifying as such prior to Agent taking any action to evidence such release) or such sale or Disposition is approved writing by the Requisite Required Lenders (or such greater other number of Lenders as may be whose consent is required under Section 12.211.02); , (iii) if the property subject to such Lien is owned by a Guarantor, upon release of such Guarantor from its obligations under its Guarantee pursuant to Section 7.09 or (iv) upon termination of all Commitments and the repayment in full of all outstanding principal and accrued interest with respect to the Loans, all Fees and other Obligations; and
(b) to release or subordinate any Lien on any property granted to or held by the Collateral Agent under any Loan Document to the holder of any Lien on such property that is permitted by Section 6.02(i), to the extent the applicable Collateral is or becomes Excluded Property and/or Excluded Principal Property; (iv) to the extent the applicable Collateral constitutes property leased to Credit Parties under a lease which has expired or been terminated in a transaction permitted under this Agreement; (v) to the extent the Credit Party owning such Collateral is released from its Obligations hereunder (pursuant to Section 13.11 or otherwise); or (vi) as required by the terms of the ABL Intercreditor Agreement. Upon request obligations secured by such Liens; Each Lender irrevocably authorizes the Collateral Agent to, at the Borrower's expense, execute and deliver documents to authorize the release or Parent Borrower at any time, Lenders will confirm in writing Agent’s authority to release any Lien upon particular types or subordination of such items of Collateral pursuant to from the Liens granted under the Security Documents, in each case in accordance with the terms of the Loan Documents and this Section 10.11. In addition, the Lenders hereby authorize Agent, to subordinate any Lien granted to or held by Agent upon any Collateral to any Lien on such asset permitted pursuant to paragraph (6)(C) of the definition of Permitted Lien. In addition, the Guaranty of the Obligations by, and the liens on the assets of, any Restricted Subsidiary which is designated as an Unrestricted Subsidiary will automatically be terminated and released at the time of such designation11.29.
(b) Promptly, and in any event not later than five (5) Business Days’ following written request by Parent Borrower, Agent shall (and is hereby irrevocably authorized and directed by Lenders to) execute such documents as may be necessary to evidence the release (or subordination) of its Liens upon such Collateral as contemplated by Section 10.11(a); provided, however, that (i) Agent shall not be required to execute any such document on terms which, in Agent’s opinion, would expose Agent to liability or create any 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 Liens (other than those expressly being released) upon (or obligations of Credit Parties in respect of) all interests retained by Credit Parties, including the proceeds of any sale, all of which shall continue to constitute part of the Collateral to the extent contemplated by the Collateral Documents. Co-Collateral Agent shall act in concert with Agent in matters delegated to the both of them under this Agreement; however, in the event of any disagreement or dispute between Agent and Co-Collateral Agent in any such matter, the determination or decision of Agent shall, in all cases, control.
Appears in 1 contract
Sources: Credit Agreement (Novelis Inc.)
Collateral Matters. (a) Each of the Lenders hereby irrevocably authorize acknowledges and direct Agent to release any agrees that Liens upon any the Collateral (and any such Liens shall be automatically released, without any action granted to or held by the Agent or the Collateral Trustee under any other Person), Loan Document will be released:
(i) in whole, upon termination of the Termination Date; Revolving Loan Commitments and payment in full of all Obligations (other than contingent indemnification obligations) and the expiration or termination of all Letters of Credit;
(ii) in respect of property as to any Collateral that is sold, transferred or otherwise disposed of, or to be sold, transferred or otherwise disposed of, as part of any Subsidiary being sold sale, transfer or disposed other disposition, or proposed sale, transfer or other disposition permitted under Sections 8.2.9 or 8.2.10 (exclusive of any transfer (whether by means of merger or transferred (including property owned by otherwise) to any Subsidiary being sold of the Borrower permitted under Sections 8.2.9 or disposed of or transferred) 8.2.10; provided, however, that if the sale or Disposition or transfer any Pledged Power Project is made in compliance with this Agreement and the Loan Documents (or otherwise is not prohibited) (and Agent may, in its discretion, request, and rely conclusively without further inquiry on a certificate transferred from the Borrower certifying as such prior to Agent taking any action to evidence such release) a Subsidiary that is a Pledged Entity or such sale or Disposition is approved a Subsidiary of a Pledged Entity, the Lien created by the Requisite Lenders (or such greater number of Lenders as may applicable Security Document thereon shall be required under Section 12.2so released); ;
(iii) to in connection with any abandonment, forfeiture, surrender or release of oil and gas assets permitted under the extent the applicable Collateral is or becomes Excluded Property and/or Excluded Principal Property; Deeds of Trust;
(iv) as to the extent the applicable Collateral constitutes property leased to Credit Parties under a lease which has expired or been terminated in a transaction permitted under this Agreementany Excluded Assets; and
(v) to the extent the Credit Party owning such Collateral is released from its Obligations hereunder (pursuant to permitted by Section 13.11 or otherwise11.1(f); or (vi) as required by the terms of the ABL Intercreditor Agreement. Upon request by Agent or Parent Borrower at any time, Lenders will confirm in writing Agent’s authority to release any Lien upon particular types or items of Collateral pursuant to this Section 10.11. In addition, the Lenders hereby authorize Agent, to subordinate any Lien granted to or held by Agent upon any Collateral to any Lien on such asset permitted pursuant to paragraph (6)(C) of the definition of Permitted Lien. In addition, the Guaranty of the Obligations by, and the liens on the assets of, any Restricted Subsidiary which is designated as an Unrestricted Subsidiary will automatically be terminated and released at the time of such designation.
(b) Promptly, and in any event not later than five (5) Business Days’ following written request by Parent Borrower, Agent shall (and is Each Lender hereby irrevocably authorized and directed by Lenders to) execute such documents as may be necessary to evidence authorizes the release (or subordination) of its Liens upon such Collateral as contemplated by Section 10.11(a); provided, however, that (i) Agent shall not be required to execute any such document on terms which, in Agent’s opinion, would expose Agent to liability or create any obligation or entail any consequence other than act under the Collateral Trust Agreement to 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 Liens (other than those expressly being released) upon (or obligations of Credit Parties in respect of) all interests retained by Credit Parties, including the proceeds of any sale, all of which shall continue to constitute part of the Collateral Trustee's Lien on applicable Collateral to the extent contemplated set forth in clause (a) above.
(c) Each Lender hereby authorizes and directs the Agent to transfer to the Collateral Trustee all Liens and security interests held by the Agent under the 2002 Credit Agreement, including the Agent's interest as beneficiary or mortgagee under the Existing Deeds of Trust, its interest as secured party under related financing statements and all rights, powers, duties and obligations under the Existing Deeds of Trust necessary or helpful in the exercise of the Collateral Documents. Co-Trustee's duties and obligations under the Collateral Agent shall act in concert with Agent in matters delegated to the both of them under this Trust Agreement; however.
(d) The Borrower agrees that, in the event case of any disagreement Lien to be released in connection with a proposed sale, transfer or dispute between Agent and Co-other disposition pursuant to clause (a)(ii) above, (i) such release will only become effective in connection with a Permitted Sale, (ii) no Lien on such property has or will be granted to any other Person other than the Collateral Agent in any such matterTrustee (for the benefit of, among others, the determination Lenders hereunder) during the period between the date of such release and the date of the consummation of the Permitted Sale and (iii) in the event that the consummation of the Permitted Sale does not take place (or decision a definitive binding agreement with respect to such Permitted Sale is not entered into) with 60 days of Agent shallsuch release, in all casesthe Lien of the Collateral Trustee (for the benefit of, controlamong others, the Lenders hereunder) on such property will immediately and automatically be reinstated.
Appears in 1 contract
Sources: Credit Agreement (Calpine Corp)
Collateral Matters. Each Lender (including in its capacity as a counterparty to a Secured Interest Rate Hedge Agreement) and each other Secured Party by its acceptance of the Collateral Documents irrevocably agrees: (a) Lenders hereby irrevocably authorize and direct that any Lien on any property granted to or held by the Administrative Agent to release or the Collateral Agent under any Liens upon any Collateral (and any such Liens Loan Document shall be automatically released, without any action by Agent or any other Person), released (i) upon termination of the Termination Date; Aggregate Commitments and payment in full in cash of all Obligations (other than contingent indemnification obligations not yet accrued and payable) and the expiration or termination or cash collateralization of all Letters of Credit (or if such Letters of Credit have been backstopped by letters of credit reasonably 109 KE 73718588.20 US-DOCS\142539518.2141222994.8
(i) a First Lien Intercreditor Agreement with the applicable Other Debt Representatives with respect to Indebtedness permitted under Section 7.02 where such Indebtedness is secured by Permitted Liens that the Borrower elects to secure on a pari passu basis with the Liens securing the Obligations and/or (ii) in a Junior Lien Intercreditor Agreement with the applicable Other Debt Representatives with respect of property of any Subsidiary being sold or disposed of or transferred (including property owned to Indebtedness permitted under Section 7.02 where such Indebtedness is secured by any Subsidiary being sold or disposed of or transferred) if Permitted Liens that the sale or Disposition or transfer is made in compliance with this Agreement and Borrower elects to secure on a junior basis to the Loan Documents (or otherwise is not prohibited) (and Liens securing the Obligations. The Collateral Agent may, in its discretion, request, and may rely conclusively without further inquiry exclusively on a certificate from of a Responsible Officer of the Borrower certifying as to whether any such prior to Agent taking other Liens are permitted. Any First Lien Intercreditor Agreement or any action to evidence such releaseJunior Lien Intercreditor Agreement (or any supplement or amendment thereto, or amendment and restatement or replacement thereof) or such sale or Disposition is approved entered into by the Requisite Lenders (or such greater number of Lenders as may be required under Section 12.2); (iii) to the extent the applicable Collateral is or becomes Excluded Property and/or Excluded Principal Property; (iv) to the extent the applicable Collateral constitutes property leased to Credit Parties under a lease which has expired or been terminated Agent in a transaction permitted under this Agreement; (v) to the extent the Credit Party owning such Collateral is released from its Obligations hereunder (pursuant to Section 13.11 or otherwise); or (vi) as required by accordance with the terms of this Agreement shall be binding on the ABL Intercreditor AgreementSecured Parties. Upon request by the Administrative Agent or Parent Borrower the Collateral Agent at any time, the Required Lenders will confirm in writing the Administrative Agent’s or the Collateral Agent’s authority to release any Lien upon or subordinate its interest in particular types or items of property. In each case as specified in this Section 9.11, the Administrative Agent or the Collateral Agent will promptly upon the request of the Borrower (and each Lender irrevocably authorizes the Administrative Agent and the Collateral Agent to), at the Borrower’s expense, execute and deliver to the Borrower such documents as the Borrower may reasonably request to evidence the release or subordination of such item of Collateral from the assignment and security interest granted under the Collateral Documents, in each case in accordance with the terms of the Loan Documents and this Section 9.11 (and the Administrative Agent and the Collateral Agent may rely conclusively on a certificate of a Responsible Officer of the Borrower to that effect provided to it by the Borrower upon its reasonable request without further inquiry). Any execution and 110 KE 73718588.20 US-DOCS\142539518.2141222994.8 delivery of documents pursuant to this Section 10.11. In addition, the Lenders hereby authorize Agent, to subordinate any Lien granted shall be without recourse to or held warranty by the Administrative Agent upon any or the Collateral to any Lien on such asset permitted pursuant to paragraph (6)(C) Agent. For the avoidance of the definition of Permitted Lien. In additiondoubt, the Guaranty of the Obligations by, and the liens on the assets of, any Restricted Subsidiary which is designated as an Unrestricted Subsidiary will automatically be terminated and released at the time of such designation.
(b) Promptly, and in any event not later than five (5) Business Days’ following written request by Parent Borrower, Agent shall (and is hereby irrevocably authorized and directed by Lenders to) execute such documents as may be necessary to evidence the release (or subordination) of its Liens upon such Collateral as contemplated by Section 10.11(a); provided, however, that (i) Agent shall not be required to execute any such document on terms which, in Agent’s opinion, would expose Agent to liability or create any obligation or entail any consequence other than the no release of such Liens without recourse or warranty, and (ii) such release Collateral effected in the manner permitted by this Section 9.11 shall not in any manner discharge, affect or impair require the Obligations or any Liens (other than those expressly being released) upon (or obligations of Credit Parties in respect of) all interests retained by Credit Parties, including the proceeds consent of any sale, all holder of which shall continue to constitute part of the Collateral to the extent contemplated by the Collateral Documents. Co-Collateral Agent shall act in concert with Agent in matters delegated to the both of them obligations under this any Secured Interest Rate Hedge Agreement; however, in the event of any disagreement or dispute between Agent and Co-Collateral Agent in any such matter, the determination or decision of Agent shall, in all cases, control.
Appears in 1 contract
Collateral Matters. (a) Lenders hereby irrevocably authorize Agent may, at its option, from time to time, at any time on or after an Event of Default and direct Agent to release any Liens for so long as the same is continuing or upon any Collateral other failure of a condition precedent to the Loans and Letters of Credit hereunder, make such disbursements and advances (and any such Liens shall be automatically released“Special Agent Advances”) which Agent, without any action by Agent or any other Person)in its sole discretion, (i) upon deems necessary or desirable either to preserve or protect the Termination Date; Collateral or any portion thereof or (ii) to enhance the likelihood or maximize the amount of repayment by Borrowers of the 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 respect Section 12.8 hereof, shall not exceed the amount equal to ten (10%) percent of property the Maximum Credit and (B) the aggregate principal amount of the Special Agent Advances pursuant to this clause (ii) outstanding at any Subsidiary being sold time, plus the then outstanding principal amount of the Loans and Letters of Credit, shall not exceed the Maximum Credit, except at Agent’s option; provided, that, to the extent that the aggregate principal amount of Special Agent Advances plus the then outstanding principal amount of the Loans and Letters of Credit exceed the Maximum Credit the Special Agent Advances that are in excess of the Maximum Credit shall be for the sole account and risk of Agent and notwithstanding anything to the contrary set forth below, no Lender shall have any obligation to provide its share of such Special Agent Advances in excess of the Maximum Credit, or disposed of or transferred (including property owned by any Subsidiary being sold or disposed of or transferred) if the sale or Disposition or transfer is made in compliance with this Agreement and the Loan Documents (or otherwise is not prohibited) (and Agent may, in its discretion, request, and rely conclusively without further inquiry on a certificate from the Borrower certifying as such prior to Agent taking any action to evidence such release) or such sale or Disposition is approved by the Requisite Lenders (or such greater number of Lenders as may be required under Section 12.2); (iii) to the extent the applicable Collateral is pay any other amount chargeable to any Borrower or becomes Excluded Property and/or Excluded Principal Property; (iv) Obligor pursuant to the extent terms of this Agreement or any of the applicable Collateral constitutes property leased other Financing Agreements consisting of (A) costs, fees and expenses and (B) payments to Issuing Bank in respect of any Letter of Credit Parties under a lease which has expired or been terminated in a transaction permitted under this Agreement; (v) to Obligations. The Special Agent Advances shall be repayable on demand and together with all interest thereon shall constitute Obligations secured by the extent Collateral. Special Agent Advances shall not constitute Loans but shall otherwise constitute Obligations hereunder. Interest on Special Agent Advances shall be payable at the Credit Party owning such Collateral is released from Interest Rate and shall be payable on demand. Without limitation of its Obligations hereunder (obligations pursuant to Section 13.11 or otherwise); or 6.11, each Lender agrees that it shall make available to Agent, upon Agent’s demand, in immediately available funds, the amount equal to such Lender’s Pro Rata Share of each such Special Agent Advance. If such funds are not made available to Agent by such Lender, such Lender shall be deemed a Defaulting Lender and 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 Agent at the Federal Funds Rate for each day during such period (vi) as required published by the terms Federal Reserve Bank of New York or at Agent’s option based on the arithmetic mean determined by Agent of the ABL Intercreditor Agreement. Upon request rates for the last transaction in overnight Federal funds arranged prior to 9:00 a.m. (New York City time) on that day by Agent or Parent Borrower at any time, Lenders will confirm each of the three leading brokers of Federal funds transactions in writing New York City selected by Agent) and if such amounts are not paid within three (3) days of Agent’s authority to release any Lien upon particular types or items of Collateral pursuant to this Section 10.11. In additiondemand, the Lenders hereby authorize Agent, to subordinate any Lien granted to or held by Agent upon any Collateral to any Lien on such asset permitted pursuant to paragraph (6)(C) of the definition of Permitted Lien. In addition, the Guaranty of the Obligations by, and the liens on the assets of, any Restricted Subsidiary which is designated as an Unrestricted Subsidiary will automatically be terminated and released at the time of such designationhighest Interest Rate provided for in Section 3.1 hereof.
(b) Promptly, and in any event not later than five (5) Business Days’ following written request by Parent Borrower, Agent shall (and is hereby irrevocably authorized and directed by Lenders to) execute such documents as may be necessary to evidence the release (or subordination) of its Liens upon such Collateral as contemplated by Section 10.11(a); provided, however, that (i) Agent shall not be required to execute any such document on terms which, in Agent’s opinion, would expose Agent to liability or create any 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 Liens (other than those expressly being released) upon (or obligations of Credit Parties in respect of) all interests retained by Credit Parties, including the proceeds of any sale, all of which shall continue to constitute part of the Collateral to the extent contemplated by the Collateral Documents. Co-Collateral Agent shall act in concert with Agent in matters delegated to the both of them under this Agreement; however, in the event of any disagreement or dispute between Agent and Co-Collateral Agent in any such matter, the determination or decision of Agent shall, in all cases, control.
Appears in 1 contract
Sources: Loan and Security Agreement (Pacific Ethanol, Inc.)
Collateral Matters. (a) The Lenders (and each other Secured Party by their acceptance of the benefits of the Loan Documents shall be deemed to) hereby irrevocably authorize the Collateral Agent (and direct if applicable, any subagent appointed by the Collateral Agent under Section 13.2 or otherwise) to release any its Liens on the Collateral, and the Collateral Agent’s Liens upon any Collateral (and any such Liens shall be automatically released, without any action by Agent or any other Person), released (iA) upon Full Payment of the Termination DateObligations; (iiB) in respect upon a disposition of property of any Subsidiary being sold or disposed of or transferred Collateral permitted by Section 8.8 to a Person that is not an Obligor; (including property owned by any Subsidiary being sold or disposed of or transferredC) if any such Collateral constitutes property in which the sale Obligors owned no interest at the time the Lien was granted or Disposition or transfer is made in compliance with this Agreement and the Loan Documents (or otherwise is not prohibited) (and Agent may, in its discretion, request, and rely conclusively without further inquiry on a certificate from the Borrower certifying as such prior to Agent taking at any action to evidence such release) or such sale or Disposition is approved by the Requisite Lenders (or such greater number of Lenders as may be required under Section 12.2)time thereafter; (iiiD) to the extent the applicable Collateral is or becomes Excluded Property and/or Excluded Principal Property; (iv) to the extent the applicable if any such Collateral constitutes property leased to Credit Parties an Obligor under a lease which has expired or been terminated in a transaction permitted under this Agreement; (vE) to the extent the Credit Party owning property constituting such Collateral is released owned by any Guarantor, upon the release of such Guarantor from its Obligations hereunder obligations under the Guarantee Agreement (pursuant to Section 13.11 or otherwisein accordance with the second succeeding sentence and the Guarantee Agreement); or (viF) as required by the terms Collateral Agent to effect any sale, transfer or other Disposition of Collateral in connection with any exercise of remedies of the ABL Intercreditor AgreementCollateral Agent pursuant to the Security Documents, (G) to the extent such Collateral otherwise becomes an Excluded Stock or an Excluded Asset, and (H) if the percentage of Lenders required to consent to the Collateral being released hereunder, so consents to the Collateral being released. Except as provided above, the Collateral Agent will not release any of the Collateral Agent’s Liens without the prior written authorization of the Required Lenders (or such other percentage of Lenders whose consent is required in accordance with Section 12.1); provided that, in addition to the foregoing, the Collateral Agent may, in its discretion, release such Collateral Agent’s Liens on Collateral valued in the aggregate not in excess of $1,000,000 during each Fiscal Year without the prior written authorization of any Lender, so long as all proceeds received in connection with such release are applied to the Obligations in accordance with Section 4.7 and, after giving effect to the application of such proceeds and the updating of the Borrowing Base, as the case may be, to reflect the deletion of any assets subject to such release, Availability shall be no less than the Availability immediately prior to such release. Upon request by the Collateral Agent or Parent the Borrower at any time, subject to the Borrower having certified to the Collateral Agent that the disposition is made in compliance with Section 8.8 (which the Collateral Agent may rely conclusively on any such certificate, without further inquiry), the Lenders will confirm in writing the Collateral Agent’s authority to release any Lien applicable Collateral Agent’s Liens upon particular types or items of Collateral pursuant to this Section 10.1113.10. In addition, the Lenders (and each other Secured Party by their acceptance of the benefits of the Loan Documents shall be deemed to) hereby irrevocably authorize Agent, (w) the Collateral Agent to subordinate any Lien on any property granted to or held by the Collateral Agent upon under any Collateral Loan Document to the holder of any Lien on such asset property that is permitted by Section 8.12(c) or (r) (as to Fixed Asset Collateral and, subject to exceeding certain caps in any applicable Intercreditor Agreement, the Current Asset Collateral), (x) the Agent to release automatically any Guarantor from its obligations under the Guarantee Agreement if such Person ceases to be a Restricted Subsidiary as a result of a transaction permitted under this Agreement or such Person otherwise becomes an Excluded Subsidiary, in each case, solely to the extent such Subsidiary ceasing to constitute a Restricted Subsidiary or otherwise becoming an Excluded Subsidiary is not prohibited by this Agreement, (y) so long as both (1) no Default or Event of Default has occurred and is continuing or would result therefrom and (2) no Out-of-Formula Condition has occurred and is continuing or would result therefrom, then, to the extent that the Collateral Agent obtains possession of any Collateral by operation of Section 13.12 of this Agreement that constitutes Collateral that Obligors are not required to deliver to Collateral Agent at such time pursuant to paragraph the terms hereof, the Security Documents or any other contractual arrangement with any Obligor, following the written request by Borrower, Collateral Agent shall (6)(Cto the extent not prohibited by applicable Law or legal process) deliver such Collateral in accordance with the terms of the applicable Intercreditor Agreement or, if no applicable Intercreditor Agreement is then in effect, to the applicable Obligor, and (z) if after the date hereof Collateral Agent’s Lien has been expanded to include Fixed Asset Collateral in connection with incurrence of Debt pursuant to Section 8.12(q), or (r), so long as all of the following conditions are satisfied (1) no Default or Event of Default has occurred and is continuing or would result therefrom, (2) no Out-of-Formula Condition has occurred and is continuing or would result therefrom, and (3) no Debt has been incurred in reliance on Section 8.12(q), or (r) that remains outstanding (and no commitments for Debt that, if incurred would be incurred in reliance on Section 8.12(q), or (r), remain outstanding) and no Liens are outstanding in reliance on clause (r) of the definition of Permitted Lien. In additionLiens, or, to the extent on account of Refinancing Debt, or outstanding commitments that, if incurred, would be Refinancing Debt, in each case incurred in reliance, directly or indirectly, on Section 8.12(q), or (r), clause (p) of the definition of “Permitted Liens”, promptly following the written request of the Borrower, the Guaranty Collateral Agent shall release Collateral Agent’s Liens on Fixed Assets Collateral (other than, in each case any Inventory or Fracturing Equipment Parts (as defined in the Initial Intercreditor Agreement)) at the expense of the Obligations byObligors. Upon request by any Appointed Agent at any time, and the liens on the assets ofRequired Lenders will confirm in writing such Appointed Agent’s authority to release or subordinate its interest in particular types or items of property, or to release any Restricted Subsidiary which is designated as an Unrestricted Subsidiary will automatically be terminated and released at the time of such designationGuarantor from its obligations pursuant to this Section 13.10(a).
(b) PromptlyUpon receipt by any Appointed Agent of any authorization required pursuant to Section 13.10(a) from the Lenders of such Appointed Agent’s authority to release or subordinate the applicable Collateral Agent’s Liens upon particular types or items of Collateral, or to release any Guarantor from its obligations under the Guarantee Agreement, and in any event not later than five upon at least three (53) Business Days’ following prior written request by Parent the Borrower, such Appointed Agent shall (and is hereby irrevocably authorized by the Lenders and directed by Lenders the other Secured Parties to) execute such documents as may be necessary to evidence the release (or subordination) of its such Collateral Agent’s Liens upon such Collateral as contemplated by Section 10.11(a)or to subordinate its interest therein, or to release such Guarantor from its obligations under the Guarantee Agreement; provided, however, that (iI) such Appointed Agent shall not be required to execute any such document on terms which, in such Appointed Agent’s opinion, would expose such Appointed Agent to liability or create any obligation or entail any consequence other than the release of such Liens without recourse or warranty, and (iiJ) such release shall not in any manner discharge, affect or impair the Obligations or any Liens (other than those expressly being released) upon (or obligations of Credit Parties the Obligors in respect of) all interests retained by Credit Partiesthe Obligors, including the proceeds of any sale, all of which shall continue to constitute part of the Collateral to the extent contemplated by the Collateral Documents. Co-such Collateral.
(c) The Collateral Agent shall have no obligation whatsoever to any of the Lenders to assure that the Collateral exists or is owned by the Obligors or is cared for, protected or insured or has been encumbered, or that the applicable Collateral Agent’s Liens have been properly or sufficiently or lawfully created, perfected, protected or enforced or 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 pursuant to any of the Loan 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 concert with Agent in matters delegated to the both of them under this Agreement; howeverany manner it may deem appropriate, in its sole discretion, given the event Collateral Agent’s own interest in the Collateral in its capacity as one of any disagreement or dispute between Agent the Lenders and Co-that the Collateral Agent in shall have no other duty or liability whatsoever to any such matterLender as to any of the foregoing.
(d) In addition, the determination or decision Lenders (and each other Secured Party by their acceptance of the benefits of the Loan Documents shall be deemed to) hereby irrevocably authorize the Agent shall, in all cases, controlto release automatically the Parent from its obligations under the Parent Guarantee upon Full Payment of the Obligations.
Appears in 1 contract
Collateral Matters. (a) The Lenders hereby irrevocably authorize the Agent, at its option and direct Agent in its sole discretion, to release any Agent's Liens upon any Collateral (and any such Liens shall be automatically released, without any action by Agent or any other Person), (i) upon the Termination Datetermination of the Commitments and payment and satisfaction in full by the Borrowers of all Loans and reimbursement obligations in respect of Letters of Credit and Credit Support and all other Obligations, and the termination of all outstanding Letters of Credit (whether or not any of such obligations are due); (ii) in respect of constituting property of any Subsidiary being sold or disposed of or transferred (including property owned by any Subsidiary being sold or disposed of or transferred) if the Parent certifies to the Agent that the sale or Disposition or transfer disposition is made in compliance with this Agreement Section 7.9 (and the Loan Documents (or otherwise is not prohibited) (and Agent may, in its discretion, request, and may rely conclusively on any such certificate, without further inquiry on a certificate from the Borrower certifying as such prior to Agent taking any action to evidence such release) or such sale or Disposition is approved by the Requisite Lenders (or such greater number of Lenders as may be required under Section 12.2inquiry); (iii) to constituting property in which a Loan Party owned no interest at the extent time the applicable Collateral is Lien was granted or becomes Excluded Property and/or Excluded Principal Propertyat any time thereafter; or (iv) to the extent the applicable Collateral constitutes constituting property leased to Credit Parties a Loan Party under a lease which has expired or been terminated in a transaction permitted under this Agreement; (v) to . Except as provided above, the extent the Credit Party owning such Collateral is released from its Obligations hereunder (pursuant to Section 13.11 or otherwise); or (vi) as required by the terms Agent will not release any of the ABL Intercreditor AgreementAgent's Liens without the prior written authorization of the Lenders; provided that the Agent may, in its discretion, release the Agent's Liens on Collateral valued in the aggregate not in excess of $1,000,000 during each Fiscal Year without the prior written authorization of the Lenders. Upon request by the Agent or the Parent Borrower at any time, the Lenders will confirm in writing the Agent’s 's authority to release any Lien Agent's Liens upon particular types or items of Collateral pursuant to this Section 10.11. In addition, the Lenders hereby authorize Agent, to subordinate any Lien granted to or held by Agent upon any Collateral to any Lien on such asset permitted pursuant to paragraph (6)(C) of the definition of Permitted Lien. In addition, the Guaranty of the Obligations by, and the liens on the assets of, any Restricted Subsidiary which is designated as an Unrestricted Subsidiary will automatically be terminated and released at the time of such designation12.11.
(b) PromptlyUpon receipt by the Agent of any authorization required pursuant to Section 12.11(a) from the Lenders of the Agent's authority to release Agent's Liens upon particular types or items of Collateral, and in any event not later than upon at least five (5) Business Days’ following Days prior written request by Parent Borrowerthe Parent, the Agent shall (and is hereby irrevocably authorized and directed by the Lenders to) execute such documents as may be necessary to evidence the release (or subordination) of its the Agent's Liens upon such Collateral as contemplated by Section 10.11(a)Collateral; provided, however, that (i) the Agent shall not be required to execute any such document on terms which, in the Agent’s 's opinion, would expose the Agent to liability or create any 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 Liens (other than those expressly being released) upon (or obligations of Credit Parties any Loan Party in respect of) all interests retained by Credit Partiesany Loan Party, including the proceeds of any sale, all of which shall continue to constitute part of the Collateral except as provided hereunder.
(c) The Agent shall have no obligation whatsoever to any of the Lenders to assure that the Collateral exists or is owned by any Loan Party or is cared for, protected or insured or has been encumbered, or that the Agent's Liens have been properly or sufficiently or lawfully created, perfected, protected or enforced or 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 extent contemplated by Agent pursuant to any of the Loan Documents, it being understood and agreed that in respect of the Collateral, or any act, omission or event related thereto, the Agent may act in any manner it may deem appropriate, in its sole discretion, given the Agent's own interest in the Collateral Documents. Co-Collateral in its capacity as one of the Lenders and that the Agent shall act in concert with Agent in matters delegated have no other duty or liability whatsoever to any Lender as to any of the both of them under this Agreement; however, in the event of any disagreement or dispute between Agent and Co-Collateral Agent in any such matter, the determination or decision of Agent shall, in all cases, controlforegoing.
Appears in 1 contract
Collateral Matters. (a) Lenders hereby irrevocably authorize The Master Collateral Agreement, upon execution and direct Agent to release any Liens upon any delivery thereof by the parties thereto, will create in favor of the Administrative Agent, for the benefit of the Secured Parties (as defined therein), a valid and enforceable security interest in the Collateral (and any such Liens shall be automatically released, without any action by Agent or any other Person), (i) upon the Termination Date; (ii) in respect of property of any Subsidiary being sold or disposed of or transferred (including property owned by any Subsidiary being sold or disposed of or transferred) if the sale or Disposition or transfer is made in compliance with this Agreement and the Loan Documents (or otherwise is not prohibited) (and Agent may, in its discretion, request, and rely conclusively without further inquiry on a certificate from the Borrower certifying as such prior to Agent taking any action to evidence such release) or such sale or Disposition is approved by the Requisite Lenders (or such greater number of Lenders as may be required under Section 12.2); (iiidefined therein) to the extent a security interest can be created therein under New York law and (i) when the Collateral constituting certificated securities (as defined in the Uniform Commercial Code) is delivered to the Administrative Agent, together with instruments of transfer duly endorsed in blank, to the extent required under the Master Collateral Agreement, the security interest created under the Master Collateral Agreement will constitute a fully perfected security interest in all right, title and interest of the Loan Parties party thereto in such Collateral, prior and superior in right to any other Person, except for rights secured by Liens permitted under Section 6.01 (including, for the avoidance of doubt, Liens securing the obligations under the Revolving Credit Agreement or any Permitted Revolving Indebtedness), and (ii) when Uniform Commercial Code financing statements (or equivalent) in appropriate form are filed in the applicable filing offices, the security interest created under the Master Collateral is or becomes Excluded Property and/or Excluded Principal Property; Agreement will constitute a fully perfected security interest in all right, title and interest of the Loan Parties party thereto in the remaining Collateral (ivas defined therein) to the extent perfection can be obtained by filing Uniform Commercial Code financing statements (or equivalent), prior and superior to the applicable Collateral constitutes property leased to Credit Parties under a lease which has expired or been terminated in a transaction rights of any other Person, except for rights secured by Liens permitted under this Agreement; Section 6.01 (v) to including, for the extent avoidance of doubt, Liens securing the obligations under the Revolving Credit Party owning such Collateral is released from its Obligations hereunder (pursuant to Section 13.11 Agreement or otherwiseany Permitted Revolving Indebtedness); or (vi) as required by the terms of the ABL Intercreditor Agreement. Upon request by Agent or Parent Borrower at any time, Lenders will confirm in writing Agent’s authority to release any Lien upon particular types or items of Collateral pursuant to this Section 10.11. In addition, the Lenders hereby authorize Agent, to subordinate any Lien granted to or held by Agent upon any Collateral to any Lien on such asset permitted pursuant to paragraph (6)(C) of the definition of Permitted Lien. In addition, the Guaranty of the Obligations by, and the liens on the assets of, any Restricted Subsidiary which is designated as an Unrestricted Subsidiary will automatically be terminated and released at the time of such designation.
(b) PromptlyUpon the execution and delivery of the Master IP Security Agreements by the Borrower and the recordation of the Master IP Security Agreements with the United States Patent and Trademark Office or the United States Copyright Office, as applicable, and the filing of the financing statements referred to in paragraph (a) of this Section 3.26, the security interest created under the Master Collateral Agreement will constitute a fully perfected security interest in all right, title and interest of the Borrower in the IP Collateral (to the extent constituting Collateral as defined in the Master Collateral Agreement) in which a security interest may be perfected by filing in the United States, in each case prior and superior to the rights of any event not later than five other Person, except for rights secured by Liens permitted under Section 6.01 (5including, for the avoidance of doubt, Liens securing the obligations under the Revolving Credit Agreement or any Permitted Revolving Indebtedness) Business Days’ following written request by Parent Borrower, Agent shall (it being understood that subsequent recordings in the United States Patent and is hereby irrevocably authorized and directed by Lenders to) execute such documents as Trademark Office or the United States Copyright Office may be necessary to evidence perfect a security interest in the release (or subordination) of its Liens upon such IP Collateral as contemplated by Section 10.11(a); provided, however, that (i) Agent shall not be required to execute any such document on terms which, in Agent’s opinion, would expose Agent to liability or create any 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 Liens (other than those expressly being released) upon (or obligations of Credit Parties in respect of) all interests retained by Credit Parties, including the proceeds of any sale, all of which shall continue to constitute part of the Collateral to the extent contemplated acquired by the Collateral Documents. Co-Collateral Agent shall act in concert with Agent in matters delegated to Borrower after the both of them under this Agreement; however, in the event of any disagreement or dispute between Agent and Co-Collateral Agent in any such matter, the determination or decision of Agent shall, in all cases, controlClosing Date).
Appears in 1 contract
Sources: Term Loan Credit Agreement (Tupperware Brands Corp)
Collateral Matters. (a) The Lenders (and each other Secured Party by their acceptance of the benefits of the Loan Documents shall be deemed to) hereby irrevocably authorize the Collateral Agent (and direct if applicable, any subagent appointed by the Collateral Agent under Section 13.2 or otherwise) to release any its Liens on the Collateral, and the Collateral Agent shall release its Liens upon any Collateral (and any such Liens shall be automatically released, without any action by Agent or any other Person), (i) upon Full Payment of the Termination DateObligations; (ii) in respect upon a disposition of property of any Subsidiary being sold or disposed of or transferred (including property owned Collateral permitted by any Subsidiary being sold or disposed of or transferred) if the sale or Disposition or transfer is made in compliance with this Agreement and the Loan Documents (or otherwise Section 8.8 to a Person that is not prohibited) (and Agent may, in its discretion, request, and rely conclusively without further inquiry on a certificate from the Borrower certifying as such prior to Agent taking any action to evidence such release) or such sale or Disposition is approved by the Requisite Lenders (or such greater number of Lenders as may be required under Section 12.2)an Obligor; (iii) to if any such Collateral constitutes property in which the extent Obligors owned no interest at the applicable Collateral is time the Lien was granted or becomes Excluded Property and/or Excluded Principal Propertyat any time thereafter; (iv) to the extent the applicable if any such Collateral constitutes property leased to Credit Parties an Obligor under a lease which has expired or been terminated in a transaction permitted under this Agreement; (v) to the extent the Credit Party owning property constituting such Collateral is released owned by any Guarantor, upon the release of such Guarantor from its Obligations hereunder obligations under the Guarantee Agreement (pursuant to Section 13.11 or otherwisein accordance with the second succeeding sentence and the Guarantee Agreement); or (vi) as required by the terms Collateral Agent to effect any sale, transfer or other Disposition of Collateral in connection with any exercise of remedies of the ABL Intercreditor AgreementCollateral Agent pursuant to the Security Documents, (vii) to the extent such Collateral otherwise becomes an Excluded Stock or an Excluded Asset, and (viii) if the percentage of Lenders required to consent to the Collateral being released hereunder, so consents to the Collateral being released. Except as provided above, the Collateral Agent will not release any of the Collateral Agent’s Liens without the prior written authorization of the Required Lenders (or such other percentage of Lenders whose consent is required in accordance with Section 12.1); provided that, in addition to the foregoing, the Collateral Agent may, in its discretion, release such Collateral Agent’s Liens on Collateral valued in the aggregate not in excess of $1,000,000 during each Fiscal Year without the prior written authorization of any Lender, so long as all proceeds received in connection with such release are applied to the Obligations in accordance with Section 4.7 and, after giving effect to the application of such proceeds and the updating of the Borrowing Base, as the case may be, to reflect the deletion of any assets subject to such release, Availability shall be no less than the Availability immediately prior to such release. Upon request by the Collateral Agent or Parent the Borrower at any time, subject to the Borrower having certified to the Collateral Agent that the disposition is made in compliance with Section 8.8 (which the Collateral Agent may rely conclusively on any such certificate, without further inquiry), the Lenders will confirm in writing the Collateral Agent’s authority to release any Lien applicable Collateral Agent’s Liens upon particular types or items of Collateral pursuant to this Section 10.1113.10. In addition, the Lenders (and each other Secured Party by their acceptance of the benefits of the Loan Documents shall be deemed to) hereby irrevocably authorize Agent, (w) the Collateral Agent to subordinate any Lien on any property granted to or held by the Collateral Agent upon under any Collateral Loan Document to the holder of any Lien on such asset property that is permitted by Section 8.12(c) or (r) (as to Fixed Asset Collateral and, subject to exceeding certain caps in any applicable Intercreditor Agreement, the Current Asset Collateral), (x) the Agent to release any Guarantor from its obligations under the Guarantee Agreement if such Person ceases to be a Restricted Subsidiary as a result of a transaction permitted under this Agreement or such Person otherwise becomes an Excluded Subsidiary, in each case, solely to the extent such Subsidiary ceasing to constitute a Restricted Subsidiary or otherwise becoming an Excluded Subsidiary is not prohibited by this Agreement, (y) so long as both (1) no Default or Event of Default has occurred and is continuing or would result therefrom and (2) no Out-of-Formula Condition has occurred and is continuing or would result therefrom, then, to the extent that the Collateral Agent obtains possession of any Collateral by operation of Section 13.12 of this Agreement that constitutes Collateral that Obligors are not required to deliver to Collateral Agent at such time pursuant to paragraph the terms hereof, the Security Documents or any other contractual arrangement with any Obligor, following the written request by Borrower, Collateral Agent shall (6)(Cto the extent not prohibited by applicable Law or legal process) deliver such Collateral in accordance with the terms of the applicable Intercreditor Agreement or, if no applicable Intercreditor Agreement is then in effect, to the applicable Obligor, and (z) if after the date hereof Collateral Agent’s Lien has been expanded to include Fixed Asset Collateral in connection with incurrence of Debt pursuant to Section 8.12(q) or (r) so long as all of the following conditions are satisfied (1) no Default or Event of Default has occurred and is continuing or would result therefrom, (2) no Out-of-Formula Condition has occurred and is continuing or would result therefrom, and (3) no Debt has been incurred in reliance on Section 8.12(q) or (r) that remains outstanding (and no commitments for Debt that, if incurred would be incurred in reliance on Section 8.12(q) or (r), remain outstanding) and no Liens are outstanding in reliance on clause (r) of the definition of Permitted Lien. In additionLiens, or, to the extent on account of Refinancing Debt, or outstanding commitments that, if incurred, would be Refinancing Debt, in each case incurred in reliance, directly or indirectly, on Section 8.12(q) or (r), clause (p) of the definition of “Permitted Liens”, promptly following the written request of the Borrower, the Guaranty Collateral Agent shall release Collateral Agent’s Liens on Fixed Assets Collateral (other than, in each case any Inventory or Fracturing Equipment Parts (as defined in the Initial Intercreditor Agreement)) at the expense of the Obligations byObligors. Upon request by any Appointed Agent at any time, and the liens on the assets ofRequired Lenders will confirm in writing such Appointed Agent’s authority to release or subordinate its interest in particular types or items of property, or to release any Restricted Subsidiary which is designated as an Unrestricted Subsidiary will automatically be terminated and released at the time of such designationGuarantor from its obligations pursuant to this Section 13.10(a).
(b) PromptlyUpon receipt by any Appointed Agent of any authorization required pursuant to Section 13.10(a) from the Lenders of such Appointed Agent’s authority to release or subordinate the applicable Collateral Agent’s Liens upon particular types or items of Collateral, or to release any Guarantor from its obligations under the Guarantee Agreement, and in any event not later than five upon at least three (53) Business Days’ following prior written request by Parent the Borrower, such Appointed Agent shall (and is hereby irrevocably authorized by the Lenders and directed by Lenders the other Secured Parties to) execute such documents as may be necessary to evidence the release (or subordination) of its such Collateral Agent’s Liens upon such Collateral as contemplated by Section 10.11(a)or to subordinate its interest therein, or to release such Guarantor from its obligations under the Guarantee Agreement; provided, however, that (i) such Appointed Agent shall not be required to execute any such document on terms which, in such Appointed Agent’s opinion, would expose such Appointed Agent to liability or create any 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 Liens (other than those expressly being released) upon (or obligations of Credit Parties the Obligors in respect of) all interests retained by Credit Partiesthe Obligors, including the proceeds of any sale, all of which shall continue to constitute part of the Collateral to the extent contemplated by the Collateral Documents. Co-such Collateral.
(c) The Collateral Agent shall have no obligation whatsoever to any of the Lenders to assure that the Collateral exists or is owned by the Obligors or is cared for, protected or insured or has been encumbered, or that the applicable Collateral Agent’s Liens have been properly or sufficiently or lawfully created, perfected, protected or enforced or 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 pursuant to any of the Loan 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 concert with Agent in matters delegated to the both of them under this Agreement; howeverany manner it may deem appropriate, in its sole discretion, given the event Collateral Agent’s own interest in the Collateral in its capacity as one of any disagreement or dispute between Agent the Lenders and Co-that the Collateral Agent in shall have no other duty or liability whatsoever to any such matterLender as to any of the foregoing.
(d) In addition, the determination or decision Lenders (and each other Secured Party by their acceptance of the benefits of the Loan Documents shall be deemed to) hereby irrevocably authorize the Agent shall, in all cases, controlto release automatically the Parent from its obligations under the Parent Guarantee upon Full Payment of the Obligations.
Appears in 1 contract
Collateral Matters. (a) The Lenders hereby irrevocably authorize the Collateral Agent, at its option and direct Agent in its discretion, to release any Liens Collateral Agent's Lien upon any Collateral (and any such Liens shall be automatically released, without any action by or other property of a Borrower upon which the Collateral Agent or any other Person), has been granted an Collateral Agent's Lien
(i) upon the Termination Datetermination of the Commitments, payment and satisfaction of all Loans and reimbursement obligations in respect of Letters of Credit and L/C Credit Support, and the termination of all outstanding Letters of Credit (whether or not any of such obligations are due) and all other Obligations which have matured and which the Collateral Agent has been notified in writing are then due and payable; (ii) in respect of constituting property of any Subsidiary being sold or disposed of or transferred (including property owned by any Subsidiary being sold or disposed of or transferred) if the applicable Borrower certifies to the Collateral Agent that the sale or Disposition or transfer disposition is made in compliance with this Agreement and Section 5.11 or 8.9 or otherwise in compliance with the Loan Documents (or otherwise is not prohibited) (and the Collateral Agent may, in its discretion, request, and may rely conclusively on any such certificate, without further inquiry on a certificate from the Borrower certifying as such prior to Agent taking any action to evidence such release) or such sale or Disposition is approved by the Requisite Lenders (or such greater number of Lenders as may be required under Section 12.2inquiry); (iii) to the extent constituting property in which the applicable Collateral is Borrower owned no interest at the time the Lien was granted or becomes Excluded Property and/or Excluded Principal Propertyat any time thereafter; (iv) to the extent the applicable Collateral constitutes constituting property leased to Credit Parties a Borrower under a lease which has expired or been terminated in a transaction permitted under this AgreementAgreement or which will expire imminently and which has not been, and is not intended by such Borrower to be, renewed or extended; or (v) in any instance not covered by clauses (i) through (iv), with a value of less than $250,000 in any instance or series of related instances and, when aggregated with other Collateral with respect to which a Lien was released in the extent same Fiscal Year, with a value of less than $1,000,000. Except as provided above, the Credit Party owning such Collateral is released from its Obligations hereunder (pursuant to Section 13.11 or otherwise); or (vi) as required by the terms Agent will not release any of the ABL Intercreditor AgreementCollateral Agent's Liens without the prior authorization of all of the Lenders, nor shall it release any Guaranty of the Obligations without the prior authorization of all of the Lenders. Upon request by the Collateral Agent or Parent a Borrower at any time, the Lenders will confirm in writing the Collateral Agent’s 's authority to release any Lien Collateral Agent's Liens upon particular types or items of Collateral or other property pursuant to this Section 10.11. In addition, the Lenders hereby authorize Agent, to subordinate any Lien granted to or held by Agent upon any Collateral to any Lien on such asset permitted pursuant to paragraph (6)(C) of the definition of Permitted Lien. In addition, the Guaranty of the Obligations by, and the liens on the assets of, any Restricted Subsidiary which is designated as an Unrestricted Subsidiary will automatically be terminated and released at the time of such designation13.8(a).
(b) Promptly, and in any event not later than five (5) Business Days’ following written request by Parent Borrower, The Collateral Agent shall (and is hereby irrevocably authorized and directed by the Lenders to) to execute such documents as may be necessary to evidence the release (or subordination) of its the Collateral Agent's Liens upon such the Collateral as contemplated by or other property authorized to be released pursuant to Section 10.11(a13.8(a); 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 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 Liens (other than those expressly being released) upon (or obligations of Credit Parties the applicable Borrower in respect of) all interests retained by Credit Partiessuch Borrower, including (without limitation) the proceeds of any sale, all of which shall continue to constitute part of the Collateral to or other property securing the extent contemplated by the Collateral Documents. Co-Obligations.
(c) The Collateral Agent shall have no obligation whatsoever to any of the Lenders to assure that the Collateral or other property securing the Obligations exists or is owned by the applicable Borrower or is cared for, protected or insured or has been encumbered, or that the Collateral Agent's Liens have been properly or sufficiently or lawfully created, perfected, protected or enforced or 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 pursuant to this Section 13.8 or pursuant to any of the Loan Documents, it being understood and agreed that in respect of the Collateral or other property securing the Obligations, or any act, omission or event related thereto, the Collateral Agent may act in concert with Agent in matters delegated to the both of them under this Agreement; howeverany manner it may deem appropriate, in its sole discretion, given the event Collateral Agent's own interest in the Collateral or other property securing the Obligations in its capacity as one of any disagreement or dispute between Agent the Lenders and Co-that the Collateral Agent in shall have no duty or liability whatsoever to any such matter, Agent or Lender as to any of the determination or decision of Agent shall, in all cases, controlforegoing.
Appears in 1 contract
Collateral Matters. (a) The Lenders hereby irrevocably authorize the Collateral Agent, at its option and direct Agent in its discretion, to release any Liens Lien granted to or held by the Collateral Agent upon any Collateral upon termination of the Commitment and payment and satisfaction of all Loans and all other Obligations (and any such Liens shall be automatically released, without any action by Agent or any other Person), (i) upon the Termination Date; (iithan Contingent Indemnity Obligations) in respect of accordance with the terms hereof; or constituting property of any Subsidiary being sold or disposed of in the ordinary course of the Borrower’s business or transferred (including property owned by any Subsidiary being sold or disposed of or transferred) if the sale or Disposition or transfer is made otherwise in compliance with the terms of this Agreement and the other Loan Documents (Documents; or otherwise is not prohibited) (and Agent may, constituting property in its discretion, request, and rely conclusively without further inquiry on a certificate from which the Borrower certifying as such prior to Agent taking owned no interest at the time the Lien was granted or at any action to evidence such release) time thereafter; or such sale if approved, authorized or Disposition is approved ratified in writing by the Requisite Lenders (or such greater number of Lenders as may be required under in accordance with Section 12.2); (iii) to the extent the applicable Collateral is or becomes Excluded Property and/or Excluded Principal Property; (iv) to the extent the applicable Collateral constitutes property leased to Credit Parties under a lease which has expired or been terminated in a transaction permitted under this Agreement; (v) to the extent the Credit Party owning such Collateral is released from its Obligations hereunder (pursuant to Section 13.11 or otherwise); or (vi) as required by the terms of the ABL Intercreditor Agreement9.02. Upon request by the Collateral Agent or Parent Borrower at any time, the Lenders will confirm in writing the Collateral Agent’s authority to release any Lien upon particular types or items of Collateral pursuant to this Section 10.11. In addition, the Lenders hereby authorize Agent, to subordinate any Lien granted to or held by Agent upon any Collateral to any Lien on such asset permitted pursuant to paragraph (6)(C) of the definition of Permitted Lien. In addition, the Guaranty of the Obligations by, and the liens on the assets of, any Restricted Subsidiary which is designated as an Unrestricted Subsidiary will automatically be terminated and released at the time of such designation8.08(a).
(b) PromptlyWithout 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 8.08(a)), each Lender agrees to confirm in writing, upon request by the Collateral Agent, the 737240988 authority to release Collateral conferred upon the Collateral Agent under Section 8.08(a). Upon receipt by the Collateral Agent of confirmation from the Lenders of its authority to release any particular item or types of Collateral, and in any event not later than five (5) Business Days’ following upon prior written request by Parent the Borrower, the Collateral Agent shall (and is hereby irrevocably authorized and directed by the Lenders to) execute such documents as may be necessary to evidence the release (or subordination) of its the Liens granted to the Collateral Agent for the benefit of the Agents and the Lenders upon such Collateral as contemplated by Section 10.11(a)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 obligation 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 Liens (other than those expressly being released) Lien upon (or obligations of Credit Parties the Borrower in respect of) all interests in the Collateral retained by Credit Partiesthe Borrower.
(c) Anything contained in any of the Loan Documents to the contrary notwithstanding, including the proceeds Borrower, 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, 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 sale, or all of which 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 continue to constitute part 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 the extent contemplated be sold (A) at any public or private sale, (B) at any sale conducted by the Collateral Documents. CoAgent 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.
(d) The Collateral Agent shall act in concert with Agent in matters delegated have no obligation whatsoever to any Lender to assure that the Collateral exists or is owned by the Borrower or the Pledgor or is cared for, protected or insured or has been encumbered or that the Lien granted to the both 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 them under this Agreement; howevercare, in disclosure or fidelity, or to continue exercising, any of the event of any disagreement rights, authorities and powers granted or dispute between Agent and Co-available to the Collateral Agent in this Section 8.08 or in any such matterother Loan Document, it being understood and agreed that in respect of the Collateral, or any act, omission or event related thereto, the determination or decision of Collateral Agent shallmay act in any manner it may deem appropriate, in all casesits sole discretion, control.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. 737240988
Appears in 1 contract
Sources: Loan Agreement (Vivint Solar, Inc.)
Collateral Matters. (a) The Lenders hereby irrevocably authorize the Agent, at its option and direct Agent in its sole discretion, to release any Agent’s Liens upon any Collateral (and any such Liens shall be automatically released, without any action by Agent or any other Person), (i) upon the Termination Datetermination of the Commitments and payment and satisfaction in full by the Obligors of all Loans and reimbursement obligations in respect of Letters of Credit and Credit Support, and the termination of all outstanding Letters of Credit and Credit Support or the posting of Supporting Letters of Credit with respect thereto (whether or not any of such obligations are due) and all other Obligations; (ii) in respect of constituting property of any Subsidiary being sold or disposed of or transferred (including property owned by any Subsidiary being sold or disposed of or transferred) if an Obligor certifies to the Agent that the sale or Disposition or transfer disposition is made in compliance with this Agreement Section 7.9 (and the Loan Documents (or otherwise is not prohibited) (and Agent may, in its discretion, request, and may rely conclusively on any such certificate, without further inquiry on a certificate from the Borrower certifying as such prior to Agent taking any action to evidence such release) or such sale or Disposition is approved by the Requisite Lenders (or such greater number of Lenders as may be required under Section 12.2inquiry); (iii) to constituting property in which the extent Obligors owned no interest at the applicable Collateral is time the Lien was granted or becomes Excluded Property and/or Excluded Principal Propertyat any time thereafter; or (iv) to the extent the applicable Collateral constitutes constituting property leased to Credit Parties an Obligor under a lease which has expired or been terminated in a transaction permitted under this Agreement; (v) to . Except as provided above, the extent the Credit Party owning such Collateral is released from its Obligations hereunder (pursuant to Section 13.11 or otherwise); or (vi) as required by the terms Agent will not release any of the ABL Intercreditor AgreementAgent’s Liens without the prior written authorization of the Lenders; provided that the Agent may, in its discretion, release the Agent’s Liens on Collateral valued in the aggregate not in excess of $5,000,000 during each Fiscal Year without the prior written authorization of any Lender and the Agent may release the Agent’s Liens on Collateral valued in the aggregate not in excess of $10,000,000 during each Fiscal Year with the prior written authorization of Required Lenders. Upon request by the Agent or Parent Borrower the Borrowers’ Agent at any time, the Lenders will confirm in writing the Agent’s authority to release any Lien Agent’s Liens upon particular types or items of Collateral pursuant to this Section 10.11. In addition, the Lenders hereby authorize Agent, to subordinate any Lien granted to or held by Agent upon any Collateral to any Lien on such asset permitted pursuant to paragraph (6)(C) of the definition of Permitted Lien. In addition, the Guaranty of the Obligations by, and the liens on the assets of, any Restricted Subsidiary which is designated as an Unrestricted Subsidiary will automatically be terminated and released at the time of such designation12.11.
(b) PromptlyUpon receipt by the Agent of any authorization required pursuant to Section 12.11(a) from the Lenders of the Agent’s authority to release Agent’s Liens upon particular types or items of Collateral, and in any event not later than upon at least five (5) Business Days’ following Days prior written request by Parent Borrowerthe Borrowers’ Agent, the Agent shall (and is hereby irrevocably authorized and directed by the Lenders to) execute such documents as may be necessary to evidence the release (or subordination) of its the Agent’s Liens upon such Collateral as contemplated by Section 10.11(a)Collateral; provided, however, that (i) the Agent shall not be required to execute any such document on terms which, in the Agent’s opinion, would expose the Agent to liability or create any 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 Liens (other than those expressly being released) upon (or obligations of Credit Parties the Obligors in respect of) all interests retained by Credit Partiesthe Obligors, including the proceeds of any sale, all of which shall continue to constitute part of the Collateral.
(c) The Agent shall have no obligation whatsoever to any of the Lenders to assure that the Collateral exists or is owned by the Obligors or is cared for, protected or insured or has been encumbered, or that the Agent’s Liens have been properly or sufficiently or lawfully created, perfected, protected or enforced or 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 extent contemplated by Agent pursuant to any of the Loan Documents, it being understood and agreed that, except as otherwise expressly set forth in this Agreement or another Loan Document to which the Agent is a party, in respect of the Collateral, or any act, omission or event related thereto, the Agent may act in any manner it may deem appropriate, in its sole discretion given the Agent’s own interest in the Collateral Documents. Co-Collateral in its capacity as one of the Lenders and that the Agent shall act in concert with Agent in matters delegated have no other duty or liability whatsoever to any Lender as to any of the both of them under this Agreement; however, in the event of any disagreement or dispute between Agent and Co-Collateral Agent in any such matter, the determination or decision of Agent shall, in all cases, controlforegoing.
Appears in 1 contract
Collateral Matters. The Lenders irrevocably agree:
(a) Lenders hereby irrevocably authorize and direct that the Collateral Agent is authorized to release any Liens upon Lien on any property granted to or held by the Collateral (and Agent under any such Liens shall be automatically released, without any action by Agent or any other Person)Loan Document, (i) upon at the Termination Date; time the property subject to such Lien is pledged pursuant to Section 6.02(n)(x) or Section 6.02(n)(y) (but solely to the extent such property consists of Revolving Credit Priority Collateral and Hedging Agreements related to the value of such Revolving Credit Priority Collateral) or sold, leased, licensed, consigned, transferred or otherwise disposed of as part of or in connection with any Asset Sale permitted under Section 6.06 to any Person other than a Loan Party (provided that no Lien shall be released in any Series of Cash Neutral Transactions) (or, if such transferee is a Loan Party, the Collateral Agent is authorized to release such Lien on such asset in connection with the transfer so long as (w) except as permitted by Section 6.06(q) or Section 6.06(s), the transferee grants a new Lien to the Collateral Agent on such asset substantially concurrently with the transfer of such asset, (x) the transfer is between parties organized under the laws of different countries, (y) the priority of the new Lien is the same as that of the original Lien and (z) the Liens on such property held by or on behalf of the holders of Indebtedness under the Revolving Credit Loan Documents or any Permitted Revolving Credit Facility Refinancing, Permitted First Priority Refinancing Debt, Permitted Secured Priority Refinancing Debt, Additional Senior Secured Indebtedness and Junior Secured Indebtedness are also released), (ii) subject to Section 11.02, if the release of such Lien is approved, authorized or ratified in respect writing by the Required Lenders (or 967770.02F-CHISR1034077.05-CHISR01A - MSW 265 such other number of property of any Subsidiary being sold or disposed of or transferred Lenders whose consent is required under Section 11.02), (including property owned by any Subsidiary being sold or disposed of or transferrediii) if the sale or Disposition or transfer property subject to such Lien is made in compliance with this Agreement owned by a Guarantor, upon release of such Guarantor from its obligations under its Guarantee pursuant to Section 7.09(a), (b) and (c), (iv) upon termination of all Commitments and the repayment in full of all outstanding principal and accrued interest with respect to the Loans, all Fees and other Obligations, (v) in connection with the grant of Liens permitted hereunder under Section 6.02(k) and subject to the Intercreditor Agreement, if the applicable Loan Documents (Party grants a Lien to the Collateral Agent or otherwise for the benefit of the Collateral Agent in a manner reasonably satisfactory to the Collateral Agent, substantially concurrently with the release of such asset, to the extent such release or termination and re-grant is not prohibited) (and Agent may, in its discretion, requestnecessary or advisable under applicable law, and rely conclusively without further inquiry on a certificate from the Borrower certifying as such prior to Agent taking any action to evidence such release) or such sale or Disposition is approved by the Requisite Lenders (or such greater number of Lenders as may be required under Section 12.2); (iiivi) to the extent such property is Excluded Property.
(b) to release or subordinate any Lien on any property granted to or held by the applicable Collateral Agent under any Loan Document to the holder of any Lien on such property that is or becomes Excluded Property and/or Excluded Principal Property; (iv) permitted by Section 6.02(i), to the extent the applicable Collateral constitutes property leased to Credit Parties under a lease which has expired or been terminated in a transaction permitted under this Agreement; (v) to the extent the Credit Party owning such Collateral is released from its Obligations hereunder (pursuant to Section 13.11 or otherwise); or (vi) as required by the terms of the ABL Intercreditor Agreement. Upon request obligations secured by such Liens; Each Lender irrevocably authorizes the Collateral Agent to, at each Co-Borrower’s expense, execute and deliver documents to authorize the release or Parent Borrower at any time, Lenders will confirm in writing Agent’s authority to release any Lien upon particular types or subordination of such items of Collateral pursuant to from the Liens granted under the Security Documents, in each case in accordance with the terms of the Loan Documents and this Section 10.11. In addition, the Lenders hereby authorize Agent, to subordinate any Lien granted to or held by Agent upon any Collateral to any Lien on such asset permitted pursuant to paragraph (6)(C) of the definition of Permitted Lien. In addition, the Guaranty of the Obligations by, and the liens on the assets of, any Restricted Subsidiary which is designated as an Unrestricted Subsidiary will automatically be terminated and released at the time of such designation11.29.
(b) Promptly, and in any event not later than five (5) Business Days’ following written request by Parent Borrower, Agent shall (and is hereby irrevocably authorized and directed by Lenders to) execute such documents as may be necessary to evidence the release (or subordination) of its Liens upon such Collateral as contemplated by Section 10.11(a); provided, however, that (i) Agent shall not be required to execute any such document on terms which, in Agent’s opinion, would expose Agent to liability or create any 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 Liens (other than those expressly being released) upon (or obligations of Credit Parties in respect of) all interests retained by Credit Parties, including the proceeds of any sale, all of which shall continue to constitute part of the Collateral to the extent contemplated by the Collateral Documents. Co-Collateral Agent shall act in concert with Agent in matters delegated to the both of them under this Agreement; however, in the event of any disagreement or dispute between Agent and Co-Collateral Agent in any such matter, the determination or decision of Agent shall, in all cases, control.
Appears in 1 contract
Sources: Credit Agreement (Novelis Inc.)
Collateral Matters. (a) Lenders hereby irrevocably authorize and direct The Borrowers shall furnish to the Administrative Agent to release prompt written notice of any Liens upon any Collateral (and any such Liens shall be automatically released, without any action by Agent or any other Person), change (i) upon the Termination Date; in any Covenant Party’s corporate name, (ii) in respect the jurisdiction of property organization or formation of any Subsidiary being sold Covenant Party, or disposed of or transferred (including property owned by any Subsidiary being sold or disposed of or transferred) if the sale or Disposition or transfer is made in compliance with this Agreement and the Loan Documents (or otherwise is not prohibited) (and Agent may, in its discretion, request, and rely conclusively without further inquiry on a certificate from the Borrower certifying as such prior to Agent taking any action to evidence such release) or such sale or Disposition is approved by the Requisite Lenders (or such greater number of Lenders as may be required under Section 12.2); (iii) any Covenant Party’s organizational identification number. The Borrowers agree not to effect or permit any change referred to in the preceding sentence unless all filings have been made under the UCC or otherwise that are required in order for the Collateral Agent to continue at all times following such change to have a valid, legal and perfected security interest in all the Term A Loan Collateral and Term B Loan Collateral to the extent the applicable Collateral is or becomes Excluded Property and/or Excluded Principal Property; (iv) to the extent the applicable Collateral constitutes property leased to Credit Parties under a lease which has expired or been terminated in a transaction permitted under this Agreement; (v) to the extent the Credit Party owning such Collateral is released from its Obligations hereunder (pursuant to Section 13.11 or otherwise); or (vi) as required by the terms of Term A Pledge and Security Agreement or the ABL Intercreditor Term B Pledge and Security Agreement. Upon request by Agent or Parent Borrower at any time, Lenders will confirm in writing Agent’s authority to release any Lien upon particular types or items of Collateral pursuant to this Section 10.11. In addition, the Lenders hereby authorize Agent, to subordinate any Lien granted to or held by Agent upon any Collateral to any Lien on such asset permitted pursuant to paragraph (6)(C) of the definition of Permitted Lien. In addition, the Guaranty of the Obligations by, and the liens on the assets of, any Restricted Subsidiary which is designated as an Unrestricted Subsidiary will automatically be terminated and released at the time of such designationapplicable.
(b) PromptlyThe Borrowers also agree promptly to notify the Administrative Agent in writing if any material portion of the Term A Loan Collateral or Term B Loan Collateral is lost, damaged or destroyed.
(c) Each Borrower will use, and will cause its Restricted Subsidiaries to use, its commercially reasonable best efforts to do the following (including without limitation by obtaining appropriate waivers and consents from the holders of Borrower ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ Indebtedness) as soon as practicable after the Closing: (i) cause the Term A Loan Borrower to modify its Term A Loan Pledge and Security Agreement to expand the items and categories of Term A Loan Collateral subject to a Lien thereunder to the maximum extent possible; (ii) cause each Excluded Target Subsidiary to become a Term A Loan Guarantor; (iii) cause each Term A Loan Guarantor to authorize, execute and deliver to the Administrative Agent a Term A Pledge and Security Agreement to secure its obligations under the Term A Loan Guarantee Agreement with Liens on all or as much of its property as possible; (iv) deliver to the Administrative Agent the certificates, if any, representing the shares of Capital Stock such Term A Guarantor Holds in any event not later than five other Restricted Subsidiary pledged pursuant to the Term A Pledge and Security Agreement, together with an undated stock power for each such certificate executed in blank by a duly authorized officer of such Term A Guarantor as the pledgor thereof; and (5v) Business Days’ following written request by Parent Borrower, Agent shall (and is hereby irrevocably authorized and directed by Lenders to) execute such documents as may be necessary cause each Term A Loan Guarantor to evidence the release (or subordination) of its Liens upon such Collateral as contemplated by take all actions described in Section 10.11(a)6.16 below; provided, however, that it is understood and agreed that it is not commercially reasonable to (iA) Agent shall not be required require a Term A Loan Guarantor to execute pay any such document on terms which, in Agent’s opinion, would expose Agent sum of money to liability obtain any consent for the foregoing or create (B) require a Term A Loan Guarantor to repay or refinance any obligation or entail any consequence other than the release existing Indebtedness. After a period of such Liens without recourse or warranty, and (ii) such release shall not in any manner discharge, affect or impair the Obligations or any Liens (other than those expressly being released) upon (or obligations of Credit Parties in respect of) all interests retained by Credit Parties, including the proceeds of any sale, all of which shall continue to constitute part of the Collateral to the extent contemplated by the Collateral Documents. Co-Collateral Agent shall act in concert with Agent in matters delegated to the both of them under this Agreement; however, in the event of any disagreement or dispute between Agent and Co-Collateral Agent in any such matter180 days, the determination or decision of Agent shall, in all cases, controlBorrowers and their Restricted Subsidiaries shall be deemed to have used commercially reasonable efforts and such obligations pursuant to this Section 6.14(c) shall cease.
Appears in 1 contract
Sources: Credit Agreement (21st Century Oncology Holdings, Inc.)
Collateral Matters. (a) 9.13.1 The Lenders hereby irrevocably authorize the Agent (and direct if applicable, any subagent appointed by the Agent under Section 9.5 or otherwise) to release any its Liens on the Collateral, and the Agent's Liens upon any Collateral (and any such Liens shall be automatically released, without released upon the occurrence of any action by Agent or any other Person), of the following events: (i) upon the Termination Date; indefeasible payment and performance in full of all Secured Obligations (iiother than unasserted contingent indemnification obligations) in respect of property of any Subsidiary being sold or disposed of or transferred (including property owned by any Subsidiary being sold or disposed of or transferred) if the sale or Disposition or transfer is made in compliance with under this Agreement and the other Loan Documents Documents; or (ii) upon a disposition of Property completed in accordance with the provisions of this Agreement; or otherwise is not prohibited) (and Agent may, in its discretion, request, and rely conclusively without further inquiry on a certificate from the Borrower certifying as such prior to Agent taking any action to evidence such release) or such sale or Disposition is approved by the Requisite Lenders (or such greater number of Lenders as may be required under Section 12.2); (iii) to if any such Collateral constitutes Property in which the extent Obligors owned no interest at the applicable Collateral is time the Lien was granted or becomes Excluded Property and/or Excluded Principal Propertyat any time thereafter; or (iv) to the extent the applicable if any such Collateral constitutes property Property leased to Credit Parties an Obligor under a lease which has expired or been terminated in a transaction permitted under this Agreement; or (v) to the extent the Credit Party owning Property constituting such Collateral is released owned by any Guarantor, upon the release of such Guarantor from its Guarantee of the Secured Obligations hereunder (pursuant to Section 13.11 or otherwisein accordance with the terms of such Guarantee); or (vi) as required by the terms Agent to effect any sale, transfer or other disposition of Collateral in connection with any exercise of remedies of the ABL Intercreditor Agent pursuant to the Security Documents; or (vii) solely in connection with a bona fide disposition of Property to an unaffiliated third party not otherwise contemplated in this Agreement, if the Required Lenders (and, if there is only one (1) Required Lender, at least two (2) Lenders (including the Required Lender)) consent to the Collateral being released. Upon request by the Agent or Parent the Borrower at any time, subject to the Borrower having certified to the Agent that the Asset Disposition is made in compliance with the terms of this Agreement and for a bona fide business purpose (which the Agent may rely conclusively on any such certificate, without further inquiry), the Lenders will confirm in writing the Agent’s 's authority to release any Lien applicable Agent's Liens upon particular types or items of Collateral pursuant to this Section 10.119.13.1. In addition, the Lenders hereby irrevocably authorize Agent, (w) the Agent to subordinate any Lien on any property granted to or held by the Agent upon under any Loan Document to the holder of any Lien securing First Lien Obligations, (x) the Agent to release automatically any Guarantor from its Guarantee of the Secured Obligations if such Person ceases to be a Recourse Subsidiary as a result of a transaction permitted under this Agreement or such Person otherwise becomes a Non-Recourse Subsidiary, in each case, solely to the extent (1) such Subsidiary ceasing to constitute a Recourse Subsidiary or otherwise becoming a Non-Recourse Subsidiary is permitted by this Agreement (2) no Default or Event of Default has occurred or is continuing or would result therefrom and (y) so long as no Default or Event of Default has occurred and is continuing or would result therefrom, then, to the extent that the Agent obtains possession of any Collateral by operation of Section 9.14 of this Agreement that constitutes Collateral that Obligors are not required to any Lien on deliver to Agent at such asset permitted time pursuant to paragraph the terms hereof, the Security Documents or any other contractual arrangement with any Obligor, following the written request by Borrower, Agent shall (6)(Cto the extent permitted by Applicable Law or legal process) deliver such Collateral in accordance with the terms of the definition of Permitted LienIntercreditor Agreement or, if the Intercreditor Agreement is not then in effect, to the applicable Obligor. In additionUpon request by the Agent at any time, the Guaranty Required Lenders will confirm in writing the Agent's authority to release or subordinate its interest in particular types or items of property, or to release any Guarantor from its Guarantee of the Secured Obligations bypursuant to this Section 9.13.1.
9.13.2 Upon receipt by the Agent of any authorization required pursuant to Section 9.13.1 from the Lenders of the Agent's authority to release or subordinate the Agent's Liens upon particular types or items of Collateral, or to release any Guarantor from its Guarantee of the Secured Obligations, and the liens on the assets of, any Restricted Subsidiary which is designated as an Unrestricted Subsidiary will automatically be terminated and released upon at the time of such designation.
least three (b) Promptly, and in any event not later than five (53) Business Days’ following ' prior written request by Parent the Borrower, the Agent shall (and is hereby irrevocably authorized and directed by the Lenders to) execute such documents as may be necessary to evidence the release (or subordination) of its the Agent's Liens upon such Collateral as contemplated by Section 10.11(a)or to subordinate its interest therein, or to release such Guarantor from its Guarantee of the Secured Obligations; provided, however, that (i) the Agent shall not be required to execute any such document on terms which, in the Agent’s 's opinion, would expose the Agent to liability or create any 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 Secured Obligations or any Liens (other than those expressly being released) upon (or obligations of Credit Parties the Obligors in respect of) all interests retained by Credit Partiesthe Obligors, including the proceeds of any sale, all of which shall continue to constitute part of such Collateral.
9.13.3 The Agent shall have no obligation whatsoever to any of the Lenders to assure that the Collateral exists or is owned by the Obligors or is cared for, protected or insured or has been encumbered, or that the Agent's Liens have been properly or sufficiently or lawfully created, perfected, protected or enforced or 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 extent contemplated by Agent pursuant to any of the Collateral Loan Documents. Co-Collateral , it being understood and agreed that in respect of the Collateral, or any act, omission or event related thereto, the Agent may act with the consent or at the direction of the Required Lenders and that the Agent shall act in concert with Agent in matters delegated have no other duty or liability whatsoever to any Lender as to any of the both of them under this Agreement; however, in the event of any disagreement or dispute between Agent and Co-Collateral Agent in any such matter, the determination or decision of Agent shall, in all cases, controlforegoing.
Appears in 1 contract
Sources: Term Loan Agreement (Iamgold Corp)
Collateral Matters. If any Collateral and Guarantee Trigger Event occurs:
(a) Lenders hereby irrevocably authorize The Security and direct Pledge Agreement, upon execution and delivery thereof by the parties thereto, will be effective to create in favor of the Collateral Agent to release any Liens upon any a valid and enforceable security interest in the Collateral (and any such Liens shall be automatically released, without any action by Agent or any other Person), (i) upon when the Termination Date; Collateral constituting certificated securities (as defined in the UCC), solely to the extent required by the Collateral and Guarantee Requirement, is delivered to the Collateral Agent, together with instruments of transfer duly endorsed in blank, the security interest created under the Security and Pledge Agreement will constitute a valid and perfected security interest in such Collateral (prior to all Liens on such Collateral, except for Liens (i) permitted by this Agreement which may have priority over the Liens of the Collateral Agent on such Collateral by operation of law (including the priority rules under the UCC) or (ii) which are otherwise permitted pursuant to Section 6.01 of this Agreement) and (ii) when financing statements in respect appropriate form are filed in the applicable filing offices, the security interest created under the Security and Pledge Agreement will constitute a valid and perfected security interest in the remaining Collateral (prior to all Liens on such Collateral, except for Liens (i) permitted by this Agreement which may have priority over the Liens of property the Collateral Agent on such Collateral by operation of any Subsidiary being sold or disposed of or transferred law (including property owned by any Subsidiary being sold or disposed of or transferred) if the sale or Disposition or transfer is made in compliance with this Agreement and priority rules under the Loan Documents (or otherwise is not prohibited) (and Agent may, in its discretion, request, and rely conclusively without further inquiry on a certificate from the Borrower certifying as such prior to Agent taking any action to evidence such releaseUCC) or such sale or Disposition is approved by the Requisite Lenders (or such greater number ii) which are otherwise permitted pursuant to Section 6.01 of Lenders as may be required under Section 12.2); (iiithis Agreement) to the extent the applicable Collateral is or becomes Excluded Property and/or Excluded Principal Property; (iv) to the extent the applicable Collateral constitutes property leased to Credit Parties under a lease which has expired or been terminated in a transaction permitted under this Agreement; (v) to the extent the Credit Party owning such Collateral is released from its Obligations hereunder (pursuant to Section 13.11 or otherwise); or (vi) as required perfection can be obtained by the terms of the ABL Intercreditor Agreement. Upon request by Agent or Parent Borrower at any time, Lenders will confirm in writing Agent’s authority to release any Lien upon particular types or items of Collateral pursuant to this Section 10.11. In addition, the Lenders hereby authorize Agent, to subordinate any Lien granted to or held by Agent upon any Collateral to any Lien on such asset permitted pursuant to paragraph (6)(C) of the definition of Permitted Lien. In addition, the Guaranty of the Obligations by, and the liens on the assets of, any Restricted Subsidiary which is designated as an Unrestricted Subsidiary will automatically be terminated and released at the time of such designationfiling UCC financing statements.
(b) PromptlyUpon the recordation of the IP Security Agreements with the United States Patent and Trademark Office or the United States Copyright Office, as applicable, and the filing of the financing statements referred to in any event not later than five clause (5a) Business Days’ following written request of this Section, the security interest created under the Security and Pledge Agreement will constitute a valid and perfected security interest in the Intellectual Property (as defined in the Security and Pledge Agreement) (prior to all Liens on such Collateral, except for Liens (i) permitted by Parent Borrower, this Agreement which may have priority over the Liens of the Collateral Agent shall on such Collateral by operation of law (including the priority rules under the UCC) or (ii) which are otherwise permitted pursuant to Section 6.01 of this Agreement) in which a security interest may be perfected by filing in the United States (it being understood that subsequent recordings in the United States Patent and is hereby irrevocably authorized and directed by Lenders to) execute such documents as Trademark Office or the United States Copyright Office may be necessary to evidence the release (or subordination) of its Liens upon perfect a security interest in such Collateral as contemplated by Section 10.11(a); provided, however, that (i) Agent shall not be required to execute any such document on terms which, in Agent’s opinion, would expose Agent to liability or create any 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 Liens (other than those expressly being released) upon (or obligations of Credit Parties in respect of) all interests retained by Credit Parties, including the proceeds of any sale, all of which shall continue to constitute part of the Collateral to the extent contemplated Intellectual Property acquired by the Domestic Loan Parties after the Initial Collateral Documents. Co-Collateral Agent shall act in concert with Agent in matters delegated to the both of them under this Agreement; however, in the event of any disagreement or dispute between Agent and Co-Collateral Agent in any such matter, the determination or decision of Agent shall, in all cases, controlGuarantee Requirement Satisfaction Date).
Appears in 1 contract
Collateral Matters. (a) Lenders Each Lender hereby irrevocably (subject to SECTION 10.09) appoints, designates and authorizes Collateral Agent to take such action on its behalf under the provisions of this Agreement and each other Loan Document and to exercise such powers and perform such duties as are expressly delegated to it by the terms of this Agreement or any other Loan Document, together with such powers as are reasonably incidental thereto. Notwithstanding any provision to the contrary contained elsewhere in this Agreement or in any other Loan Document, Collateral Agent shall not have any duties or responsibilities, except those expressly set forth herein and in the Pledge Agreements, nor shall Collateral Agent have or be deemed to have any fiduciary relationship with any Lender or participant, and no implied covenants, functions, responsibilities, duties, obligations or liabilities shall be read into this Agreement or any other Loan Document or otherwise exist against Collateral Agent. Without limiting the generality of the foregoing sentence, the use of the term "agent" in this Agreement with reference to Collateral Agent is not intended to connote any fiduciary or other implied (or express) obligations arising under agency doctrine of any applicable law. Instead, such term is used merely as a matter of market custom, and is intended to create or reflect only an administrative relationship between independent contracting parties. Without limiting the generality of SECTION 10.08, each Lender hereby acknowledges and agrees that the Collateral Agent is acting as a collateral agent for the Lenders, owner trustee and holders under the TDC TROL and Senior Parity Debt Holders as provided in the Pledge Agreements and authorizes the Collateral Agent to carry out all those obligations and shall be entitled to all the rights and benefits of the collateral agent described in the Pledge Agreements. Collateral Agent shall have all of the benefits and immunities (i) provided to Administrative Agent in this SECTION 10 with respect to the Loan Documents and the transactions contemplated therein, including without limitation any acts taken or omissions suffered by Collateral Agent in connection with or contemplated by such documents or transactions as fully as if the term "Administrative Agent" as used in this SECTION 10 included Collateral Agent with respect to such documents, transactions, acts or omissions, and (ii) as additionally provided in this Agreement, and specifically SECTION 11 hereof, and the other Loan Documents with respect to Collateral Agent.
(b) Each of the Administrative Agent and the Collateral Agent is authorized on behalf of all the Lenders, without the necessity of any notice to or further consent from the Lenders, from time to time take any action with respect to any Collateral or the Security Instruments which may be necessary to perfect and maintain perfected the security interest in and Liens upon the Collateral granted pursuant to the Security Instruments.
(c) The Lenders irrevocably authorize each of the Administrative Agent and direct Agent Collateral Agent, at its option and in its discretion, to release any Liens Lien granted to or held by the Administrative Agent or Collateral Agent upon any Collateral (i) upon termination of the Commitments and any such Liens shall be automatically released, without any action by payment in full of all Loans and all other Obligations known to the Administrative Agent and payable under this Agreement or any other Person), (i) upon the Termination DateLoan Document; (ii) in respect of constituting property of any Subsidiary being sold or to be sold or disposed of or transferred (including property owned by any Subsidiary being sold or disposed as part of or transferred) if the sale or Disposition or transfer is made in compliance connection with this Agreement and the Loan Documents (or otherwise is not prohibited) (and Agent may, in its discretion, request, and rely conclusively without further inquiry on a certificate from the Borrower certifying as such prior to Agent taking any action to evidence such release) or such sale or Disposition is approved by the Requisite Lenders (or such greater number of Lenders as may be required under Section 12.2)disposition permitted hereunder; (iii) to constituting property in which Borrower or any Subsidiary owned no interest at the extent time the applicable Collateral is Lien was granted or becomes Excluded Property and/or Excluded Principal Propertyat any time thereafter; (iv) to the extent the applicable Collateral constitutes constituting property leased to Credit Parties under a lease which has expired by Borrower or been terminated any Subsidiary in a transaction permitted under this Agreement; or (v) to consisting of an instrument evidencing Indebtedness or other debt instrument, if the extent the Credit Party owning such Collateral is released from its Obligations hereunder (pursuant to Section 13.11 or otherwise); or (vi) as required by the terms of the ABL Intercreditor Agreementindebtedness evidenced hereby has been paid in full. Upon request by the Administrative Agent or Parent Borrower Collateral Agent at any time, the Lenders will confirm in writing the Administrative Agent’s 's authority to release any Lien upon particular types or items of Collateral pursuant to this Section subsection 10.11(C), PROVIDED that the absence of any such confirmation for whatever reason shall not affect the Administrative Agent's or Collateral Agent's rights under this SECTION 10.11. In addition, the Lenders hereby authorize Agent, to subordinate any Lien granted to or held by Agent upon any Collateral to any Lien on such asset permitted pursuant to paragraph (6)(C) of the definition of Permitted Lien. In addition, the Guaranty of the Obligations by, and the liens on the assets of, any Restricted Subsidiary which is designated as an Unrestricted Subsidiary will automatically be terminated and released at the time of such designation.
(bd) Promptly, Each Lender agrees with and in any event not later than five favor of each other (5) Business Days’ following written request by Parent Borrower, Agent shall (and is hereby irrevocably authorized and directed by Lenders to) execute such documents as may be necessary to evidence the release (or subordination) of its Liens upon such Collateral as contemplated by Section 10.11(a); provided, however, that (i) Agent which agreement shall not be required for the benefit of Borrower or any Subsidiary) that the Obligations to execute any such document on terms which, in Agent’s opinion, would expose Agent to liability or create any obligation or entail any consequence Lender under this Agreement and the other than the release of such Liens without recourse or warranty, and (ii) such release Loan Documents shall not in be secured by any manner discharge, affect real property collateral now or impair the Obligations or any Liens (other than those expressly being released) upon (or obligations of Credit Parties in respect of) all interests retained hereafter acquired by Credit Parties, including the proceeds of any sale, all of which shall continue to constitute part of the Collateral to the extent contemplated by the Collateral Documents. Co-Collateral Agent shall act in concert with Agent in matters delegated to the both of them under this Agreement; however, in the event of any disagreement or dispute between Agent and Co-Collateral Agent in any such matter, the determination or decision of Agent shall, in all cases, controlLender.
Appears in 1 contract
Sources: Credit Agreement (Tech Data Corp)
Collateral Matters. (a) The Lenders hereby irrevocably authorize the Collateral Agent, at its option and direct Agent in its sole discretion, to release any Liens upon Lien on any Collateral (and any such Liens shall be automatically released, without any action by Agent or any other Person), (i) upon the Termination Date; termination of the Commitments and payment and satisfaction in full by the Borrowers of all Obligations, (ii) in respect of constituting property of any Subsidiary being sold or disposed of if a release is required or transferred (including property owned by any Subsidiary being sold or disposed of or transferred) desirable in connection therewith and if the Administrative Borrower certifies to the Collateral Agent that the sale or Disposition disposition is permitted under Section 6.4 or transfer is made in compliance with this Agreement and the other Loan Documents (or otherwise is not prohibited) (and the Collateral Agent may, in its discretion, request, and may rely conclusively on any such certificate, without further inquiry on a certificate from the Borrower certifying as such prior to Agent taking any action to evidence such release) or such sale or Disposition is approved by the Requisite Lenders (or such greater number of Lenders as may be required under Section 12.2inquiry); , (iii) to constituting property in which no Borrower or its Subsidiaries owned any interest at the extent time the applicable Collateral is Lender Group’s Liens was granted nor at any time thereafter, or becomes Excluded Property and/or Excluded Principal Property; (iv) to the extent the applicable Collateral constitutes constituting property leased to Credit Parties a Borrower or its Subsidiaries under a lease which that has expired or been is terminated in a transaction permitted under this Agreement; . Except as provided above, the Collateral Agent will not execute and deliver a release of any Lien on any Collateral without the prior written authorization of (vy) to if the extent release is of all or substantially all of the Credit Party owning such Collateral is released from its Obligations hereunder (pursuant to Section 13.11 or otherwise); Collateral, all of the Lenders, or (viz) as required by otherwise, the terms of the ABL Intercreditor AgreementRequired Lenders. Upon request by the Collateral Agent or Parent the Administrative Borrower at any time, the Lenders will confirm in writing the Collateral Agent’s authority to release any Lien upon such Liens on particular types or items of Collateral pursuant to this Section 10.11. In addition, the Lenders hereby authorize Agent, to subordinate any Lien granted to or held by Agent upon any Collateral to any Lien on such asset permitted pursuant to paragraph (6)(C) of the definition of Permitted Lien. In addition, the Guaranty of the Obligations by, and the liens on the assets of, any Restricted Subsidiary which is designated as an Unrestricted Subsidiary will automatically be terminated and released at the time of such designation.
(b) Promptly, and in any event not later than five (5) Business Days’ following written request by Parent Borrower, Agent shall (and is hereby irrevocably authorized and directed by Lenders to) execute such documents as may be necessary to evidence the release (or subordination) of its Liens upon such Collateral as contemplated by Section 10.11(a)16.12; provided, however, that (i1) the Collateral Agent shall not be required to execute any document necessary to evidence such document release on terms whichthat, in the Collateral Agent’s opinion, would expose the Collateral Agent to liability or create any obligation or entail any consequence other than the release of such Liens Lien without recourse recourse, representation, or warranty, and (ii2) such release shall not in any manner discharge, affect affect, or impair the Obligations or any Liens (other than those expressly being released) upon (or obligations of Credit Parties the Borrowers in respect of) all interests retained by Credit Partiesthe Borrowers, including the proceeds of any sale, all of which shall continue to constitute part of the Collateral.
(b) No Agent shall have any obligation whatsoever to any of the Lenders to assure that the Collateral exists or is owned by the Borrowers or is cared for, protected, or insured or has been encumbered, or that the Lender Group’s Liens have been properly or sufficiently or lawfully created, perfected, protected, or enforced or 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 any Agent pursuant to any of the Loan Documents, it being understood and agreed that in respect of the Collateral, or any act, omission, or event related thereto, subject to the extent contemplated by terms and conditions contained herein, each Agent may act in any manner it may deem appropriate, in its sole discretion given such Agent’s own interest in the Collateral Documents. Co-Collateral in its capacity as one of the Lenders and that such Agent shall act in concert with Agent in matters delegated have no other duty or liability whatsoever to any Lender as to any of the both of them under this Agreement; howeverforegoing, in the event of any disagreement or dispute between Agent and Co-Collateral Agent in any such matter, the determination or decision of Agent shall, in all cases, controlexcept as otherwise provided herein.
Appears in 1 contract