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 if applicable, any subagent appointed by the Collateral Agent under Section 13.2 or otherwise) to release its Liens on the Collateral, and the Collateral Agent’s Liens upon any Collateral shall be automatically released (i) upon Full Payment of the Obligations; (ii) upon a disposition of Collateral permitted by Section 8.8 to a Person that is not an Obligor; (iii) if any such Collateral constitutes property in which the Obligors owned no interest at the time the Lien was granted or at any time thereafter; (iv) if any such Collateral constitutes property leased to an Obligor under a lease which has expired or been terminated in a transaction permitted under this Agreement; (v) to the extent the property constituting such Collateral is owned by any Guarantor, upon the release of such Guarantor from its obligations under the Guarantee Agreement (in accordance with the second succeeding sentence and the Guarantee Agreement); (vi) as required by the Collateral Agent to effect any sale, transfer or other Disposition of Collateral in connection with any exercise of remedies of the Collateral 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 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 applicable Collateral Agent’s Liens upon particular types or items of Collateral pursuant to this Section 13.10. 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 (w) the Collateral Agent to 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 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 the terms hereof, the Security Documents or any other contractual arrangement with any Obligor, following the written request by Borrower, Collateral Agent shall (to 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 Liens, 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 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 Obligors. 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 this Section 13.10(a).

Appears in 3 contracts

Samples: Credit Agreement (ProFrac Holding Corp.), Credit Agreement (ProFrac Holding Corp.), Credit Agreement (ProFrac Holding 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 (~~Agent, at its option and ~~if applicable~~in its sole discretion, ~~any subagent appointed by the Collateral Agent under Section 13.2 or otherwise)~~ to release ~~its Liens on the Collateral, and the Collateral Agent’s Liens~~ any Lien upon any Collateral ~~shall be automatically released~~ and to terminate any guarantee (i) upon ~~Full Payment~~ the termination of the ~~Obligations~~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) ~~upon~~ constituting property being sold or disposed of (or being encumbered pursuant to clause (l) of the Permitted Encumbrance definition) if the Loan Party disposing of such property certifies to the Collateral Agent that the sale or disposition (or encumbrance) is made in compliance with Section 6.03 (or if applicable, a ~~disposition of~~ Permitted Encumbrance permitted under said clause (l)) (and the Collateral ~~permitted by Section 8.8 to a Person that is not an Obligor~~Agent may rely conclusively on any such certification without further inquiry); (iii) ~~if any such Collateral constitutes~~ constituting property in which ~~the Obligors~~ no Loan Party owned no any interest at the time the Lien was granted or at any time thereafter; (iv) ~~if any such Collateral constitutes~~ constituting property leased to ~~an Obligor~~ 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 property constituting such Collateral is owned by any Guarantor, upon the release of such Guarantor from its obligations under the Guarantee Agreement (in accordance with the second succeeding sentence and the Guarantee Agreement); (vi) as required by the Collateral Agent to effect any sale, transfer or other Disposition of Collateral in connection with any exercise of remedies of the Collateral 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 releasedSection 8.10(b). Except as provided above, the Collateral Agent will not release any of ~~the Collateral Agent’s~~ its Liens without the prior written authorization of the ~~Required~~ Lenders (~~or such other percentage of Lenders whose consent is~~ as required ~~in accordance with~~ by Section ~~12.1~~9.03); provided ~~that, in addition to the foregoing,~~ that the Collateral Agent may, in its discretion, release ~~such~~ the Collateral Agent’s Liens on Collateral valued in the aggregate not in excess of $~~1,000,000~~ 250,000 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 the ~~Borrower~~ Borrowers 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 ~~applicable~~ Collateral Agent’s Liens upon particular types or items of Collateral pursuant to this Section 13.10. 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 (w) the Collateral Agent to 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 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 the terms hereof, the Security Documents or any other contractual arrangement with any Obligor, following the written request by Borrower, Collateral Agent shall (to 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 Liens, 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 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 Obligors. 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 this Section 13.10(a)8.10.

Appears in 2 contracts

Samples: Credit Agreement (Independence Contract Drilling, Inc.), Credit Agreement (Independence Contract Drilling, Inc.)

Collateral Matters. (a) ~~The Lenders (~~Agent may, at its option, from time to time, at any time on or after an Event of Default and ~~each other Secured Party by their acceptance of~~ for so long as the ~~benefits of the Loan Documents shall be deemed to) hereby irrevocably authorize the Collateral Agent (and if applicable, any subagent appointed by the Collateral Agent under Section 13.2~~ same is continuing or ~~otherwise) to release its Liens on the Collateral, and the Collateral Agent’s Liens~~ upon any ~~Collateral shall be automatically released~~ 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) ~~upon Full Payment of~~ deems necessary or desirable either to preserve or protect the ~~Obligations;~~ Collateral or any portion thereof or (ii) ~~upon a disposition~~ to enhance the likelihood or maximize the amount of ~~Collateral permitted~~ 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 Section ~~8.8~~ 12.8 hereof, shall not exceed the aggregate amount of five (5%) percent of the Maximum Credit and shall not cause the total principal amount of Loans and Letters of Credit Accommodations to ~~a Person that is not an Obligor;~~ exceed the Maximum Credit or (iii) if to pay any ~~such Collateral constitutes property in which the Obligors owned no interest at the time the Lien was granted~~ other amount chargeable to any Borrower or at any time thereafter; (iv) if any such Collateral constitutes property leased to an Obligor under a lease which has expired or been terminated in a transaction permitted under this Agreement; (v) to the extent the property constituting such Collateral is owned by any Guarantor, upon the release of such Guarantor from its obligations under the Guarantee Agreement (in accordance with the second succeeding sentence and the Guarantee Agreement); (vi) as required by the Collateral Agent to effect any sale, transfer or other Disposition of Collateral in connection with any exercise of remedies of the Collateral 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 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 applicable Collateral Agent’s Liens upon particular types or items of Collateral pursuant to this Section 13.10. 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 (w) the Collateral Agent to 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 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 the terms ~~hereof, the Security Documents~~ of this Agreement or any other contractual arrangement with any Obligor, following the written request by Borrower, Collateral Agent shall (to the extent not prohibited by applicable law or legal process) deliver such Collateral in accordance with the terms of the ~~Intercreditor Agreement or~~other Financing Agreements consisting of (A) costs, ~~if no Intercreditor Agreement is then in effect, to the applicable Obligor,~~ fees and expenses and (zB) ~~if after~~ 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 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 Collateral. Special Agent Advances shall not constitute Loans but shall otherwise constitute Obligations hereunder. Interest on ~~Section 8.12(q)(x) or (r) that remains outstanding (and no commitments for Debt that, if incurred would~~ Special Agent Advances shall 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 Liens, 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 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)) payable at the ~~expense~~ Interest Rate then applicable to Prime Rate Loans and shall be payable on demand. Without limitation of the Obligors. 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 ~~this~~ Section ~~13.10(a)~~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.

Appears in 2 contracts

Samples: Loan and Security Agreement (Atlantic Paratrans of Arizona, Inc.), Loan and Security Agreement (Atlantic Express Transportation 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~~ and direct Agent ~~(and if applicable, any subagent appointed by the Collateral Agent under Section 13.2 or otherwise)~~ to release ~~its Liens on the Collateral, and the Collateral Agent’s~~ Liens upon any Collateral (and any such Liens shall be automatically ~~released~~ released), without further action by Agent or any other Person,, (i) upon ~~Full Payment of~~ the ~~Obligations~~Termination Date; (ii) ~~upon a disposition~~ in respect of ~~Collateral permitted~~ property of any Subsidiary being sold or disposed of or transferred (including property owned by ~~Section 8.8 to a Person that~~ 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 ~~an Obligor~~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) ~~if any such~~ to the extent the applicable Collateral ~~constitutes property in which the Obligors owned no interest at the time the Lien was granted~~ is or ~~at any time thereafter~~becomes Excluded Property and/or Excluded Principal Property; (iv) ~~if any such~~ to the extent the applicable Collateral constitutes property leased to ~~an Obligor~~ Credit Parties under a lease which has expired or been terminated in a transaction permitted under this Agreement; (v) to the extent the ~~property constituting~~ Credit Party owning such Collateral is ~~owned by any Guarantor, upon the release of such Guarantor~~ released from its ~~obligations under the Guarantee Agreement~~ Obligations hereunder (~~in accordance with the second succeeding sentence and the Guarantee Agreement~~pursuant to Section 13.10 or otherwise); or (vi) as required by the Collateral Agent to effect any sale, transfer or other Disposition of Collateral in connection with any exercise of remedies of the Collateral 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 terms 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 releaseIntercreditor Agreement. Upon request by ~~the Collateral~~ Agent or ~~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 ~~applicable Collateral Agent’s Liens~~ Lien upon particular types or items of Collateral pursuant to this Section ~~13.10~~10.11. 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 ~~(w) the Collateral Agent~~ Agent, to subordinate any Lien ~~on any property~~ granted to or held by ~~the~~ Agent upon any Collateral ~~Agent under any Loan Document~~ to ~~the holder of~~ any Lien on such ~~property that is~~ asset 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 ~~the terms hereof, the Security Documents or any other contractual arrangement with any Obligor, following the written request by Borrower, Collateral Agent shall~~ paragraph (to 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 (r6)(C) of the definition of Permitted ~~Liens~~Lien. In addition, ~~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) Guaranty of the ~~definition of “Permitted Liens”~~Obligations by, ~~promptly following~~ and the ~~written request of~~ liens on the ~~Borrower~~assets of, ~~the Collateral Agent shall release Collateral Agent’s Liens on Fixed Assets Collateral (other than, in each case~~ any ~~Inventory or Fracturing Equipment Parts (~~Restricted Subsidiary which is designated as ~~defined in the Initial Intercreditor Agreement))~~ an Unrestricted Subsidiary will automatically be terminated and released at the ~~expense~~ time of ~~the Obligors. 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 this Section 13.10(a)~~designation.

Appears in 2 contracts

Samples: Credit Agreement (XPO Logistics, Inc.), Assignment Agreement (XPO Logistics, Inc.)

Collateral Matters. (a) ~~The Lenders (~~Agent may, at its option, from time to time, at any time on or after an Event of Default and ~~each other Secured Party by their acceptance of~~ for so long as the ~~benefits of the Loan Documents shall be deemed to) hereby irrevocably authorize the Collateral Agent (and if applicable, any subagent appointed by the Collateral Agent under Section 13.2~~ same is continuing or ~~otherwise) to release its Liens on the Collateral, and the Collateral Agent’s Liens~~ upon any ~~Collateral shall be automatically released~~ 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) ~~upon Full Payment of~~ deems necessary or desirable either to preserve or protect the ~~Obligations;~~ Collateral or any portion thereof or (ii) ~~upon a disposition~~ to enhance the likelihood or maximize the amount of ~~Collateral permitted~~ repayment by Section 8.8 to a Person that is not an Obligor; (iii) if any such Collateral constitutes property in which the Obligors owned no interest at the time the Lien was granted or at any time thereafter; (iv) if any such Collateral constitutes property leased to an Obligor under a lease which has expired or been terminated in a transaction permitted under this Agreement; (v) to the extent the property constituting such Collateral is owned by any Guarantor, upon the release of such Guarantor from its obligations under the Guarantee Agreement (in accordance with the second succeeding sentence Borrowers and ~~the Guarantee Agreement); (vi) as required by the Collateral Agent to effect any sale, transfer or other Disposition of Collateral in connection with any exercise of remedies~~ Guarantors of the ~~Collateral~~ Loans and other Obligations, provided, that, (A) the aggregate principal amount of the Special Agent Advances pursuant to ~~the Security Documents,~~ this clause (~~vii~~ii) 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 the Borrower outstanding at any time, ~~subject to~~ plus the ~~Borrower having certified to~~ then outstanding principal amount of the ~~Collateral Agent that the disposition is made in compliance with Section 8.8 (~~additional Loans and Letters of Credit which ~~the Collateral~~ Agent may ~~rely conclusively on any such certificate~~make or provide as set forth in Section 12.8 hereof, ~~without further inquiry),~~ shall not exceed the ~~Lenders will confirm in writing~~ amount equal to five percent (5%) of the ~~Collateral Agent’s authority to release any applicable Collateral Agent’s Liens upon particular types or items~~ Maximum Credit and (B) the aggregate principal amount of ~~Collateral~~ the Special Agent Advances pursuant to this ~~Section 13.10. In addition~~clause (ii) outstanding at any time, plus the ~~Lenders (and each other Secured Party by their acceptance~~ then outstanding principal amount of the ~~benefits~~ Loans and Letters of Credit, shall not exceed the Loan Documents shall be deemed to) hereby irrevocably authorize (w) the Collateral Agent to 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 8.12(c) or (q) (as to Fixed Asset Collateral only)Maximum Credit, (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 Subsidiaryexcept at Agent’s option, ~~in each case~~provided, 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, thenthat, to the extent that the ~~Collateral~~ aggregate principal amount of Special Agent ~~obtains possession~~ 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 ~~Collateral by operation~~ obligation to provide its share of ~~Section 13.12~~ such Special Agent Advances in excess of ~~this Agreement that constitutes Collateral that Obligors are not required~~ the Maximum Credit, or (iii) to ~~deliver~~ pay any other amount chargeable to ~~Collateral Agent at such time~~ any Borrower or Guarantor pursuant to the terms ~~hereof, the Security Documents~~ of this Agreement or any other contractual arrangement with any Obligor, following the written request by Borrower, Collateral Agent shall (to the extent not prohibited by applicable law or legal process) deliver such Collateral in accordance with the terms of the ~~Intercreditor Agreement or~~other Financing Agreements consisting of (A) costs, ~~if no Intercreditor Agreement is then in effect, to the applicable Obligor,~~ fees and expenses and (zB) ~~if after~~ 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 ~~date hereof Collateral Agent’s Lien has been expanded~~ 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 ~~include Fixed Asset Collateral in connection with incurrence~~ Base Rate Loans and shall be payable on demand. Without limitation of ~~Debt~~ its obligations pursuant to Section ~~8.12(q)(x)~~ 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 ~~(r) so long as all~~ at Agent’s option based on the arithmetic mean determined by Agent of the ~~following conditions~~ 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 ~~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~~ not paid within three (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) days of the definition of Permitted Liens, 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 Collateral Agent shall release Collateral Agent’s ~~Liens on Fixed Assets Collateral (other than~~demand, ~~in each case any Inventory or Fracturing Equipment Parts (as defined in the Initial Intercreditor Agreement))~~ at the ~~expense of the Obligors~~highest Interest Rate provided for in Section 3.1 hereof applicable to Base Rate Loans. ~~Upon request by any Appointed Agent~~ Required Lenders may at any ~~time, the Required Lenders will confirm in writing such Appointed~~ time revoke Agent’s authority to ~~release or subordinate its interest in particular types or items~~ make any further Special Agent Advances by written notice to Agent. Absent such revocation, Agent’s determination that funding of ~~property, or to release any Guarantor from its obligations pursuant to this Section 13.10(a)~~a Special Agent Advance is appropriate shall be conclusive.

Appears in 2 contracts

Samples: 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~~ including in its or any of ~~the benefits of the Loan Documents shall be deemed to~~its Affiliate’s capacities as a potential Hedge Bank or Cash Management Bank) hereby irrevocably authorize Agent at its option and in its discretion to release any Lien upon any of the Collateral Agent (and if applicable, any subagent appointed by the Collateral Agent under Section 13.2 or otherwise) to release its Liens on the Collateral, and the Collateral Agent’s Liens upon any Collateral shall be automatically released (i) upon ~~Full Payment~~ termination of the ~~Obligations~~Commitment and payment and satisfaction of all of the non-contingent Obligations and delivery of cash collateral to the extent required under Section 2.3(a); or (ii) ~~upon a~~ constituting property being sold or disposed of if such sale or disposition ~~of Collateral~~ is permitted by ~~Section 8.8~~ this Agreement (or permitted pursuant to a ~~Person that is not an Obligor~~waiver of or consent to a transaction otherwise prohibited by this Agreement); or (iii) ~~if any such Collateral constitutes~~ constituting property in which ~~the Obligors owned no~~ applicable Credit Party did not own an interest at the time the Lien was granted or at any time thereafter; or (iv) if required under the terms of any ~~such Collateral constitutes property leased to an Obligor under a lease which has expired~~ of the other Financing Agreements, including any intercreditor agreement; or ~~been terminated in a transaction permitted under this Agreement;~~ (v) ~~to the extent the property constituting such Collateral is owned by any Guarantor~~approved, ~~upon the release of such Guarantor from its obligations under the Guarantee Agreement (~~authorized or ratified in writing in accordance with ~~the second succeeding sentence and the Guarantee Agreement); (vi) as required by the Collateral~~ Section 11.14 hereof. Lenders hereby irrevocably authorize Agent to ~~effect any sale~~subordinate its Lien upon the specific Collateral on which another Person has a Lien as permitted under Section 8.2 and if such Person will not permit Agent to retain its Lien on such Collateral, ~~transfer or other Disposition of Collateral in connection with any exercise of remedies of the Collateral~~ Lenders hereby irrevocably authorize Agent ~~pursuant~~ to ~~the Security Documents, (vii) to the extent~~ release its Lien upon 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 releasedCollateral. Except as provided above, ~~the Collateral~~ Agent will not release any Lien upon 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 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 applicable Collateral Agent’s Liens upon particular types or items of Collateral pursuant to this Section 13.1011.14 hereof. In addition, ~~the Lenders~~ each Lender (~~and each other Secured Party by their acceptance~~ including in its or any of ~~the benefits of the Loan Documents shall be deemed to~~its Affiliate’s capacities as a potential Hedge Bank or Cash Management Bank) hereby irrevocably ~~authorize (w) the Collateral~~ authorizes Agent to 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 8.12(c) or (q) (as to Fixed Asset Collateral only), (x) the Agent at its option and in its discretion to release ~~automatically~~ or terminate 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 the terms hereof, the Security Documents or any other contractual arrangement with any Obligor, following the written request by Borrower, Collateral Agent shall (to 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 Control Agreements entered into pursuant to Section ~~8.12(q)(x~~7.14(b) as contemplated by Section 7.14(c) without any further consent or ~~(r) so long as all~~ action by such Lender or any 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 Liens, 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 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 Obligors. 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 this Section 13.10(a)~~Affiliates.

Appears in 2 contracts

Samples: Credit Agreement (Imax Corp), Credit Agreement (Imax 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 (~~Agent, at its option and ~~if applicable~~in its sole discretion, ~~any subagent appointed by the Collateral Agent under Section 13.2 or otherwise)~~ to release ~~its Liens on the Collateral, and the Collateral Agent’s Liens~~ any Lien upon any Collateral ~~shall be automatically released~~ and to terminate any guarantee (i) upon ~~Full Payment~~ the termination of the ~~Obligations~~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) ~~upon a~~ constituting property being sold or disposed of if the Loan Party disposing of such property certifies to the Collateral Agent that the sale or disposition of is made in compliance with Section 6.03 (and the Collateral ~~permitted by Section 8.8 to a Person that is not an Obligor~~Agent may rely conclusively on any such certification without further inquiry); (iii) ~~if any such Collateral constitutes~~ constituting property in which ~~the Obligors~~ no Loan Party owned no any interest at the time the Lien was granted or at any time thereafter; (iv) ~~if any such Collateral constitutes~~ constituting property leased to ~~an Obligor~~ 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 property constituting such Collateral is owned by any Guarantor, upon the release of such Guarantor from its obligations under the Guarantee Agreement (in accordance with the second succeeding sentence and the Guarantee Agreement); (vi) as required by the Collateral Agent to effect any sale, transfer or other Disposition of Collateral in connection with any exercise of remedies of the Collateral Agent pursuant to ~~the Security Documents, (vii~~Section 8.10(b) 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 releasedbelow. Except as provided above, the Collateral Agent will not release any of ~~the Collateral Agent’s~~ its Liens without the prior written authorization of the ~~Required~~ Lenders (~~or such other percentage of Lenders whose consent is~~ as required ~~in accordance with~~ by Section ~~12.1~~9.03); provided ~~that, in addition to the foregoing,~~ that the Collateral Agent may, in its discretion, release ~~such~~ the 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 the ~~Borrower~~ Borrowers 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 ~~applicable~~ Collateral Agent’s Liens upon particular types or items of Collateral pursuant to this Section 13.10. 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 (w) the Collateral Agent to 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 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 the terms hereof, the Security Documents or any other contractual arrangement with any Obligor, following the written request by Borrower, Collateral Agent shall (to 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 Liens, 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 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 Obligors. 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 this Section 13.10(a)8.10.

Appears in 2 contracts

Samples: Revolving Credit Agreement (Joe's Jeans Inc.), Credit Agreement (Babyuniverse, Inc.)

Collateral Matters. (a) ~~The Lenders (~~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 ~~each other Secured Party by their acceptance of~~ for so long as the ~~benefits of the Loan Documents shall be deemed to) hereby irrevocably authorize the Collateral Agent (and if applicable, any subagent appointed by the Collateral Agent under Section 13.2~~ same is continuing or ~~otherwise) to release its Liens on the Collateral, and the Collateral Agent’s Liens~~ upon any ~~Collateral shall be automatically released~~ 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) ~~upon Full Payment of~~ to preserve or protect the ~~Obligations;~~ Collateral or any portion thereof or (ii) ~~upon a disposition~~ to enhance the likelihood or maximize the amount of ~~Collateral permitted~~ repayment by ~~Section 8.8 to a Person that is not an Obligor;~~ Borrowers of the Loans and other Obligations, or (iii) if to pay any ~~such Collateral constitutes property in which the~~ other amount chargeable to Borrowers or Obligors owned no interest at the time the Lien was granted or at any time thereafter; (iv) if any such Collateral constitutes property leased to an Obligor under a lease which has expired or been terminated in a transaction permitted under this Agreement; (v) to the extent the property constituting such Collateral is owned by any Guarantor, upon the release of such Guarantor from its obligations under the Guarantee Agreement (in accordance with the second succeeding sentence and the Guarantee Agreement); (vi) as required by the Collateral Agent to effect any sale, transfer or other Disposition of Collateral in connection with any exercise of remedies of the Collateral Agent pursuant to the ~~Security Documents, (vii) to the extent such Collateral otherwise becomes an Excluded Stock~~ terms of this Agreement 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~~ 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 ~~prior written authorization~~ 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 ~~Required Lenders (or such other percentage~~ additional Revolving Loans and additional Letter 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 the Borrower at any time, subject to the Borrower having certified to the Collateral Agent that the disposition is Credit Accommodations 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 applicable Collateral Agent’s Liens upon particular types or items of Collateral pursuant to ~~this~~ Section ~~13.10. In addition~~12.11 hereof, shall not exceed the ~~Lenders~~ least of (~~and each other Secured Party by their acceptance of the benefits of the Loan Documents shall be deemed to~~i) ~~hereby irrevocably authorize~~ $7,500,000, (wii) the ~~Collateral Agent to subordinate any Lien on any property granted to or held by the Collateral Agent under any Loan Document to the holder~~ sum of ~~any Lien on such property that is permitted by Section 8.12(c) or (q) (as to Fixed Asset Collateral only),~~ (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 ~~release automatically any Guarantor from its obligations under~~ exceed 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, Borrowing Base and (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~~if applicable, ~~then~~an amount equal to any reduction, 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 the terms hereof, the Security Documents or any other contractual arrangement with any Obligor, following the written request by Borrower, Collateral Agent shall (to the extent not prohibited by applicable law or legal process) deliver such Collateral in accordance made with the ~~terms~~ consent of all Lenders, of the ~~Intercreditor Agreement or, if no Intercreditor Agreement is then in effect, to the applicable Obligor~~Excess Availability required by Section 9.17 hereof, and (ziii) ~~if after~~ the ~~date hereof Collateral Agent’s Lien has been expanded~~ 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 ~~Fixed Asset Collateral in connection with incurrence of Debt pursuant to Section 8.12(q)(x) or (r) so long as all~~ a description of the ~~following conditions are satisfied (1) no Default or Event~~ purpose 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) such Special Agent Advance. Without limitation of the definition of Permitted Liens, 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 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 Obligors. 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 ~~this~~ Section ~~13.10(a)~~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.

Appears in 2 contracts

Samples: Loan and Security Agreement (New York & Company, Inc.), Loan and Security Agreement (New York & Company, Inc.)

Collateral Matters. ~~(a) The~~ Each of the Lenders (and ~~each~~ the other Secured ~~Party by their acceptance of the benefits of the Loan Documents shall be deemed to)~~ Parties hereby irrevocably authorize and instruct the Administrative Agent and the Collateral Agent (or its designee) to take the actions to be taken by them as set forth in Sections 7.04 and ~~if applicable~~10.24. Each Lender hereby agrees, that, except as otherwise set forth herein, any ~~subagent appointed~~ action taken by the Collateral Agent under Section 13.2 or otherwise) to release its Liens on the Collateral, and the Collateral Agent’s Liens upon any Collateral shall be automatically released (i) upon Full Payment of the Obligations; (ii) upon a disposition of Collateral permitted by Section 8.8 to a Person that is not an Obligor; (iii) if any such Collateral constitutes property in which the Obligors owned no interest at the time the Lien was granted or at any time thereafter; (iv) if any such Collateral constitutes property leased to an Obligor under a lease which has expired or been terminated in a transaction permitted under this Agreement; (v) to the extent the property constituting such Collateral is owned by any Guarantor, upon the release of such Guarantor from its obligations under the Guarantee Agreement (in accordance with the second succeeding sentence and the Guarantee Agreement); (vi) as required by the Collateral Agent to effect any sale, transfer or other Disposition of Collateral in connection with any exercise of remedies of the Collateral 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~~ greater percentage of Lenders ~~whose consent is required~~ required) in accordance with ~~Section 12.1); provided that, in addition to~~ the ~~foregoing,~~ provisions of this Agreement or the Collateral Documents, and the exercise by the Required Lenders (or such greater percentage of Lenders required) of the powers set forth herein or therein, together with such other powers as are reasonably incidental thereto, shall be authorized and binding upon all of the Lenders. The Collateral Agent ~~may~~is hereby authorized on behalf of all of the Lenders, ~~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~~ necessity of any notice to or further consent from any Lender, ~~so long as all proceeds received~~ from time to time prior to an Event of Default (but shall have no obligation), to take any action with respect to any Collateral or Collateral Documents which may be necessary to perfect and maintain perfected the security interest in ~~connection with such release are applied~~ and liens upon the Collateral granted pursuant 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 releaseCollateral Documents. Upon request by the ~~Collateral~~ Administrative Agent or the ~~Borrower~~ Collateral Agent 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 applicable Collateral Agent’s Liens upon~~ particular types or items of Collateral pursuant to this Section ~~13.10~~9.12. In ~~addition~~each case as specified in and subject to the provisions of this Section 9.12, the ~~Lenders~~ applicable Agent will (and each ~~other Secured~~ Lender irrevocably authorizes the applicable Agent to), at the Borrower’s expense, execute and deliver to the applicable Loan Party ~~by their acceptance~~ such documents as such Loan Party may reasonably request to evidence the release or subordination of such item of Collateral from the ~~benefits of the Loan Documents shall be deemed to) hereby irrevocably authorize (w)~~ assignment and security interest granted under the Collateral ~~Agent~~ Documents, or to ~~subordinate any Lien on any property granted to or held by~~ evidence the ~~Collateral Agent under any Loan Document to the holder~~ release of ~~any Lien on~~ such ~~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~~Guaranty, 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 the terms hereof, the Security Documents or any other contractual arrangement with any Obligor, following the written request by Borrower, Collateral Agent shall (to the extent not prohibited by applicable law or legal process) deliver such Collateral case in accordance with the terms of the ~~Intercreditor Agreement or, if~~ Loan Documents and this Section 9.12. The Collateral Agent shall have no ~~Intercreditor Agreement is then in effect,~~ obligation whatsoever to the ~~applicable Obligor~~Lenders or to any other Person to assure that the Collateral exists or is owned by any Loan Party or is cared for, ~~and (z) if after~~ protected or insured or that the ~~date hereof~~ Liens granted to the Collateral ~~Agent’s Lien has~~ Agent herein or pursuant hereto have been ~~expanded~~ properly or sufficiently or lawfully created, perfected, protected or enforced or are entitled to ~~include Fixed Asset Collateral~~ any particular priority, or to exercise or to continue exercising at all or in ~~connection with incurrence~~ any manner or under any duty of ~~Debt pursuant to Section 8.12(q)(x)~~ care, disclosure or ~~(r) so long as all~~ fidelity any of the ~~following conditions are satisfied (1) no Default~~ rights, authorities and powers granted or ~~Event of Default has occurred and is continuing~~ available to the Collateral Agent in this Section 9.12, Section 10.24 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) any of the ~~definition~~ Collateral Documents; it being understood and agreed that in respect of ~~Permitted Liens, or, to~~ the ~~extent on account of Refinancing Debt~~Collateral, or ~~outstanding commitments that~~any act, ~~if incurred, would be Refinancing Debt, in each case incurred in reliance, directly~~ omission 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~~event related thereto, the Collateral Agent shall ~~release~~ have no duty unless and until expressly directed by Required Lenders and until the Collateral Agent receives such direction, the Collateral Agent may act in any manner it may deem appropriate, in its sole discretion and that the Collateral Agent shall have no duty or liability whatsoever to the Lenders, except for its gross negligence or willful misconduct (as determined by a court of competent jurisdiction in a final and non-appealable decision). The Agents shall not be responsible for or have a duty to ascertain or inquire into any representation or warranty regarding the existence or collectability of the Collateral, the existence, priority or perfection of the Agents’ Lien thereon, or any certificate prepared by any Loan Party in connection therewith, nor shall the Agents be responsible or liable to the Lenders for any failure to monitor or maintain any portion of the Collateral, Liens therein or financing statements filed in connection therewith. Anything contained in any of the Loan Documents to the contrary notwithstanding, the Borrower, the Administrative Agent, the Collateral Agent and each Secured Party hereby agree that (i) no Secured Party (other than the Agents) shall have any right individually to realize upon any of the Collateral or to enforce the Guaranty, it being understood and agreed that all powers, rights and remedies hereunder and under any of the Loan Documents may be exercised solely by the Administrative Agent or the Collateral Agent~~’s Liens on Fixed Assets Collateral~~ , as applicable, for the benefit of the Secured Parties in accordance with the terms hereof and thereof, and (~~other than, in each case any Inventory or Fracturing Equipment Parts (as defined~~ ii) in the ~~Initial Intercreditor Agreement)) at~~ event of a foreclosure or similar enforcement action by the ~~expense~~ Collateral Agent on any of the ~~Obligors. Upon request~~ Collateral pursuant to a public or private sale or other disposition (including pursuant to Section 363(k), Section 1129(b)(2)(a)(ii) or otherwise of the Bankruptcy Code or Debtor Relief Law with similar effect), the Collateral Agent (or any Lender, except with respect to a “credit bid” pursuant to Section 363(k), Section 1129(b)(2)(a)(ii) or otherwise of the Bankruptcy Code), may be the purchaser or licensor of any or all of such Collateral at any such sale or other disposition and the Collateral Agent, as agent for and representative of Secured Parties (but not any Lender or the Lenders in its or their respective individual capacities) shall be entitled, upon instructions from Required Lenders, 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 or disposition, to use and apply any of the Obligations as a credit on account of the purchase price for any collateral payable by ~~any Appointed~~ the Collateral Agent at ~~any time, the Required Lenders will confirm in writing~~ such ~~Appointed Agent’s authority to release~~ sale or ~~subordinate its interest in particular types or items of property, or to release any Guarantor from its obligations pursuant to this Section 13.10(a)~~other disposition.

Appears in 2 contracts

Samples: Term Loan Credit Agreement (Torrid Holdings Inc.), Term Loan Credit Agreement (Torrid Holdings Inc.)

Collateral Matters. Each Lender authorizes and directs Agent to enter into the other Loan Documents for the benefit of Lenders. Each Lender hereby agrees that, except as otherwise set forth herein, any action taken by Required Lenders in accordance with the provisions of this Agreement or the other Loan Documents, and the exercise by the Required Lenders of the powers set forth herein or therein, together with such other powers as are reasonably incidental thereto, shall be authorized and binding upon all Lenders. Agent is hereby authorized on behalf of all Lenders, without the necessity of any notice to or further consent from any Lender to take any action with respect to any Collateral or Loan Documents which may be necessary to perfect and maintain perfected the Liens upon the Collateral granted pursuant to this Agreement and the other Loan Documents. The Lenders irrevocably authorize Agent, at its option and in its discretion, (a) ~~The Lenders (and each other Secured Party~~ to release any Lien granted to or held by ~~their acceptance of the benefits of the Loan Documents shall be deemed to) hereby irrevocably authorize the Collateral Agent (and if applicable, any subagent appointed by the Collateral~~ Agent under ~~Section 13.2 or otherwise) to release its Liens on the Collateral, and the Collateral Agent’s Liens upon~~ any Collateral ~~shall be automatically released~~ Document (i) upon ~~Full Payment~~ termination of the ~~Obligations~~Commitments and payment in full of all Loans and all other obligations of Borrower hereunder and the expiration or termination of all Letters of Credit; (ii) ~~upon a disposition~~ constituting property sold or to be sold or disposed of ~~Collateral permitted by Section 8.8 to a Person that is not an Obligor; (iii) if any such Collateral constitutes property in which the Obligors owned no interest at the time the Lien was granted~~ as part of or at any time thereafter; (iv) if any such Collateral constitutes property leased to an Obligor under a lease which has expired or been terminated in a transaction permitted under this Agreement; (v) to the extent the property constituting such Collateral is owned by any Guarantor, upon the release of such Guarantor from its obligations under the Guarantee Agreement (in accordance with the second succeeding sentence and the Guarantee Agreement); (vi) as required by the Collateral Agent to effect any sale, transfer or other Disposition of Collateral in connection with any ~~exercise~~ disposition permitted hereunder (including the release of ~~remedies of~~ any guarantor); or (iii) subject to Section 15.1, if approved, authorized or ratified in writing by the ~~Collateral Agent pursuant to the Security Documents,~~ Required Lenders; or (~~vii~~b) to ~~the extent~~ subordinate its interest in any Collateral to any holder of a Lien on such Collateral ~~otherwise becomes an Excluded Stock~~ which is permitted by Section 11.2(iv)(i) or ~~an Excluded Asset, and~~ (~~viii~~iv)(iii) if (it being understood that Agent may conclusively rely on a certificate from Borrower in determining whether 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~~ Debt secured by any ~~of the Collateral Agent’s Liens without the prior written authorization of the Required Lenders (or~~ such ~~other percentage of Lenders whose consent~~ Lien is ~~required in accordance with~~ permitted by Section ~~12.1~~11.1(ii); 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 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 applicable Collateral Agent’s Liens upon~~ release, or subordinate its interest in, particular types or items of Collateral pursuant to this Section ~~13.10~~14.11. ~~In addition, the Lenders (and each other Secured Party by their acceptance of the benefits of the Loan Documents shall be deemed to)~~ Each Lender hereby ~~irrevocably authorize (w) the Collateral~~ authorizes Agent to 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 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 the terms hereof, the Security Documents or any other contractual arrangement with any Obligor, following the written request by Borrower, Collateral Agent shall (to 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 give blockage notices in connection with ~~incurrence of~~ any Subordinated 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 Liens, 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 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~~ direction of ~~the Obligors. Upon request by any Appointed Agent at any time, the~~ Required Lenders and agrees that it will ~~confirm in writing~~ not act unilaterally to deliver 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 this Section 13.10(a)~~notices.

Appears in 2 contracts

Samples: Credit Agreement (A-Mark Precious Metals, Inc.), Credit Agreement (A-Mark Precious Metals, Inc.)

Collateral Matters. (a) ~~The Lenders (~~Agent may, at its option, from time to time, at any time on or after an Event of Default and ~~each other Secured Party by their acceptance of~~ for so long as the ~~benefits of the Loan Documents shall be deemed to) hereby irrevocably authorize the Collateral Agent (and if applicable, any subagent appointed by the Collateral Agent under Section 13.2~~ same is continuing or ~~otherwise) to release its Liens on the Collateral, and the Collateral Agent’s Liens~~ upon any ~~Collateral shall be automatically released~~ 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) ~~upon Full Payment of~~ deems necessary or desirable either to preserve or protect the ~~Obligations;~~ Collateral or any portion thereof or (ii) ~~upon a disposition~~ to enhance the likelihood or maximize the amount of ~~Collateral permitted~~ 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 ~~8.8~~ 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 ~~a Person that is~~ this clause (ii) plus the aggregate outstanding principal amount of Loans and Letter of Credit Accommodations shall not ~~an Obligor;~~ exceed the Maximum Credit, or (iii) if to pay any ~~such Collateral constitutes property in which the Obligors owned no interest at the time the Lien was granted~~ other amount chargeable to any Borrower or at any time thereafter; (iv) if any such Collateral constitutes property leased to an Obligor under a lease which has expired or been terminated in a transaction permitted under this Agreement; (v) to the extent the property constituting such Collateral is owned by any Guarantor, upon the release of such Guarantor from its obligations under the Guarantee Agreement (in accordance with the second succeeding sentence and the Guarantee Agreement); (vi) as required by the Collateral Agent to effect any sale, transfer or other Disposition of Collateral in connection with any exercise of remedies of the Collateral 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 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 applicable Collateral Agent’s Liens upon particular types or items of Collateral pursuant to this Section 13.10. 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 (w) the Collateral Agent to 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 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 the terms ~~hereof, the Security Documents~~ of this Agreement or any other contractual arrangement with any Obligor, following the written request by Borrower, Collateral Agent shall (to the extent not prohibited by applicable law or legal process) deliver such Collateral in accordance with the terms of the ~~Intercreditor Agreement or~~other Financing Agreements consisting of (A) costs, ~~if no Intercreditor Agreement is then in effect, to the applicable Obligor,~~ fees and expenses and (zB) ~~if after~~ 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 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 Collateral. Special Agent Advances shall not constitute Loans but shall otherwise constitute Obligations hereunder. Interest on ~~Section 8.12(q)(x) or (r) that remains outstanding (and no commitments for Debt that, if incurred would~~ Special Agent Advances shall 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 Liens, 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 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)) payable at the ~~expense~~ Interest Rate then applicable to Prime Rate Loans and shall be payable on demand. Without limitation of the Obligors. 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 ~~this~~ Section ~~13.10(a).~~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. 137

Appears in 2 contracts

Samples: Loan and Security Agreement (Handy & Harman Ltd.), Loan and Security Agreement (WHX Corp)

Collateral Matters. Each Lender (aincluding in its capacities as a potential Cash Management Bank and a potential Hedge Bank) ~~The Lenders~~ irrevocably authorizes and directs the Collateral Agent to take the actions to be taken by them as set forth in Section 10.24. In each case as specified in this Section 9.12, the applicable Agent will (and each ~~other Secured~~ Lender irrevocably authorizes the applicable Agent to), at the Borrowers’ expense, execute and deliver to the applicable Loan Party ~~by their acceptance~~ such documents as such Loan Party may reasonably request to evidence the release or subordination of such item of Collateral from the ~~benefits of the Loan Documents shall be deemed to) hereby irrevocably authorize~~ assignment and security interest granted under the Collateral ~~Agent (and if applicable~~Documents, ~~any subagent appointed by the Collateral Agent under Section 13.2~~ or ~~otherwise)~~ to release its Liens on the Collateral, and the Collateral Agent’s Liens upon any Collateral shall be automatically released (i) upon Full Payment of the Obligations; (ii) upon a disposition of Collateral permitted by Section 8.8 to a Person that is not an Obligor; (iii) if any such Collateral constitutes property in which the Obligors owned no interest at the time the Lien was granted or at any time thereafter; (iv) if any such Collateral constitutes property leased to an Obligor under a lease which has expired or been terminated in a transaction permitted under this Agreement; (v) to the extent the property constituting such Collateral is owned by any Guarantor, upon evidence the release of such Guarantor from its obligations under the ~~Guarantee Agreement (~~Guaranty, in each case in accordance with the second succeeding sentence and the Guarantee Agreement); (vi) as required by the Collateral Agent to effect any sale, transfer or other Disposition of Collateral in connection with any exercise of remedies terms of the ~~Collateral Agent pursuant to the Security Documents, (vii) to the extent such Collateral otherwise becomes an Excluded Stock or an Excluded Asset,~~ Loan Documents 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 release10.24. Upon request by the ~~Collateral~~ Administrative Agent ~~or 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 applicable Collateral Agent’s Liens upon~~ particular types or items of Collateral pursuant to this Section ~~13.10~~9.12; provided that such confirmation shall not delay the effectiveness of any release of Collateral made pursuant to Section 10.25. ~~In addition~~Each Lender hereby agrees, and each holder of any Note by the acceptance thereof will be deemed to agree, that, except as otherwise set forth herein, any action taken by the Required Lenders in accordance with the provisions of this Agreement or the Collateral Documents, and the exercise by the Required Lenders of the powers set forth herein or therein, together with such other powers as are reasonably incidental thereto, shall be authorized and binding upon all of the Lenders. The Collateral Agent is hereby authorized on behalf of all of the Lenders, without the necessity of any notice to or further consent from any Lender, from time to time prior to an Event of Default, to take any action with respect to any Collateral or Collateral Documents which may be necessary to perfect and maintain perfected the security interest in and liens upon the Collateral granted pursuant to the Collateral Documents. The Collateral Agent shall have no obligation whatsoever to the Lenders ~~(and each~~ or to any other ~~Secured~~ Person to assure that the Collateral exists or is owned by any Loan Party ~~by their acceptance of~~ or is cared for, protected or insured or that the ~~benefits of the Loan Documents shall be deemed to) hereby irrevocably authorize (w)~~ Liens granted to the Collateral Agent herein or pursuant hereto have been properly or sufficiently or lawfully created, 150 perfected, protected or enforced or are entitled to ~~subordinate~~ any ~~Lien on~~ particular priority, or to exercise or to continue exercising at all or in any ~~property~~ manner or under any duty of care, disclosure or fidelity any of the rights, authorities and powers granted or available to ~~or held by~~ the Collateral Agent ~~under~~ in this Section 9.12, Section 10.24 or in any ~~Loan Document to~~ of the ~~holder~~ Collateral Documents, it being understood and agreed that in respect of the Collateral, or any ~~Lien on such property that is permitted by Section 8.12(c)~~ act, omission or ~~(q) (as to Fixed Asset~~ event related thereto, the Collateral ~~only), (x) the~~ Agent ~~to release automatically~~ may act in 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 Subsidiarymanner it may deem appropriate, in ~~each case~~its sole discretion, ~~solely to~~ given 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~~ Collateral Agent’s own interest in the Collateral as ~~both (1) no Default or Event~~ one of ~~Default has occurred~~ the Lenders 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~~ shall have no duty or liability whatsoever to the ~~terms hereof~~Lenders, ~~the Security Documents~~ except for its gross negligence, bad faith or any other contractual arrangement with any Obligor, following the written request by Borrower, Collateral Agent shall (to 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 Liens, 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 Collateral Agent shall release Collateral Agent’s Liens on Fixed Assets Collateral (other than, in each case any Inventory or Fracturing Equipment Parts willful misconduct (as ~~defined~~ determined by a court of competent jurisdiction in the Initial Intercreditor Agreement)) at the expense of the Obligors. 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 this Section 13.10(aa final and non-appealable decision).

Appears in 2 contracts

Samples: Syndicated Facility Agreement, Syndicated Facility Agreement (DTZ Jersey Holdings LTD)

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~~ BANKS irrevocably authorize the Collateral Agent (and if applicable, any subagent appointed by the Collateral Agent under Section 13.2 or otherwise) to release its Liens on the Collateral, and the Collateral Agent’s Liens upon any Collateral shall be automatically released (i) upon Full Payment of the Obligations; (ii) upon a disposition of Collateral permitted by Section 8.8 to a Person that is not an Obligor; (iii) if any such Collateral constitutes property in which the Obligors owned no interest at the time the Lien was granted or at any time thereafter; (iv) if any such Collateral constitutes property leased to an Obligor under a lease which has expired or been terminated in a transaction permitted under this Agreement; (v) to the extent the property constituting such Collateral is owned by any GuarantorCOLLATERAL AGENT, upon the release of such Guarantor from its obligations under the Guarantee Agreement (in accordance with the second succeeding sentence and the Guarantee Agreement); (vi) as required by the Collateral Agent to effect any sale, transfer or other Disposition of Collateral in connection with any exercise of remedies direction of the ~~Collateral Agent pursuant to the Security Documents~~ADMINISTRATIVE AGENT, (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 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 ~~applicable Collateral Agent’s Liens upon particular types~~ mortgage, deed of trust, pledge, lien, security interest or ~~items~~ other charge or encumbrance of Collateral pursuant to this Section 13.10. 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 (w) the Collateral Agent to subordinate any ~~Lien~~ nature on any property granted to or held by the ~~Collateral Agent~~ COLLATERAL AGENT under any Loan Document to the holder of any Lien on such 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 LOAN DOCUMENT upon BORROWER’s full 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 the terms hereof, the Security Documents or any other contractual arrangement with any Obligor, following the written request by Borrower, Collateral Agent shall (to the extent not prohibited by applicable law or legal process) deliver such Collateral in accordance with the terms final satisfaction 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 Liens, 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 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 ObligorsOBLIGATIONS. Upon request by ~~any Appointed Agent~~ the COLLATERAL AGENT at any time, the ~~Required Lenders~~ BANKS will confirm in writing ~~such Appointed Agent~~the COLLATERAL AGENT’s authority to release ~~or subordinate~~ its interest in particular types or items of ~~property, or to release any Guarantor from its obligations~~ property pursuant to this Section ~~13.10(a)~~9.10. In each case as specified in this Section 9.10, the COLLATERAL AGENT will, at BORROWER’s expense, execute and deliver to BORROWER such documents as BORROWER may reasonably request to evidence the release of such item of collateral from the assignment and security interest granted under the LOAN DOCUMENTS in accordance with the terms of the LOANS DOCUMENTS and this Section 9.10. Notwithstanding anything to the contrary in any LOAN DOCUMENT, the powers conferred on the COLLATERAL AGENT under the LOAN DOCUMENTS are solely to protect its interest (on behalf of the BANKS) in the collateral securing the LOANS and shall not impose any duty upon it to exercise any such powers. Except for the reasonable care of any such collateral in its possession and the accounting for moneys actually received by it under the LOAN DOCUMENTS, the COLLATERAL AGENT shall have no duty as to any such collateral, or responsibility, for (i) ascertaining or taking action with respect to calls, conversions, exchanges, maturities, tenders or other matters relative to any investment property constituting collateral, whether or not the COLLATERAL AGENT has or is deemed to have knowledge of such matters, or (ii) taking any necessary steps to preserve rights against prior parties or any other rights pertaining to any such collateral. The COLLATERAL AGENT shall be deemed to have exercised reasonable care in the custody and preservation of any collateral in its possession if such collateral is accorded treatment substantially equal to that which it accords its own property. The COLLATERAL AGENT shall not be liable for interest on any money or assets received by it. Assets held in trust by the COLLATERAL AGENT need not be segregated from other assets except to the extent required by law. Before the COLLATERAL AGENT acts or refrains from acting, it may require a certificate of an appropriate officer of BORROWER at the expense of BORROWER. The COLLATERAL AGENT shall not be liable for any action it takes or omits to take in good faith in reliance on such officer’s certificate. The COLLATERAL AGENT shall not be liable for any action that it takes or omits to take in good faith that it reasonably believes to be authorized or within its rights or powers under the LOAN DOCUMENTS. The COLLATERAL AGENT shall not be bound to make any investigation into the facts or matters stated in any resolution, certificate, statement, instrument, opinion, notice, request, direction, consent, order, bond, debenture, or other paper or document, but the COLLATERAL AGENT, in its discretion, may make such further inquiry or investigation into such facts or matters as it may see fit and, if the COLLATERAL AGENT shall determine to make such further inquiry or investigation, it shall be entitled, upon reasonable notice to BORROWER, to examine the books, records and premises of BORROWER, personally or by agent or attorney and to consult with the officers and representatives of BORROWER, including BORROWER’s accountants and attorneys. The COLLATERAL AGENT shall be under no obligation to exercise any of the rights or powers vested in it by the LOAN DOCUMENTS at the request, order or direction of the BANKS unless such BANKS have offered to the COLLATERAL AGENT security or indemnity reasonably satisfactory to the COLLATERAL AGENT against the costs, expenses and liabilities that may be incurred by it in compliance with such request, order or direction. The COLLATERAL AGENT shall not be required to give any bond or surety in respect of the performance of its powers and duties under the LOAN DOCUMENTS. The COLLATERAL AGENT may from time to time, at its option, perform any act that BORROWER agrees hereunder or under any LOAN DOCUMENT to perform and that BORROWER shall fail to perform after being requested in writing so to perform (it being understood that no such request need be given after the occurrence of an EVENT OF DEFAULT) and the COLLATERAL AGENT may from time to time take any other action that the COLLATERAL AGENT reasonably deems necessary for the maintenance, preservation or protection of any of the collateral for the LOANS or of its security interest therein. The COLLATERAL AGENT is authorized to endorse, in the name of BORROWER, any item, howsoever received by the COLLATERAL AGENT, representing any payment on or other proceeds of any of the collateral for the LOANS.

Appears in 2 contracts

Samples: Construction Loan Agreement (One Earth Energy LLC), Construction Loan Agreement (Rex Stores 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 if applicable, any subagent appointed by the Collateral Agent under Section 13.2 or otherwise) to release its Liens on the Collateral, and the Collateral Agent’s Liens upon any Collateral shall be automatically released (i) upon Full Payment of the Obligations; (ii) upon a disposition of Collateral permitted by Section 8.8 to a Person that is not an Obligor; (iii) if any such Collateral constitutes property in which the Obligors owned no interest at the time the Lien was granted or at any time thereafter; (iv) if any such Collateral constitutes property leased to an Obligor under a lease which has expired or been terminated in a transaction permitted under this Agreement; (v) to the extent the property constituting such Collateral is owned by any Guarantor, upon the release of such Guarantor from its obligations under the Guarantee Agreement (in accordance with the second succeeding sentence and the Guarantee Agreement); (vi) as required by the Collateral Agent to effect any sale, transfer or other Disposition of Collateral in connection with any exercise of remedies of the Collateral Agent pursuant to the Security Documents, and (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 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 applicable Collateral Agent’s Liens upon particular types or items of Collateral pursuant to this Section 13.10. 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 (w) the Collateral Agent to 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 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 the terms hereof, the Security Documents or any other contractual arrangement with any Obligor, following the written request by Borrower, Collateral Agent shall (to 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 Liens~~), 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 Liens”, promptly following the written request of the Borrower, the 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 Obligors. 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 this Section 13.10(a).

Appears in 2 contracts

Samples: Credit Agreement (ProFrac Holding Corp.), Credit Agreement (ProFrac Holding 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 if applicable, any subagent appointed by the Collateral Agent under Section 13.2 or otherwise) to release its Liens on the Collateral, and the Collateral Agent’s Liens upon any Collateral shall be automatically released (i) upon Full Payment of the Obligations; (ii) upon a disposition of Collateral permitted by Section 8.8 to a Person that is not an Obligor; (iii) if any such Collateral constitutes property in which the Obligors owned no interest at the time the Lien was granted or at any time thereafter; (iv) if any such Collateral constitutes property leased to an Obligor under a lease which has expired or been terminated in a transaction permitted under this Agreement; (v) to the extent the property constituting such Collateral is owned by any Guarantor, upon the release of such Guarantor from its obligations under the Guarantee Agreement (in accordance with the second succeeding sentence and the Guarantee Agreement); (vi) as required by the Collateral Agent to effect any sale, transfer or other Disposition of Collateral in connection with any exercise of remedies of the Collateral Agent pursuant to the Security Documents, (vii) to the extent such Collateral otherwise becomes an Excluded Stock or an Excluded ~~Asset,~~ Asset and (viii) if the percentage of Lenders required to consent to the Collateral being released hereunder, ~~so consents~~ 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); 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 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 applicable Collateral Agent’s Liens upon particular types or items of Collateral pursuant to this Section 13.10. 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 (w) the Collateral Agent to 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 8.12(c) or (q) (as to ~~Fixed~~ 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 ~~not prohibited~~ permitted by this ~~Agreement~~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 (~~y) so long as both (1~~2) no Default or Event of Default has occurred ~~and~~ or is continuing or would result therefrom and (2y) so long as no ~~Out-of-Formula Condition~~ 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 the terms hereof, the Security Documents or any other contractual arrangement with any Obligor, following the written request by Borrower, Collateral Agent shall (to the extent ~~not prohibited~~ permitted by applicable law or legal process) deliver such Collateral in accordance with the terms of the ABL Intercreditor Agreement or, if no the ABL Intercreditor Agreement is not 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 . Promptly upon consummation of the ~~following conditions are satisfied (1) no Default or Event of Default has occurred~~ FTS Distribution and ~~is continuing or would result therefrom~~Contribution Transaction, (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 Liens, or, solely to the extent ~~on account~~ true, Borrower shall send a certificate to Agent confirming that FTS does not own any assets other than the Stock of ~~Refinancing Debt~~Holdings, ~~or outstanding commitments that~~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, ~~if incurred~~upon the full and complete consummation of the FTS Distribution and Contribution Transaction and Agent’s receipt of the FTS Distribution and Contribution Certificate, ~~would~~ (i) each of the FTS Pledge Agreements and the FTS Control Agreements shall be ~~Refinancing Debt, in each case incurred in reliance, directly or indirectly, on Section 8.12(q)(x) or~~ deemed terminated and released (r)automatically and through no further action of any Person), ~~clause~~ (pii) 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 ~~definition of “Permitted Liens”, promptly following the written request of the Borrower, the Collateral Agent shall release~~ Collateral Agent’s Liens on ~~Fixed Assets Collateral~~ the Stock and assets of FTS (~~other than, in each case any Inventory~~ but not the Stock issued by or ~~Fracturing Equipment Parts (as defined in~~ the ~~Initial Intercreditor Agreement)) at the expense~~ assets of the ~~Obligors~~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 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 this Section 13.10(a).

Appears in 2 contracts

Samples: Term Loan Credit Agreement (ProFrac Holding Corp.), Term Loan Credit Agreement (ProFrac Holding 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 if applicable, any subagent appointed by the ~~Collateral~~ Agent under Section 13.2 or otherwise), and the Agent (and if applicable, any subagent appointed by the Agent under Section 13.2 or otherwise) shall hereby have the obligation to release, subject to the satisfaction of any conditions to release ~~its Liens on~~ (if any) set forth herein, including the continuance of the applicable Agent’s Lien in any proceeds of released Collateral, ~~and the Collateral~~ any such Agent’s Liens upon any Collateral ~~shall be automatically released~~ (i) upon ~~Full Payment~~ the termination of the ~~Obligations~~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 or cash collateralization of all outstanding Letters of Credit or the posting of Supporting Letters of Credit with respect thereto (whether or not any of such obligations are due) and all other Obligations (other than any contingent indemnity obligations with respect to which no claim, demand or suit has been made, brought or threatened against an Indemnified Person); (ii) ~~upon a~~ constituting property being sold or disposed of, if (except sales of items of Rental Equipment in the ordinary course of business so long as such Agent’s Lien continues in the proceeds of such Collateral) the Borrowers certify to the Agent that the sale or disposition ~~of Collateral permitted by~~ is made in compliance with Section ~~8.8 to a Person that is not an Obligor~~8.10 (and the Agent may rely conclusively on any such certificate, without further inquiry); (iii) ~~if any such Collateral constitutes~~ constituting property in which the Obligors owned no interest at the time the Lien was granted or at any time thereafter; (iv) ~~if any such Collateral constitutes~~ constituting property leased to an Obligor under a lease which has expired or been terminated in a transaction permitted under this Agreement; (v) constituting Relinquished Property, if such Relinquished Property shall have been delivered to the ~~extent the property constituting such Collateral is owned by any Guarantor, upon the release of such Guarantor from its obligations under the Guarantee Agreement (~~applicable Qualified Intermediary in accordance with the ~~second succeeding sentence~~ applicable exchange agreement and a first priority perfected security interest shall have been granted by the ~~Guarantee Agreement)~~applicable exchanger to the Agent for the benefit of the Secured Parties of a first priority perfected security interest in the rights of such exchanger in, to and under the related exchange agreement; (vi) ~~as required by the Collateral Agent to effect~~ constituting any ~~sale, transfer~~ Like-Kind Exchange Account; or ~~other Disposition of Collateral in connection with any exercise of remedies of the Collateral Agent pursuant to the Security Documents,~~ (vii) constituting property being transferred pursuant 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 releasedany Qualifying Receivables Transaction. Except as provided above, the ~~Collateral~~ Agent will not release any of ~~the Collateral~~ such 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)~~Lenders; provided that, in addition to the foregoing, (A) 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~~ 25,000,000 during each Fiscal Year without the prior written authorization of any Lender; and (B) the Agent may release the Agent’s Liens on Collateral valued in the aggregate not in excess of $50,000,000 during each Fiscal Year with the prior written authorization of Required Lenders, 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 U.S. Borrowing Base or the Canadian Borrowing Base, as the case may be, to reflect the deletion of any assets subject to such release, U.S. Availability or Canadian Availability, as the case may be, shall be no less than the U.S. Availability or the Canadian Availability, as the case may be, immediately prior to such release. Upon request by the ~~Collateral~~ Agent or the ~~Borrower~~ Borrowers 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 applicable ~~Collateral~~ Agent’s Liens upon particular types or items of Collateral pursuant to this Section ~~13.10~~13.11. 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 ~~(w)~~ the ~~Collateral~~ Agent to (x) 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 ~~8.12(c~~8.13(c) or and (qy) ~~(as to Fixed Asset Collateral only), (x) the Agent to~~ release ~~automatically~~ any Guarantor from its obligations under the U.S. Guarantee Agreement or the Canadian 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 the terms hereof, the Security Documents or any other contractual arrangement with any Obligor, following the written request by Borrower, Collateral Agent shall (to 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 Liens, 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 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 Obligorshereunder. Upon request by ~~any Appointed~~ the Agent at any time, the Required Lenders will confirm in writing ~~such Appointed~~ the 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 this Section ~~13.10(a~~13.11(a).

Appears in 2 contracts

Samples: Credit Agreement (United Rentals Inc /De), Credit Agreement (United Rentals North America Inc)

Collateral Matters. (a) The Lenders hereby irrevocably authorize (and by entering into a Bank Product Agreement, each ~~other Secured Party by their acceptance of the benefits of the Loan Documents~~ Bank Product Provider shall be deemed toto authorize) ~~hereby irrevocably authorize~~ Agent to release any Lien on any of the Collateral Agent (and if applicable, any subagent appointed by the Collateral Agent under Section 13.2 or otherwise) to release its Liens on the Collateral, and the Collateral Agent’s Liens upon any Collateral shall be automatically released (i) upon ~~Full Payment~~ termination of the Commitments and payment and satisfaction of all of the Obligations; , or (ii) ~~upon a disposition~~ constituting property being sold or disposed of ~~Collateral permitted by Section 8.8~~ if Administrative Borrower or any Loan Party certifies to a Person that is not an Obligor; (iii) if any such Collateral constitutes property in which the Obligors owned no interest at the time the Lien was granted or at any time thereafter; (iv) if any such Collateral constitutes property leased to an Obligor under a lease which has expired or been terminated in a transaction permitted under this Agreement; (v) to the extent the property constituting such Collateral is owned by any Guarantor, upon the release of such Guarantor from its obligations under the Guarantee Agreement (in accordance with the second succeeding sentence and the Guarantee Agreement); (vi) as required by the Collateral Agent to effect any sale, transfer or other Disposition of Collateral in connection with any exercise of remedies of the Collateral 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 the Borrower at any time, subject to the Borrower having certified to the Collateral Agent that the sale or disposition is ~~made in compliance with~~ not prohibited by Section ~~8.8~~ 6.4 (~~which the Collateral~~ and Agent may rely conclusively on any such certificate, without further inquiry), or (iii) constituting property in which any Loan Party did not own an interest at the time the security interest, mortgage or lien was granted or at any time thereafter, or (iv) having a value in the aggregate in any twelve (12) month period of less than $5,000,000, and to the extent Agent may release its Lien on any such Collateral pursuant to the sale or other disposition thereof, such sale or other disposition shall be deemed consented to by Lenders, or (v) if required or permitted under the terms of any of the other Loan Documents, including any intercreditor agreement, or (vi) constituting property leased to a Loan Party under a lease that has expired or is terminated, or (vii) subject to Section 14.1 and the Security Agreement, if the release is approved, authorized or ratified in writing by the Required Lenders. In no event shall the consent or approval of an Issuing Lender to any release of Collateral be required. Nothing contained herein shall be construed to require the consent of any Bank Product Provider to any release of any Collateral or termination of security interests in any Collateral. Upon request by Agent or any Borrower at any time, the Lenders will (and if so requested, the Bank Product Providers will) confirm in writing ~~the Collateral~~ Agent’s authority to release any ~~applicable Collateral Agent’s~~ such Liens ~~upon~~ on particular types or items of Collateral pursuant to this Section ~~13.10. In addition~~15.11; provided, that, (1) Agent shall not be required to execute any document necessary to evidence such release on terms that, in Agent’s opinion, would expose Agent to liability or create any obligation or entail any consequence other than the release of such Lien without recourse, representation, or warranty, and (2) 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 any Borrower in respect of) all interests retained by any Loan Party, including, the ~~Lenders (and each other Secured Party by their acceptance~~ proceeds of any sale, all of which shall continue to constitute part of the ~~benefits of the Loan Documents shall be deemed to)~~ Collateral. The Lenders further hereby irrevocably authorize (wand by entering into a Bank Product Agreement, each Bank Product Provider shall be deemed to authorize) ~~the Collateral Agent~~ Agent, at its option and in its sole discretion, to subordinate any Lien ~~on any property~~ granted to or held by ~~the Collateral~~ Agent under any Loan Document to the holder of any Permitted Lien on such 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 the terms hereof, the Security Documents or any other contractual arrangement with any Obligor, following the written request by Borrower, Collateral Agent shall (to 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 Permitted 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 secures Permitted Liens, 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 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 Obligors. 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 this Section 13.10(a)Purchase Money Indebtedness.

Appears in 2 contracts

Samples: Credit Agreement (Polyone Corp), Credit Agreement (Polyone 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 to release any Lien upon any Collateral (i) upon the termination of the Commitments and if payment and satisfaction in full of all Obligations (other than (A) contingent indemnification obligations and (B) Obligations in respect of obligations that may thereafter arise with respect to Other Liabilities not yet due and payable; unless the Administrative Agent has received written notice, at least two (2) Business Days prior to the proposed date of any such release of Liens, stating that arrangements reasonably satisfactory to the applicable provider thereof in respect of obligations and liabilities under Cash Management Services and Bank Products constituting Obligations have not been made), all Letters of Credit shall have expired or terminated (or been collateralized or backstopped in a manner reasonably satisfactory to the applicable Issuing Bank) and all Letter of Credit Outstandings have been reduced to zero (or collateralized or backstopped in a manner reasonably satisfactory to the applicable Issuing Bank), or (ii) of a Borrower or a Facility Guarantor upon the consummation of any transaction permitted by this Agreement as a result of which such Borrower or Facility Guarantor (as applicable) ceases to be a Borrower or a Facility Guarantor (provided that the Required Lenders shall have consented to such transaction (to the extent required by the Credit Agreement) and the terms of such consent did not provide otherwise) or (iii) constituting property being sold, ~~any subagent appointed by~~ transferred or disposed of in a Permitted Disposition (other than a Permitted Disposition to a Person required to xxxxx x Xxxx to the Administrative Agent or the Collateral Agent under ~~Section 13.2 or otherwise) to release its Liens on~~ the ~~Collateral~~Loan Documents), and the Collateral Agent’s Liens upon any Collateral shall be automatically released (i) upon Full Payment of the Obligations; (ii) upon a disposition of Collateral permitted by Section 8.8 to a Person that is not an Obligor; (iii) if any such Collateral constitutes property in which the Obligors owned no interest at the time the Lien was granted or at any time thereafter; (iv) if any such Collateral constitutes property leased to an Obligor under a lease which has expired or been terminated in a transaction permitted under this Agreement; (v) subject to the ~~extent~~ conditions thereof, or upon the ~~property constituting such Collateral is owned by~~ effectiveness of any ~~Guarantor, upon~~ written consent to the release of ~~such Guarantor from its obligations under~~ the ~~Guarantee Agreement (~~security interest granted hereby in ~~accordance with the second succeeding sentence and the Guarantee Agreement); (vi) as required by the~~ any Collateral ~~Agent to effect any sale, transfer or other Disposition of Collateral in connection with any exercise of remedies of the Collateral 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~~ Section 9.01 of ~~Lenders required to consent to the Collateral being released hereunder, so consents to the Collateral being released~~this Agreement. 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 releaseApplicable Lenders. Upon request by ~~the Collateral~~ any Agent or ~~the Borrower~~ any Loan Party 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 ~~applicable Collateral Agent’s~~ Liens upon particular types or items of Collateral pursuant to this Section 13.10. 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 (w) the Collateral Agent to 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 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 the terms hereof, the Security Documents or any other contractual arrangement with any Obligor, following the written request by Borrower, Collateral Agent shall (to 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 Liens, 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 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 Obligors. 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 this Section 13.10(a)SECTION 8.17.

Appears in 2 contracts

Samples: Credit Agreement (Gymboree Corp), Credit Agreement (Gym-Card, 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 if applicable~~Agent, ~~any subagent appointed by the Collateral Agent under Section 13.2 or otherwise)~~ to release ~~its Liens~~ any Lien on ~~the Collateral, and the Collateral Agent’s Liens upon~~ any Collateral ~~shall be automatically released~~ (i) upon ~~Full Payment~~ the termination of the Commitments and payment and satisfaction in full by Borrower of all Obligations; and upon such termination and payment Agent shall deliver to Borrower, at Borrower's sole cost and expense, all UCC termination statements and any other documents necessary to terminate the Loan Documents and release the Liens with respect to the Collateral; (ii) ~~upon~~ constituting property being sold or disposed of if a release is required or desirable in connection therewith and if Borrower certifies to Agent that the sale or disposition is permitted under SECTION 7.4 of ~~Collateral permitted by Section 8.8 to a Person that is not an Obligor~~this Agreement or the other Loan Documents (and Agent may rely conclusively on any such certificate, without further inquiry); (iii) ~~if any such Collateral constitutes~~ constituting property in which ~~the Obligors~~ Borrower owned no interest at the time the Lien was granted or at any time thereafter; or (iv) ~~if any such Collateral constitutes~~ constituting property leased to ~~an Obligor~~ Borrower under a lease ~~which~~ that has expired or been terminated in a transaction permitted under this Agreement; (v) to the extent the property constituting such Collateral is owned by any Guarantor, upon the release of such Guarantor from its obligations under the Guarantee Agreement (in accordance with the second succeeding sentence and the Guarantee Agreement); (vi) as required by the Collateral Agent to effect any sale, transfer or other Disposition of Collateral in connection with any exercise of remedies of the Collateral 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~~ Lien on any 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 releaseLenders. Upon request by ~~the Collateral~~ Agent or ~~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 's authority to release any ~~applicable Collateral Agent’s~~ such Liens ~~upon~~ on particular types or items of Collateral pursuant to this ~~Section 13.10. In addition~~SECTION 17.11; PROVIDED, ~~the Lenders~~ HOWEVER, that (~~and each other Secured Party by their acceptance of the benefits of the Loan Documents~~ i) Agent shall not be ~~deemed to) hereby irrevocably authorize (w) the Collateral~~ required to execute any document necessary to evidence such release on terms that, in Agent's opinion, would expose Agent to ~~subordinate~~ liability or create any obligation or entail any consequence other than the release of such Lien on without recourse, representation, or warranty, and (ii) such release shall not in any ~~property granted to~~ manner discharge, affect or ~~held by~~ impair the ~~Collateral Agent under~~ Obligations or any ~~Loan Document to the holder of any Lien on such property that is permitted by Section 8.12(c) or~~ Liens (~~q) (as to Fixed Asset Collateral only~~other than those expressly being released), upon (xor obligations of Borrower in respect of) 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 the terms hereof, the Security Documents or any other contractual arrangement with any Obligor, following the written request all interests retained by Borrower, ~~Collateral Agent~~ including, the proceeds of any sale, all of which shall (continue to ~~the extent not prohibited by applicable law or legal process) deliver such Collateral in accordance with the terms~~ constitute part 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 Liens, 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 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 Obligors. 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 this Section 13.10(a)Collateral.

Appears in 2 contracts

Samples: Loan and Security Agreement (Childrens Place Retail Stores Inc), Loan and Security Agreement (Gantos Inc)

Collateral Matters. (ai) The ~~Lenders~~ Collateral Custodian agrees to cooperate with the Administrative Agent, the Calculation Agent, Initial Lender and the Portfolio Asset Servicer and deliver any Required Loan Documents and any other Loan Asset Files delivered to the Collateral Custodian to the Portfolio Asset Servicer, the Calculation Agent, Initial lender or the Administrative Agent (pursuant to a written request in the form of Exhibit E), as applicable, as requested in order to take any action that the Administrative Agent (acting at the direction of the Majority Lenders) or the Calculation Agent deems necessary or reasonably desirable in order to perfect, protect or more fully evidence the security interests granted by the Borrower hereunder, or to enable any of them to exercise or enforce any of their respective rights hereunder or under any Transaction Document, including any rights arising with respect to Article VI. In the event the Collateral Custodian receives instructions from the Applicable Servicer which conflict with any instructions received by the Administrative Agent, the Collateral Custodian shall rely on and follow the instructions given by the Administrative Agent. (ii) The Administrative Agent (acting at the direction of the Majority Lenders) may direct the Collateral Custodian to take any such incidental action hereunder. With respect to other actions which are incidental to the actions specifically delegated to the Collateral Custodian hereunder, the Collateral Custodian shall not be required to take any such incidental action hereunder, but shall be required to act or to refrain from acting (and ~~each other~~ shall be fully protected in acting or refraining from acting) upon the direction of the Administrative Agent; provided that the Collateral Custodian shall not be required to take any action hereunder at the request of the Administrative Agent, any Secured Party ~~by their acceptance~~ or otherwise if the taking of such action, in the reasonable determination of the ~~benefits~~ Collateral Custodian, (A) shall be in violation of any Applicable Law or contrary to any provisions of this Agreement or (B) shall expose the Collateral Custodian to liability hereunder or otherwise (unless it has received indemnity which it reasonably deems to be satisfactory with respect thereto). In the event the Collateral Custodian requests the consent of the ~~Loan Documents~~ Administrative Agent and the Collateral Custodian does not receive a consent (either positive or negative) from the Administrative Agent within 10 Business Days of its receipt of such request, then the Administrative Agent shall be deemed ~~to) hereby irrevocably authorize~~ to have declined to consent to the Collateral Agent (and if applicable, any subagent appointed by the Collateral Agent under Section 13.2 or otherwise) to release its Liens on the Collateral, and the Collateral Agent’s Liens upon any Collateral shall be automatically released (i) upon Full Payment of the Obligations; (ii) upon a disposition of Collateral permitted by Section 8.8 to a Person that is not an Obligor; relevant action. (iii) if The Collateral Custodian shall not be liable for any ~~such Collateral constitutes property in which the Obligors owned no interest at the time the Lien was granted~~ action taken, suffered or at any time thereafter; (iv) if any such Collateral constitutes property leased to an Obligor under a lease which has expired or been terminated in a transaction permitted under this Agreement; (v) to the extent the property constituting such Collateral is owned omitted by ~~any Guarantor, upon the release of such Guarantor from its obligations under the Guarantee Agreement (~~it in accordance with the ~~second succeeding sentence and the Guarantee Agreement); (vi) as required by the Collateral Agent to effect any sale, transfer~~ request or other Disposition of Collateral in connection with any exercise of remedies of the Collateral 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 direction 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 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 applicable Collateral Agent’s Liens upon particular types or items of Collateral pursuant to this Section 13.10. 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 (w) the Collateral Agent to 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 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, thenParty, to the extent that this Agreement provides such Secured Party the right to so direct the Collateral ~~Agent obtains possession~~ Custodian, or the Administrative Agent. The Collateral Custodian shall not be deemed to have notice or knowledge of any ~~Collateral by operation~~ matter hereunder, including an Event 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 the terms hereof~~Default, the Security Documents or any other contractual arrangement with any Obligor, following the written request by Borrower, Collateral Agent shall (to the extent not prohibited by applicable law or legal process) deliver such Collateral in accordance with the terms unless a Responsible Officer of the ~~Intercreditor Agreement or, if no Intercreditor Agreement~~ Collateral Custodian has knowledge of such matter or written notice thereof is ~~then in effect, to~~ received by the ~~applicable Obligor,~~ Collateral Custodian. Notice or knowledge of any matter by the Administrative Agent 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)~~ other publicly available information shall not constitute notice or ~~(r) so long as all~~ actual knowledge of the ~~following conditions are satisfied~~ Collateral Custodian. The Collateral Custodian’s receipt of reports (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 outstandingincluding monthly distribution reports) and ~~no Liens are outstanding in reliance on clause (r)~~ any publicly available information, shall not constitute actual or constructive knowledge or notice of ~~the definition of Permitted Liens, or, to the extent on account of Refinancing Debt,~~ any information contained therein 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 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 Obligorsdeterminable from information contained therein. 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 this Section 13.10(a).SECTION 9.03

Appears in 1 contract

Samples: Loan and Servicing Agreement (Carlyle Secured Lending III)

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 if applicable, any subagent appointed by the Collateral Agent under Section 13.2 or otherwise)~~ to release ~~its Liens~~ any Lien on ~~the Collateral, and the Collateral Agent’s Liens upon~~ any Collateral ~~shall be automatically released~~ (i) upon ~~Full Payment~~ the termination of the Commitments, the payment and satisfaction in full by Borrower of all non-contingent Obligations, and the satisfaction of all obligations of the Lender Group under outstanding Letters of Credit pursuant to Section 2.2(e) and upon such termination and payment Agent shall deliver to Borrower, at Borrower's sole cost and expense, all UCC termination statements and any other documents necessary to terminate the Loan Documents and release the Liens with respect to the Collateral; (ii) ~~upon~~ which is the subject of an Asset Sale permitted by Section 7.4 or is a disposition of ~~Collateral permitted by Section 8.8~~ an asset which does not constitute an Asset Sale and if Borrower so certifies such facts to ~~a Person that is not an Obligor~~Agent (and Agent may rely conclusively on any such certificate, without further inquiry); (iii) ~~if any such Collateral constitutes~~ constituting property in which ~~the Obligors~~ Borrower owned no interest at the time the Lien was granted or at any time thereafter; (iv) ~~if any such Collateral constitutes~~ constituting property leased to ~~an Obligor~~ Borrower under a lease ~~which~~ that has expired or been terminated in a transaction permitted under this Agreement; (v) ~~to the extent the property~~ constituting a parcel of non-Core Real Property Collateral, with a book value of less than $250,000, if such ~~Collateral~~ parcel is ~~owned by any Guarantor~~located in an SFHA, upon the ~~release~~ exercise of ~~such Guarantor from its obligations under~~ the ~~Guarantee Agreement (in accordance~~ Agent's discretion, or at the request of any Lender to comply with ~~the second succeeding sentence and the Guarantee Agreement)~~applicable regulatory requirements; or (vi) ~~as required by~~ upon the ~~Collateral Agent to effect any sale, transfer or other Disposition of Collateral in connection with any~~ exercise of ~~remedies~~ the Agent's discretion, but the aggregate book value of ~~the Collateral Agent pursuant to the Security Documents, (vii) to the extent~~ all such Collateral ~~otherwise becomes an Excluded Stock or an Excluded Asset, and~~ released under this clause (~~viii~~v) ~~if the percentage of Lenders required to consent to the Collateral being released hereunder, so consents to the Collateral being released~~shall not exceed $5,000,000. Except as provided above, ~~the Collateral~~ Agent will not release any ~~of the~~ Lien on any 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 releaseLenders. Upon request by ~~the Collateral~~ Agent or ~~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 's authority to release any ~~applicable Collateral Agent’s~~ such Liens ~~upon~~ on particular types or items of Collateral pursuant to this Section ~~13.10. In addition~~17.11; provided, the Lenders (and each other Secured Party by their acceptance of the benefits of the Loan Documents shall be deemed to) hereby irrevocably authorize (w) the Collateral Agent to 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 however, 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~~ shall not be required to ~~deliver~~ execute any document necessary to ~~Collateral~~ evidence such release on terms that, in Agent's opinion, would expose Agent at to liability or create any obligation or entail any consequence other than the release of such ~~time pursuant to the terms hereof~~Lien without recourse, ~~the Security Documents~~ representation, or any other contractual arrangement with any Obligor, following the written request by Borrower, Collateral Agent shall (to 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 Obligorwarranty, and (z) ~~if after~~ such release shall not in any manner discharge, affect or impair the ~~date hereof Collateral Agent’s Lien has been expanded to include Fixed Asset Collateral~~ Obligations or any Liens (other than those expressly being released) upon, or obligations of Borrower in ~~connection with incurrence~~ respect of, all interests retained by Borrower, including the proceeds of ~~Debt pursuant to Section 8.12(q)(x) or (r) so long as~~ any sale, 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) which shall continue to constitute part of the definition of Permitted Liens, 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 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 Obligors. 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 this Section 13.10(a)Collateral.

Appears in 1 contract

Samples: Loan and Security Agreement (Vermont Transit Co Inc)

Collateral Matters. ~~(a) The Lenders (~~xxv)The Pledge 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 (~~Security Agreement, upon execution and ~~if applicable, any subagent appointed~~ delivery thereof by the ~~Collateral Agent under Section 13.2 or otherwise) to release its Liens on the Collateral~~parties thereto, ~~and~~ will create in favor of the Collateral Agent~~’s Liens upon any~~ , for the benefit of the Secured Parties, a valid and enforceable security interest in the Collateral ~~shall be automatically released~~ (as defined therein) and (i) ~~upon Full Payment~~ when the Collateral (as defined therein) constituting certificated securities (as defined in the UCC) is delivered to the Collateral Agent, together with instruments of transfer duly endorsed in blank, the security interest created under the Pledge and Security Agreement will constitute a fully perfected security interest in all right, title and interest of the ~~Obligations;~~ pledgors thereunder in such Collateral, prior and superior in right to any other Person, but subject to Permitted Liens, and (ii) ~~upon~~ when financing statements in appropriate form are filed in the applicable filing offices, the security interest created under the Pledge and Security Agreement will constitute a ~~disposition~~ fully perfected security interest in all right, title and interest of the Credit Parties in the remaining Collateral ~~permitted by Section 8.8 to a Person that is not an Obligor;~~ (iii) if any such Collateral constitutes property in which the Obligors owned no interest at the time the Lien was granted or at any time thereafter; (iv) if any such Collateral constitutes property leased to an Obligor under a lease which has expired or been terminated in a transaction permitted under this Agreement; (vas defined therein) to the extent ~~the property constituting such Collateral is owned~~ perfection can be obtained by filing UCC financing statements, prior and superior in right to any ~~Guarantor~~other Person, but subject to Permitted Liens. Each Mortgage, upon execution and delivery thereof by the ~~release~~ 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 Real Estate Asset subject thereto and the proceeds thereof (except as such ~~Guarantor from its obligations~~ enforceability may be limited by Debtor Relief Laws and general principles of equity), and when the Mortgages have been filed in the jurisdictions specified therein, the Mortgages will constitute fully perfected security interests in all right, title and interest of the mortgagors in the Real Estate Assets subject thereto and the proceeds thereof, prior and superior in right to any other Person, but subject to the Permitted Liens. Upon the recordation of the 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 Section 4.21(a), the security interest created under the ~~Guarantee~~ Pledge and Security Agreement will constitute a fully perfected security interest in all right, title and interest of the Credit Parties in the Intellectual Property in which a security interest may be perfected by filing in the United States Patent and Trademark Office or United States Copyright Office, in each case prior and superior in right to any other Person, but subject to Permitted Liens (it being understood that subsequent recordings in the United States Patent and Trademark Office or the United States Copyright Office may be necessary to perfect a security interest in such Intellectual Property acquired by the Credit Parties after the Closing Date). Each Collateral Document, other than any Collateral Document referred to in the preceding paragraphs of this Section 4.21, upon execution and 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 favor of the Collateral Agent, for the benefit of the Secured Parties, a valid and enforceable security interest in the Collateral subject thereto (except as such enforceability may be limited by Debtor Relief Laws and general principles of equity), and will constitute a fully perfected security interest in all right, title and interest of the Credit Parties in the Collateral subject thereto, prior and superior to the rights of any other Person, but subject to Permitted Liens. Notwithstanding anything in this Agreement (including this Section 4.21) or in ~~accordance with~~ any other Credit Document to the ~~second succeeding sentence~~ contrary, none of Holdings, the Borrower nor any other Restricted Subsidiary makes, or shall be deemed to have made, any representation or warranty as to (i) the perfection or non-perfection, the priority or the enforceability of any security interest in any Collateral consisting of Equity Interests in any Foreign Subsidiary, or as to the rights and ~~the Guarantee Agreement); (vi) as required by the Collateral Agent to effect any sale, transfer or other Disposition of Collateral in connection with any exercise of~~ remedies of the Collateral Agent ~~pursuant to the Security Documents~~or any Secured Party with respect thereto under any foreign law, (~~vii~~ii) to the ~~extent such Collateral otherwise becomes an Excluded Stock~~ creation of any security interest, 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~~perfection or non-perfection, the ~~Collateral Agent will not release any of~~ priority or 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 enforceability 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 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 applicable Collateral Agent’s Liens upon particular types or items of Collateral pursuant to this Section 13.10. 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 (w) the Collateral Agent to 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 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 Subsidiarysecurity interest, in each case, ~~solely~~ to the extent such ~~Subsidiary ceasing to constitute a Restricted Subsidiary~~ security interest or ~~otherwise becoming an Excluded Subsidiary~~ perfection is expressly 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, required pursuant to the ~~extent that~~ Collateral and Guarantee Requirement or (iii) on the ~~Collateral Agent obtains possession~~ Closing Date and until required pursuant to the penultimate paragraph of Section 3.1, the creation of any ~~Collateral by operation~~ security interest, or the perfection or non-perfection, priority or enforceability of ~~Section 13.12 of this Agreement~~ any security interest that ~~constitutes Collateral that Obligors are~~ is expressly not required to ~~deliver to Collateral Agent at such time~~ be created or in effect on the Closing Date pursuant to the terms hereof, the Security Documents or any other contractual arrangement with any Obligor, following the written request by Borrower, Collateral Agent shall (to 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 Liens, 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 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 Obligors. 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 this Section 13.10(a)paragraph.

Appears in 1 contract

Samples: Term Credit and Guaranty Agreement (PetIQ, 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)~~ L/C Issuers hereby irrevocably authorize the Collateral ~~Agent (~~Agent, at its option and ~~if applicable~~in its sole discretion, ~~any subagent appointed by the Collateral Agent under Section 13.2 or otherwise)~~ to release ~~its Liens~~ any Lien on ~~the Collateral, and the Collateral Agent’s Liens upon~~ any Collateral ~~shall be automatically released~~ (i) upon ~~Full Payment~~ the termination of the ~~Obligations~~Commitments and payment and satisfaction in full of all Obligations owed to the Agents, the Lenders and the L/C Issuers (other than those contingent Obligations for reimbursement and indemnity that expressly survive the termination of this Agreement); (ii) ~~upon~~ constituting property being sold or disposed of if a ~~disposition of Collateral permitted by Section 8.8 to a Person that~~ release is ~~not an Obligor; (iii) if any such Collateral constitutes property in which the Obligors owned no interest at the time the Lien was granted~~ required or at any time thereafter; (iv) if any such Collateral constitutes property leased to an Obligor under a lease which has expired or been terminated in a transaction permitted under this Agreement; (v) to the extent the property constituting such Collateral is owned by any Guarantor, upon the release of such Guarantor from its obligations under the Guarantee Agreement (in accordance with the second succeeding sentence and the Guarantee Agreement); (vi) as required by the Collateral Agent to effect any sale, transfer or other Disposition of Collateral desirable in connection ~~with any exercise of remedies of the Collateral Agent pursuant to the Security Documents, (vii) to the extent such Collateral otherwise becomes an Excluded Stock or an Excluded Asset,~~ therewith 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 Administrative Borrower certifies 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 the Borrower at any time, subject to the Borrower having certified writing to the Collateral Agent that the sale or disposition is ~~made in compliance with Section 8.8~~ permitted under this Agreement or the other Loan Documents (~~which~~ and the Collateral Agent may rely conclusively on any such certificate, without further inquiry); (iii) constituting property in which the Borrowers owned no interest at the time the security interest was granted or at any time thereafter; (iv) constituting property leased to the Borrowers under a lease that has expired or is terminated in a transaction permitted under this Agreement; (v) constituting Equipment which, in the aggregate with all other dispositions of Equipment covered by this clause (v), has a fair market value or book value, whichever is less, of five million Dollars ($5,000,000) or less in any single fiscal year; or (vi) any other release consented by the Required Lenders. Upon request by the Collateral Agent or the Borrowers at any time, the Administrative Agent and the Lenders will confirm in writing the Collateral Agent’s authority to release any ~~applicable Collateral Agent’s~~ such Liens ~~upon~~ on particular types or items of Collateral pursuant to this ~~Section 13.10. In addition~~SECTION 13.11; provided, ~~the Lenders~~ however, that (~~and each other Secured Party by their acceptance of the benefits of the Loan Documents shall be deemed to) hereby irrevocably authorize (w~~A) the Collateral Agent shall not be required to ~~subordinate~~ execute any ~~Lien~~ document necessary to evidence such release on ~~any property granted to or held by~~ terms that, in the Collateral Agent’s opinion, would expose the Collateral Agent ~~under~~ to liability or create any ~~Loan Document to~~ obligation or entail any consequence other than the ~~holder~~ release of ~~any~~ such Lien ~~on such property that is permitted by Section 8.12(c)~~ without recourse, representation, 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 the terms hereof, the Security Documents or any other contractual arrangement with any Obligor, following the written request by Borrower, Collateral Agent shall (to 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 Obligorwarranty, and (zB) ~~if after~~ such release shall not in any manner discharge, affect, or impair the ~~date hereof Collateral Agent’s Lien has been expanded to include Fixed Asset Collateral~~ Obligations or any Liens (other than those expressly being released) upon (or obligations of the Borrowers in ~~connection with incurrence~~ respect of) all interests retained by the Borrowers in any asset(s) transferred, including, the proceeds of ~~Debt pursuant to Section 8.12(q)(x) or (r) so long as~~ any sale, 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) which shall continue to constitute part of the definition of Permitted Liens, 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 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 Obligors. 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 this Section 13.10(a)Collateral.

Appears in 1 contract

Samples: Revolving Credit Agreement (James River Coal CO)

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~~ BANKS irrevocably authorize the Collateral Agent (and if applicable, any subagent appointed by the Collateral Agent under Section 13.2 or otherwise) to release its Liens on the Collateral, and the Collateral Agent’s Liens upon any Collateral shall be automatically released (i) upon Full Payment of the Obligations; (ii) upon a disposition of Collateral permitted by Section 8.8 to a Person that is not an Obligor; (iii) if any such Collateral constitutes property in which the Obligors owned no interest at the time the Lien was granted or at any time thereafter; (iv) if any such Collateral constitutes property leased to an Obligor under a lease which has expired or been terminated in a transaction permitted under this Agreement; (v) to the extent the property constituting such Collateral is owned by any GuarantorCOLLATERAL AGENT, upon the release of such Guarantor from its obligations under the Guarantee Agreement (in accordance with the second succeeding sentence and the Guarantee Agreement); (vi) as required by the Collateral Agent to effect any sale, transfer or other Disposition of Collateral in connection with any exercise of remedies direction of the ~~Collateral Agent pursuant to the Security Documents~~ADMINISTRATIVE AGENT, (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 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 ~~applicable Collateral Agent’s Liens upon particular types~~ mortgage, deed of trust, pledge, lien, security interest or ~~items~~ other charge or encumbrance of Collateral pursuant to this Section 13.10. 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 (w) the Collateral Agent to subordinate any ~~Lien~~ nature on any property granted to or held by the ~~Collateral Agent~~ COLLATERAL AGENT under any Loan Document to the holder of any Lien on such 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 LOAN DOCUMENT upon BORROWER’s full 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 the terms hereof, the Security Documents or any other contractual arrangement with any Obligor, following the written request by Borrower, Collateral Agent shall (to the extent not prohibited by applicable law or legal process) deliver such Collateral in accordance with the terms final satisfaction 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 Liens, 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 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 ObligorsOBLIGATIONS. Upon request by ~~any Appointed Agent~~ the COLLATERAL AGENT at any time, the ~~Required Lenders~~ BANKS will confirm in writing ~~such Appointed Agent~~the COLLATERAL AGENT’s authority to release ~~or subordinate~~ its interest in particular types or items of ~~property, or to release any Guarantor from its obligations~~ property pursuant to this Section ~~13.10(a)~~8.10. In each case as specified in this Section 8.10, the COLLATERAL AGENT will, at BORROWER’s expense, execute and deliver to BORROWER such documents as BORROWER may reasonably request to evidence the release of such item of collateral from the assignment and security interest granted under the LOAN DOCUMENTS in accordance with the terms of the LOANS DOCUMENTS and this Section 8.10. Notwithstanding anything to the contrary in any LOAN DOCUMENT, the powers conferred on the COLLATERAL AGENT under the LOAN DOCUMENTS are solely to protect its interest (on behalf of the BANKS) in the collateral securing the LOANS and shall not impose any duty upon it to exercise any such powers. Except for the reasonable care of any such collateral in its possession and the accounting for moneys actually received by it under the LOAN DOCUMENTS, the COLLATERAL AGENT shall have no duty as to any such collateral, or responsibility, for (i) ascertaining or taking action with respect to calls, conversions, exchanges, maturities, tenders or other matters relative to any investment property constituting collateral, whether or not the COLLATERAL AGENT has or is deemed to have knowledge of such matters, or (ii) taking any necessary steps to preserve rights against prior parties or any other rights pertaining to any such collateral. The COLLATERAL AGENT shall be deemed to have exercised reasonable care in the custody and preservation of any collateral in its possession if such collateral is accorded treatment substantially equal to that which it accords its own property. The COLLATERAL AGENT shall not be liable for interest on any money or assets received by it. Assets held in trust by the COLLATERAL AGENT need not be segregated from other assets except to the extent required by law. Before the COLLATERAL AGENT acts or refrains from acting, it may require a certificate of an appropriate officer of BORROWER at the expense of BORROWER. The COLLATERAL AGENT shall not be liable for any action it takes or omits to take in good faith in reliance on such officer’s certificate. The COLLATERAL AGENT shall not be liable for any action that it takes or omits to take in good faith that it reasonably believes to be authorized or within its rights or powers under the LOAN DOCUMENTS. The COLLATERAL AGENT shall not be bound to make any investigation into the facts or matters stated in any resolution, certificate, statement, instrument, opinion, notice, request, direction, consent, order, bond, debenture, or other paper or document, but the COLLATERAL AGENT, in its discretion, may make such further inquiry or investigation into such facts or matters as it may see fit and, if the COLLATERAL AGENT shall determine to make such further inquiry or investigation, it shall be entitled, upon reasonable notice to BORROWER, to examine the books, records and premises of BORROWER, personally or by agent or attorney and to consult with the officers and representatives of BORROWER, including BORROWER’s accountants and attorneys. The COLLATERAL AGENT shall be under no obligation to exercise any of the rights or powers vested in it by the LOAN DOCUMENTS at the request, order or direction of the BANKS unless such BANKS have offered to the COLLATERAL AGENT security or indemnity reasonably satisfactory to the COLLATERAL AGENT against the costs, expenses and liabilities that may be incurred by it in compliance with such request, order or direction. The COLLATERAL AGENT shall not be required to give any bond or surety in respect of the performance of its powers and duties under the LOAN DOCUMENTS. The COLLATERAL AGENT may from time to time, at its option, perform any act that BORROWER agrees hereunder or under any LOAN DOCUMENT to perform and that BORROWER shall fail to perform after being requested in writing so to perform (it being understood that no such request need be given after the occurrence of an EVENT OF DEFAULT) and the COLLATERAL AGENT may from time to time take any other action that the COLLATERAL AGENT reasonably deems necessary for the maintenance, preservation or protection of any of the collateral for the LOANS or of its security interest therein. The COLLATERAL AGENT is authorized to endorse, in the name of BORROWER, any item, howsoever received by the COLLATERAL AGENT, representing any payment on or other proceeds of any of the collateral for the LOANS.

Appears in 1 contract

Samples: Loan Agreement (REX AMERICAN RESOURCES Corp)

Collateral Matters. Each Lender authorizes and directs Collateral Agent to enter into the Collateral Documents (other than the Mexican Collateral Agreements or the Mexican Collateral Amendment and Reaffirmation Agreements) for the benefit of the Agents and the Lenders. Each Lender hereby agrees that, except as otherwise set forth in this Agreement, any action taken by any Agent or Required Lenders in accordance with the provisions of this Agreement or the other Loan Documents, and the exercise by such Agent or Required Lenders of the powers set forth in this Agreement or therein, together with all other powers as are reasonably incidental thereto, will be authorized by, and binding upon, all Lenders. Collateral Agent is hereby authorized on behalf of all Lenders, without the necessity of any notice to or further consent from any Lender to take any action with respect to any Collateral (other than Collateral located in Mexico) or Loan Documents (other than the Mexican Collateral Agreements or the Mexican Collateral Amendment and Reaffirmation Agreements) which may be necessary to perfect and maintain perfected the Liens upon the Collateral granted pursuant to this Agreement and the such other Loan Documents. The Lenders irrevocably authorize Collateral Agent, at its option and in its discretion, to do any and all of the following: (a) ~~The Lenders (and each other Secured Party~~ to release any Lien granted to or held by ~~their acceptance of the benefits of the Loan Documents shall be deemed to) hereby irrevocably authorize the Collateral Agent (and if applicable, any subagent appointed by the~~ Collateral Agent under ~~Section 13.2 or otherwise) to release its Liens on the Collateral, and the Collateral Agent’s Liens upon~~ any Collateral ~~shall be automatically released~~ Document (other than the Mexican Collateral Agreements) (i) upon ~~Full~~ Payment ~~of the Obligations~~in Full; (ii) upon ~~a disposition~~ property sold or to be sold or disposed of ~~Collateral permitted by Section 8.8 to a Person that is not an Obligor; (iii) if any such Collateral constitutes property in which the Obligors owned no interest at the time the Lien was granted~~ as part of or at any time thereafter; (iv) if any such Collateral constitutes property leased to an Obligor under a lease which has expired or been terminated in a transaction permitted under this Agreement; (v) to the extent the property constituting such Collateral is owned by any Guarantor, upon the release of such Guarantor from its obligations under the Guarantee Agreement (in accordance with the second succeeding sentence and the Guarantee Agreement); (vi) as required by the Collateral Agent to effect any sale, transfer or other Disposition of Collateral in connection with any ~~exercise of remedies of~~ disposition permitted under this Agreement (including the Collateral 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~~ Guarantor in connection with any 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 disposition); or (iii) subject to Section 15.1 if approved in writing by the Required Lenders; or (b) to subordinate its interest in any Collateral (other than Collateral located in Mexico) to any holder of a Lien on that Collateral which secures purchase money debt (it being understood that Collateral Agent 103 may conclusively rely on a certificate from Borrower Representative in determining whether the Debt secured by any such ~~release, Availability shall be no less than the Availability immediately prior to such release~~Lien is permitted hereunder). Upon request by ~~the~~ Collateral Agent ~~or 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~~ Administrative Agent’s authority to ~~release any applicable Collateral Agent’s Liens upon~~ release, or subordinate its interest in, particular types or items of Collateral pursuant to this Section 13.10. 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 (w) the Collateral Agent to 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 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 the terms hereof, the Security Documents or any other contractual arrangement with any Obligor, following the written request by Borrower, Collateral Agent shall (to 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 Liens, 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 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 Obligors. 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 this Section 13.10(a)14.11.

Appears in 1 contract

Samples: Credit Agreement (AgileThought, 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 (~~Agent, at its option and ~~if applicable~~in its sole discretion, ~~any subagent appointed by the Collateral Agent under Section 13.2 or otherwise)~~ to release ~~its Liens on the Collateral, and the Collateral Agent’s~~ any Liens upon any ~~Collateral shall be automatically released~~ Collateral: (i) upon ~~Full Payment~~ the termination 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 Total Obligations; (ii) ~~upon a~~ constituting property being sold or disposed of if the Credit Party disposing of such property certifies to the Collateral Agent that the sale or disposition is made in compliance with the terms of this Agreement (and the Collateral ~~permitted by Section 8.8 to a Person that is not an Obligor~~Agent may rely conclusively on any such certificate, without further inquiry); (iii) ~~if any such Collateral constitutes~~ constituting property in which ~~the Obligors~~ no Credit Party owned no any interest at the time the Lien was granted or at any time thereafter; or (iv) ~~if any such Collateral constitutes~~ constituting property leased to ~~an Obligor~~ a Credit Party under a lease which has expired or been terminated in a transaction permitted under this Agreement; (v) to the extent the property constituting such Collateral is owned by any Guarantor, upon the release of such Guarantor from its obligations under the Guarantee Agreement (in accordance with the second succeeding sentence and the Guarantee Agreement); (vi) as required by the Collateral Agent to effect any sale, transfer or other Disposition of Collateral in connection with any exercise of remedies of the Collateral 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 's Liens without the prior written authorization of the Revolving Agent (acting at the written direction of the Required ~~Lenders~~ Revolving Lenders) and the Term Agent (~~or such other percentage~~ acting at the written direction of ~~Lenders whose consent is required in accordance with Section 12.1~~the Required Term Lenders); provided ~~that, in addition to the foregoing,~~ that the Collateral Agent may, in its discretion, release (but only if at the time of such ~~Collateral Agent’s~~ release no Event of Default exists) its Liens on Collateral valued in the aggregate not in excess of $~~1,000,000~~ 2,000,000 during each ~~Fiscal Year~~ calendar 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~~ Revolving Agent 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~~Term Agent. Upon request by the Collateral Agent or the ~~Borrower~~ Credit Parties at any time, ~~subject to~~ the ~~Borrower having certified to~~ Revolving Agent (acting at the ~~Collateral~~ written direction of the Required Revolving Lenders) and the Term Agent ~~that~~ (acting at the ~~disposition is made in compliance with Section 8.8 (which~~ written direction of the ~~Collateral Agent may rely conclusively on any such certificate, without further inquiry), the Lenders~~ Required Term Lenders) will confirm in writing the Collateral Agent’s 's authority to release any ~~applicable~~ Liens granted to the Collateral ~~Agent’s Liens~~ Agent in the Credit Documents upon particular types or items of Collateral pursuant to this Section 13.10. 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 (w) the Collateral Agent to 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 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 the terms hereof, the Security Documents or any other contractual arrangement with any Obligor, following the written request by Borrower, Collateral Agent shall (to 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 Liens, 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 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 Obligors. 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 this Section 13.10(a)10.11.

Appears in 1 contract

Samples: Credit Agreement (Friedmans Inc)

Collateral Matters. (a) ~~The~~ Each Lender authorizes and directs the Term Collateral Agent to enter into (x) the Security Documents, the Intercreditor Agreement, and any Replacement Intercreditor Agreement for the benefit of the Lenders (and ~~each~~ the other Secured Parties., (y) any amendments, amendments and restatements, restatements or waivers of or supplements to or other modifications to the Intercreditor Agreement and any Replacement Intercreditor Agreement or enter into a separate intercreditor agreement in connection with the incurrence by any Loan Party or any Subsidiary thereof of Additional Indebtedness (each an “Intercreditor Agreement Supplement”) to permit such Additional Indebtedness to be secured by ~~their acceptance of the benefits of the Loan Documents shall~~ a valid, perfected lien (with such priority as may be ~~deemed to) hereby irrevocably authorize the Collateral Agent (and if applicable, any subagent appointed~~ designated by the ~~Collateral Agent under Section 13.2~~ relevant Loan Party or ~~otherwise) to release its Liens on the Collateral~~Subsidiary, and the Collateral Agent’s Liens upon any Collateral shall be automatically released (i) upon Full Payment of the Obligations; (ii) upon a disposition of Collateral permitted by Section 8.8 to a Person that is not an Obligor; (iii) if any such Collateral constitutes property in which the Obligors owned no interest at the time the Lien was granted or at any time thereafter; (iv) if any such Collateral constitutes property leased to an Obligor under a lease which has expired or been terminated in a transaction permitted under this Agreement; (v) to the extent such priority is permitted by the ~~property constituting such~~ Loan Documents) and (z) any Extension Amendment as provided in subsection 2.5. Each Lender hereby agrees, and each holder of any Term Loan Note by the acceptance thereof will be deemed to agree, that, except as otherwise set forth herein, any action taken by the Administrative Agent, the Term Collateral ~~is owned by any Guarantor, upon~~ Agent or the ~~release of such Guarantor from its obligations under the Guarantee Agreement (~~Required Lenders in accordance with the ~~second succeeding sentence~~ provisions of this Agreement, the Security Documents, the Intercreditor Agreement or any Replacement Intercreditor Agreement, and the ~~Guarantee Agreement); (vi) as required~~ exercise by the Agents or the Required Lenders of the powers set forth herein or therein, together with such other powers as are reasonably incidental thereto, shall be authorized and binding upon all of the Lenders. The Administrative Agent and the Term Collateral Agent ~~to effect any sale, transfer or other Disposition~~ are hereby authorized on behalf of ~~Collateral in connection with any exercise of remedies~~ all of the Lenders, without the necessity of any notice to or further consent from any Lender, from time to time, to take any action with respect to any Collateral ~~Agent~~ or Security Documents which may be necessary to perfect and maintain perfected the security interest in and liens upon the Collateral granted 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 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 applicable Collateral Agent’s Liens upon particular types or items of Collateral pursuant to this Section 13.10. 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 (w) the Collateral Agent to 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 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 the terms hereof, the Security Documents or any other contractual arrangement with any Obligor, following the written request by Borrower, Collateral Agent shall (to 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 Liens, 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 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 Obligors. 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 this Section 13.10(a).

Appears in 1 contract

Samples: Credit Agreement (Great North Imports, LLC)

Collateral Matters. (a) ~~The Lenders (~~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 ~~each other Secured Party by their acceptance of~~ for so long as the ~~benefits of the Loan Documents shall be deemed to) hereby irrevocably authorize the Collateral Agent (and if applicable, any subagent appointed by the Collateral Agent under Section 13.2~~ same is continuing or ~~otherwise) to release its Liens on the Collateral, and the Collateral Agent’s Liens~~ upon any ~~Collateral shall be automatically released~~ 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) ~~upon Full Payment of~~ to preserve or protect the ~~Obligations;~~ Collateral or any portion thereof or (ii) ~~upon a disposition~~ to enhance the likelihood or maximize the amount of ~~Collateral permitted~~ repayment by ~~Section 8.8 to a Person that is not an Obligor;~~ Borrowers of the Loans and other Obligations, or (iii) if to pay any ~~such Collateral constitutes property in which the~~ other amount chargeable to Borrowers or Obligors owned no interest at the time the Lien was granted or at any time thereafter; (iv) if any such Collateral constitutes property leased to an Obligor under a lease which has expired or been terminated in a transaction permitted under this Agreement; (v) to the extent the property constituting such Collateral is owned by any Guarantor, upon the release of such Guarantor from its obligations under the Guarantee Agreement (in accordance with the second succeeding sentence and the Guarantee Agreement); (vi) as required by the Collateral Agent to effect any sale, transfer or other Disposition of Collateral in connection with any exercise of remedies of the Collateral Agent pursuant to the ~~Security Documents, (vii) to the extent such Collateral otherwise becomes an Excluded Stock~~ terms of this Agreement 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~~ other Financing Agreements consisting of (A) costs, fees and expenses 147 and (B) payments to Issuing Bank of Letter of Credit Accommodations; provided, that notwithstanding any provision to the ~~prior written authorization~~ 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 ~~Required Lenders (or such other percentage~~ additional Revolving Loans and additional Letter 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 the Borrower at any time, subject to the Borrower having certified to the Collateral Agent that the disposition is Credit Accommodations 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 applicable Collateral Agent’s Liens upon particular types or items of Collateral pursuant to ~~this~~ Section ~~13.10. In addition~~12.11 hereof, shall not exceed the ~~Lenders~~ least of (~~and each other Secured Party by their acceptance of the benefits of the Loan Documents shall be deemed to~~i) ~~hereby irrevocably authorize~~ $5,000,000, (wii) the ~~Collateral Agent to subordinate any Lien on any property granted to or held by the Collateral Agent under any Loan Document to the holder~~ sum of ~~any Lien on such property that is permitted by Section 8.12(c) or (q) (as to Fixed Asset Collateral only),~~ (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 ~~release automatically any Guarantor from its obligations under~~ exceed 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, Borrowing Base and (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~~if applicable, ~~then~~an amount equal to any reduction, 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 the terms hereof, the Security Documents or any other contractual arrangement with any Obligor, following the written request by Borrower, Collateral Agent shall (to the extent not prohibited by applicable law or legal process) deliver such Collateral in accordance made with the ~~terms~~ consent of all Lenders, of the ~~Intercreditor Agreement or, if no Intercreditor Agreement is then in effect, to the applicable Obligor~~Excess Availability required by Section 9.17 hereof, and (ziii) ~~if after~~ the ~~date hereof Collateral Agent’s Lien has been expanded~~ 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 ~~Fixed Asset Collateral in connection with incurrence of Debt pursuant to Section 8.12(q)(x) or (r) so long as all~~ a description of the ~~following conditions are satisfied (1) no Default or Event~~ purpose 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) such Special Agent Advance. Without limitation of the definition of Permitted Liens, 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 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 Obligors. 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 ~~this~~ Section ~~13.10(a)~~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.

Appears in 1 contract

Samples: Loan and Security Agreement (New York & Company, Inc.)

Collateral Matters. (a) ~~The Lenders (~~Agent may, at its option, from time to time, at any time on or after an Event of Default and ~~each other Secured Party by their acceptance of~~ for so long as the ~~benefits of the Loan Documents shall be deemed to) hereby irrevocably authorize the Collateral Agent (and if applicable, any subagent appointed by the Collateral Agent under Section 13.2~~ same is continuing or ~~otherwise) to release its Liens on the Collateral, and the Collateral Agent’s Liens~~ upon any ~~Collateral shall be automatically released~~ 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) ~~upon Full Payment of~~ deems necessary or desirable either to preserve or protect the ~~Obligations;~~ Collateral or any portion thereof or (ii) ~~upon a disposition~~ to enhance the likelihood or maximize the amount of ~~Collateral permitted~~ repayment by ~~Section 8.8 to a Person that is not an Obligor;~~ Borrowers and Guarantors of the Loans and other Obligations or (iii) if to pay any ~~such Collateral constitutes property~~ 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 ~~which~~ respect of any Letter of Credit Obligations, provided, that, (1) the ~~Obligors owned no interest at~~ aggregate principal amount of the ~~time the Lien was granted~~ Special Agent Advances knowingly and intentionally made pursuant to Section 12.11(a)(i) or (ii) hereof outstanding at any time ~~thereafter;~~ shall not exceed the amount equal to $25,000,000, (iv2) ~~if any such Collateral constitutes property leased to an Obligor under a lease which has expired or been terminated in a transaction permitted under this Agreement; (v) to~~ the extent the property constituting such Collateral is owned by any Guarantor, upon the release of such Guarantor from its obligations under the Guarantee Agreement (in accordance with the second succeeding sentence and the Guarantee Agreement); (vi) as required by the Collateral Agent to effect any sale, transfer or other Disposition of Collateral in connection with any exercise of remedies aggregate principal amount of the ~~Collateral~~ Special 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 the Borrower Advances outstanding at any time, ~~subject to~~ plus 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 applicable Collateral Agent’s Liens upon particular types or items of Collateral pursuant to this Section 13.10. In addition, the Lenders (and each other Secured Party by their acceptance then outstanding principal amount of the ~~benefits~~ Revolving Loans A and Letters of Credit, shall not exceed the Revolving Loan Documents shall be deemed to) hereby irrevocably authorize (w) the Collateral Agent to 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 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 the terms hereof, the Security Documents or any other contractual arrangement with any Obligor, following the written request by Borrower, Collateral Agent shall (to 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, A Limit and (3) ~~no Debt has been incurred in reliance~~ unless Agent is pursuing Enforcement Actions, Special Agent Advances shall not remain outstanding for more than forty five (45) consecutive Business Days, except as the Required Revolving Lenders A, Required Revolving Lenders A-1, Required Term Lenders B and Required Term Lenders B-1 otherwise agree. The Special Agent Advances shall be repayable on ~~Section 8.12(q)(x) or (r) that remains outstanding (~~demand and ~~no commitments for Debt that, if incurred would~~ together with all interest thereon shall constitute Obligations secured by the Collateral. Special Agent Advances shall not constitute Revolving Loans but shall otherwise constitute Obligations hereunder. Interest on Special Agent Advances shall 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 Liens, 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 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)) payable at the ~~expense~~ Interest Rate then applicable to Revolving Loans A that are Prime Rate Loans and shall be payable on demand. Without limitation of the Obligors. 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 ~~this~~ Section ~~13.10(a)~~6.11, each Revolving Loan A Lender agrees that it shall make available to Agent, upon Agent’s demand, in immediately available funds, the amount equal to such Revolving Loan A Lender’s Pro Rata Share of each such Special Agent Advance. If such funds are not made available to Agent by such Revolving Loan A Lender, such Lender shall be deemed a Defaulting Lender and Agent shall be entitled to recover such funds, on demand, from such Revolving Loan A 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. 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 Revolving Loans A that are Prime Rate Loans.

Appears in 1 contract

Samples: Loan and Security Agreement (Spirit Realty Capital, 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~~ agree that the ~~Collateral Agent (and if applicable, any subagent appointed by the Collateral Agent under Section 13.2 or otherwise) to release its Liens~~ Lien on ~~the Collateral, and the Collateral Agent’s Liens upon~~ any Collateral shall be automatically released (i) upon ~~Full Payment~~ the termination of the ~~Obligations;~~ 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) upon a disposition of Collateral permitted by Section 8.8 to a Person that is not an Obligor; (iii) if any such Collateral constitutes property in which the Obligors owned no interest at the time the Lien was granted or at any time thereafter; (iv) if any such Collateral constitutes property leased to an Obligor under a lease which has expired or been terminated in a transaction permitted under this Agreement; (v) to the extent the property constituting such Collateral is owned by any Guarantor, upon the release of such Guarantor from its obligations under the Guarantee Agreement (in accordance with the second succeeding sentence and the Guarantee Agreement); (vi) as required by the Collateral Agent to effect any sale, transfer or other Disposition of Collateral in connection with any exercise of remedies of the Collateral Agent pursuant to the Security Documents, (vii) to the extent such Collateral ~~otherwise becomes an Excluded Stock~~ is sold or ~~an Excluded Asset, and~~ disposed of in a transaction permitted by Section 6.4 (~~viii) if~~ provided that the ~~percentage of Lenders required~~ Agent may request that the Borrowers certify 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 the Borrower at any time, subject to the Borrower having certified to the Collateral Agent that the sale or disposition is ~~made in compliance with~~ permitted under Section ~~8.8~~ 6.4 (~~which the Collateral~~ and 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 applicable Collateral Agent’s Liens upon particular types or items of Collateral pursuant to this Section 13.10. 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 (w) the Collateral Agent to 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 8.12(c) or (q) (as to Fixed Asset Collateral only), (xiii) to the ~~Agent~~ extent such Collateral constitutes property in which no Loan Party owned any interest at the time Agent’s Lien was granted nor at any time thereafter, (iv) to the extent such Collateral constitutes property leased or licensed to a Loan Party under a lease or license that has expired or is terminated in a transaction permitted under this Agreement, (v) to the extent such Collateral becomes Excluded Assets, (vi) subject to Section 14.1, if the release ~~automatically~~ 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 ~~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~~ Subsidiary, or ~~such Person otherwise~~ becomes an Excluded Subsidiary, in each ~~case~~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), ~~solely~~ (i) such Subsidiary shall be automatically released from its obligations under the Guaranty and (ii) any Liens granted by such Subsidiary or Liens on the Equity Interests of such Subsidiary (to the extent such ~~Subsidiary ceasing~~ Equity Interests have become Excluded Assets or are being transferred to ~~constitute~~ a ~~Restricted Subsidiary or otherwise becoming an Excluded Subsidiary~~ Person that is not ~~prohibited by~~ a Loan Party) shall be automatically released. In each case as specified in this Section 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, ~~(y) so long as both (1) no Default~~ or ~~Event~~ to evidence the release 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~~such Guarantor from its obligations under the Guaranty, 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 the terms hereof, the Security Documents or any other contractual arrangement with any Obligor, following the written request by Borrower, Collateral Agent shall (to the extent not prohibited by applicable law or legal process) deliver such Collateral in each case in accordance with the terms of the ~~Intercreditor Agreement or, if no Intercreditor Agreement is then in effect, to the applicable Obligor,~~ Loan Documents 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 Liens, 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 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 Obligors. 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 this Section ~~13.10(a~~15.11(a).

Appears in 1 contract

Samples: Credit Agreement (Paycor Hcm, Inc.)

Collateral Matters. (ai) The Administrative Agent, each of the Lenders (including in its capacities as a potential Cash Management Bank, a potential Hedge Bank, a potential Card Related Products Bank and ~~each other Secured Party~~ a potential LOC Bank) and the L/C Issuer hereby irrevocably appoints and authorizes Bank of America to act as the collateral agent (in such capacity, the “Collateral Agent”) under the Loan Documents for purposes of acquiring, holding and enforcing any and all Liens on Collateral granted by ~~their acceptance of the benefits~~ any of the Loan ~~Documents shall be deemed to) hereby irrevocably authorize~~ Parties to secure any of the Secured Obligations, together with such powers and discretion as are reasonably incidental thereto. In this connection, the Collateral Agent (and ~~if applicable~~any co-agents, ~~any subagent~~ sub-agents and attorneys-in-fact appointed by the Collateral Agent for purposes of holding or enforcing any Lien on the Collateral (or any portion thereof) granted under the Security Instruments, or for exercising any rights and remedies thereunder at the direction of the Collateral Agent, shall be entitled to the benefits of all provisions of this Article IX and Article X (including Section ~~13.2 or otherwise~~10.04(c), as though such co-agents, sub-agents and attorneys-in-fact were the Collateral Agent under the Loan Documents) as if set forth in full herein with respect thereto. (ii) Without limiting the provisions of Section 9.09, the Administrative Agent, each of the Lenders (including in its capacities as a potential Cash Management Bank, a potential Hedge Bank, a potential Card Related Products Bank and a potential LOC Bank), the L/C Issuer and the Swing Line Lender irrevocably authorize the Collateral Agent, at its option and in its discretion: (A) to release ~~its Liens~~ any Pledged Interest and any Lien on ~~the Collateral, and~~ any property granted to or held by the Collateral ~~Agent’s Liens upon~~ Agent under any ~~Collateral shall be automatically released~~ Loan Document (i) upon ~~Full Payment~~ the occurrence of the ~~Obligations;~~ Facility Termination Date, (ii) ~~upon a disposition of Collateral permitted by Section 8.8 to a Person~~ that is ~~not an Obligor; (iii) if any such Collateral constitutes property in which the Obligors owned no interest at the time the Lien was granted~~ sold or ~~at any time thereafter; (iv) if any such Collateral constitutes property leased~~ to ~~an Obligor under a lease which has expired~~ be sold or ~~been terminated in a transaction permitted under this Agreement; (v) to the extent the property constituting such Collateral is owned by any Guarantor, upon the release~~ otherwise disposed of ~~such Guarantor from its obligations under the Guarantee Agreement (in accordance with the second succeeding sentence and the Guarantee Agreement); (vi)~~ as ~~required by the Collateral Agent to effect any sale, transfer~~ part of or ~~other Disposition of Collateral~~ in connection with any ~~exercise of remedies of the Collateral Agent pursuant~~ sale or disposition permitted hereunder or under any other Loan Document or (iii) subject to ~~the Security Documents~~Section 10.01, ~~(vii) to the extent such Collateral otherwise becomes an Excluded Stock~~ if approved, authorized 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 ratified in writing by the Required ~~Lenders~~ 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 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 applicable Collateral Agent’s Liens upon particular types or items of Collateral pursuant to this Section 13.10. In addition, the Lenders (and each other Secured Party by their acceptance of the benefits of the Loan Documents shall be deemed toB) ~~hereby irrevocably authorize (w) the Collateral Agent~~ to 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 ~~8.12(c~~7.01(i); and (C) to acknowledge in writing, in form and substance satisfactory to the Collateral Agent, the priority of any Lien granted under any indemnity agreement 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 surety agreement in favor of a ~~transaction permitted under this Agreement or such Person otherwise becomes an Excluded Subsidiary, in each case, solely~~ surety providing a bond to the ~~extent such Subsidiary ceasing to constitute a Restricted Subsidiary or otherwise becoming an Excluded Subsidiary is not prohibited~~ Company and/or its Subsidiaries as permitted by Section 7.01(t) of 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 the terms hereof, the Security Documents or any other contractual arrangement with any Obligor, following the written request by Borrower, Collateral Agent shall (to 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 Liens, 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 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 Obligors. 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 this Section 13.10(a).; and

Appears in 1 contract

Samples: Credit Agreement (Granite Construction 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 (~~Agent, at its option and ~~if applicable~~in its sole discretion, ~~any subagent appointed by the Collateral Agent under Section 13.2 or otherwise)~~ to release ~~its Liens~~ any Lien on ~~the Collateral, and the Collateral Agent’s Liens upon~~ any Collateral ~~shall be automatically released~~ (i) upon ~~Full Payment~~ the termination of the Commitments and payment and satisfaction in full by the Borrowers of all Obligations; , (ii) ~~upon~~ constituting property being sold or disposed of if a ~~disposition of Collateral permitted by Section 8.8 to a Person that~~ release is ~~not an Obligor; (iii) if any such Collateral constitutes property in which the Obligors owned no interest at the time the Lien was granted~~ required or at any time thereafter; (iv) if any such Collateral constitutes property leased to an Obligor under a lease which has expired or been terminated in a transaction permitted under this Agreement; (v) to the extent the property constituting such Collateral is owned by any Guarantor, upon the release of such Guarantor from its obligations under the Guarantee Agreement (in accordance with the second succeeding sentence and the Guarantee Agreement); (vi) as required by the Collateral Agent to effect any sale, transfer or other Disposition of Collateral desirable in connection ~~with any exercise of remedies of the Collateral Agent pursuant to the Security Documents, (vii) to the extent such Collateral otherwise becomes an Excluded Stock or an Excluded Asset,~~ therewith 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 the Administrative Borrower ~~at any time, subject to the Borrower having certified~~ certifies to the Collateral Agent that the sale or disposition is ~~made in compliance with~~ permitted under Section ~~8.8~~ 6.4 or the other Loan Documents (~~which~~ and the Collateral Agent may rely conclusively on any such certificate, without further inquiry), (iii) constituting property in which no Borrower or its Subsidiaries owned any interest at the time the Lender Group’s Liens was granted nor at any time thereafter, or (iv) constituting property leased to a Borrower or its Subsidiaries under a lease that has expired or 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 (y) if the release is of all or substantially all of the Collateral, all of the Lenders, or (z) otherwise, the Required Lenders. Upon request by the Collateral Agent or the Administrative Borrower at any time, the Lenders will confirm in writing the Collateral Agent’s authority to release any ~~applicable Collateral Agent’s~~ such Liens ~~upon~~ on particular types or items of Collateral pursuant to this Section ~~13.10. In addition~~16.12; provided, ~~the Lenders~~ however, that (~~and each other Secured Party by their acceptance of the benefits of the Loan Documents shall be deemed to) hereby irrevocably authorize (w~~1) the Collateral Agent shall not be required to ~~subordinate~~ execute any ~~Lien~~ document necessary to evidence such release on ~~any property granted to or held by~~ terms that, in the Collateral Agent’s opinion, would expose the Collateral Agent ~~under~~ to liability or create any ~~Loan Document to~~ obligation or entail any consequence other than the ~~holder~~ release of ~~any~~ such Lien ~~on such property that is permitted by Section 8.12(c)~~ without recourse, representation, or ~~(q) (as to Fixed Asset Collateral only)~~warranty, (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-~~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 the Borrowers in respect of~~-Formula Condition has occurred and is continuing or would result therefrom~~) all interests retained by the Borrowers, ~~then, to~~ including the ~~extent that the Collateral Agent obtains possession~~ proceeds of any ~~Collateral by operation~~ sale, all of ~~Section 13.12 of this Agreement that constitutes Collateral that Obligors are not required~~ which shall continue to deliver to Collateral Agent at such time pursuant to the terms hereof, the Security Documents or any other contractual arrangement with any Obligor, following the written request by Borrower, Collateral Agent shall (to the extent not prohibited by applicable law or legal process) deliver such Collateral in accordance with the terms constitute part 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 Liens, 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 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 Obligors. 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 this Section 13.10(a)Collateral.

Appears in 1 contract

Samples: Loan and Security Agreement (Silicon Graphics Inc)

Collateral Matters. Each Lender authorizes and directs Collateral Agent to enter into the Collateral Documents (other than the Mexican Collateral Agreements or the Mexican Collateral Amendment and Reaffirmation Agreements) for the benefit of the Agents and the Lenders. Each Lender hereby agrees that, except as otherwise set forth in this Agreement, any action taken by any Agent or Required Lenders in accordance with the provisions of this Agreement or the other Loan Documents, and the exercise by such Agent or Required Lenders of the powers set forth in this Agreement or therein, together with all other powers as are reasonably incidental thereto, will be authorized by, and binding upon, all Lenders. Collateral Agent is hereby authorized on behalf of all Lenders, without the necessity of any notice to or further consent from any Lender to take any action with respect to any Collateral (other than Collateral located in Mexico) or Loan Documents (other than the Mexican Collateral Agreements or the Mexican Collateral Amendment and Reaffirmation Agreements) which may be necessary to perfect and maintain perfected the Liens upon the Collateral granted pursuant to this Agreement and the such other Loan Documents. The Lenders irrevocably authorize Collateral Agent, at its option and in its discretion, to do any and all of the following: (a) ~~The Lenders (and each other Secured Party~~ to release any Lien granted to or held by ~~their acceptance of the benefits of the Loan Documents shall be deemed to) hereby irrevocably authorize the Collateral Agent (and if applicable, any subagent appointed by the~~ Collateral Agent under ~~Section 13.2 or otherwise) to release its Liens on the Collateral, and the Collateral Agent’s Liens upon~~ any Collateral ~~shall be automatically released~~ Document (other than the Mexican Collateral Agreements) (i) upon ~~Full~~ Payment ~~of the Obligations~~in Full; (ii) upon ~~a disposition~~ property sold or to be sold or disposed of ~~Collateral permitted by Section 8.8 to a Person that is not an Obligor; (iii) if any such Collateral constitutes property in which the Obligors owned no interest at the time the Lien was granted~~ as part of or at any time thereafter; (iv) if any such Collateral constitutes property leased to an Obligor under a lease which has expired or been terminated in a transaction permitted under this Agreement; (v) to the extent the property constituting such Collateral is owned by any Guarantor, upon the release of such Guarantor from its obligations under the Guarantee Agreement (in accordance with the second succeeding sentence and the Guarantee Agreement); (vi) as required by the Collateral Agent to effect any sale, transfer or other Disposition of Collateral in connection with any ~~exercise of remedies of~~ disposition permitted under this Agreement (including the Collateral 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~~ Guarantor in connection with any 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 disposition); or (iii) subject to Section 15.1 if approved in writing by the Required Lenders; or (b) to subordinate its interest in any Collateral (other than Collateral located in Mexico) to any holder of a Lien on that Collateral which is permitted by Section 11.2(d) (it being understood that Collateral Agent 92 may conclusively rely on a certificate from Borrower Representative in determining whether the Debt secured by any such ~~release, Availability shall be no less than the Availability immediately prior to such release~~Lien is permitted by Section 11.1(d)). Upon request by ~~the~~ Collateral Agent ~~or 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~~ Administrative Agent’s 's authority to ~~release any applicable Collateral Agent’s Liens upon~~ release, or subordinate its interest in, particular types or items of Collateral pursuant to this Section 13.10. 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 (w) the Collateral Agent to 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 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 the terms hereof, the Security Documents or any other contractual arrangement with any Obligor, following the written request by Borrower, Collateral Agent shall (to 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 Liens, 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 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 Obligors. 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 this Section 13.10(a)14.11.

Appears in 1 contract

Samples: Credit Agreement (AgileThought, 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 (~~Agent, at its option and ~~if applicable~~in its sole discretion, ~~any subagent appointed by the Collateral Agent under Section 13.2 or otherwise)~~ to release ~~its Liens~~ any Lien on ~~the Collateral, and the Collateral Agent’s Liens upon~~ any Collateral ~~shall be automatically released~~ or other collateral securing the Obligations (i) upon ~~Full Payment~~ the termination of the Commitments, the termination or expiration of all Letters of Credit and payment and satisfaction in full by Borrower of all Obligations; , (ii) ~~upon~~ constituting property being sold or disposed of if a ~~disposition of Collateral permitted by Section 8.8 to a Person that~~ release is ~~not an Obligor; (iii) if any such Collateral constitutes property in which the Obligors owned no interest at the time the Lien was granted~~ required or at any time thereafter; (iv) if any such Collateral constitutes property leased to an Obligor under a lease which has expired or been terminated in a transaction permitted under this Agreement; (v) to the extent the property constituting such Collateral is owned by any Guarantor, upon the release of such Guarantor from its obligations under the Guarantee Agreement (in accordance with the second succeeding sentence and the Guarantee Agreement); (vi) as required by the Collateral Agent to effect any sale, transfer or other Disposition of Collateral desirable in connection ~~with any exercise of remedies of the Collateral Agent pursuant~~ therewith and if Borrower certifies 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 the Borrower at any time, subject to the Borrower having certified to the Collateral Agent that the sale or disposition is ~~made in compliance with~~ permitted under Section ~~8.8~~ 7.4 of this Agreement or the other Loan Documents (~~which the Collateral~~ and Agent may rely conclusively on any such certificate, without further inquiry), (iii) constituting property in which Borrower or its Subsidiaries owned no interest at the time Agent’s Lien was granted nor at any time thereafter, or (iv) constituting property leased to Borrower or its Subsidiaries under a lease that has expired or is terminated in a transaction permitted under this Agreement. Except as provided above, Agent will not execute and deliver a release of any Lien on any Collateral or other collateral securing the Obligations without the prior written authorization of (A) if the release is of all or substantially all of the Collateral, all of the Lenders, or (B) otherwise, the Required Lenders. Upon request by Agent or Borrower at any time, the Lenders will confirm in writing ~~the Collateral~~ Agent’s authority to release any ~~applicable Collateral Agent’s~~ such Liens ~~upon~~ on particular types or items of Collateral or other collateral securing the Obligations pursuant to this Section ~~13.10~~16.11. 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 (w) the Collateral Agent to 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 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 Upon receipt (1) ~~no Default~~ by Agent of any confirmation from all of the Lenders or ~~Event of Default has occurred and is continuing~~ the Required Lenders, as applicable, 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~~ occurrence of an event described above for which collateral release does not require the ~~Collateral Agent obtains possession~~ approval of any ~~Collateral~~ Lender and upon at least ten (10) Business Days’ (or such shorter period as may be approved 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 the terms hereof, the Security Documents or any other contractual arrangement with any Obligor, following the Agent) prior written request by Borrower, ~~Collateral~~ Agent shall (and is hereby irrevocably authorized by Lenders to) execute such documents as may be necessary to evidence the ~~extent not prohibited by applicable law or legal process) deliver~~ release of the Liens granted to Agent upon such Collateral or other collateral securing the Obligations; provided, however, that (y) Agent shall not be required to execute any document necessary to evidence such release on terms that, in ~~accordance with~~ Agent’s opinion, would expose Agent to liability or create any obligation or entail any consequence other than the ~~terms~~ release of ~~the Intercreditor Agreement or~~such Lien without recourse, ~~if no Intercreditor Agreement is then in effect~~representation, ~~to the applicable Obligor~~or warranty, and (z) ~~if after~~ such release shall not in any manner discharge, affect, or impair the ~~date hereof Collateral Agent’s Lien has been expanded to include Fixed Asset Collateral~~ Obligations or any Liens (other than those expressly being released) upon (or obligations of Borrower in ~~connection with incurrence~~ respect of) all interests retained by Borrower, including, the proceeds of ~~Debt pursuant to Section 8.12(q)(x) or (r) so long as~~ any sale, 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) which shall continue to constitute part of the definition of Permitted Liens, 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 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 Obligors. 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 this Section 13.10(a)Collateral.

Appears in 1 contract

Samples: Dip Credit Agreement (Storm Cat Energy 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~~ Administrative Agent ~~(and if applicable, any subagent appointed by the Collateral Agent under Section 13.2 or otherwise) to release its Liens on the Collateral~~to, and upon request of Foamex, the ~~Collateral~~ Administrative Agent shall, release any Agent’s Liens upon any Collateral ~~shall be automatically released~~ (i) upon ~~Full Payment~~ the termination of the ~~Obligations~~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 (whether or not any of such Obligations are due), and the termination of all outstanding Letters of Credit (or the deposit with the Administrative Agent of Supporting Letters of Credit in accordance with and as required by Section 1.4(g)) and the payment and satisfaction in full of all other Obligations (other than Contingent Obligations at Termination); (ii) ~~upon~~ constituting property being sold or disposed of or property of a Subsidiary all of the equity interests of which are being sold or disposed of if a Borrower certifies to the Administrative Agent (and the Administrative Agent agrees with such certification) that the sale or disposition ~~of Collateral permitted by~~ is made in compliance with Section ~~8.8 to a Person that is not an Obligor~~7.18 (and the Administrative Agent may rely conclusively on any such certificate, without further inquiry); (iii) ~~if any such Collateral constitutes~~ constituting property in which each of the ~~Obligors~~ Loan Parties certifies that no Loan Party owned no an interest in such property at the time the Lien was granted or at any time thereafter; (iv) ~~if any such Collateral constitutes~~ constituting property leased to ~~an Obligor~~ 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 property constituting such Collateral is owned by any Guarantor, upon the release of such Guarantor from its obligations under the Guarantee Agreement (in accordance with the second succeeding sentence and the Guarantee Agreement); (vi) as required by the ~~Collateral~~ Intercreditor Agreement. Additionally, the Lenders hereby irrevocably authorize the Administrative Agent to ~~effect~~ (i) release or subordinate any ~~sale, transfer or other Disposition of~~ Agent’s Liens upon any Collateral ~~in connection with any exercise of remedies of the Collateral Agent pursuant~~ to the ~~Security Documents, (vii~~holder of any Lien on such property that is permitted by Section 7.14(j) ~~to the extent such Collateral otherwise becomes an Excluded Stock or an Excluded Asset,~~ and (~~viii~~ii) release any Subsidiary Guarantor from its obligations as a Loan Party and Guarantor if (x) required by the ~~percentage~~ Intercreditor Agreement or (y) such Person ceases to be a Subsidiary as a result of ~~Lenders required~~ a transaction permitted hereunder; provided that no such release under this subclause (y) shall occur if such Subsidiary Guarantor continues to ~~consent~~ be a guarantor in respect of any other Indebtedness of a Borrower unless and until such Subsidiary Guarantor is (or is being simultaneously) released from its guaranty with respect to ~~the Collateral being released hereunder, so consents to the Collateral being released~~such other Indebtedness. Except as provided above, the ~~Collateral~~ Administrative 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)~~Lenders; provided ~~that, in addition to~~ that the ~~foregoing, the Collateral~~ Administrative Agent may, in its discretion, release the Agent’s Liens on any Collateral valued at $500,000 or less (but not in the aggregate for all such Collateral in excess of $2,000,000 during the term of this Agreement) without the prior written authorization of the Lenders and the Administrative Agent may release the Agent’s Liens on Collateral valued in the aggregate not in excess of $~~1,000,000~~ 3,500,000 during ~~each Fiscal Year without~~ the term of this Agreement with 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 releaseMajority Lenders. Upon request by the ~~Collateral~~ Administrative Agent or ~~the~~ a 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~~ Administrative Agent’s authority pursuant to this Section 12.11 to release or subordinate any ~~applicable Collateral~~ Agent’s Liens upon particular types or items of Collateral pursuant to this Section 13.10. 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 (w) the Collateral Agent to 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 8.12(c) or (q) (as to Fixed Asset Collateral only), (x) the Agent~~ to release ~~automatically any~~ a Subsidiary 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 Loan Party 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 the terms hereof, the Security Documents or any other contractual arrangement with any Obligor, following the written request by Borrower, Collateral Agent shall (to 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 Liens, 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 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 Obligors. 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 this Section 13.10(a)Guarantor.

Appears in 1 contract

Samples: Revolving Credit Agreement (Foamex International Inc)

Collateral Matters. Each Lender authorizes and directs Collateral Agent to enter into the Collateral Documents (other than the Mexican Collateral Agreements or the Mexican Collateral Reaffirmation Agreements) for the benefit of the Agents and the Lenders. Each Lender hereby agrees that, except as otherwise set forth in this Agreement, any action taken by any Agent or Required Lenders in accordance with the provisions of this Agreement or the other Loan Documents, and the exercise by such Agent or Required Lenders of the powers set forth in this Agreement or therein, together with all other powers as are reasonably incidental thereto, will be authorized by, and binding upon, all Lenders. Collateral Agent is hereby authorized on behalf of all Lenders, without the necessity of any notice to or further consent from any Lender to take any action with respect to any Collateral (other than Collateral located in Mexico) or Loan Documents (other than the Mexican Collateral Agreements or the Mexican Collateral Reaffirmation Agreements) which may be necessary to perfect and maintain perfected the Liens upon the Collateral granted pursuant to this Agreement and the such other Loan Documents. The Lenders irrevocably authorize Collateral Agent, at its option and in its discretion, to do any and all of the following: (a) ~~The Lenders (and each other Secured Party~~ to release any Lien granted to or held by ~~their acceptance of the benefits of the Loan Documents shall be deemed to) hereby irrevocably authorize the Collateral Agent (and if applicable, any subagent appointed by the~~ Collateral Agent under ~~Section 13.2 or otherwise) to release its Liens on the Collateral, and the Collateral Agent’s Liens upon~~ any Collateral ~~shall be automatically released~~ Document (other than the Mexican Collateral Agreements) (i) upon ~~Full~~ Payment ~~of the Obligations~~in Full; (ii) upon ~~a disposition~~ property sold or to be sold or disposed of ~~Collateral permitted by Section 8.8 to a Person that is not an Obligor; (iii) if any such Collateral constitutes property in which the Obligors owned no interest at the time the Lien was granted~~ as part of or at any time thereafter; (iv) if any such Collateral constitutes property leased to an Obligor under a lease which has expired or been terminated in a transaction permitted under this Agreement; (v) to the extent the property constituting such Collateral is owned by any Guarantor, upon the release of such Guarantor from its obligations under the Guarantee Agreement (in accordance with the second succeeding sentence and the Guarantee Agreement); (vi) as required by the Collateral Agent to effect any sale, transfer or other Disposition of Collateral in connection with any ~~exercise of remedies of~~ disposition permitted under this Agreement (including the Collateral 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~~ Guarantor in connection with any 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 disposition); or (iii) subject to Section 15.1 if approved in writing by the Required Lenders; or (b) to subordinate its interest in any Collateral (other than Collateral located in Mexico) to any holder of a Lien on that Collateral which is permitted by Section 11.2(d) (it being understood that Collateral Agent may conclusively rely on a certificate from Borrower Representative in determining whether the Debt secured by any such ~~release, Availability shall be no less than the Availability immediately prior to such release~~Lien is permitted by Section 11.1(d)). Upon request by ~~the~~ Collateral Agent ~~or 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~~ Administrative Agent’s authority to ~~release any applicable Collateral Agent’s Liens upon~~ release, or subordinate its interest in, particular types or items of Collateral pursuant to this Section 13.10. 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 (w) the Collateral Agent to 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 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 the terms hereof, the Security Documents or any other contractual arrangement with any Obligor, following the written request by Borrower, Collateral Agent shall (to 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 Liens, 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 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 Obligors. 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 this Section 13.10(a)14.11.

Appears in 1 contract

Samples: Credit Agreement (LIV Capital Acquisition Corp.)

Collateral Matters. Following a Collateral Trigger Event, each Loan Party that owns OP Units at such time or at any time thereafter (aeach such Loan Party, a “Pledgor”) ~~The Lenders~~ shall promptly (and ~~each other Secured Party by their acceptance~~ in any event within 90 days of the ~~benefits~~ Collateral Trigger Event with respect to any OP Units owned at such time and within 90 days of the date of acquisition or formation thereof with respect to any OP Units acquired after the initial Collateral Trigger Event Date or, in each case, such longer period of time as Administrative Agent may agree to in its reasonable discretion or as required to obtain any necessary Gaming Approval) (the latest such date with respect to any OP Units, the “Collateral Trigger Event Date”), subject to compliance with applicable Gaming Laws, grant the Administrative Agent valid and perfected First Priority Liens in all of the OP Units held by such Loan ~~Documents shall be deemed to) hereby irrevocably authorize the~~ Party following a Collateral ~~Agent~~ Trigger Event and all proceeds thereof and rights thereunder (~~and if applicable, any subagent appointed by the Collateral Agent under Section 13.2 or otherwise)~~ subject to ~~release its Liens on the Collateral, and the Collateral Agent’s Liens upon any Collateral shall be automatically released~~ (i) ~~upon Full Payment~~ such OP Units not constituting Excluded Assets, (ii) the limitations set forth in the MGM Growth Properties Operating Partnership LP Agreement, (iii) the maximum aggregate amount of the ~~Obligations~~secured obligations secured at any time by any such Pledge Agreement being limited in a manner that will not require Liens to be granted under any then outstanding senior unsecured notes of the Company and (iv) compliance with applicable Gaming Laws). Such pledges shall be documented pursuant to collateral documentation reasonably satisfactory to the Administrative Agent and the Company, based on the Pledge Agreement (as defined in the Existing Credit Agreement) (the “Pledge Agreement”). On or prior to each Collateral Trigger Event Date, subject to compliance with applicable Gaming Laws, the Administrative Agent shall have received with respect to such OP Units (i) executed counterparts of the Pledge Agreement duly executed by each applicable Loan Party, together with (A) to the extent certificated, certificates representing the Pledged Equity referred to therein accompanied by undated stock powers executed in blank, and (B) financing statements in form appropriate for filing under the Uniform Commercial Code of all jurisdictions that the Administrative Agent may deem necessary in order to perfect the Liens created under the Pledge Agreement, covering the Collateral described in the Pledge Agreement; (ii) ~~upon a disposition~~ an opinion of ~~Collateral permitted by Section 8.8~~ Milbank LLP, counsel to ~~a Person that is not an Obligor~~the Loan Parties, and of local counsel to the Loan Parties in each jurisdiction in which the Loan Parties are formed, addressed to the Administrative Agent and each Lender; and (iii) a certificate executed by a financial officer of the Company setting forth the aggregate amount of the obligations that may be secured by Liens as of the date of effectiveness of the Pledge Agreement pursuant to Section 4.10(c) of the indenture governing the Company’s 7.750% senior unsecured notes due 2022 and the similar provisions contained in the Company’s other indentures governing its other senior unsecured notes, which certificate shall include a calculation of the Company’s Consolidated Net Tangible Assets (as defined in such indenture or such other indentures); provided that if any such documents, instruments or opinions with respect to any OP Units required to be pledged cannot become effective or delivered or filed at such time as a result of the Gaming Approvals not being obtained, such documents, instruments and opinions with respect to Liens on such OP Units shall become effective or be delivered or filed upon obtaining such Gaming Approvals. The actions the Company and/or applicable Loan Party shall take in order to obtain any necessary Gaming Approval shall include, among other requirements of the applicable Gaming Authorities, (i) providing immediate notice of the occurrence of the Collateral ~~constitutes property~~ Trigger Event to the New Jersey Division of Gaming Enforcement and (ii) submitting a request to the New Jersey Division of Gaming Enforcement for approval of the grant of Liens on any Collateral. If Liens are granted in any Collateral following the occurrence of a Collateral Trigger Event, the security arrangements implemented as a result thereof shall remain in place through the Final Maturity Date at such time, notwithstanding that at any subsequent date the Rent-Adjusted Total Net Leverage Ratio may be less than or equal to the Rent-Adjusted Total Net Leverage Ratio then permitted under Section 8.12(a). To the extent approvals of any Gaming Authorities for any actions required by the Pledge Agreement or this Section 6.09 are required by applicable Gaming Laws, the Company and/or applicable Loan Party shall, at their own expense, promptly (such timing as reasonably determined by the Company with notice of such timing provided to the Administrative Agent) apply for and thereafter pursue such approvals. Notwithstanding anything to the contrary in this Agreement or in any Loan Document, no Loan Party shall be required to (a) perfect any security interests, or make any filings or take any other actions necessary or desirable to perfect and protect security interests, in Excluded Assets, (b) enter into any control agreement or control or similar arrangement (other than delivery of stock certificates), (c) grant any Lien in, those assets as to which (A) the ~~Obligors owned no interest~~ cost, burden, difficulty or consequence of obtaining or perfecting such Lien (including any mortgage, stamp, intangibles or other tax or expenses relating to such Lien) outweighs the benefit to the Lenders of the security afforded thereby as reasonably determined by the Borrowers and the Administrative Agent, (B) the granting of a Lien on such asset would violate any enforceable anti-assignment provisions of contracts binding on such assets at the time ~~the Lien was granted or at any time thereafter; (iv) if any such Collateral constitutes property leased to an Obligor under a lease which has expired or been terminated~~ of their acquisition and not entered into in ~~a transaction permitted under this Agreement; (v) to the extent the property constituting such Collateral is owned by any Guarantor, upon the release~~ contemplation of such ~~Guarantor from its obligations under the Guarantee Agreement~~ acquisition or applicable law (in accordance with the second succeeding sentence and the Guarantee Agreement); (vi) as required by the Collateral Agent to effect any sale, transfer or other Disposition of Collateral in connection with any exercise of remedies of the Collateral 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~~case, after giving effect to the ~~application of such proceeds and the updating~~ applicable anti-assignment provisions of the ~~Borrowing Base~~UCC or other applicable law), ~~as the case may be, to reflect the deletion of any assets subject to~~ (C) such ~~release, Availability shall~~ Lien would be ~~no less than the Availability immediately prior to such release. Upon request~~ prohibited by the ~~Collateral Agent or~~ MGM Growth Properties Operating Partnership LP Agreement (provided, however, the ~~Borrower at any time, subject~~ Company must use commercially reasonable efforts to obtain the consent of the general partner under the MGM Growth Properties Operating Partnership LP Agreement to the ~~Borrower having certified~~ extent necessary to enable a Loan Party to xxxxx x Xxxx in the ~~Collateral Agent that the disposition is made in compliance with Section 8.8 (which the Collateral Agent may rely conclusively on any~~ OP Units owned by such certificate, without further inquiry), the Lenders will confirm in writing the Collateral Agent’s authority to release any applicable Collateral Agent’s Liens upon particular types or items of Collateral pursuant to this Section 13.10. 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 (w) the Collateral Agent to 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 8.12(cParty) or (~~q) (as to Fixed Asset Collateral only), (x~~D) the ~~Agent to release automatically any Guarantor from its obligations under~~ indentures governing the ~~Guarantee Agreement if~~ Company’s senior notes would require that such ~~Person ceases to~~ notes 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~~ equally and ratably secured by the ~~extent such Subsidiary ceasing to constitute a Restricted Subsidiary or otherwise becoming an Excluded Subsidiary is not prohibited~~ OP Units owned 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 the terms hereof, the Security Documents or any other contractual arrangement with any Obligor, following the written request by Borrower, Collateral Agent shall (to the extent not prohibited by applicable law or legal process) deliver such Collateral Loan Parties in accordance with the terms of ~~the Intercreditor Agreement or, if no Intercreditor Agreement is then in effect, to the applicable Obligor~~such indentures, and (zd) ~~if after the date hereof Collateral Agent’s Lien has been expanded~~ no actions shall be required to ~~include Fixed Asset Collateral~~ be taken in ~~connection with incurrence of Debt pursuant~~ order to ~~Section 8.12(q)(x)~~ create, grant or ~~(r) so long as all~~ perfect any security interest in any assets located outside 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 (U.S. and no ~~commitments for Debt that~~foreign law security or pledge agreements, ~~if incurred would~~ foreign law mortgages or deeds or foreign intellectual property filings or searches shall 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 Liens, 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 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 Obligors. 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 this Section 13.10(a)required.

Appears in 1 contract

Samples: Credit Agreement (MGM Resorts International)

Collateral Matters. Each Lender (aincluding in its capacities as a potential Cash Management Bank and a potential Hedge Bank) ~~The Lenders~~ irrevocably authorizes and directs the Collateral Agent to take the actions to be taken by them as set forth in Section 10.25. In each case as specified in this Section 9.12, the applicable Agent will (and each ~~other Secured~~ Lender irrevocably authorizes the applicable Agent to), at the Borrowers’ expense, execute and deliver to the applicable Loan Party ~~by their acceptance~~ such documents as such Loan Party may reasonably request to evidence the release or subordination of such item of Collateral from the ~~benefits of the Loan Documents shall be deemed to) hereby irrevocably authorize~~ assignment and security interest granted under the Collateral ~~Agent (and if applicable~~Documents, ~~any subagent appointed by the Collateral Agent under Section 13.2~~ or ~~otherwise)~~ to release its Liens on the Collateral, and the Collateral Agent’s Liens upon any Collateral shall be automatically released (i) upon Full Payment of the Obligations; (ii) upon a disposition of Collateral permitted by Section 8.8 to a Person that is not an Obligor; (iii) if any such Collateral constitutes property in which the Obligors owned no interest at the time the Lien was granted or at any time thereafter; (iv) if any such Collateral constitutes property leased to an Obligor under a lease which has expired or been terminated in a transaction permitted under this Agreement; (v) to the extent the property constituting such Collateral is owned by any Guarantor, upon evidence the release of such Guarantor from its obligations under the ~~Guarantee Agreement (~~Guaranty, in each case in accordance with the second succeeding sentence and the Guarantee Agreement); (vi) as required by the Collateral Agent to effect any sale, transfer or other Disposition of Collateral in connection with any exercise of remedies terms of the ~~Collateral Agent pursuant to the Security Documents, (vii) to the extent such Collateral otherwise becomes an Excluded Stock or an Excluded Asset,~~ Loan Documents 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 release10.25. Upon request by the ~~Collateral~~ Administrative Agent ~~or 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 applicable Collateral Agent’s Liens upon~~ particular types or items of Collateral pursuant to this Section ~~13.10~~9.12; provided that such confirmation shall not delay the effectiveness of any release of Collateral made pursuant to Section 10.25. ~~In addition~~Each Lender hereby agrees, and each holder of any Note by the acceptance thereof will be deemed to agree, that, except as otherwise set forth herein, any action taken by the Required Lenders in accordance with the provisions of this Agreement or the Collateral Documents, and the exercise by the Required Lenders of the powers set forth herein or therein, together with such other powers as are reasonably incidental thereto, shall be authorized and binding upon all of the Lenders. The Collateral Agent is hereby authorized on behalf of all of the Lenders, without the necessity of any notice to or further consent from any Lender, from time to time prior to an Event of Default, to take any action with respect to any Collateral or Collateral Documents which may be necessary to perfect and maintain perfected the security interest in and liens upon the Collateral granted pursuant to the Collateral Documents. The Collateral Agent shall have no obligation whatsoever to the Lenders ~~(and each~~ or to any other ~~Secured~~ Person to assure that the Collateral exists or is owned by any Loan Party ~~by their acceptance of~~ or is cared for, protected or insured or that the ~~benefits of the Loan Documents shall be deemed to) hereby irrevocably authorize (w)~~ Liens granted to the Collateral Agent herein or pursuant hereto have been properly or sufficiently or lawfully created, perfected, protected or enforced or are entitled to ~~subordinate~~ any ~~Lien on~~ particular priority, or to exercise or to continue exercising at all or in any ~~property~~ manner or under any duty of care, disclosure or fidelity any of the rights, authorities and powers granted or available to ~~or held by~~ the Collateral Agent ~~under~~ in this Section 9.12, Section 10.25 or in any ~~Loan Document to~~ of the ~~holder~~ Collateral Documents, it being understood and agreed that in respect of the Collateral, or any ~~Lien on such property that is permitted by Section 8.12(c)~~ act, omission or ~~(q) (as to Fixed Asset~~ event related thereto, the Collateral ~~only), (x) the~~ Agent ~~to release automatically~~ may act in 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 Subsidiarymanner it may deem appropriate, in ~~each case~~its sole discretion, ~~solely to~~ given 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~~ Collateral Agent’s own interest in the Collateral as ~~both (1) no Default or Event~~ one of ~~Default has occurred~~ the Lenders 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~~ shall have no duty or liability whatsoever to the ~~terms hereof~~Lenders, ~~the Security Documents~~ except for its gross negligence, bad faith or any other contractual arrangement with any Obligor, following the written request by Borrower, Collateral Agent shall (to 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 Liens, 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 Collateral Agent shall release Collateral Agent’s Liens on Fixed Assets Collateral (other than, in each case any Inventory or Fracturing Equipment Parts willful misconduct (as ~~defined~~ determined by a court of competent jurisdiction in the Initial Intercreditor Agreement)) at the expense of the Obligors. 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 this Section 13.10(aa final and non-appealable decision).

Appears in 1 contract

Samples: Syndicated Facility Agreement (DTZ Jersey Holdings LTD)

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 (~~Agent, at its option and ~~if applicable~~in its sole discretion, ~~any subagent appointed by the Collateral Agent under Section 13.2 or otherwise)~~ to release ~~its Liens on the Collateral, and the Collateral~~ any Agent’s Liens upon any Collateral ~~shall be automatically released~~ (i) upon ~~Full Payment~~ the termination of the Commitments and payment and satisfaction in full 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) ~~upon a~~ constituting Property being distributed, transferred, sold or otherwise disposed of in compliance with Section 7.9; provided, that the Borrowers shall promptly notify the Agent of any distribution, transfer, sale or other disposition of ~~Collateral permitted by Section 8.8 to~~ such Property having a ~~Person that is not an Obligor;~~ value in excess of $2,000,000, (iii) ~~if any such Collateral constitutes property~~ constituting Property in which the ~~Obligors~~ Borrowers owned no interest at the time the Lien was granted or at any time thereafter; or (iv) ~~if any such Collateral constitutes property~~ constituting Property leased to ~~an Obligor~~ a Borrower under a lease which has expired or been terminated in a transaction permitted under this Agreement; (v) to the extent the property constituting such Collateral is owned by any Guarantor, upon the release of such Guarantor from its obligations under the Guarantee Agreement (in accordance with the second succeeding sentence and the Guarantee Agreement); (vi) as required by the Collateral Agent to effect any sale, transfer or other Disposition of Collateral in connection with any exercise of remedies of the Collateral 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)~~Lenders; provided ~~that, in addition to~~ that the ~~foregoing, the Collateral~~ Agent may, in its discretion, release ~~such~~ 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, 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 ~~without~~ with the prior written authorization of ~~any Lender~~Required Lenders, ~~so long~~ and the Agent may release the Agent’s Liens on Collateral which constitutes “First Priority Collateral”, as ~~all proceeds received~~ such term is defined in ~~connection with such release are applied~~ the Senior Secured Notes Indenture as in effect on the date hereof, if required pursuant 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 releaseIntercreditor Agreement. Upon request by the ~~Collateral~~ Agent or the ~~Borrower~~ Borrowers 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 ~~applicable Collateral~~ Agent’s Liens upon particular types or items of Collateral pursuant to this Section 13.10. 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 (w) the Collateral Agent to 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 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 the terms hereof, the Security Documents or any other contractual arrangement with any Obligor, following the written request by Borrower, Collateral Agent shall (to 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 Liens, 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 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 Obligors. 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 this Section 13.10(a)12.11.

Appears in 1 contract

Samples: Credit Agreement (Unifi 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 if applicable, any subagent appointed by the Collateral Agent under Section 13.2 or otherwise) to release its Liens on the Collateral, and the Collateral Agent’s Liens upon any Collateral shall be automatically released (i) upon Full Payment of the Obligations; (ii) upon a disposition of Collateral permitted by Section 8.8 to a Person that is not an Obligor; (iii) if any such Collateral constitutes property in which the Obligors owned no interest at the time the Lien was granted or at any time thereafter; (iv) if any such Collateral constitutes property leased to an Obligor under a lease which has expired or been terminated in a transaction permitted under this Agreement; (v) to the extent the property constituting such Collateral is owned by any Guarantor, upon the release of such Guarantor from its obligations under the Guarantee Agreement (in accordance with the second succeeding sentence and the Guarantee Agreement); (vi) as required by the Collateral Agent to effect any sale, transfer or other Disposition of Collateral in connection with any exercise of remedies of the Collateral Agent pursuant to the Security Documents, (vii) to the extent such Collateral otherwise becomes an Excluded Stock or an Excluded ~~Asset,~~ Asset and (viii) if the percentage of Lenders required to consent to the Collateral being released hereunder, ~~so consents~~ 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); 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 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 applicable Collateral Agent’s Liens upon particular types or items of Collateral pursuant to this Section 13.10. 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 (w) the Collateral Agent to 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 8.12(c) or (q) (as to ~~Fixed~~ 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 ~~not prohibited~~ permitted by this ~~Agreement~~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 (~~y) so long as both (1~~2) no Default or Event of Default has occurred ~~and~~ or is continuing or would result therefrom and (2y) so long as no ~~Out-of-Formula Condition~~ 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 the terms hereof, the Security Documents or any other contractual arrangement with any Obligor, following the written request by Borrower, Collateral Agent shall (to the extent ~~not prohibited~~ permitted by applicable law or legal process) deliver such Collateral in accordance with the terms of the ABL Intercreditor Agreement ([**]) or, if no the ABL Intercreditor Agreement is and [**] are not 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 . Promptly upon consummation of the ~~following conditions are satisfied (1) no Default or Event of Default has occurred~~ FTS Distribution and ~~is continuing or would result therefrom~~Contribution Transaction, (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 Liens, or, solely to the extent ~~on account~~ true, Borrower shall send a certificate to Agent confirming that FTS does not own any assets other than the Stock of ~~Refinancing Debt~~Holdings, ~~or outstanding commitments that~~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, ~~if incurred~~upon the full and complete consummation of the FTS Distribution and Contribution Transaction and Agent’s receipt of the FTS Distribution and Contribution Certificate, ~~would~~ (i) each of the FTS Pledge Agreements and the FTS Control Agreements shall be ~~Refinancing Debt, in each case incurred in reliance, directly or indirectly, on Section 8.12(q)(x) or~~ deemed terminated and released (r)automatically and through no further action of any Person), ~~clause~~ (pii) 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 ~~definition of “Permitted Liens”, promptly following the written request of the Borrower, the Collateral Agent shall release~~ Collateral Agent’s Liens on ~~Fixed Assets Collateral~~ the Stock and assets of FTS (~~other than, in each case any Inventory~~ but not the Stock issued by or ~~Fracturing Equipment Parts (as defined in~~ the ~~Initial Intercreditor Agreement)) at the expense~~ assets of the ~~Obligors~~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 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 this Section 13.10(a).

Appears in 1 contract

Samples: Term Loan Credit Agreement (ProFrac Holding 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 if applicable, any subagent appointed by the ~~Collateral~~ Agent under Section 13.2 or otherwise), and the Agent (and if applicable, any subagent appointed by the Agent under Section 13.2 or otherwise) shall hereby have the obligation to release, subject to the satisfaction of any conditions to release ~~its Liens~~ (if any) set forth herein, including the continuance of the applicable Agent’s Lien on ~~the~~ any proceeds of released Collateral, ~~and the Collateral~~ any such Agent’s Liens upon any Collateral ~~shall be automatically released~~ (i) upon Full Payment of the Obligations; (ii) ~~upon a disposition~~ constituting property being sold, transferred or disposed of ~~Collateral permitted by Section 8.8~~ (to a any Person that is not an Obligor), if the sale, transfer or disposition is made in compliance with this Agreement (which shall, upon reasonable request by the Agent, be certified by the Borrowers’ Agent, and the Agent may rely conclusively on any such certification without further inquiry; provided that no certification shall be required at any time with respect to any sales of items of Rental Equipment in the ordinary course of business so long as such Agent’s Lien continues in the proceeds of such Collateral); (iii) ~~if any such Collateral constitutes~~ constituting property in which the Obligors owned no interest at the time the Lien was granted or at any time thereafter; (iv) ~~if any such Collateral constitutes~~ constituting property leased to an Obligor under a lease which has expired or been terminated in a transaction permitted under this Agreement; (v) constituting Relinquished Property, if such Relinquished Property shall have been delivered to the ~~extent~~ applicable Qualified Intermediary in accordance with the applicable exchange agreement and a first priority perfected security interest shall have been granted by the applicable exchanger to the Agent for the benefit of the Secured Parties of a first priority perfected security interest in the rights of such exchanger in, to and under the related exchange agreement; (vi) constituting any Like-Kind Exchange Account; (vii) subject to Section 7.20(b), constituting property being sold, assigned, pledged or otherwise transferred pursuant to any Securitization Transaction; (viii) being or becoming an Excluded Asset (as defined in the U.S. Security Agreement or the Canadian Security Agreement, as applicable); or (ix) constituting ~~such Collateral~~ property that is owned by ~~any Guarantor, upon the release of such~~ a Guarantor that has been released from its obligations under the U.S. Guarantee Agreement ~~(in accordance with~~ or the ~~second succeeding sentence and the~~ Canadian Guarantee Agreement~~); (vi)~~ , as ~~required by the Collateral Agent to effect any sale~~applicable, ~~transfer or other Disposition of Collateral in connection with any exercise of remedies of the Collateral Agent~~ pursuant to ~~the Security Documents, (vii) to the extent such Collateral otherwise becomes an Excluded Stock~~ this Section 13.11 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~~Section 4.3(h). Except as provided ~~above~~above or in Section 12.1, the ~~Collateral~~ Agent will not release any of ~~the Collateral~~ such 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)~~Lenders; provided that, in addition to the foregoing, (x) the ~~Collateral~~ Agent may, in its discretion, release such Agent’s Liens on Collateral valued, in the aggregate for any such release, not in excess of (A) the greater of (1) $331,000,000 and (2) 3% of Consolidated Net Tangible Assets, or (B) if after giving effect to such sale, conveyance, transfer, lease or other disposition on a pro forma basis Specified Availability is at least $1,000,000,000, the greater of (1) $551,000,000 and (2) 5% of Consolidated Net Tangible Assets; and (y) the Agent may release the Agent’s Liens on Collateral valued in the aggregate not in excess of $~~1,000,000~~ 200,000,000 during each Fiscal Year ~~without~~ with the prior written authorization of ~~any Lender~~Required Lenders, so long as all proceeds received in connection with any such release under clause (x) or (y) above are applied to the Obligations in accordance with Section ~~4.7~~ 4.6 and, after giving effect to the application of such proceeds and the updating of the U.S. Borrowing Base or the Canadian Borrowing Base, as the case may be, to reflect the deletion of any assets subject to such release, U.S. Availability or Canadian Availability, as the case may be, shall be no less than the U.S. Availability or the Canadian Availability, as the case may be, immediately prior to such release. Upon request by the Collateral Agent or 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 applicable Collateral Agent’s Liens upon particular types or items of Collateral pursuant to this Section 13.10. 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 ~~(w)~~ the ~~Collateral~~ Agent to (I) 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 ~~8.12(c~~8.1(d) or and (qII) ~~(as to Fixed Asset Collateral only), (x) the Agent to~~ release ~~automatically~~ any Guarantor from its obligations under the U.S. Guarantee Agreement or the Canadian Guarantee Agreement (1) if such Person ceases to be a ~~Restricted~~ Subsidiary as a result of a transaction permitted ~~under this Agreement~~ hereunder 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,~~ as provided in Section 4.3(h) with respect 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 the terms hereof, the Security Documents or any other contractual arrangement with any Obligor, following the written request by Borrower, Collateral Agent shall (to the extent not prohibited by applicable law or legal process) deliver such Collateral in accordance with the terms obligations of the ~~Intercreditor Agreement or, if no Intercreditor Agreement is then in effect,~~ Canadian Guarantors to guarantee 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 Obligations of the ~~following conditions are satisfied (1) no Default~~ Canadian Borrowers 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~~ as provided 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 Liens, 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 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 Obligors12.1. Upon request by ~~any Appointed~~ the Agent or the Borrowers at any time, the Required Lenders will confirm in writing ~~such Appointed~~ the Agent’s authority to release or subordinate ~~its interest in~~ the applicable Agent’s Liens upon particular types or items of ~~property~~Collateral, or to release any Guarantor from its obligations pursuant to this Section ~~13.10(a~~13.11(a).. 164

Appears in 1 contract

Samples: Credit Agreement (United Rentals North America 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)~~ Lender Parties hereby irrevocably authorize ~~the Collateral Agent (~~and ~~if applicable~~direct Administrative Agent, ~~any subagent appointed by the Collateral Agent under Section 13.2 or otherwise)~~ at its option and in its sole discretion, to ~~release its Liens on the Collateral, and the Collateral Agent’s Liens upon any Collateral shall be automatically released~~ (i) release any Lien on any Collateral (1) upon ~~Full Payment~~ the termination of the Commitments and payment and satisfaction in full of all Obligations; , (iiother than contingent indemnification Obligations and the expiration or termination of all Letters or Credit (other than Letters of Credit as to which other arrangements satisfactory to Administrative Agent shall have been made)), (2) ~~upon~~ constituting property being sold or disposed of if a release is required or desirable in connection therewith and if Borrower certifies to Administrative Agent that the sale or disposition ~~of Collateral permitted by Section 8.8 to a Person that~~ is not an Obligor; (iii) if any such Collateral constitutes property in which the Obligors owned no interest at the time the Lien was granted or at any time thereafter; (iv) if any such Collateral constitutes property leased to an Obligor under a lease which has expired or been terminated in a transaction permitted under this ~~Agreement; (v) to the extent the property constituting such Collateral is owned by any Guarantor, upon the release of such Guarantor from its obligations under the Guarantee~~ Agreement (in accordance with the second succeeding sentence and the Guarantee Agreement); (vi) as required by the Collateral Agent to effect any sale, transfer or other Disposition of Collateral in connection with any exercise of remedies of the Collateral 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 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~~ other Loan Documents (~~which the Collateral~~ and Administrative Agent may rely conclusively on any such certificate, without further inquiry), (3) constituting property in which any Loan Party or its Subsidiaries owned no interest at the time the Administrative Agent’s Lien was granted nor at any time thereafter, or (4) constituting property leased to any Loan Party or its Subsidiaries under a lease that has expired or is terminated in a transaction permitted under this Agreement or (ii) release any Guarantor from its obligations under a Guaranty Agreement if such Person ceases to be a Subsidiary as a result of a transaction permitted herein. Except as provided above, Administrative 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, or (z) otherwise, the Required Lenders. Upon request by Administrative Agent or Borrower at any time, the Lenders will confirm in writing ~~the Collateral~~ Administrative Agent’s authority to release any ~~applicable Collateral Agent’s~~ such Liens ~~upon~~ on particular types or items of Collateral pursuant to this Section ~~13.10. In addition~~12.10; provided, the Lenders (and each other Secured Party by their acceptance of the benefits of the Loan Documents shall be deemed to) hereby irrevocably authorize (w) the Collateral Agent to 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 however, 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~~ Administrative Agent shall not be required to execute any document necessary to evidence such release on terms that, in Administrative Agent’s opinion, would expose Administrative Agent to liability or ~~Event~~ create any obligation or entail any consequence other than the release of ~~Default has occurred and is continuing~~ such Lien without recourse, representation, or ~~would result therefrom~~ warranty, and (2) ~~no Out-of-Formula Condition has occurred and is continuing~~ such release shall not in any manner discharge, affect, or ~~would result therefrom, then, to~~ impair 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 the terms hereof, the Security Documents Obligations or any Liens (other ~~contractual arrangement with any Obligor, following the written request~~ than those expressly being released) upon (or obligations of Borrower in respect of) all interests retained by Borrower, ~~Collateral Agent~~ including, the proceeds of any sale, all of which shall (continue to ~~the extent not prohibited by applicable law or legal process) deliver such Collateral in accordance with the terms~~ constitute part 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 Liens, 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 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 Obligors. 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 this Section 13.10(a)Collateral.

Appears in 1 contract

Samples: Loan and Security Agreement (BuzzFeed, Inc.)

Collateral Matters. (a) ~~The Lenders (~~Each Lender hereby authorizes and ~~each~~ directs Agent to enter into the Security Documents, the ADI Seller Note Subordination Agreement, the Legiant Seller Note Subordination Agreement and the Convertible Note Subordination Agreement for the benefit of such Lender. Each Lender also authorizes Agent to enter into Subordination Agreements with respect to any other ~~Secured Party by their acceptance~~ Subordinated Debt, whether in existence as of the ~~benefits of the Loan Documents shall be deemed to) hereby irrevocably authorize the Collateral Agent (and if applicable~~Closing Date or created, ~~any subagent appointed by the Collateral Agent under Section 13.2~~ incurred or otherwise) to release its Liens on the Collateral, and the Collateral Agent’s Liens upon any Collateral shall be automatically released (i) upon Full Payment of the Obligations; (ii) upon a disposition of Collateral permitted by Section 8.8 to a Person that is not an Obligor; (iii) if any such Collateral constitutes property in which the Obligors owned no interest at the time the Lien was granted or assumed at any time ~~thereafter; (iv) if~~ following the Closing Date. Each Lender hereby agrees, and each holder of any ~~such Collateral constitutes property leased~~ Note by the acceptance thereof will be deemed to ~~an Obligor under a lease which has expired or been terminated~~ agree, that, except as otherwise set out in ~~a transaction permitted under this Agreement; (v) to~~ Section 14.8(a), any action taken by the ~~extent the property constituting such Collateral is owned by any Guarantor~~Agent, ~~upon the release of such Guarantor from its obligations under the Guarantee Agreement (~~in accordance with the ~~second succeeding sentence~~ provisions of this Agreement, the Security Documents and any Subordination Agreement, and the ~~Guarantee Agreement); (vi) as required~~ exercise by the ~~Collateral~~ Agent ~~to effect any sale, transfer or other Disposition of Collateral in connection with any exercise of remedies~~ of the powers set out herein or therein, together with such other powers as are reasonably incidental thereto, shall be authorized and binding upon all of the Lenders. Agent is hereby authorized (but not obligated) on behalf of all of the Lenders, without the necessity of any notice to or further consent from any Lender from time to time, to take any action with respect to any Collateral, the Security Documents or any Subordination Agreement which may be necessary to (i) perfect and maintain perfected the Liens upon the Collateral ~~Agent~~ granted pursuant to the Security Documents, (~~vii~~ii) subordinate any Subordinated Debt (and any Liens securing any such Subordinated Debt) to the ~~extent such Collateral otherwise becomes an Excluded Stock or an Excluded Asset~~Obligations (and the Liens securing the Obligations), and (~~viii~~iii) 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 exercise Agent’s ~~Liens without~~ rights and remedies and enforce 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 covenants and obligations 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~~ Borrower or any holder 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 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 applicable Collateral Agent’s Liens upon particular types or items of Collateral pursuant to this Section 13.10. 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 (w) the Collateral Agent to subordinate any Lien on any property granted to or held by the Collateral Agent Subordinated Debt under any Loan Document to the holder of any Lien on such 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 Subordination 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 the terms hereof, the Security Documents or any other contractual arrangement with any Obligor, following the written request by Borrower, Collateral Agent shall (to 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 Liens, 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 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 Obligors. 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 this Section 13.10(a).

Appears in 1 contract

Samples: Loan Agreement (Asure Software Inc)

Collateral Matters. (a) ~~The Lenders~~ Each Lender (and each other Secured Party by ~~their acceptance of~~ accepting the benefits of the ~~Loan Documents shall be deemed to~~Collateral) ~~hereby irrevocably authorize the~~ authorizes and directs Collateral Agent (to enter into the Security Documents for the benefit of the Secured Parties and ~~if applicable, any subagent appointed by~~ to hold and enforce the ~~Collateral Agent under Section 13.2 or otherwise) to release its~~ Liens on the ~~Collateral~~Collateral on behalf of the Secured Parties. Collateral Agent is hereby authorized on behalf of all of the Lenders, without the necessity of any notice to or further consent from any Lender, from time to time prior to an Event of Default, to take any action with respect to any Collateral or Security Documents which may be necessary to perfect and maintain perfected the security interest in and liens upon the Collateral Agent’s Liens upon any Collateral shall be automatically released (i) upon Full Payment of the Obligations; (ii) upon a disposition of Collateral permitted by Section 8.8 to a Person that is not an Obligor; (iii) if any such Collateral constitutes property in which the Obligors owned no interest at the time the Lien was granted or at any time thereafter; (iv) if any such Collateral constitutes property leased to an Obligor under a lease which has expired or been terminated in a transaction permitted under this Agreement; (v) to the extent the property constituting such Collateral is owned by any Guarantor, upon the release of such Guarantor from its obligations under the Guarantee Agreement (in accordance with the second succeeding sentence and the Guarantee Agreement); (vi) as required by the Collateral Agent to effect any sale, transfer or other Disposition of Collateral in connection with any exercise of remedies of the Collateral 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~~ . The Lenders ~~required to consent to the Collateral being released hereunder, so consents to the Collateral being released. Except as provided above, the~~ hereby authorize Collateral Agent ~~will not release any of~~ to take the ~~Collateral Agent’s Liens without the prior written authorization of the Required Lenders (or such other percentage of Lenders whose consent is required~~ actions set forth in ~~accordance with~~ Section ~~12.1~~13.04(g); 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~~ Administrative Agent ~~or 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 applicable Collateral Agent’s Liens upon~~ particular types or items of Collateral pursuant to ~~this~~ Section ~~13.10~~13.04(g). ~~In addition~~(b) Collateral Agent shall have no obligation whatsoever to the Lenders, the ~~Lenders (and each~~ other Secured ~~Party by their acceptance of the benefits of the Loan Documents shall be deemed to) hereby irrevocably authorize (w) the Collateral Agent~~ Parties or any other Person to 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 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 assure that the Collateral ~~Agent obtains possession of~~ exists or is owned by any ~~Collateral by operation of Section 13.12 of this Agreement~~ Credit Party or is cared for, protected or insured or that ~~constitutes Collateral that Obligors are not required to deliver~~ the Liens granted to Collateral Agent ~~at such time~~ pursuant to the ~~terms hereof~~applicable Security Documents have been properly or sufficiently or lawfully created, perfected, protected or enforced or are entitled to any particular priority, or to exercise or to continue exercising at all or in any manner or under any duty of care, disclosure or fidelity any of the rights, authorities and powers granted or available to Collateral Agent in Section 12.01 or in this Section 12.12 or in any of the Security ~~Documents~~ Documents, it being understood and agreed that in respect of the Collateral or any ~~other contractual arrangement with~~ part thereof, or any ~~Obligor~~act, ~~following the written request by Borrower~~omission or event related thereto, Collateral Agent ~~shall (to the extent not prohibited by applicable law or legal process) deliver such Collateral~~ may act in ~~accordance with the terms of the Intercreditor Agreement or~~any manner it may deem appropriate, ~~if no Intercreditor Agreement is then~~ in ~~effect~~its sole discretion, ~~to the applicable Obligor, and (z) if after the date hereof~~ given Collateral Agent’s ~~Lien has been expanded to include Fixed Asset~~ own interest in the Collateral ~~in connection with incurrence of Debt pursuant to Section 8.12(q)(x)~~ or ~~(r) so long~~ any part thereof as ~~all~~ one of the ~~following conditions are satisfied (1) no Default or Event of Default has occurred~~ Lenders 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 Liens, 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 Collateral Agent shall ~~release Collateral Agent’s Liens on Fixed Assets Collateral (~~have no duty or liability whatsoever to the Lenders or the other ~~than~~Secured Parties, ~~in each case any Inventory~~ except for its gross negligence or ~~Fracturing Equipment Parts~~ willful misconduct (as ~~defined~~ determined by a court of competent jurisdiction in ~~the Initial Intercreditor Agreement~~a final and non-appealable decision)~~) at the expense of the Obligors~~. 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 this Section 13.10(a)SECTION 12.13.

Appears in 1 contract

Samples: Credit Agreement (Wynn Resorts LTD)

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 if applicable, any subagent appointed by the ~~Collateral~~ Agent under Section 13.2 or otherwise), and the Agent (and if applicable, any subagent appointed by the Agent under Section 13.2 or otherwise) shall hereby have the obligation to release, subject to the satisfaction of any conditions to release ~~its Liens~~ (if any) set forth herein, including the continuance of the applicable Agent’s Lien on ~~the~~ any proceeds of released Collateral, ~~and the Collateral~~ any such Agent’s Liens upon any Collateral ~~shall be automatically released~~ (i) upon Full Payment of the Obligations; (ii) ~~upon a disposition~~ constituting property being sold, transferred or disposed of ~~Collateral permitted by Section 8.8~~ (to a any Person that is not an Obligor), if the sale, transfer or disposition is made in compliance with this Agreement (which shall, upon reasonable request by the Agent, be certified by the Borrowers’ Agent, and the Agent may rely conclusively on any such certification without further inquiry; provided that no certification shall be required at any time with respect to any sales of items of Rental Equipment, Service Vehicles or Spare Parts and Merchandise in the ordinary course of business so long as such Agent’s Lien continues in the proceeds of such Collateral); (iii) ~~if any such Collateral constitutes~~ constituting property in which the Obligors owned no interest at the time the Lien was granted or at any time thereafter; (ivi) ~~if any such Collateral constitutes~~ constituting property leased to an Obligor under a lease which has expired or been terminated in a transaction permitted under this Agreement; (vii) constituting Relinquished Property, if such Relinquished Property shall have been delivered to the ~~extent~~ applicable Qualified Intermediary in accordance with the applicable exchange agreement and a first priority perfected security interest shall have been granted by the applicable exchanger to the Agent for the benefit of the Secured Parties of a first priority perfected security interest in the rights of such exchanger in, to and under the related exchange agreement; (vi) constituting any Like-Kind Exchange Account; (vii) constituting property being sold, assigned, pledged or otherwise transferred pursuant to any Securitization Transaction; (viii) being or becoming an Excluded Asset (as defined in the U.S. GCA or the Canadian GCA, as applicable); or (ix) constituting ~~such Collateral~~ property that is owned by ~~any Guarantor, upon the release of such~~ a Guarantor that has been released from its obligations under the ~~Guarantee Agreement (in accordance with~~ U.S. GCA or the ~~second succeeding sentence and the Guarantee Agreement); (vi)~~ Canadian GCA, as ~~required by the Collateral Agent to effect any sale~~applicable, ~~transfer or other Disposition of Collateral in connection with any exercise of remedies of the Collateral Agent~~ pursuant to ~~the Security Documents, (vii) to the extent such Collateral otherwise becomes an Excluded Stock~~ this Section 13.11 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~~Section 4.3(h). Except as provided ~~above~~above or in Section 12.1, the ~~Collateral~~ Agent will not release any of ~~the Collateral~~ such 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)~~Lenders; provided ~~that,~~ that in addition to the foregoing, (x) the ~~Collateral~~ Agent may, in its discretion, release such Agent’s Liens on Collateral valued, in the aggregate for any such release, not in excess of (A) the greater of (1) $100,000,000 and (2) 3% of Consolidated Tangible Assets, or (B) if after giving effect to such sale, conveyance, transfer, lease or other disposition on a pro forma basis Specified Availability is at least $1,000,000,000, the greater of (1) $165,000,000 and (2) 5% of Consolidated Tangible Assets; and (y) the Agent may release the Agent’s Liens on Collateral valued in the aggregate not in excess of $~~1,000,000~~ 200,000,000 during each Fiscal Year ~~without~~ with the prior written authorization of ~~any Lender~~Required Lenders, so long as all proceeds received in connection with any such release under clause (x) or (y) above are applied to the Obligations in accordance with Section ~~4.7~~ 4.6 and, after giving effect to the application of such proceeds and the updating of the U.S. Borrowing Base or the Canadian Borrowing Base, as the case may be, to reflect the deletion of any assets subject to such release, Excess Availability or Canadian Availability, as the case may be, shall be no less than the Excess Availability or the Canadian Availability, as the case may be, immediately prior to such release. Upon request by the Collateral Agent or 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 applicable Collateral Agent’s Liens upon particular types or items of Collateral pursuant to this Section 13.10. In addition, the 188 Lenders ~~(and each other Secured Party by their acceptance of the benefits of the Loan Documents shall be deemed to)~~ hereby irrevocably authorize ~~(w)~~ the ~~Collateral~~ Agent to (I) 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 ~~8.12(c~~8.1(d) or Section 8.1(g) and (qII) ~~(as to Fixed Asset Collateral only), (x) the Agent to~~ release ~~automatically~~ any Guarantor from its obligations under the ~~Guarantee Agreement~~ U.S. GCA or the Canadian GCA (1) if such Person ceases to be a ~~Restricted~~ Subsidiary as a result of a transaction permitted ~~under this Agreement~~ hereunder 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,~~ as provided in Section 4.3(h) with respect 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 the terms hereof, the Security Documents or any other contractual arrangement with any Obligor, following the written request by Borrower, Collateral Agent shall (to the extent not prohibited by applicable law or legal process) deliver such Collateral in accordance with the terms obligations of the ~~Intercreditor Agreement or, if no Intercreditor Agreement is then in effect,~~ Canadian Guarantors to guarantee 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 Obligations of the ~~following conditions are satisfied (1) no Default~~ Canadian Borrowers 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~~ as provided 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 Liens, 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 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 Obligors12.1. Upon request by ~~any Appointed~~ the Agent or the Borrowers at any time, the Required Lenders will confirm in writing ~~such Appointed~~ the Agent’s authority to release or subordinate ~~its interest in~~ the applicable Agent’s Liens upon particular types or items of ~~property~~Collateral, or to release any Guarantor from its obligations pursuant to this Section ~~13.10(a~~13.11(a).

Appears in 1 contract

Samples: Credit Agreement (Herc Holdings Inc)

Collateral Matters. (a) ~~The Lenders (~~Administrative Agent may, at its option, from time to time, at any time on or after an Event of Default and ~~each other Secured Party by their acceptance of~~ for so long as the ~~benefits of the Loan Documents shall be deemed to) hereby irrevocably authorize the Collateral Agent (and if applicable, any subagent appointed by the Collateral Agent under Section 13.2~~ same is continuing or ~~otherwise) to release its Liens on the Collateral, and the Collateral Agent’s Liens~~ upon any ~~Collateral shall be automatically released~~ other failure of a condition precedent to the Loans and Letter of Credit Accommodations hereunder, make such disbursements and advances (“Special Administrative Agent Advances”) which Administrative Agent, in its sole discretion, (i) ~~upon Full Payment of~~ deems necessary or desirable either to preserve or protect the ~~Obligations;~~ Collateral or any portion thereof or (ii) ~~upon a disposition~~ to enhance the likelihood or maximize the amount of ~~Collateral permitted~~ repayment by Borrowers and Guarantors of the Loans and other Obligations, provided, that, the aggregate principal amount of the Special Administrative Agent Advances pursuant to this clause (ii), plus the then outstanding principal amount of the additional Loans and Letter of Credit Accommodations which Administrative Agent may make or provide as set forth in Section ~~8.8 to a Person that is~~ 12.8 hereof, shall not ~~an Obligor;~~ exceed the aggregate amount of $5,000,000 or (iii) if to pay any ~~such Collateral constitutes property in which the Obligors owned no interest at the time the Lien was granted~~ other amount chargeable to any Borrower or at any time thereafter; (iv) if any such Collateral constitutes property leased to an Obligor under a lease which has expired or been terminated in a transaction permitted under this Agreement; (v) to the extent the property constituting such Collateral is owned by any Guarantor, upon the release of such Guarantor from its obligations under the Guarantee Agreement (in accordance with the second succeeding sentence and the Guarantee Agreement); (vi) as required by the Collateral Agent to effect any sale, transfer or other Disposition of Collateral in connection with any exercise of remedies of the Collateral 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 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 applicable Collateral Agent’s Liens upon particular types or items of Collateral pursuant to this Section 13.10. 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 (w) the Collateral Agent to 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 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 the terms ~~hereof, the Security Documents~~ of this Agreement or any other contractual arrangement with any Obligor, following the written request by Borrower, Collateral Agent shall (to the extent not prohibited by applicable law or legal process) deliver such Collateral in accordance with the terms of the ~~Intercreditor Agreement or~~other Financing Agreements consisting of (A) costs, ~~if no Intercreditor Agreement is then in effect, to the applicable Obligor,~~ fees and expenses and (zB) ~~if after~~ payments to any issuer of Letter of Credit Accommodations. Special Administrative Agent Advances shall be repayable on demand and together with all interest thereon shall constitute Obligations secured by 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 Collateral. Special Administrative Agent Advances shall not constitute Loans but shall otherwise constitute Obligations hereunder. Interest on ~~Section 8.12(q)(x) or (r) that remains outstanding (and no commitments for Debt that, if incurred would~~ Special Administrative Agent Advances shall 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 Liens, 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 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)) payable at the ~~expense~~ Interest Rate then applicable to Prime Rate Loans and shall be payable on demand. Without limitation of the Obligors. 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 ~~this~~ Section ~~13.10(a)~~6.10, each Lender agrees that it shall make available to Administrative Agent, upon Administrative Agent’s demand, in immediately available funds, the amount equal to such Lender’s Pro Rata Share of each such Special Administrative Agent Advance. If such funds are not made available to Administrative Agent by such Lender, such Lender shall be deemed a Defaulting Lender and Administrative Agent shall be entitled to recover such funds, on demand from such Lender together with interest thereon for each day from the date such payment was due until the date such amount is paid to Administrative Agent at the Federal Funds Rate for each day during such period (as published by the Federal Reserve Bank of New York or at Administrative Agent’s option based on the arithmetic mean determined by Administrative Agent of the rates for the last transaction in overnight Federal funds arranged prior to 9:00 a.m. (New York City time) on that day by each of the three leading brokers of Federal funds transactions in New York City selected by Administrative Agent) and if such amounts are not paid within three (3) days of Administrative Agent’s demand, at the highest Interest Rate provided for in Section 3.1 hereof applicable to Prime Rate Loans.

Appears in 1 contract

Samples: Loan and Security Agreement (Spartan Stores Inc)

Collateral Matters. ~~(a) The Lenders (~~Subject to Sections 10.11 and ~~each other Secured Party by their acceptance of~~ 10.12, the ~~benefits of the Loan Documents shall be deemed to)~~ Holders hereby irrevocably direct and authorize the ~~Collateral Agent (~~Trustee, subject to the Liquidity Facility Intercreditor Agreement and ~~if applicable~~the Senior Notes Intercreditor Agreement, ~~any subagent appointed by the Collateral Agent under Section 13.2 or otherwise)~~ to release ~~its Liens~~ any Lien on ~~the Collateral, and the Collateral Agent’s Liens upon~~ any Collateral ~~shall be automatically released~~ (i) upon ~~Full Payment~~ payment and satisfaction in full by or on behalf of the ~~Obligations~~Company of all Obligations in accordance with Article 11; and upon such termination, Trustee shall deliver to the Company, at the Company's sole cost and expense, all documents reasonably requested by the Company to terminate this Indenture and the other Collateral Documents and release the Liens with respect to the Collateral; (ii) ~~upon~~ constituting property being sold or disposed of if a release is required or desirable in connection therewith and if the Company certifies to the Trustee that the sale or disposition is permitted under Section 4.14 of ~~Collateral permitted by Section 8.8 to a Person that is not an Obligor~~this Indenture (and the Trustee may rely conclusively on any such certificate, without further inquiry); (iii) ~~if any such Collateral constitutes~~ constituting property in which the ~~Obligors~~ Company owned no interest at the time the Lien was granted or at any time thereafter, provided, that such property shall not have been transferred by the Company other than in accordance with the terms and provisions of this Indenture and the other Collateral Documents; or (iv) ~~if any such Collateral constitutes~~ constituting property leased to ~~an Obligor~~ the Company under a lease ~~which~~ that has expired or ~~been~~ is terminated in a transaction permitted under this ~~Agreement; (v) to~~ Indenture or the ~~extent the property constituting such~~ other Collateral is owned by any Guarantor, upon the release of such Guarantor from its obligations under the Guarantee Agreement (in accordance with the second succeeding sentence and the Guarantee Agreement); (vi) as required by the Collateral Agent to effect any sale, transfer or other Disposition of Collateral in connection with any exercise of remedies of the Collateral 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~~ Trustee will not execute and deliver a release of any ~~of the~~ Lien on any Collateral ~~Agent’s Liens~~ without the prior written authorization of (y) if the ~~Required Lenders~~ release is of all or any substantial portion of the Collateral, all of the Holders, or (or z) otherwise, the majority in principal amount of the then outstanding Notes; provided, however, that (1) the Trustee shall not be required to execute any document necessary to evidence such ~~other percentage of Lenders whose consent is required in accordance with Section 12.1); provided~~ release on terms that, in ~~addition~~ the Trustee's opinion, would expose the Trustee to liability or create any obligation on the part of the Trustee or the Holders or entail any consequence adverse to the ~~foregoing~~Trustee or the Holders other than the release of such Lien without recourse, representation, or warranty, and (2) 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 the Company in respect of) all interests retained by the Company, including, 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 proceeds of any ~~Lender~~sale, ~~so long as~~ all ~~proceeds received in connection with such release are applied~~ of which shall continue to constitute part of the Collateral. The Company shall furnish to the ~~Obligations in accordance with Section 4.7 and~~Trustee, 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 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 each proposed release ~~any applicable Collateral Agent’s Liens upon particular types or items~~ of Collateral pursuant to ~~this~~ the Collateral Documents, all documents required by TIA Section ~~13.10~~314(d). ~~In addition, the Lenders (and each other Secured Party by their acceptance~~ The Trustee shall not have any obligation whatsoever to any of the ~~benefits of the Loan Documents shall be deemed to) hereby irrevocably authorize (w) the Collateral Agent~~ Holders to 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 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 assure that the Collateral ~~Agent obtains possession of any Collateral~~ exists or is owned 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~~ the ~~terms hereof~~Company, ~~the Security Documents~~ is cared for, protected, or ~~any other contractual arrangement with any Obligor, following the written request by Borrower, Collateral Agent shall (to the extent not prohibited by applicable law~~ insured 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 Liens, or, to the extent on account of Refinancing Debtencumbered, or ~~outstanding commitments that~~that the Trustee's Liens have been properly or sufficiently or lawfully created, ~~if incurred~~perfected, ~~would be Refinancing Debt~~protected, ~~in each case incurred in reliance, directly~~ or ~~indirectly, on Section 8.12(q)(x)~~ enforced or (r)), clause (p) of the definition of “Permitted Liens”, promptly following the written request of the Borrower, the Collateral Agent shall release Collateral Agent’s Liens on Fixed Assets Collateral (other than, in each case are entitled to any Inventory or Fracturing Equipment Parts (as defined in the Initial Intercreditor Agreement)) at the expense of the Obligors. 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~~priority, or to ~~release~~ exercise at all or in any ~~Guarantor from its obligations~~ 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 Trustee pursuant to this ~~Section 13.10(a)~~Indenture or the other Collateral Documents.

Appears in 1 contract

Samples: Indenture (Komag Inc /De/)

Collateral Matters. (a) The ~~Lenders (and each other Secured Party by their acceptance of the benefits of the Loan Documents shall be deemed to)~~ Credit Providers hereby irrevocably authorize the ~~Collateral~~ Agent (and ~~if applicable, any subagent appointed by~~ the ~~Collateral Agent under Section 13.2 or otherwise)~~ Security Trustee to release ~~its Liens on the Collateral, and the Collateral~~ (i) any Agent’s Liens upon any Collateral ~~shall be automatically released~~ (iA) upon ~~Full Payment~~ (1) termination of the ~~Obligations;~~ Commitments, (ii2) ~~upon a~~ termination or collateralization as provided in Section 2.03(g) of all outstanding Letters of Credit (whether or not any of such obligations are due), and (3) the Obligated Parties’ payment and satisfaction in full of all Loans and other Obligations due and payable under the Loan Documents (other than indemnification obligations to the extent no claim with respect thereto has been asserted and remains unsatisfied), (B) constituting property being sold, transferred or disposed of if the Obligated Parties certify to the Agent that the sale, transfer or disposition ~~of Collateral permitted by~~ is made in compliance with Section ~~8.8 to a Person that is not an Obligor;~~ 6.04 (~~iii) if~~ and the Agent may rely conclusively on any such ~~Collateral constitutes~~ certification, without further inquiry), (C) constituting property being pledged or deposited if the Obligated Parties certify to the Agent that the pledge or deposit is made in compliance with Section 6.02 (and the Agent may rely conclusively on any such certification, without further inquiry), or (D) constituting property in which the ~~Obligors~~ Obligated Parties owned no interest at the time the Lien was granted or at any time thereafter; , and (ivii) if any Guarantor in the event such ~~Collateral constitutes property leased~~ Guarantor shall cease to ~~an Obligor under~~ be a ~~lease which has expired or been terminated in~~ Subsidiary upon the consummation of a transaction permitted ~~under this Agreement;~~ hereunder (~~v) to~~ which release shall include all security interests in the ~~extent the property constituting such~~ Collateral ~~is owned by any Guarantor, upon the release~~ of such ~~Guarantor from its obligations under the Guarantee Agreement (in accordance with the second succeeding sentence and the Guarantee Agreement~~Guarantor); (vi) as required by the Collateral Agent to effect any sale, transfer or other Disposition of Collateral in connection with any exercise of remedies of the Collateral 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 and Security Trustee will not release any of the ~~Collateral~~ Agent’s Liens without the prior written authorization of all the ~~Required Lenders~~ Lenders; provided, that (x) the Agent 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~~ Security Trustee may, in its discretion, release ~~such Collateral~~ the Agent’s Liens on Collateral valued in the aggregate not in excess of $~~1,000,000~~ 2,500,000 during each ~~Fiscal Year~~ fiscal year without the prior written authorization of any ~~Lender~~Lender and (y) the Agent or the Security Trustee may, ~~so long as all proceeds received~~ in ~~connection~~ its discretion, release the Agent’s Liens on Collateral valued in the aggregate in excess of $2,500,000 and not in excess of $50,000,000 during each fiscal year 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~~ prior written authorization 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~~Required Lenders. Upon request by the ~~Collateral Agent~~ Agent, the Security Trustee or the ~~Borrower~~ Obligated Parties 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 Credit Providers will confirm in writing the ~~Collateral~~ Agent’s or the Security Trustee’s authority to release any ~~applicable Collateral~~ Guarantor and any of the Agent’s Liens upon particular types or items of Collateral pursuant to this Section 13.10. 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 (w) the Collateral Agent to 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 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 the terms hereof, the Security Documents or any other contractual arrangement with any Obligor, following the written request by Borrower, Collateral Agent shall (to 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 Liens, 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 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 Obligors. 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 this Section ~~13.10(a)~~8.10.

Appears in 1 contract

Samples: Security Agreement (Jeffboat LLC)

Collateral Matters. ~~(a) The Lenders (~~Until all Obligations have been fully satisfied 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 if applicable~~indefeasibly paid in full, ~~any subagent appointed by the Collateral Agent under Section 13.2 or otherwise) to release its Liens on~~ Lender’s security interest in the Collateral, and all proceeds and products thereof, shall continue in full force and effect. During the ~~Collateral Agent’s Liens upon any Collateral shall be automatically released (i) upon Full Payment~~ term of the Obligations; (ii) upon a disposition of Collateral permitted by Section 8.8 to a Person that is not an Obligor; (iii) if any such Collateral constitutes property in which the Obligors owned no interest at the time the Lien was granted or at any time thereafter; (iv) if any such Collateral constitutes property leased to an Obligor under a lease which has expired or been terminated in a transaction permitted under this Agreement; , Borrower shall not permit any Lien, (vother than Permitted Liens) to the extent the property constituting such Collateral is owned by any Guarantor, upon the release of such Guarantor from its obligations under the Guarantee Agreement (in accordance with the second succeeding sentence and the Guarantee Agreement); (vi) as required by the Collateral Agent to effect any sale, transfer or other Disposition of Collateral in connection with any exercise of remedies of the Collateral 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 remain against any of the Collateral ~~Agent~~and Borrower shall perform any and all steps requested by Lender to perfect, maintain and protect Lender’s ~~Liens~~ security interest in the Collateral in which a security interest is granted to Lender under this Agreement, any Collateral Agreement or any other agreement, including, without limitation, executing and filing financing and continuation statements in form and substance satisfactory to Lender. Lender may file one or more financing statements disclosing Lender’s security under this Agreement and Borrower shall pay any costs of, or incidental to, any recording or filing of any financing statements concerning the ~~prior written~~ Collateral. Borrower hereby expressly agrees that (a) a carbon, photographic, photostatic or other reproduction of a financing statement is sufficient as a financing statement, and (b) wherever and whenever available and allowed by law Lender is authorized to file electronically all documents allowed or required by the UCC, the Federal Food Security Act, or other applicable law, including but not limited to financing statements, effective financing statements, and continuations, amendments, assignments, or terminations thereof, WITHOUT the physical signature of Borrower. Such authorization shall be deemed a digital signature and constitutes, a limited power of attorney, coupled with an interest, appointing Lender as Borrower’s agent and attorney-in-fact for the ~~Required Lenders (~~express purpose of signing and executing the aforesaid documents on Borrower’s behalf. Borrower shall pay or ~~such other percentage of Lenders whose consent is required~~ cause to be paid, unless contested in ~~accordance~~ good faith, all taxes, assessments and governmental charges levied, assessed or imposed upon or with ~~Section 12.1); provided that, in addition~~ respect to the ~~foregoing~~Loan, the ~~Collateral Agent may~~Collateral, ~~in its discretion~~any part thereof, 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 or Lender by the Collateral Agent or 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 applicable Collateral Agent’s Liens upon particular types or items of Collateral pursuant to this Section 13.10. In addition, the Lenders (and each other Secured Party by their acceptance of the benefits virtue of the Loan ~~Documents~~ transaction. Unless contested in good faith, if Borrower fails to pay such taxes, assessments and governmental charges, Lender may (but shall not be ~~deemed~~ required to) ~~hereby irrevocably authorize (w)~~ pay the ~~Collateral Agent~~ same and charge the cost to ~~subordinate any Lien~~ Borrower payable on ~~any property granted to or held~~ demand and secured by the Collateral Agent under any Loan Document to the holder of any Lien on such 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 the terms hereof, the Security Documents or any other contractual arrangement with any Obligor, following the written request by Borrower, Collateral Agent shall (to 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 Liens, 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 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 Obligors. 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 this Section 13.10(a)Collateral.

Appears in 1 contract

Samples: Credit Agreement (Lake Area Corn Processors 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 (~~Agent, at its option and ~~if applicable~~in its sole discretion, ~~any subagent appointed by the Collateral Agent under Section 13.2 or otherwise)~~ to release ~~its Liens on the Collateral, and the Collateral~~ any Agent’s 's Liens upon any ~~Collateral shall be automatically released~~ Collateral, other than any cash collateral or Supportive Letter of Credit provided by Borrowers pursuant to SECTION 1.3(G) (i) upon ~~Full Payment~~ the termination of the Commitments and payment and satisfaction in full 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), unless such Letters of Credit are cash collateralized or supported by a Supporting Letter of Credit pursuant to SECTION 1.3(G) and all other Obligations; (ii) ~~upon a~~ constituting property being sold or disposed of if the Borrowers certify to the Agent that the sale or disposition ~~of Collateral permitted by Section 8.8 to a Person that~~ is ~~not an Obligor~~made in compliance with SECTION 7.10 (and the Agent may rely conclusively on any such certificate, without further inquiry); (iii) ~~if any such Collateral constitutes~~ constituting property in which the ~~Obligors~~ Borrower Parties owned no interest at the time the Lien was granted or at any time thereafter; (iv) ~~if any such Collateral constitutes~~ constituting property leased to ~~an Obligor~~ the Borrower Parties under a lease which has expired or been terminated in a transaction permitted under this ~~Agreement;~~ Agreement or (v) constituting property that is subject to any alternative fixed assets financing obtained by the ~~extent the property constituting such Collateral is owned by any Guarantor, upon the release of such Guarantor from its obligations under the Guarantee Agreement (~~Borrowers in accordance with ~~the second succeeding sentence~~ SECTIONS 3.2 and the Guarantee Agreement); (vi) as required by the Collateral Agent to effect any sale, transfer or other Disposition of Collateral in connection with any exercise of remedies of the Collateral 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 released7.14. Except as provided above, the ~~Collateral~~ Agent will not release any of the ~~Collateral~~ Agent’s '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)~~Lenders; provided ~~that, in addition to~~ that the ~~foregoing, the Collateral~~ Agent may, in its discretion, release ~~such Collateral~~ the Agent’s 's Liens on Collateral valued in the aggregate not in excess of $~~1,000,000~~ 5,000,000 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~~ Lenders and the ~~updating~~ Agent may release the Agent's Liens on Collateral valued in the aggregate not in excess of $7,500,000 during each Fiscal Year with the ~~Borrowing Base, as the case may be, to reflect the deletion~~ prior written authorization of ~~any assets subject to such release, Availability shall be no less than the Availability immediately prior to such release~~Majority Lenders. Upon request by the ~~Collateral~~ Agent or the ~~Borrower~~ Borrowers 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 's authority to release any ~~applicable Collateral~~ Agent’s 's Liens upon particular types or items of Collateral pursuant to this Section 13.10. 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 (w) the Collateral Agent to 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 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 the terms hereof, the Security Documents or any other contractual arrangement with any Obligor, following the written request by Borrower, Collateral Agent shall (to 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 Liens, 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 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 Obligors. 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 this Section 13.10(a)SECTION 12.11.

Appears in 1 contract

Samples: Credit Agreement (Andrx Corp /De/)

Collateral Matters. (a) ~~The Lenders~~ All Liens on Collateral (~~and each other Secured Party by their acceptance~~ i) shall be automatically released upon the termination of the ~~benefits~~ Commitments and payment and satisfaction in full by Borrowers of all Obligations, (ii) constituting property (including the equity interests of a Subsidiary of Parent) being sold or disposed of in a sale or disposition permitted under Section 6.4 of this Agreement or the other Loan Documents shall be ~~deemed to) hereby irrevocably authorize the Collateral Agent (and if applicable, any subagent appointed by the Collateral Agent under Section 13.2~~ automatically released upon such sale or ~~otherwise) to release its Liens on the Collateral~~disposition, and in the ~~Collateral Agent’s Liens upon any Collateral~~ event of a sale or other disposition of all of the equity interests of a Subsidiary of Parent that is a Loan Party permitted under this Agreement and the other Loan Documents, such Subsidiary shall be automatically released ~~(i) upon Full Payment~~ of its obligations under the ~~Obligations; (ii) upon a disposition of Collateral permitted by Section 8.8 to a Person that is not an Obligor;~~ Loan Documents, (iii) ~~if any such Collateral constitutes~~ constituting property in which ~~the Obligors~~ no Loan Party owned no any interest at the time the Agent’s Lien was granted or nor at any time ~~thereafter;~~ thereafter shall be automatically released, or (iv) ~~if any such Collateral constitutes~~ constituting property leased to ~~an Obligor~~ a Borrower or its Subsidiaries under a lease ~~which~~ that has expired or ~~been~~ is terminated in a transaction permitted under this ~~Agreement; (v) to the extent the property constituting such Collateral is owned by any Guarantor, upon the release of such Guarantor from its obligations under the Guarantee~~ Agreement ~~(in accordance with the second succeeding sentence and the Guarantee Agreement); (vi) as required by the~~ shall be automatically released. The Lenders hereby irrevocably authorize Collateral Agent to ~~effect any sale~~take such actions and execute such documents that it deems necessary or appropriate, ~~transfer or other Disposition of Collateral~~ at its option and in ~~connection with any exercise of remedies of~~ its sole discretion, to evidence the Collateral 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 releasedforegoing releases. Except as provided above, ~~the~~ Collateral Agent will not execute and deliver a release of any ~~of the~~ Lien on any Collateral ~~Agent’s Liens~~ without the prior written authorization of (y) if the release is of all or substantially all of the Collateral, all of the Lenders, or (z) otherwise, 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 releaseLenders. Upon request by ~~the~~ Collateral Agent or ~~the~~ Administrative 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 ~~applicable Collateral Agent’s~~ such Liens ~~upon~~ on particular types or items of Collateral pursuant to this Section ~~13.10. In addition~~15.12; provided, ~~the Lenders~~ however, that (~~and each other Secured Party by their acceptance of the benefits of the Loan Documents~~ 1) Collateral Agent shall not be ~~deemed to) hereby irrevocably authorize (w) the~~ required to execute any document necessary to evidence such release on terms that, in Collateral Agent’s opinion, would expose Collateral Agent to ~~subordinate~~ liability or create any obligation or entail any consequence other than the release of such Lien ~~on any property granted to~~ without recourse, representation, or ~~held by the Collateral Agent under any Loan Document to the holder of any Lien on such property that is permitted by Section 8.12(c) or (q) (as to Fixed Asset Collateral only)~~warranty, (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-~~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 Borrowers in respect of~~-Formula Condition has occurred and is continuing or would result therefrom~~) all interests retained by Borrowers, ~~then~~including, to the ~~extent that the Collateral Agent obtains possession~~ proceeds of any ~~Collateral by operation~~ sale, all of ~~Section 13.12 of this Agreement that constitutes Collateral that Obligors are not required~~ which shall continue to deliver to Collateral Agent at such time pursuant to the terms hereof, the Security Documents or any other contractual arrangement with any Obligor, following the written request by Borrower, Collateral Agent shall (to the extent not prohibited by applicable law or legal process) deliver such Collateral in accordance with the terms constitute part 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 Liens, 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 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 Obligors. 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 this Section 13.10(a)Collateral.

Appears in 1 contract

Samples: Credit Agreement (Sitel Corp)

Collateral Matters. (a) ~~The Lenders (~~Agent may, at its option, from time to time, at any time on or after an Event of Default and ~~each other Secured Party by their acceptance of~~ for so long as the ~~benefits of the Loan Documents shall be deemed to) hereby irrevocably authorize the Collateral Agent (and if applicable, any subagent appointed by the Collateral Agent under Section 13.2~~ same is continuing or ~~otherwise) to release its Liens on the Collateral, and the Collateral Agent’s Liens~~ upon any ~~Collateral shall be automatically released~~ 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) ~~upon Full Payment of~~ deems necessary or desirable either to preserve or protect the ~~Obligations;~~ Collateral or any portion thereof or (ii) ~~upon a disposition~~ to enhance the likelihood or maximize the amount of ~~Collateral permitted~~ repayment by Borrowers and Guarantors 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 ~~8.8 to a Person that is~~ 12.8 hereof, shall not ~~an Obligor;~~ exceed the aggregate amount of ten (10%) percent of the Maximum Credit or (iii) if to pay any ~~such Collateral constitutes property in which the Obligors owned no interest at the time the Lien was granted~~ other amount chargeable to any Borrower or at any time thereafter; (iv) if any such Collateral constitutes property leased to an Obligor under a lease which has expired or been terminated in a transaction permitted under this Agreement; (v) to the extent the property constituting such Collateral is owned by any Guarantor, upon the release of such Guarantor from its obligations under the Guarantee Agreement (in accordance with the second succeeding sentence and the Guarantee Agreement); (vi) as required by the Collateral Agent to effect any sale, transfer or other Disposition of Collateral in connection with any exercise of remedies of the Collateral 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 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 applicable Collateral Agent’s Liens upon particular types or items of Collateral pursuant to this Section 13.10. 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 (w) the Collateral Agent to 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 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 the terms ~~hereof, the Security Documents~~ of this Agreement or any of the other ~~contractual arrangement with any Obligor~~Financing Agreements consisting of (A) costs, ~~following the written request by Borrower, Collateral Agent shall (to the extent not prohibited by applicable law or legal process) deliver such Collateral~~ fees and expenses payable in accordance with ~~the terms of the Intercreditor~~ this Agreement ~~or, if no Intercreditor Agreement is then in effect, to the applicable Obligor,~~ and (zB) ~~if after~~ 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 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 Collateral. Special Agent Advances shall not constitute Loans but shall otherwise constitute Obligations hereunder. Interest on ~~Section 8.12(q)(x) or (r) that remains outstanding (and no commitments for Debt that, if incurred would~~ Special Agent Advances shall 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 Liens, 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 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)) payable at the ~~expense~~ Interest Rate then applicable to Prime Rate Loans and shall be payable on demand. Without limitation of the Obligors. 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 ~~this~~ Section ~~13.10(a)~~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.

Appears in 1 contract

Samples: Loan and Security Agreement (International Wire 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)~~ Credit Providers hereby irrevocably authorize the Collateral Agent ~~(and if applicable~~to release any Guarantor that is permitted to wind-up, ~~any subagent appointed by the Collateral Agent~~ dissolve, liquidate, or merge out of existence under Section ~~13.2 or otherwise)~~ 8.9, and to release ~~its Liens on the Collateral, and the Collateral~~ any Agent’s Liens upon any Collateral ~~shall be automatically released~~ (i) upon ~~Full Payment~~ (A) termination of the ~~Obligations;~~ 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 (C) the Borrowers’ payment and satisfaction in full of all Loans and other Obligations (other than indemnification obligations to the extent no claim with respect thereto has been asserted and remains unsatisfied), (ii) ~~upon a~~ constituting property being sold or disposed of if the Obligated Party selling or disposing of such property certifies to the Agents that the sale or disposition ~~of Collateral permitted by~~ is made in compliance with Section ~~8.8 to a Person that is not an Obligor;~~ 8.9 (and the Agents may rely conclusively on any such certification, without further inquiry), (iii) ~~if any such Collateral constitutes~~ constituting property in which ~~the Obligors~~ no Obligated Party owned no any interest at the time the Lien was granted or at any time thereafter; , or (iv) ~~if any such Collateral constitutes~~ constituting property leased to an ~~Obligor~~ Obligated Party under a lease ~~which~~ that has expired or been terminated in a transaction permitted under this Agreement; (v) to the extent the property constituting such Collateral is owned by any Guarantor, upon the release of such Guarantor from its obligations under the Guarantee Agreement (in accordance with the second succeeding sentence and the Guarantee Agreement); (vi) as required by the Collateral Agent to effect any sale, transfer or other Disposition of Collateral in connection with any exercise of remedies of the Collateral 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~~ Majority Revolving Lenders (or ~~such other percentage of Lenders whose consent is required in accordance with Section 12.1~~after the Revolving Facility Payment In Full, the Majority Term Lenders); provided ~~that, in addition to the foregoing,~~ that the Collateral Agent may, in its ~~discretion~~discretion with the prior written authorization of the Administrative Agent, release ~~such Collateral~~ 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 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~~ Lender 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 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),~~ release the Lenders will confirm in writing the Collateral Agent’s authority to release any applicable Collateral Agent’s Liens upon particular types or items of Collateral pursuant to this Section 13.10. 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 (w) the Collateral Agent to 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 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 the terms hereof, the Security Documents or any other contractual arrangement with any Obligor, following the written request by Borrower, Collateral Agent shall (to 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 Liens, 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 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~~ valued in the ~~Initial Intercreditor Agreement)) at~~ aggregate not in excess of $5,000,000 during each Fiscal Year with the ~~expense~~ prior written authorization of the ~~Obligors. Upon request by any Appointed Agent at any time~~Majority Revolving Lenders (or after the Revolving Facility Payment In Full, the ~~Required Lenders will confirm in writing such Appointed~~ Majority Term Lenders) and the Administrative Agent; and provided, further that, notwithstanding the immediately preceding sentence, after the Revolving Facility Payment In Full the Collateral Agent may not release the Agent’s ~~authority to release or subordinate its interest in particular types or items of property, or to release~~ Lien on any ~~Guarantor from its obligations pursuant to this Section 13.10(a).~~cash collateral provided under any of

Appears in 1 contract

Samples: Loan and Security Agreement (Ahern Rentals 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 (~~Security Trustee, at its option and ~~if applicable~~in its sole discretion, ~~any subagent appointed by the Collateral Agent under Section 13.2 or otherwise)~~ to release ~~its Liens on the Collateral, and the Collateral Agent’s~~ any Lenders' Liens upon any Collateral ~~shall be automatically released~~ (i) upon ~~Full Payment~~ the termination of the Commitments and payment and satisfaction in full 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) ~~upon a~~ constituting property being sold or disposed of if the relevant Borrower certifies to the Agent that the sale or disposition ~~of Collateral permitted~~ is made in compliance with Section 7.9 and in conjunction with any paydown required by such Section, Section ~~8.8 to a Person that is not an Obligor~~3.4, or otherwise under this Agreement (and the Security Trustee may rely conclusively on any such certificate, without further inquiry); (iii) constituting Real Estate being refinanced if Borrowers certify to the Agent that the refinancing is in compliance with Section 7.13 and in conjunction with any paydown required by such Section, Section 3.4 or otherwise under this Agreement (and the Agent may rely conclusively on any such ~~Collateral constitutes~~ certificate, without further inquiry); (iv) constituting property in which the ~~Obligors~~ relevant Borrower owned no interest at the time the Lien was granted or at any time thereafter; (ivv) ~~if any such Collateral constitutes~~ constituting property leased to ~~an Obligor~~ any Borrower or Subsidiary thereof under a lease which has expired or been terminated in a transaction permitted under this Agreement; (v) to the extent the property constituting such Collateral is owned by any Guarantor, upon the release of such Guarantor from its obligations under the Guarantee Agreement (in accordance with the second succeeding sentence and the Guarantee Agreement); or (vi) ~~as required by~~ constituting Real Property once the ~~Collateral Agent to effect any sale, transfer or other Disposition of Collateral~~ Term Loans have been repaid in connection with any exercise of remedies of the Collateral 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 releasedfull. Except as provided above, the ~~Collateral Agent~~ Security Trustee will not release any of the ~~Collateral Agent’s~~ Lenders' 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)~~Lenders; provided ~~that, in addition to~~ that the ~~foregoing, the Collateral Agent~~ Security Trustee may, in its discretion, release ~~such Collateral Agent’s~~ the Lenders' Liens on Collateral (other than Collateral in the Qualified Custodial Accounts following attachment of Lenders' Lien thereon) valued in the aggregate not in excess of $500,000 during each Fiscal Year without the prior written authorization of the Lenders and the Security Trustee may release the Lenders' Liens on Collateral (other than Collateral in the Qualified Custodial Accounts following attachment of Lenders' Lien thereon) valued in the aggregate not in excess of $1,000,000 during each Fiscal Year ~~without~~ with 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 releaseRequired Lenders. Upon request by the ~~Collateral~~ Agent or the ~~Borrower~~ Borrowers 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~~ Security Trustee's authority to release any ~~applicable Collateral Agent’s~~ Lenders' Liens upon particular types or items of Collateral pursuant to this Section 13.10. 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 (w) the Collateral Agent to 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 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 the terms hereof, the Security Documents or any other contractual arrangement with any Obligor, following the written request by Borrower, Collateral Agent shall (to 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 Liens, 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 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 Obligors. 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 this Section 13.10(a)12.11.

Appears in 1 contract

Samples: Credit Agreement (3com Corp)

Collateral Matters. The Lender Parties irrevocably authorize Collateral Agent, at its option and in its discretion, (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 if applicable, any subagent appointed by the Collateral Agent under Section 13.2 or otherwise) to release ~~its Liens~~ any Lien on ~~the Collateral, and the Collateral Agent’s Liens upon~~ any Collateral ~~shall be automatically released~~ (i) upon ~~Full Payment~~ the occurrence of the ~~Obligations;~~ Facility Termination Date, (ii) ~~upon a disposition of Collateral permitted by Section 8.8 to a Person that is not an Obligor; (iii) if any such Collateral constitutes property in which the Obligors owned no interest~~ at the time the property that is subject to such Lien ~~was granted~~ is Disposed or at to be Disposed as part of or in connection with any ~~time thereafter;~~ Disposition permitted hereunder or under any other Loan Document, or (iii) subject to Section 10.01, if the release of such Lien is approved, authorized or ratified in writing by the Required Lenders or (iv) if ~~any such Collateral constitutes property leased to an Obligor under a lease which has expired or been terminated in a transaction permitted under this Agreement; (v) to the extent~~ the property ~~constituting~~ subject to such ~~Collateral~~ Lien is owned by ~~any~~ a Guarantor, upon ~~the~~ release of such Guarantor from its obligations under ~~the~~ its Guarantee Agreement (in accordance with the second succeeding sentence and the Guarantee Agreement); (vi) as required by the Collateral Agent to effect any sale, transfer or other Disposition of Collateral in connection with any exercise of remedies of the Collateral Agent pursuant to ~~the Security Documents,~~ clause (~~vii~~c) or (d) below or pursuant to or to the extent ~~such Collateral otherwise becomes an Excluded Stock or an Excluded Asset, and~~ required under the Intercreditor Agreement; (~~viii~~b) 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 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 applicable Collateral Agent’s Liens upon particular types or items of Collateral pursuant to this Section 13.10. In addition, the Lenders (and each other Secured Party by their acceptance of the benefits of the Loan Documents shall be deemed toi) ~~hereby irrevocably authorize (w) the Collateral Agent~~ to 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 under Section ~~8.12(c~~7.02(i) or pursuant to or to the extent required under the Intercreditor Agreement and (qii) ~~(as to Fixed Asset~~ that the Collateral ~~only), (x) the~~ Agent is authorized to release ~~automatically~~ or subordinate any ~~Guarantor~~ Lien on any property granted to or held by the Collateral Agent in accordance with the terms of the Security Agreement; and (c) to release any Borrower or any Subsidiary from its obligations under the ~~Guarantee Agreement~~ Loan Documents (and all Liens granted by such Borrower or Subsidiary) if such Person ceases to be a ~~Restricted~~ Borrower or a Subsidiary as a result of a transaction permitted ~~under this Agreement~~ hereunder 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~~ release 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 ~~the terms hereof, the Security Documents~~ or any other contractual arrangement with any Obligor, following the written request by Borrower, Collateral Agent shall (to the extent not prohibited by applicable law or legal process) deliver such Collateral in accordance with the terms of required under 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 Liens, 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 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 Obligors~~. Upon request by ~~any Appointed~~ Collateral Agent at any time, the Required Lenders will confirm in writing ~~such Appointed~~ Collateral Agent’s authority to release or subordinate its interest in particular types or items of property, or to release any Loan Party from its obligations under the Loan Documents pursuant to this Section 9.10. In each case as specified in this Section 9.10, each Lender irrevocably authorizes the Collateral Agent to, at the Borrower’s expense, execute and deliver to the applicable Loan Party such documents as such Loan Party may reasonably request to evidence the release or subordination of such item of Collateral from the assignment and security interest granted under the Security Instruments, or to evidence the release of such Guarantor from its obligations ~~pursuant to~~ under the Guarantee, in each case in accordance with the terms of the Loan Documents and this Section ~~13.10(a).~~9.10

Appears in 1 contract

Samples: Credit Agreement (e.l.f. Beauty, 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 (~~Agent, at its option and ~~if applicable~~in its sole discretion, ~~any subagent appointed by the Collateral Agent under Section 13.2 or otherwise)~~ to release ~~its Liens~~ any Lien on ~~the Collateral, and the Collateral Agent’s Liens upon~~ any Collateral ~~shall be automatically released~~ (i) upon ~~Full Payment~~ the termination of the ~~Obligations~~Commitments and payment and satisfaction in full of all Obligations owed to the Lenders (other than Hedging Obligations and those contingent Obligations for reimbursement and indemnity that expressly survive the termination of this Agreement); (ii) ~~upon~~ constituting property being sold or disposed of if a ~~disposition of Collateral permitted by Section 8.8 to a Person that~~ release is ~~not an Obligor; (iii) if any such Collateral constitutes property in which the Obligors owned no interest at the time the Lien was granted~~ required or at any time thereafter; (iv) if any such Collateral constitutes property leased to an Obligor under a lease which has expired or been terminated in a transaction permitted under this Agreement; (v) to the extent the property constituting such Collateral is owned by any Guarantor, upon the release of such Guarantor from its obligations under the Guarantee Agreement (in accordance with the second succeeding sentence and the Guarantee Agreement); (vi) as required by the Collateral Agent to effect any sale, transfer or other Disposition of Collateral desirable in connection ~~with any exercise of remedies of the Collateral Agent pursuant to the Security Documents, (vii) to the extent such Collateral otherwise becomes an Excluded Stock or an Excluded Asset,~~ therewith 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 Administrative Borrower certifies 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 the Borrower at any time, subject to the Borrower having certified writing to the Collateral Agent that the sale or disposition is ~~made in compliance with Section 8.8~~ permitted under this Agreement or the other Loan Documents (~~which~~ and the Collateral Agent may rely conclusively on any such certificate, without further inquiry); (iii) constituting property in which the Borrowers owned no interest at the time the security interest was granted or at any time thereafter; (iv) constituting property leased to the Borrowers under a lease that has expired or is terminated in a transaction permitted under this Agreement; (v) constituting Equipment which, in the aggregate with all other dispositions of Equipment covered by this clause (v), has a fair market value or book value, whichever is less, of five million Dollars ($5,000,000) or less in any single fiscal year; or (vi) any other release consented by the Required Lenders. Upon request by the Collateral Agent or the Borrowers at any time, the Administrative Agent and the Lenders will confirm in writing the Collateral Agent’s authority to release any ~~applicable Collateral Agent’s~~ such Liens ~~upon~~ on particular types or items of Collateral pursuant to this ~~Section 13.10. In addition~~SECTION 13.11; provided, ~~the Lenders~~ however, that (~~and each other Secured Party by their acceptance of the benefits of the Loan Documents shall be deemed to) hereby irrevocably authorize (w~~A) the Collateral Agent shall not be required to ~~subordinate~~ execute any ~~Lien~~ document necessary to evidence such release on ~~any property granted to or held by~~ terms that, in the Collateral Agent’s opinion, would expose the Collateral Agent ~~under~~ to liability or create any ~~Loan Document to~~ obligation or entail any consequence other than the ~~holder~~ release of ~~any~~ such Lien ~~on such property that is permitted by Section 8.12(c)~~ without recourse, representation, 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 the terms hereof, the Security Documents or any other contractual arrangement with any Obligor, following the written request by Borrower, Collateral Agent shall (to 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 Obligorwarranty, and (zB) ~~if after~~ such release shall not in any manner discharge, affect, or impair the ~~date hereof Collateral Agent’s Lien has been expanded to include Fixed Asset Collateral~~ Obligations or any Liens (other than those expressly being released) upon (or obligations of the Borrowers in ~~connection with incurrence~~ respect of) all interests retained by the Borrowers in any asset(s) transferred, including, the proceeds of ~~Debt pursuant to Section 8.12(q)(x) or (r) so long as~~ any sale, 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) which shall continue to constitute part of the definition of Permitted Liens, 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 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 Obligors. 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 this Section 13.10(a)Collateral.

Appears in 1 contract

Samples: Term Credit Agreement (James River Coal CO)

Collateral Matters. (a) The ~~Lenders (and each other Secured Party by their acceptance~~ Agent is hereby authorized on behalf of all of the ~~benefits~~ Lenders, without the necessity of any notice to or further consent from any Lender, from time to time prior to or after an Event of Default, to take any action with respect to any Collateral or Collateral Documents to which they are a party which may be necessary to perfect and maintain perfected the security interest in and the Liens upon the Collateral granted pursuant to the Collateral Documents. Without limiting the generality of the ~~Loan Documents~~ foregoing, the Agent shall ~~be deemed to) hereby irrevocably authorize~~ have the ~~Collateral Agent (~~sole and ~~if applicable, any subagent appointed by the Collateral Agent under Section 13.2 or otherwise)~~ exclusive right and authority to ~~release its Liens on the Collateral, and the Collateral Agent’s Liens upon any Collateral shall be automatically released~~ (i) ~~upon Full Payment of~~ act as the ~~Obligations~~disbursing and collecting agent for the Lenders and the Issuing Bank with respect to all payments and collections arising in connection with this Agreement and the other Loan Documents; (ii) ~~upon~~ execute and deliver each Loan Document to which the Agent is a ~~disposition~~ party and accept delivery of ~~Collateral permitted~~ each such agreement delivered by ~~Section 8.8 to a Person that is not an Obligor~~any Loan Party or other Person; (iii) if act as collateral agent for the Lenders and the Issuing Bank for purposes of the perfection of all security interests and Liens created by such agreements and all other purposes stated therein; provided, however, the Agent hereby appoints, authorizes and directs the Lenders and the Issuing Bank to act as collateral sub-agent for the Agent, the Lenders and the Issuing Bank for purposes of the perfection of all security interests and Liens with respect to any deposit account of any Loan Party maintained with, and cash and Cash Equivalents held by, such ~~Collateral constitutes property in which~~ Lender or the ~~Obligors owned no interest at the time the Lien was granted or at any time thereafter~~Issuing Bank; (iv) ~~if any such Collateral constitutes property leased to an Obligor under a lease which has expired or been terminated in a transaction permitted under this Agreement~~manage, supervise and otherwise deal with the Collateral; (v) take such action as is necessary or desirable to maintain the ~~extent~~ perfection and priority of the ~~property constituting such Collateral is owned~~ security interests and Liens created or purported to be created by ~~any Guarantor, upon~~ the ~~release of such Guarantor from its obligations under the Guarantee Agreement (in accordance with the second succeeding sentence and the Guarantee Agreement)~~Loan Documents; (vi) as required by the Collateral Agent to effect any sale, transfer or other Disposition of Collateral in connection with any exercise of remedies of the Collateral 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 Lien upon Collateral that is a Contaminant or upon which a 104 Release has occurred or which has otherwise been affected by a Release or Contaminant; provided, however, that the ~~Collateral Agent’s Liens without~~ Agent shall have 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 mayright, in its discretion, ~~release~~ to assign 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 Lien to the ~~Obligations in accordance with Section 4.7 and~~requesting Person; and (vii) except as may be otherwise specifically restricted by the terms of this Agreement or any other Loan Document, ~~after giving effect~~ exercise all remedies given to the ~~application of such proceeds and~~ Agent, 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 Lenders or the ~~Borrower at any time, subject to the Borrower having certified~~ Issuing Bank with respect 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 applicable Collateral Agent’s Liens upon particular types or items of Collateral pursuant to this Section 13.10. In addition, the Lenders (and each other Secured Party by their acceptance of the benefits of under the Loan Documents shall be deemed to) hereby irrevocably authorize (w) the Collateral Agent to 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 8.12(c) or (q) (as to Fixed Asset Collateral only)relating thereto, (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 the terms hereof, the Security Documents or any other contractual arrangement with any Obligor, following the written request by Borrower, Collateral Agent shall (to 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 Liens, 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 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 Obligors. 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 this Section 13.10(a)otherwise.

Appears in 1 contract

Samples: Credit Facility Agreement (JPS Textile Group Inc /De/)

Collateral Matters. (a) ~~The 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 ~~Secured Party~~ Loan Document and to exercise such powers and perform such duties as are expressly delegated to it by ~~their acceptance~~ 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 ~~benefits~~ foregoing sentence, the use of the ~~Loan Documents shall be deemed to~~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 ~~irrevocably authorize~~ acknowledges and agrees that the Collateral Agent (is acting as a collateral agent for the Lenders, owner trustee and if applicable, any subagent appointed by the Collateral Agent under Section 13.2 or otherwise) to release its Liens on the Collateral, and the Collateral Agent’s Liens upon any Collateral shall be automatically released (i) upon Full Payment of the Obligations; (ii) upon a disposition of Collateral permitted by Section 8.8 to a Person that is not an Obligor; (iii) if any such Collateral constitutes property in which the Obligors owned no interest at the time the Lien was granted or at any time thereafter; (iv) if any such Collateral constitutes property leased to an Obligor under a lease which has expired or been terminated in a transaction permitted under this Agreement; (v) to the extent the property constituting such Collateral is owned by any Guarantor, upon the release of such Guarantor from its obligations holders under the ~~Guarantee Agreement (~~TDC TROL and Senior Parity Debt Holders as provided in ~~accordance with~~ the ~~second succeeding sentence~~ Pledge Agreements and ~~the Guarantee Agreement); (vi) as required by~~ authorizes the Collateral Agent to ~~effect~~ 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 ~~sale, transfer~~ acts taken or ~~other Disposition of~~ omissions suffered by Collateral Agent in connection with ~~any exercise of remedies of~~ or contemplated by such documents or transactions as fully as if the term "Administrative Agent" as used in this SECTION 10 included Collateral Agent ~~pursuant~~ with respect to ~~the Security Documents~~such documents, ~~(vii) to the extent such Collateral otherwise becomes an Excluded Stock~~ transactions, acts or ~~an Excluded Asset~~omissions, and (~~viii~~ii) ~~if the percentage of Lenders required to consent to the Collateral being released hereunder, so consents to the Collateral being released. Except~~ as additionally 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 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 applicable Collateral Agent’s Liens upon particular types or items of Collateral pursuant to this Section 13.10. 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 (w) the Collateral Agent to 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 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~~ specifically SECTION 11 hereof, 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~~ other Loan Documents with respect to Collateral Agent at such time pursuant to the terms hereof, the Security Documents or any other contractual arrangement with any Obligor, following the written request by Borrower, Collateral Agent shall (to 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 Liens, 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 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 Obligors. 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 this Section 13.10(a).

Appears in 1 contract

Samples: Credit Agreement (Tech Data 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 if applicable, any subagent appointed by the Collateral Agent under Section 13.2 or otherwise) to release its Liens on the Collateral, and the Collateral Agent’s Liens upon any Collateral shall be automatically released (i) upon Full Payment of the Obligations; (ii) upon a disposition of Collateral permitted by Section 8.8 to a Person that is not an Obligor; (iii) if any such Collateral constitutes property in which the Obligors owned no interest at the time the Lien was granted or at any time thereafter; (iv) if any such Collateral constitutes property leased to an Obligor under a lease which has expired or been terminated in a transaction permitted under this Agreement; (v) to the extent the property constituting such Collateral is owned by any Guarantor, upon the release of such Guarantor from its obligations under the Guarantee Agreement (in accordance with the second succeeding sentence and the Guarantee Agreement); (vi) as required by the Collateral Agent to effect any sale, transfer or other Disposition of Collateral in connection with any exercise of remedies of the Collateral 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 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 applicable Collateral Agent’s Liens upon particular types or items of Collateral pursuant to this Section 13.10. 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 (w) the Collateral Agent to 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 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 the terms hereof, the Security Documents or any other contractual arrangement with any Obligor, following the written request by Borrower, Collateral Agent shall (to 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 Liens, 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 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 Obligors. 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 this Section 13.10(a).

Appears in 1 contract

Samples: Credit Agreement (ProFrac Holding Corp.)

Collateral Matters. (a) The ~~Lenders (~~Pledge 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 (~~Security Agreement, upon execution and ~~if applicable, any subagent appointed~~ delivery thereof by the ~~Collateral Agent under Section 13.2 or otherwise) to release its Liens on the Collateral~~parties thereto, and the Collateral Agent’s Liens upon any Collateral shall be automatically released (i) upon Full Payment of the Obligations; (ii) upon a disposition of Collateral permitted by Section 8.8 to a Person that is not an Obligor; (iii) if any such Collateral constitutes property will create in which the Obligors owned no interest at the time the Lien was granted or at any time thereafter; (iv) if any such Collateral constitutes property leased to an Obligor under a lease which has expired or been terminated in a transaction permitted under this Agreement; (v) to the extent the property constituting such Collateral is owned by any Guarantor, upon the release of such Guarantor from its obligations under the Guarantee Agreement (in accordance with the second succeeding sentence and the Guarantee Agreement); (vi) as required by the Collateral Agent to effect any sale, transfer or other Disposition of Collateral in connection with any exercise of remedies of the Collateral 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 favor of the Collateral Agent~~’s Liens without~~ , for the ~~prior written authorization~~ benefit of the ~~Required Lenders (or such other percentage of Lenders whose consent is required~~ Secured Parties, a valid and enforceable security interest 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~~ defined therein) 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 (i) when the Collateral Agent or 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 applicable Collateral Agent’s Liens upon particular types or items of Collateral pursuant to this Section 13.10. 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 (w) the Collateral Agent to 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 8.12(c) or (q) (as ~~to Fixed Asset Collateral only), (x~~defined therein) 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 the terms hereof, the Security Documents or any other contractual arrangement with any Obligor, following the written request by Borrower, Collateral Agent shall (to 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 Liens, 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 Collateral Agent shall release Collateral Agent’s Liens on Fixed Assets Collateral (other than, in each case any Inventory or Fracturing Equipment Parts constituting certificated securities (as defined in the ~~Initial Intercreditor Agreement)~~UCC) at is delivered to the ~~expense~~ Collateral Agent, together with instruments of transfer duly endorsed in blank, the security interest created under the Pledge and Security Agreement will constitute a fully perfected security interest in all right, title and interest of the ~~Obligors. Upon request by~~ pledgors thereunder in such Collateral, prior and superior in right to any ~~Appointed Agent at any time~~other Person, but subject to Permitted Liens, and (ii) when financing statements in appropriate form are filed in the applicable filing offices, the ~~Required Lenders~~ security interest created under the Pledge and Security Agreement will ~~confirm in writing such Appointed Agent’s authority to release or subordinate its~~ constitute a fully perfected security interest in ~~particular types~~ all right, title and interest of the Credit Parties in the remaining Collateral (as defined therein) to the extent perfection can be obtained by filing UCC or ~~items~~ PPSA financing statements, prior and superior in right to any other Person, but subject to Permitted Liens. (b) Each Mortgage, upon execution and delivery thereof by the parties thereto, will create in favor of ~~property~~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 Real Estate Asset subject thereto and the proceeds thereof (except as such enforceability may be limited by Debtor Relief Laws and general principles of equity), and when the Mortgages have been filed in the jurisdictions specified therein, the Mortgages will constitute fully perfected security interests in all right, title and interest of the mortgagors in the Real Estate Assets subject thereto and the proceeds thereof, prior and superior in right to any other Person, but subject to Permitted Liens. (c) Upon the recordation of the Intellectual Property Grants of Security Interest with the United States Patent and Trademark Office, the United States Copyright Office or the Canadian Intellectual Property Office, as applicable, and the filing of the financing statements referred to ~~release any Guarantor from its obligations pursuant to this~~ in Section ~~13.10(a~~4.21(a)., the security interest created under the Pledge and Security Agreement will constitute a fully perfected security interest in all right, title and interest of the Credit Parties in the Intellectual Property in which a security interest may be perfected by filing in the United States Patent and Trademark Office, United States Copyright Office or DMFIRM #406105327 v12 155

Appears in 1 contract

Samples: Credit and Guaranty Agreement (QualTek Services Inc.)

Collateral Matters. (a) ~~The Lenders (~~Agent may, at its option, from time to time, at any time on or after an Event of Default and ~~each other Secured Party by their acceptance of~~ for so long as the ~~benefits of the Loan Documents shall be deemed to) hereby irrevocably authorize the Collateral Agent (and if applicable, any subagent appointed by the Collateral Agent under Section 13.2~~ same is continuing or ~~otherwise) to release its Liens on the Collateral, and the Collateral Agent’s Liens~~ upon any ~~Collateral shall be automatically released~~ 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) ~~upon Full Payment of~~ deems necessary or desirable either to preserve or protect the ~~Obligations;~~ Collateral or any portion thereof or (ii) ~~upon a disposition~~ to enhance the likelihood or maximize the amount of ~~Collateral permitted~~ repayment by Borrower and Guarantors 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 ~~8.8 to a Person that is~~ 12.8 hereof, shall not ~~an Obligor;~~ exceed the aggregate amount of ten (10%) percent of the Maximum Credit or (iii) if to pay any ~~such Collateral constitutes property in which the Obligors owned no interest at the time the Lien was granted~~ other amount chargeable to Borrower or at any time thereafter; (iv) if any such Collateral constitutes property leased to an Obligor under a lease which has expired or been terminated in a transaction permitted under this Agreement; (v) to the extent the property constituting such Collateral is owned by any Guarantor, upon the release of such Guarantor from its obligations under the Guarantee Agreement (in accordance with the second succeeding sentence and the Guarantee Agreement); (vi) as required by the Collateral Agent to effect any sale, transfer or other Disposition of Collateral in connection with any exercise of remedies of the Collateral 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 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 applicable Collateral Agent’s Liens upon particular types or items of Collateral pursuant to this Section 13.10. 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 (w) the Collateral Agent to 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 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 the terms ~~hereof, the Security Documents~~ of this Agreement or any other contractual arrangement with any Obligor, following the written request by Borrower, Collateral Agent shall (to the extent not prohibited by applicable law or legal process) deliver such Collateral in accordance with the terms of the ~~Intercreditor Agreement or~~other Financing Agreements consisting of (A) costs, ~~if no Intercreditor Agreement is then in effect, to the applicable Obligor,~~ fees and expenses and (zB) ~~if after~~ 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 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 Collateral. Special Agent Advances shall not constitute Loans but shall otherwise constitute Obligations hereunder. Interest on ~~Section 8.12(q)(x) or (r) that remains outstanding (and no commitments for Debt that, if incurred would~~ Special Agent Advances shall 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 Liens, 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 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)) payable at the ~~expense~~ Interest Rate then applicable to Base Rate Loans and shall be payable on demand. Without limitation of the Obligors. 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 ~~this~~ Section ~~13.10(a)~~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 Base Rate Loans.

Appears in 1 contract

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

Collateral Matters. Each Lender authorizes and directs Collateral Agent to enter into the Collateral Documents (other than the Mexican Collateral Agreements or the Mexican Collateral Amendment and Reaffirmation Agreements) for the benefit of the Agents and the Lenders. Each Lender hereby agrees that, except as otherwise set forth in this Agreement, any action taken by any Agent or Required Lenders in accordance with the provisions of this Agreement or the other Loan Documents, and the exercise by such Agent or Required Lenders of the powers set forth in this Agreement or therein, together with all other powers as are reasonably incidental thereto, will be authorized by, and binding upon, all Lenders. Collateral Agent is hereby authorized on behalf of all Lenders, without the necessity of any notice to or further consent from any Lender to take any action with respect to any Collateral (other than Collateral located in Mexico) or Loan Documents (other than the Mexican Collateral Agreements or the Mexican Collateral Amendment and Reaffirmation Agreements) which may be necessary to perfect and maintain perfected the Liens upon the Collateral granted pursuant to this Agreement and the such other Loan Documents. The Lenders irrevocably authorize Collateral Agent, at its option and in its discretion, to do any and all of the following: (a) ~~The Lenders (and each other Secured Party~~ to release any Lien granted to or held by ~~their acceptance of the benefits of the Loan Documents shall be deemed to) hereby irrevocably authorize the Collateral Agent (and if applicable, any subagent appointed by the~~ Collateral Agent under ~~Section 13.2 or otherwise) to release its Liens on the Collateral, and the Collateral Agent’s Liens upon~~ any Collateral ~~shall be automatically released~~ Document (other than the Mexican Collateral Agreements) (i) upon ~~Full~~ Payment ~~of the Obligations~~in Full; (ii) upon ~~a disposition~~ property sold or to be sold or disposed of ~~Collateral permitted by Section 8.8 to a Person that is not an Obligor; (iii) if any such Collateral constitutes property in which the Obligors owned no interest at the time the Lien was granted~~ as part of or at any time thereafter; (iv) if any such Collateral constitutes property leased to an Obligor under a lease which has expired or been terminated in a transaction permitted under this Agreement; (v) to the extent the property constituting such Collateral is owned by any Guarantor, upon the release of such Guarantor from its obligations under the Guarantee Agreement (in accordance with the second succeeding sentence and the Guarantee Agreement); (vi) as required by the Collateral Agent to effect any sale, transfer or other Disposition of Collateral in connection with any ~~exercise of remedies of~~ disposition permitted under this Agreement (including the Collateral 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~~ Guarantor in connection with any 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 disposition); or (iii) subject to Section 15.1 if approved in writing by the Required Lenders; or (b) to subordinate its interest in any Collateral (other than Collateral located in Mexico) to any holder of a Lien on that Collateral which secures purchase money debt (it being understood that Collateral Agent may conclusively rely on a certificate from Borrower Representative in determining whether the Debt secured by any such ~~release, Availability shall be no less than the Availability immediately prior to such release~~Lien is permitted hereunder). Upon request by ~~the~~ Collateral Agent ~~or 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~~ Administrative Agent’s authority to ~~release any applicable Collateral Agent’s Liens upon~~ release, or subordinate its interest in, particular types or items of Collateral pursuant to this Section 13.10. 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 (w) the Collateral Agent to 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 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 the terms hereof, the Security Documents or any other contractual arrangement with any Obligor, following the written request by Borrower, Collateral Agent shall (to 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 Liens, 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 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 Obligors. 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 this Section 13.10(a)14.11.

Appears in 1 contract

Samples: Credit Agreement (AgileThought, Inc.)

Collateral Matters. (a) ~~The Lenders (~~Each Lender authorizes and ~~each other Secured Party by their acceptance of~~ directs the ~~benefits of the Loan Documents shall be deemed to) hereby irrevocably authorize~~ Administrative Agent and the Collateral Agent to enter into (y) the Security Documents for the benefit of the Lenders and ~~if applicable~~the other Secured Parties, and (z) any amendments, amendments and restatements, restatements or waivers of or supplements to or other modifications to the Security Documents. Each Lender hereby agrees, and each holder of any Note by the acceptance thereof will be deemed to agree, that, except as otherwise set forth herein, any ~~subagent appointed~~ action taken by the Administrative Agent, the Collateral Agent ~~under Section 13.2~~ or ~~otherwise) to release its Liens on~~ the Collateral, and the Collateral Agent’s Liens upon any Collateral shall be automatically released (i) upon Full Payment of the Obligations; (ii) upon a disposition of Collateral permitted by Section 8.8 to a Person that is not an Obligor; (iii) if any such Collateral constitutes property in which the Obligors owned no interest at the time the Lien was granted or at any time thereafter; (iv) if any such Collateral constitutes property leased to an Obligor under a lease which has expired or been terminated in a transaction permitted under this Agreement; (v) to the extent the property constituting such Collateral is owned by any Guarantor, upon the release of such Guarantor from its obligations under the Guarantee Agreement (Required Lenders in accordance with the ~~second succeeding sentence~~ provisions of this Agreement or the Security Documents and the ~~Guarantee Agreement); (vi)~~ exercise by the Agents or the Required Lenders of the powers set forth herein or therein, together with such other powers as ~~required by~~ are reasonably incidental thereto, shall be authorized and binding upon all of the Lenders. The Administrative Agent and the Collateral Agent ~~to effect any sale, transfer or other Disposition~~ are hereby authorized on behalf of ~~Collateral in connection with any exercise of remedies~~ all of the Lenders, without the necessity of any notice to or further consent from any Lender, from time to time, to take any action with respect to any Collateral ~~Agent~~ or Security Documents which may be necessary to perfect and maintain perfected the security interest in and liens upon the Collateral granted 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~~ Each Lender agrees that it will not ~~release~~ have any of right individually to enforce or seek to enforce any Security Document or to realize upon any Collateral for the Loans unless instructed to do so by the Collateral Agent~~’s Liens without the prior written authorization of the Required Lenders (or~~ , it being understood and agreed that such ~~other percentage of Lenders whose consent is required in accordance with Section 12.1); provided that, in addition to the foregoing,~~ rights and remedies may be exercised only by the Collateral Agent. The Collateral Agent ~~may~~may grant extensions of time for the creation and perfection of security interests in or the obtaining of title insurance, ~~in its discretion, release such Collateral Agent’s Liens on Collateral valued in~~ legal opinions or other deliverables with respect to particular assets or the ~~aggregate not in excess of $1,000,000 during each Fiscal Year without the prior written authorization~~ provision of any ~~Lender, so long as all proceeds received~~ guarantee by any Subsidiary (including extensions beyond the Closing Date or in connection with ~~such release are applied to the Obligations in accordance with Section 4.7 and~~assets acquired, or Subsidiaries formed or acquired, after ~~giving effect to~~ the ~~application of~~ Closing Date) where it determines that 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~~ action cannot be ~~no less than the Availability immediately prior to such release. Upon request~~ accomplished without undue effort or expense by the ~~Collateral Agent~~ time or ~~the Borrower~~ times 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 applicable Collateral Agent’s Liens upon particular types or items of Collateral pursuant to this Section 13.10. In addition, the Lenders (and each other Secured Party by their acceptance of the benefits of the Loan Documents shall it would otherwise be deemed to) hereby irrevocably authorize (w) the Collateral Agent to 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 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 required to be ~~a Restricted Subsidiary as a result of a transaction permitted under~~ accomplished by 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 the terms hereof, the Security Documents or any other contractual arrangement with any Obligor, following the written request by Borrower, Collateral Agent shall (to 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 Liens, 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 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 Obligors. 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 this Section 13.10(a)Documents.

Appears in 1 contract

Samples: Credit Agreement (Abacus Life, Inc.)

Collateral Matters. (a) The ~~Lenders (~~Collateral Agreement, upon execution and ~~each other Secured Party~~ delivery thereof by ~~their acceptance~~ the parties thereto, will create in favor of the ~~benefits~~ Administrative Agent, for the benefit of the ~~Loan Documents shall be deemed to) hereby irrevocably authorize~~ Credit Parties, a valid and enforceable security interest in the Collateral ~~Agent~~ (as defined therein) and if applicable, any subagent appointed by the Collateral Agent under Section 13.2 or otherwise) to release its Liens on the Collateral, and the Collateral Agent’s Liens upon any Collateral shall be automatically released (i) upon Full Payment of the Obligations; (ii) upon a disposition of Collateral permitted by Section 8.8 to a Person that is not an Obligor; (iii) if any such Collateral constitutes property in which the Obligors owned no interest at the time the Lien was granted or at any time thereafter; (iv) if any such Collateral constitutes property leased to an Obligor under a lease which has expired or been terminated in a transaction permitted under this Agreement; (v) to the extent the property constituting such Collateral is owned by any Guarantor, upon the release of such Guarantor from its obligations under the Guarantee Agreement (in accordance with the second succeeding sentence and the Guarantee Agreement); (vi) as required by when the Collateral Agent to effect any sale, transfer or other Disposition of Collateral in connection with any exercise of remedies of the Collateral 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 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 applicable Collateral Agent’s Liens upon particular types or items of Collateral pursuant to this Section 13.10. 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 (w) the Collateral Agent to 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 8.12(c) or (q) (as ~~to Fixed Asset Collateral only), (x~~defined therein) 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 the terms hereof, the Security Documents or any other contractual arrangement with any Obligor, following the written request by Borrower, Collateral Agent shall (to 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 Liens, 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 Collateral Agent shall release Collateral Agent’s Liens on Fixed Assets Collateral (other than, in each case any Inventory or Fracturing Equipment Parts constituting certificated securities (as defined in the ~~Initial Intercreditor Agreement)~~UCC) at is delivered to the ~~expense~~ 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 ~~Obligors. Upon request by~~ pledgors thereunder in such Collateral, prior and superior in right to any ~~Appointed Agent at any time~~other Person and (ii) when UCC financing statements in appropriate form are filed in the applicable filing offices, the ~~Required Lenders~~ security interest created under the Collateral Agreement will ~~confirm in writing such Appointed Agent’s authority to release or subordinate its~~ constitute a fully perfected security interest in ~~particular types~~ all right, title and interest of the Loan Parties in the remaining Collateral (as defined therein) to the extent perfection can be obtained by filing UCC financing statements, prior and superior to the rights of any other Person, except for rights secured by Liens permitted under Section 7.03(b), in the case of each of clauses (i) and (ii). (b) Each 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 ~~items~~ other similar laws affecting creditors’ rights and (b) general principles of ~~property~~equity (regardless of whether such enforceability is considered in a proceeding in equity or law), or 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 ~~release~~ any ~~Guarantor from its obligations pursuant~~ other Person, but subject to ~~this~~ Liens permitted under Section ~~13.10(a~~7.03(b).

Appears in 1 contract

Samples: Credit Agreement (Energizer Holdings, Inc.)

Collateral Matters. Each Lender authorizes and directs Administrative Agent to enter into the other Loan Documents for the benefit of Lenders. Each Lender hereby agrees that, except as otherwise set forth herein, any action taken by Administrative Agent or Required Lenders in accordance with the provisions of this Agreement or the other Loan Documents, and the exercise by the Administrative Agent or Required Lenders (and/or Required 2019 Term Lenders, if applicable) of the powers set forth herein or therein, together with such other powers as are reasonably incidental thereto, shall be authorized and binding upon all Lenders. Administrative Agent is hereby authorized on behalf of all Lenders, without the necessity of any notice to or further consent from any Lender to take any action with respect to any Collateral or Loan Documents which may be necessary to perfect and maintain perfected the Liens upon the Collateral granted pursuant to this Agreement and the other Loan Documents. The Lenders irrevocably authorize Administrative Agent, at its option and in its discretion, (a) ~~The Lenders (and each other Secured Party~~ to release any Lien granted to or held by ~~their acceptance of the benefits of the Loan Documents shall be deemed to) hereby irrevocably authorize the Collateral Agent (and if applicable, any subagent appointed by the Collateral~~ Administrative Agent under ~~Section 13.2 or otherwise) to release its Liens on the Collateral, and the Collateral Agent’s Liens upon~~ any Collateral ~~shall be automatically released~~ Document (i) upon ~~Full Payment~~ payment in full of ~~the Obligations~~all Term Loans and all other outstanding obligations of Borrower hereunder; (ii) ~~upon a disposition~~ constituting property sold or to be sold or disposed of ~~Collateral permitted by Section 8.8 to a Person that is not an Obligor; (iii) if any such Collateral constitutes property in which the Obligors owned no interest at the time the Lien was granted~~ as part of or at any time thereafter; (iv) if any such Collateral constitutes property leased to an Obligor under a lease which has expired or been terminated in a transaction permitted under this Agreement; (v) to the extent the property constituting such Collateral is owned by any Guarantor, upon the release of such Guarantor from its obligations under the Guarantee Agreement (in accordance with the second succeeding sentence and the Guarantee Agreement); (vi) as required by the Collateral Agent to effect any sale, transfer or other Disposition of Collateral in connection with any ~~exercise~~ disposition permitted hereunder (including the release of ~~remedies of~~ any guarantor); or (iii) subject to Section 15.1, if approved, authorized or ratified in writing by the ~~Collateral Agent pursuant to the Security Documents,~~ Required Lenders; or (~~vii~~b) to ~~the extent~~ subordinate its interest in any Collateral to any holder of a Lien on such Collateral ~~otherwise becomes an Excluded Stock~~ which is permitted by Section 11.2(c)(i) or ~~an Excluded Asset, and~~ (~~viii~~c)(ii) if (it being understood that Administrative Agent may conclusively rely on a certificate from Borrower in determining whether 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~~ Debt secured by any ~~of the Collateral Agent’s Liens without the prior written authorization of the Required Lenders (or~~ such ~~other percentage of Lenders whose consent~~ Lien is ~~required in accordance with~~ permitted by Section ~~12.1~~11.1(b); 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~~ Administrative Agent ~~or 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~~ Administrative Agent’s authority to ~~release any applicable Collateral Agent’s Liens upon~~ release, or subordinate its interest in, particular types or items of Collateral pursuant to this Section 13.10. 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 (w) the Collateral Agent to 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 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 the terms hereof, the Security Documents or any other contractual arrangement with any Obligor, following the written request by Borrower, Collateral Agent shall (to 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 Liens, 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 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 Obligors. 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 this Section 13.10(a)14.10.

Appears in 1 contract

Samples: Term Loan Credit Agreement (Falconstor Software Inc)

Collateral Matters. ~~(a)~~ The ~~Lenders (and each other Secured Party by their acceptance~~ applicable requirements of Section 6.20 of the ~~benefits~~ Credit Agreement shall complied with substantially concurrently with the consummation of the Loan Documents shall be deemed to) hereby irrevocably authorize the Collateral Agent (and if applicable, any subagent appointed by the Collateral Agent under Section 13.2 or otherwise) to release its Liens Specified Transactions on the ~~Collateral~~Specified Acquisition Tranche Funding Date with respect to subsidiaries organized in, ~~and~~ or Collateral located in, the ~~Collateral Agent’s Liens upon any Collateral shall be automatically released (i) upon Full Payment~~ United States that are a part of the ~~Obligations~~Specified Acquisition Targets; ~~(ii) upon a disposition of Collateral permitted by Section 8.8 to a Person~~ provided that is not an Obligor; (iii) if any such Collateral constitutes property in which the Obligors owned no interest at the time the Lien was granted or at any time thereafter; (iv) if any such Collateral constitutes property leased to an Obligor under a lease which has expired or been terminated in a transaction permitted under this Agreement; (v) to the extent any security interest in the ~~property constituting~~ 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 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 ~~Collateral~~ certificates from the Specified Acquisition Sellers after the use of commercially reasonable efforts to obtain such certificates)) is ~~owned by any Guarantor~~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 expense, ~~upon~~ the ~~release~~ provision of such ~~Guarantor from its obligations under~~ EXECUTION VERSION perfected security interest(s) shall not constitute a condition precedent to the Guarantee Agreement (in accordance with the second succeeding sentence and the Guarantee Agreement); (vi) as required by the Collateral Agent to effect any sale, transfer or other Disposition of Collateral in connection with any exercise of remedies funding of the Collateral 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 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 applicable Collateral Agent’s Liens upon particular types or items of Collateral pursuant to this Section 13.10. 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 (w) the Collateral Agent to 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 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 the terms hereof, the Security Documents or any other contractual arrangement with any Obligor, following the written request by Borrower, Collateral Agent shall Specified Acquisition Loans but (to the extent ~~not prohibited by~~ perfected Collateral is required under the Credit Agreement or the other Loan Documents) shall be required to be delivered after the Specified Acquisition Tranche Funding Date pursuant to any applicable ~~law or legal process) deliver such Collateral in accordance with the terms~~ requirements of Section 6.20 of the ~~Intercreditor Agreement or~~Credit Agreement. To the extent any security interest in the intended Collateral 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 expense, ~~if no Intercreditor Agreement is then in effect,~~ the provision of such perfected security interest(s) shall not constitute a condition precedent to the ~~applicable Obligor, and (z) if~~ funding of the Specified Acquisition Loans but shall be required to be delivered after the ~~date hereof Collateral Agent’s Lien has been expanded to include Fixed Asset Collateral in connection with incurrence of Debt~~ Specified Acquisition Tranche Funding Date pursuant to ~~Section 8.12(q)(x) or (r) so long as all of~~ arrangements and timing to be mutually agreed between the ~~following conditions are satisfied (1) no Default or Event of Default has occurred~~ Parent 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 Liens, 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 Collateral Agent shall release Collateral Administrative 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 Obligors. 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 this Section 13.10(a).

Appears in 1 contract

Samples: Credit Agreement (Casella Waste Systems 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 (~~Agent, at its option and ~~if applicable~~in its sole discretion, ~~any subagent appointed by the Collateral Agent under Section 13.2 or otherwise)~~ to release ~~its Liens on the Collateral, and the Collateral~~ any Agent’s 's Liens upon any Collateral ~~shall be automatically released~~ (i) upon ~~Full Payment~~ the termination 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) ~~upon a~~ constituting property being sold or disposed of if the Borrower certifies to the Agent that the sale or disposition ~~of Collateral permitted by Section 8.8 to a Person that~~ is ~~not an Obligor~~made in compliance with SECTION 7.9 (and the Agent may rely conclusively on any such certificate, without further inquiry); (iii) ~~if any such Collateral constitutes~~ constituting property in which the ~~Obligors~~ Borrower owned no interest at the time the Lien was granted or at any time thereafter; or (iv) ~~if any such Collateral constitutes~~ constituting property leased to ~~an Obligor~~ the Borrower under a lease which has expired or been terminated in a transaction permitted under this Agreement; (v) to the extent the property constituting such Collateral is owned by any Guarantor, upon the release of such Guarantor from its obligations under the Guarantee Agreement (in accordance with the second succeeding sentence and the Guarantee Agreement); (vi) as required by the Collateral Agent to effect any sale, transfer or other Disposition of Collateral in connection with any exercise of remedies of the Collateral 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 '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)~~Lenders; ~~provided that, in addition to~~ PROVIDED that the ~~foregoing, the Collateral~~ Agent may, in its discretion, release ~~such~~ 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 's Liens on Collateral valued in the aggregate not in excess of $1,000,000 during each Fiscal Year ~~without~~ with 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 releaseRequired Lenders. Upon request by the ~~Collateral~~ Agent or 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 's authority to release any ~~applicable Collateral~~ Agent’s 's Liens upon particular types or items of Collateral pursuant to this Section 13.10. 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 (w) the Collateral Agent to 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 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 the terms hereof, the Security Documents or any other contractual arrangement with any Obligor, following the written request by Borrower, Collateral Agent shall (to 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 Liens, 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 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 Obligors. 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 this Section 13.10(a)SECTION 12.11.

Appears in 1 contract

Samples: Credit Agreement (Acg Holdings Inc)

Collateral Matters. (a) ~~The Lenders (~~Agent may, at its option, from time to time, at any time on or after an Event of Default and ~~each other Secured Party by their acceptance of~~ for so long as the ~~benefits of the Loan Documents shall be deemed to) hereby irrevocably authorize the Collateral Agent (and if applicable, any subagent appointed by the Collateral Agent under Section 13.2~~ same is continuing or ~~otherwise) to release its Liens on the Collateral, and the Collateral Agent’s Liens~~ upon any ~~Collateral shall be automatically released~~ other failure of a condition precedent to the making of Loans and issuance of Letters of Credit hereunder, make such disbursements and advances ("Special Agent Advances") which Agent, in its sole discretion, deems necessary or desirable either (i) ~~upon Full Payment of~~ to preserve or protect the ~~Obligations;~~ Collateral or any portion thereof or (ii) ~~upon a disposition~~ to enhance the likelihood or maximize the amount of ~~Collateral permitted~~ 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 Letters of Credit which Agent may make or provide as set forth in Section ~~8.8 to a Person that is~~ 12.8 hereof, shall not ~~an Obligor;~~ exceed the aggregate amount of ten (10%) percent of the Maximum Credit or (iii) if to pay any ~~such Collateral constitutes property in which the Obligors owned no interest at the time the Lien was granted or at any time thereafter; (iv) if any such Collateral constitutes property leased~~ other amount chargeable to an Obligor under a lease which has expired or been terminated in a transaction permitted under this Agreement; (v) to the extent the property constituting such Collateral is owned by any Guarantor, upon the release of such Guarantor from its obligations under the Guarantee Agreement (in accordance with the second succeeding sentence and the Guarantee Agreement); (vi) as required by the Collateral Agent to effect any sale, transfer or other Disposition of Collateral in connection with any exercise of remedies of the Collateral 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 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 applicable Collateral Agent’s Liens upon particular types or items of Collateral pursuant to this Section 13.10. 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 (w) the Collateral Agent to 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 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 Borrowers pursuant to the terms ~~hereof, the Security Documents~~ of this Agreement or any other contractual arrangement with any Obligor, following the written request by Borrower, Collateral Agent shall (to the extent not prohibited by applicable law or legal process) deliver such Collateral in accordance with the terms of the ~~Intercreditor Agreement or~~other Financing Agreements consisting of costs, ~~if no Intercreditor Agreement is then in effect,~~ fees and expenses and payments 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 Liens, or, to the extent Issuing Bank on account of ~~Refinancing Debt~~Letter of Credit Obligations. 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. Interest on Special Advances shall be payable at the Interest Rate then applicable to Prime Rate Loans. Agent shall notify each Lender and Borrowers in writing of each such Special Agent Advance, ~~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)~~ which notice shall include a description of the ~~definition~~ purpose of ~~“Permitted Liens”, promptly following the written request~~ such Special Agent Advance. Without limitation of the Borrower, the 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 Obligors. 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 ~~this~~ Section ~~13.10(a)~~6.9, 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 Atlanta or at Agent's option based on the arithmetic mean determined by Agent of the rates for the last transaction in overnight Federal funds arranged prior to 9:00 a.m. (Atlanta, Georgia time) on that day by each of the three 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.

Appears in 1 contract

Samples: Loan and Security Agreement (Delta Apparel, 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~~ L/C Issuers irrevocably authorize the ~~Collateral~~ Administrative Agent ~~(and if applicable, any subagent appointed by~~ to accept Liens granted to the ~~Collateral~~ Administrative Agent ~~under~~ for the benefit of the Lender Parties pursuant to Section ~~13.2~~ 7.01(m) or otherwise~~) to release~~ , and, at its ~~Liens on the Collateral,~~ option and the Collateral Agent’s Liens upon any Collateral shall be automatically released (i) upon Full Payment of the Obligations; (ii) upon a disposition of Collateral permitted by Section 8.8 to a Person that is not an Obligor; (iii) if any such Collateral constitutes property in which the Obligors owned no interest at the time the Lien was granted or at any time thereafter; (iv) if any such Collateral constitutes property leased to an Obligor under a lease which has expired or been terminated in a transaction permitted under this Agreement; (v) to the extent the property constituting such Collateral is owned by any Guarantor, upon the release of such Guarantor from its obligations under the Guarantee Agreement (in accordance with the second succeeding sentence and the Guarantee Agreement); (vi) as required by the Collateral Agent to effect any sale, transfer or other Disposition of Collateral in connection with any exercise of remedies of the Collateral 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 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~~ a) to release any applicable Collateral Agent’s Liens upon particular types or items of Collateral pursuant to this Section 13.10. 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 (w) the Collateral Agent to subordinate any Lien on any property granted to or held by the ~~Collateral~~ Administrative Agent under any Loan Document (i) upon termination of the Aggregate Commitments and payment in full of all Obligations (other than unasserted indemnification, tax gross up, expense reimbursement or yield protection obligations, in each case, for which no claim has been made) and the expiration or termination of all Letters 113 of Credit (other than Letters of Credit as to which other arrangements satisfactory to the Administrative Agent and the L/C Issuers shall have been made), (ii) that is sold or to be sold as part of or in connection with any sale 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) to subordinate any Lien as may hereafter be granted on any property granted to or held by the Administrative Agent under any Loan Document to the holder of any Lien on such property that is permitted by Section ~~8.12(c~~7.01(k); and (c) ~~or (q) (as to Fixed Asset Collateral only), (x) the Agent~~ to release ~~automatically~~ any Subsidiary Guarantor (but not the Facility Guarantor) from its obligations under the ~~Guarantee Agreement~~ Guaranty if: (i) the circumstances causing the Company to cause such Subsidiary to become a Subsidiary Guarantor pursuant to Section 6.16 no longer exist (or, substantially concurrently with the release of such Subsidiary Guarantor or 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~~ release of such Subsidiary ~~ceasing~~ Guarantor, will no longer exist) (it being understood that a release subject to ~~constitute~~ contingent reinstatement is still a ~~Restricted~~ release, and that if any such Guarantee is so reinstated, such 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, Guarantee shall also be reinstated 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~~ such Subsidiary Guarantor would then be required to ~~deliver to Collateral Agent at such time~~ provide a Subsidiary Guarantee pursuant to Section 6.16); (ii) if such Subsidiary Guarantor ceases (or, substantially concurrently with the ~~terms hereof~~release of such Subsidiary Guarantor, will cease) to be a Subsidiary of the Security Documents or any other contractual arrangement with any Obligor, following the written request by Borrower, Collateral Agent shall (to the extent not prohibited by applicable law or legal process) deliver such Collateral Company in accordance with the terms hereof; (iii) upon the merger or consolidation of such Subsidiary Guarantor with and into the Company or another Guarantor that is the surviving Person in such merger or consolidation, or upon the liquidation of such Subsidiary Guarantor following the transfer of all of its assets to the Company or another Guarantor; (iv) other than with respect to Scripps, upon the merger or consolidation of such Subsidiary Guarantor with and into another Subsidiary of the ~~Intercreditor Agreement or~~Facility Guarantor that is not the Company or a Guarantor with such other Subsidiary being the surviving Person in such merger or consolidation, or upon liquidation of such Subsidiary Guarantor following the transfer of all of its assets to a Subsidiary that is not a Subsidiary Guarantor; (v) upon payment in full of the aggregate principal amount of all Loans and guaranteed Obligations then due and owing; or (vi) without limiting the provisions above, in the case of Scripps, if ~~no Intercreditor Agreement is then in effect, to~~ both (x) Scripps and 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 Scripps Acquired Business are Subsidiaries of the ~~following conditions are satisfied~~ Company (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 without giving effect to clause (ry) of the definition of Permitted Liens, 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) final sentence of the definition ~~of “Permitted Liens”~~thereof) and (y) the Existing Scripps Notes (and any refinancings, ~~promptly following the written request~~ refundings, renewals or extensions thereof) are obligations solely of the ~~Borrower~~Company (and, at the option of the Company, the ~~Collateral~~ Facility Guarantor), substantially concurrently with the release of such Subsidiary Guarantor or if as a result of the release of such Subsidiary Guarantor, both such conditions will be satisfied. Upon any such occurrence specified in this Section 9.10(c), the Administrative Agent shall ~~release Collateral Agent’s Liens on Fixed Assets Collateral (other than~~execute any documents reasonably requested by the Company in order to evidence such release, discharge and termination in ~~each case any Inventory or Fracturing Equipment Parts (as defined in the Initial Intercreditor Agreement)) at the expense~~ respect of the ~~Obligors~~applicable Guarantee. Upon request by ~~any Appointed~~ the Administrative 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 this Section 13.10(a).114

Appears in 1 contract

Samples: Credit Agreement (Discovery, 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 if applicable~~Facility Agent, ~~any subagent appointed by the Collateral Agent under Section 13.2 or otherwise)~~ to release ~~its Liens~~ any Lien on ~~the Collateral, and the Collateral Agent’s Liens upon~~ any Collateral ~~shall be automatically released~~ (i) upon ~~Full Payment~~ the termination of the Commitments, the payment and satisfaction in full by Borrower of all non- contingent Obligations, and the satisfaction of all obligations of the Lender Group under outstanding Letters of Credit pursuant to Section 2.2(e) and upon such termination and payment Facility Agent shall deliver to Borrower, at Borrower's sole cost and expense, all UCC termination statements and any other documents necessary to terminate the Loan Documents and release the Liens with respect to the Collateral; (ii) ~~upon~~ which is the subject of an Asset Sale permitted by Section 7.4 or is a disposition of ~~Collateral permitted by Section 8.8~~ an asset which does not constitute an Asset Sale and if Borrower so certifies such facts to ~~a Person that is not an Obligor~~Facility Agent (and Facility Agent may rely conclusively on any such 106 Foothill/Agent Greyhound F6384-0813 113 certificate, without further inquiry); (iii) ~~if any such Collateral constitutes~~ constituting property in which ~~the Obligors~~ Borrower owned no interest at the time the Lien was granted or at any time thereafter; (iv) ~~if any such Collateral constitutes~~ constituting property leased to ~~an Obligor~~ Borrower under a lease ~~which~~ that has expired or been terminated in a transaction permitted under this Agreement; (v) ~~to the extent the property~~ constituting a parcel of non-Core Real Property Collateral, with a book value of less than $250,000, if such ~~Collateral~~ parcel is ~~owned by any Guarantor~~located in an SFHA, upon the ~~release~~ exercise of ~~such Guarantor from its obligations under~~ the ~~Guarantee Agreement (in accordance~~ Facility Agent's discretion, or at the request of any Lender to comply with ~~the second succeeding sentence and the Guarantee Agreement)~~applicable regulatory requirements; or (vi) ~~as required by~~ upon the ~~Collateral Agent to effect any sale, transfer or other Disposition of Collateral in connection with any~~ exercise of ~~remedies~~ the Facility Agent's discretion, but the aggregate book value of ~~the Collateral Agent pursuant to the Security Documents, (vii) to the extent~~ all such Collateral ~~otherwise becomes an Excluded Stock or an Excluded Asset, and~~ released under this clause (~~viii~~v) ~~if the percentage of Lenders required to consent to the Collateral being released hereunder, so consents to the Collateral being released~~shall not exceed $5,000,000. Except as provided above, ~~the Collateral~~ Facility Agent will not release any ~~of the~~ Lien on any 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 releaseLenders. Upon request by ~~the Collateral~~ Facility Agent or ~~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~~ Facility Agent’s 's authority to release any ~~applicable Collateral Agent’s~~ such Liens ~~upon~~ on particular types or items of Collateral pursuant to this Section ~~13.10. In addition~~17.11; provided, the Lenders (and each other Secured Party by their acceptance of the benefits of the Loan Documents shall be deemed to) hereby irrevocably authorize (w) the Collateral Agent to 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 however, 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 Facility Agent ~~obtains possession of any Collateral by operation of Section 13.12 of this Agreement that constitutes Collateral that Obligors are~~ shall not be required to ~~deliver~~ execute any document necessary to ~~Collateral~~ evidence such release on terms that, in Facility Agent's opinion, would expose Facility Agent at to liability or create any obligation or entail any consequence other than the release of such ~~time pursuant to the terms hereof~~Lien without recourse, ~~the Security Documents~~ representation, or any other contractual arrangement with any Obligor, following the written request by Borrower, Collateral Agent shall (to 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 Obligorwarranty, and (z) ~~if after~~ such release shall not in any manner discharge, affect or impair the ~~date hereof Collateral Agent’s Lien has been expanded to include Fixed Asset Collateral~~ Obligations or any Liens (other than those expressly being released) upon, or obligations of Borrower in ~~connection with incurrence~~ respect of, all interests retained by Borrower, including the proceeds of ~~Debt pursuant to Section 8.12(q)(x) or (r) so long as~~ any sale, 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) which shall continue to constitute part of the definition of Permitted Liens, 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 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 Obligors. 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 this Section 13.10(a)Collateral.

Appears in 1 contract

Samples: Loan and Security Agreement (Los Buenos Leasing Co Inc)

Collateral Matters. (a) ~~The Lenders (~~Agent may, at its option, from time to time, at any time on or after an Event of Default and ~~each other Secured Party by their acceptance of~~ for so long as the ~~benefits of the Loan Documents shall be deemed to) hereby irrevocably authorize the Collateral Agent (and if applicable, any subagent appointed by the Collateral Agent under Section 13.2~~ same is continuing or ~~otherwise) to release its Liens on the Collateral, and the Collateral Agent’s Liens~~ upon any ~~Collateral shall be automatically released~~ 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) ~~upon Full Payment of~~ deems necessary or desirable either to preserve or protect the ~~Obligations;~~ Collateral or any portion thereof or (ii) ~~upon a disposition~~ to enhance the likelihood or maximize the amount of ~~Collateral permitted~~ 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 ~~8.8 to a Person that is~~ 12.8 hereof, shall not ~~an Obligor;~~ exceed the aggregate amount of [ten (10%)] percent of the Maximum Credit or (iii) if to pay any ~~such Collateral constitutes property in which the Obligors owned no interest at the time the Lien was granted or at~~ other amount chargeable to any time thereafter; (iv) if any such Collateral constitutes property leased to an Obligor under a lease which has expired or been terminated in a transaction permitted under this Agreement; (v) to the extent the property constituting such Collateral is owned by any Guarantor, upon the release of such Guarantor from its obligations under the Guarantee Agreement (in accordance with the second succeeding sentence and the Guarantee Agreement); (vi) as required by the Collateral Agent to effect any sale, transfer or other Disposition of Collateral in connection with any exercise of remedies of the Collateral 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 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 applicable Collateral Agent’s Liens upon particular types or items of Collateral pursuant to this Section 13.10. 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 (w) the Collateral Agent to 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 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 the terms ~~hereof, the Security Documents~~ of this Agreement or any other contractual arrangement with any Obligor, following the written request by Borrower, Collateral Agent shall (to the extent not prohibited by applicable law or legal process) deliver such Collateral in accordance with the terms of the ~~Intercreditor Agreement or~~other Financing Agreements consisting of (A) costs, ~~if no Intercreditor Agreement is then in effect, to the applicable Obligor,~~ fees and expenses and (zB) ~~if after~~ 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 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 Collateral. Special Agent Advances shall not constitute Loans but shall otherwise constitute Obligations hereunder. Interest on ~~Section 8.12(q)(x) or (r) that remains outstanding (and no commitments for Debt that, if incurred would~~ Special Agent Advances shall 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 Liens, 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 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)) payable at the ~~expense~~ Interest Rate then applicable to Prime Rate Loans and shall be payable on demand. Without limitation of the Obligors. 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 ~~this~~ Section ~~13.10(a)~~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.

Appears in 1 contract

Samples: Loan and Security Agreement (Lexington Precision 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 if applicable, any subagent appointed by the Collateral Agent under Section 13.2 or otherwise) to release its Liens on the Collateral, and the Collateral Agent’s Liens upon any Collateral shall be automatically released (i) upon Full Payment of the Obligations; (ii) upon a disposition of Collateral permitted by Section 8.8 to a Person that is not an Obligor; (iii) if any such Collateral constitutes property in which the Obligors owned no interest at the time the Lien was granted or at any time thereafter; (iv) if any such Collateral constitutes property leased to an Obligor under a lease which has expired or been terminated in a transaction permitted under this Agreement; (v) to the extent the property constituting such Collateral is owned by any Guarantor, upon the release of such Guarantor from its obligations under the Guarantee Agreement (in accordance with the second succeeding sentence and the Guarantee Agreement); (vi) as required by the Collateral Agent to effect any sale, transfer or other Disposition of Collateral in connection with any exercise of remedies of the Collateral 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 220 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 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 applicable Collateral Agent’s Liens upon particular types or items of Collateral pursuant to this Section 13.10. 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 (w) the Collateral Agent to 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 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 the terms hereof, the Security Documents or any other contractual arrangement with any Obligor, following the written request by Borrower, Collateral Agent shall (to 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 Liens, 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 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 Obligors. 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 this Section 13.10(a).

Appears in 1 contract

Samples: Credit Agreement (ProFrac Holding 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 if applicable, any subagent appointed by the ~~Collateral~~ Agent under Section 13.2 or otherwise), and the Agent (and if applicable, any subagent appointed by the Agent under Section 13.2 or otherwise) shall hereby have the obligation to release, subject to the satisfaction of any conditions to release ~~its Liens on~~ (if any) set forth herein, including the continuance of the applicable Agent’s Lien in any proceeds of released Collateral, ~~and the Collateral~~ any such Agent’s Liens upon any Collateral ~~shall be automatically released~~ (i) upon Full Payment of the Obligations; (ii) ~~upon a disposition~~ constituting property being sold, transferred or disposed of ~~Collateral permitted by Section 8.8~~ (to a any Person that is not an Obligor), if the sale, transfer or disposition is made in compliance with Section 8.5 (which shall, upon reasonable request by the Agent, be certified by the Borrowers’ Agent, and the Agent may rely conclusively on any such certification without further inquiry; provided that no certification shall be required at any time with respect to any sales of items of Rental Equipment in the ordinary course of business so long as such Agent’s Lien continues in the proceeds of such Collateral); (iii) ~~if any such Collateral constitutes~~ constituting property in which the Obligors owned no interest at the time the Lien was granted or at any time thereafter; (iv) ~~if any such Collateral constitutes~~ constituting property leased to an Obligor under a lease which has expired or been terminated in a transaction permitted under this Agreement; (v) constituting Relinquished Property, if such Relinquished Property shall have been delivered to the ~~extent~~ applicable Qualified Intermediary in accordance with the applicable exchange agreement and a first priority perfected security interest shall have been granted by the applicable exchanger to the Agent for the benefit of the Secured Parties of a first priority perfected security interest in the rights of such exchanger in, to and under the related exchange agreement; (vi) constituting any Like-Kind Exchange Account; (vii) subject to Section 7.20(b), constituting property being sold, assigned, pledged or otherwise transferred pursuant to any Securitization Transaction; (viii) being or becoming an Excluded Asset (as defined in the U.S. Security Agreement or the Canadian Security Agreement, as applicable); or (ix) constituting ~~such Collateral~~ property that is owned by ~~any Guarantor, upon the release of such~~ a Guarantor that has been released from its obligations under the U.S. Guarantee Agreement ~~(in accordance with~~ or the ~~second succeeding sentence and the~~ Canadian Guarantee ~~Agreement); (vi)~~ Agreements, as ~~required by the Collateral Agent to effect any sale~~applicable, ~~transfer or other Disposition of Collateral in connection with any exercise of remedies of the Collateral Agent~~ pursuant to ~~the Security Documents, (vii) to the extent such Collateral otherwise becomes an Excluded Stock~~ this Section 13.11 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~~Section 4.3(h). Except as provided ~~above~~above or in Section 12.1, the ~~Collateral~~ Agent will not release any of ~~the Collateral~~ such 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)~~Lenders; provided that, in addition to the foregoing, (A) 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~~ 50,000,000 during each Fiscal Year without the prior written authorization of any Lender; and (B) the Agent may release the Agent’s Liens on Collateral valued in the aggregate not in excess of $100,000,000 during each Fiscal Year with the prior written authorization of Required Lenders, so long as all proceeds received in connection with such release are applied to the Obligations in accordance with Section ~~4.7~~ 4.6 and, after giving effect to the application of such proceeds and the updating of the U.S. Borrowing Base or the Canadian Borrowing Base, as the case may be, to reflect the deletion of any assets subject to such release, U.S. Availability or Canadian Availability, as the case may be, shall be no less than the U.S. Availability or the Canadian Availability, as the case may be, immediately prior to such release. Upon request by the Collateral Agent or 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 applicable Collateral Agent’s Liens upon particular types or items of Collateral pursuant to this Section 13.10. 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 ~~(w)~~ the ~~Collateral~~ Agent to (x) 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 ~~8.12(c~~8.1(d) or and (qy) ~~(as to Fixed Asset Collateral only), (x) the Agent to~~ release ~~automatically~~ any Guarantor from its obligations under the U.S. Guarantee Agreement or the Canadian Guarantee Agreements (A) if such Person ceases to be a ~~Restricted~~ Subsidiary as a result of a transaction permitted ~~under this Agreement~~ hereunder or ~~such Person otherwise~~ becomes an Excluded Subsidiary, (B) as provided in ~~each case, solely~~ Section 4.3(h) with respect 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 the terms hereof, the Security Documents or any other contractual arrangement with any Obligor, following the written request by Borrower, Collateral Agent shall (to the extent not prohibited by applicable law or legal process) deliver such Collateral in accordance with the terms obligations of the ~~Intercreditor Agreement or, if no Intercreditor Agreement is then in effect,~~ Canadian Guarantors to guarantee the ~~applicable Obligor, and (z) if after~~ Obligations of 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)~~ Canadian Borrower or (rC) ~~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 provided 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 Liens, 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 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 Obligors12.1. Upon request by ~~any Appointed~~ the Agent or the Borrowers at any time, the Required Lenders will confirm in writing ~~such Appointed~~ the Agent’s authority to release or subordinate ~~its interest in~~ the applicable Agent’s Liens upon particular types or items of ~~property~~Collateral, or to release any Guarantor from its obligations pursuant to this Section ~~13.10(a~~13.11(a).

Appears in 1 contract

Samples: Lease Agreement (United Rentals North America 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 if applicable, any subagent appointed by the Collateral Agent under Section 13.2 or otherwise) to release its Liens on the ~~Collateral, and the~~ Collateral ~~Agent’s Liens upon any Collateral shall be automatically released~~ (i) upon Full Payment of the Obligations; and (ii) upon a disposition of Collateral permitted by Section 8.8 to a Person that is not an Obligor; and (iii) if any such Collateral constitutes property in which the Obligors owned no interest at the time the Lien was granted or at any time thereafter; (iv) if any such Collateral constitutes property leased to an Obligor under a lease which has expired or been terminated in a transaction permitted under this Agreement; (v) to the extent the property constituting such Collateral is owned by any Guarantor, upon the release of such Guarantor from its obligations under the Guarantee Agreement (in accordance with the second succeeding sentence and the Guarantee Agreement); (vi) as required by the Collateral Agent to effect any sale, transfer or other Disposition of Collateral in connection with any exercise of remedies of the Collateral 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~~ 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); 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 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 applicable Collateral Agent’s Liens upon particular types or items of Collateral pursuant to this Section 13.10. 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 (w) the Collateral Agent to 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 8.12(c) or (qq)(i) (as to Current Asset Collateral and, subject to exceeding certain caps, the Fixed Asset ~~Collateral only~~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, and (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 the terms hereof, the Security Documents or any other contractual arrangement with any Obligor, ~~following the written request by Borrower,~~ Collateral Agent shall (to the extent ~~not prohibited~~ permitted by applicable law or legal process) deliver such Collateral in accordance with the terms of the ABL Intercreditor Agreement (and, as applicable, the and the Monarch Acquisition Intercreditor Agreement), or, if no the ABL Intercreditor Agreement is and the Monarch Acquisition Intercreditor Agreement are not 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 Liens, 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 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 Obligors. 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 this Section 13.10(a).

Appears in 1 contract

Samples: Term Loan Credit Agreement (ProFrac Holding 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 may (but shall not be obligated) from time to time make such disbursements and ~~if applicable, any subagent appointed by the~~ advances (“Collateral Agent ~~under Section 13.2 or otherwise~~Advances”) ~~to release its Liens on the Collateral, and~~ which the Collateral Agent~~’s Liens upon any Collateral shall be automatically released (i) upon Full Payment of the Obligations; (ii) upon a disposition of Collateral permitted by Section 8.8~~ , in its reasonable discretion, deems necessary or desirable to ~~a Person that is not an Obligor; (iii) if any such Collateral constitutes property in which the Obligors owned no interest at the time the Lien was granted~~ preserve, protect, prepare for sale or ~~at any time thereafter; (iv) if any such Collateral constitutes property leased to an Obligor under a~~ lease ~~which has expired~~ or been terminated in a transaction permitted under this Agreement; (v) to the extent the property constituting such Collateral is owned by any Guarantor, upon the release of such Guarantor from its obligations under the Guarantee Agreement (in accordance with the second succeeding sentence and the Guarantee Agreement); (vi) as required by the Collateral Agent to effect any sale, transfer or other Disposition of Collateral in connection with any exercise of remedies dispose of the Collateral ~~Agent~~ or any portion thereof, to enhance the likelihood or maximize the amount of repayment by the Borrower of the Loans and other Obligations or to pay any other amount chargeable to the Borrower pursuant to the ~~Security Documents~~terms of this Agreement, including costs, fees and expenses as described in Section 12.04; provided, however that (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 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 applicable Collateral Agent’s Liens upon particular types or items of Collateral pursuant to this Section 13.10. 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 (wi) the Collateral Agent ~~to subordinate~~ shall not make any ~~Lien on any property granted to or held by the~~ Collateral Agent ~~under any Loan Document~~ Advance that (A) would cause the aggregate principal amount of all Collateral Agent Advances outstanding at such time to ~~the holder of any Lien on such property that is permitted by Section 8.12(c)~~ exceed $5,000,000 or (qB) ~~(as~~ would cause the sum of all Collateral Agent Advances outstanding at such time plus the aggregate principal amount of Revolving Loans and Swing Line Loans outstanding at such time to ~~Fixed Asset Collateral only)~~exceed the difference between the Total Revolving Credit Commitment and the aggregate L/C Obligations, (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 (2ii) ~~no Out-of-Formula Condition has occurred and is continuing~~ at or ~~would result therefrom, then, to~~ about the ~~extent that~~ time of the ~~Collateral Agent obtains possession~~ making 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~~ Advance (as the terms hereof, the Security Documents or any other contractual arrangement with any Obligor, following the written request by Borrower, Collateral Agent shall (to the extent not prohibited by applicable law or legal process) deliver such Collateral in accordance with the terms urgency 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 (rcircumstances may dictate), remain outstanding) and no Liens are outstanding in reliance on clause (r) of the definition of Permitted Liens, 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 Collateral Agent shall ~~release~~ provide a written offer to the Administrative Agent to participate (on a ratable basis), and the Administrative Agent shall have the right, but not the obligation, to participate in such Collateral Agent Advance by sending a written acceptance with 1 Business Day of its receipt of such written offer to the Collateral Agent~~’s Liens~~ . The Collateral Agent Advances shall be repayable on ~~Fixed Assets~~ demand and be secured by the Collateral. The Collateral ~~(other than~~Agent Advances shall constitute Obligations hereunder which may be charged to the Loan Account in accordance with Section 4.02. The Collateral Agent shall notify each Lender and the Borrower in writing of each such Collateral Agent Advance, ~~in each case any Inventory or Fracturing Equipment Parts (as defined in the Initial Intercreditor Agreement)) at the expense~~ which notice shall include a description of the ~~Obligors~~purpose of such Collateral Agent Advance. ~~Upon request by any Appointed Agent at any time, the Required Lenders will confirm in writing such Appointed Agent’s authority~~ Without limitation to ~~release or subordinate its interest in particular types or items of property, or to release any Guarantor from~~ its obligations pursuant to ~~this~~ Section ~~13.10(a)~~10.05, each Lender agrees that it shall make available to the Collateral Agent, upon the Collateral Agent’s demand, in Dollars in immediately available funds, the amount equal to such Lender’s Pro Rata Share of each such Collateral Agent Advance. If such funds are not made available to the Collateral Agent by such Lender, the Collateral Agent shall be entitled to recover such funds on demand from such Lender, together with interest thereon for each day from the date such payment was due until the date such amount is paid to the Collateral Agent, at the Federal Funds Rate for 3 Business Days and thereafter at the Reference Rate.

Appears in 1 contract

Samples: Financing Agreement (Spheris 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 (~~Agent, at its option and ~~if applicable~~in its sole discretion, ~~any subagent appointed by the Collateral Agent under Section 13.2 or otherwise)~~ to release ~~its Liens~~ any Lien on ~~the Collateral, and the Collateral Agent’s Liens upon~~ any Collateral ~~shall be automatically released~~ (i) upon ~~Full Payment~~ the termination of the Commitments and payment and satisfaction in full by or on behalf of Borrower of all Obligations; and upon such termination Agent shall deliver to Borrower, at Borrower's sole cost and expense, all documents necessary to terminate the Loan Documents and release the Liens with respect to the Collateral (ii) ~~upon~~ constituting property being sold or disposed of if a release is required or desirable in connection therewith and if Borrower certifies to Collateral Agent that the sale or disposition is permitted under Section 7 of this Agreement or the other Loan Documents (and Collateral ~~permitted by Section 8.8 to a Person that is not an Obligor~~Agent may rely conclusively on any such certificate, without further inquiry); (iii) ~~if any such Collateral constitutes~~ constituting property in which ~~the Obligors~~ Borrower owned no interest at the time the Lien was granted or at any time thereafter; or (iv) ~~if any such Collateral constitutes~~ constituting property leased to ~~an Obligor~~ Borrower under a lease ~~which~~ that has expired or ~~been~~ is terminated in a transaction permitted under this Agreement; (v) to the extent the property constituting such Collateral is owned by any Guarantor, upon the release of such Guarantor from its obligations under the Guarantee Agreement (in accordance with the second succeeding sentence and the Guarantee Agreement); (vi) as required by the Collateral Agent to effect any sale, transfer or other Disposition of Collateral in connection with any exercise of remedies of the Collateral 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 execute and deliver a release of any ~~of the~~ Lien on any Collateral ~~Agent’s Liens~~ without the prior written authorization of (y) if the release is of all or any substantial portion of the Collateral, all of the Lenders, or (z) otherwise, 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 releaseLenders. Upon request by ~~the~~ Collateral Agent or ~~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 's authority to release any ~~applicable Collateral Agent’s~~ such Liens ~~upon~~ on particular types or items of Collateral pursuant to this Section ~~13.10. In addition~~17.11; provided, ~~the Lenders~~ however, that (~~and each other Secured Party by their acceptance of the benefits of the Loan Documents~~ 1) Collateral Agent shall not be ~~deemed to) hereby irrevocably authorize (w) the~~ required to execute any document necessary to evidence such release on terms that, in Agent's opinion, would expose Collateral Agent to ~~subordinate~~ liability or create any obligation or entail any consequence other than the release of such Lien ~~on any property granted to~~ without recourse, representation, or ~~held by the Collateral Agent under any Loan Document to the holder of any Lien on such property that is permitted by Section 8.12(c) or (q) (as to Fixed Asset Collateral only)~~warranty, (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~~ such release shall not in any manner discharge, affect, or ~~would result therefrom, then, to~~ impair 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 the terms hereof, the Security Documents Obligations or any Liens (other ~~contractual arrangement with any Obligor, following the written request~~ than those expressly being released) upon (or obligations of Borrower in respect of) all interests retained by Borrower, ~~Collateral Agent~~ including, the proceeds of any sale, all of which shall (continue to ~~the extent not prohibited by applicable law or legal process) deliver such Collateral in accordance with the terms~~ constitute part 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 Liens, 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 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 Obligors. 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 this Section 13.10(a)Collateral.

Appears in 1 contract

Samples: Loan and Security Agreement (Komag Inc /De/)

Collateral Matters. (a) ~~The Lenders (~~Each Lender authorizes and directs the Agent to enter into the Collateral Documents for the benefit of the Lenders. Each Lender hereby agrees, and each ~~other Secured Party~~ holder of any Revolving Note by ~~their~~ the acceptance ~~of the benefits of the Loan Documents shall~~ thereof will be deemed ~~to) hereby irrevocably authorize~~ to agree, that, except as otherwise set forth herein, any action taken by the Majority Lenders in accordance with the provisions of this Credit Agreement or the Collateral ~~Agent (and if applicable, any subagent appointed by the Collateral Agent under Section 13.2 or otherwise) to release its Liens on the Collateral~~Documents, and the exercise by the Majority Lenders of the powers set forth herein or therein, together with such other powers as are reasonably incidental thereto, shall be authorized and binding upon all of the Lenders. The Agent is hereby authorized on behalf of all of the Lenders, without the necessity of any notice to or further consent from any Lender, from time to time prior to an Event of Default, to take any action with respect to any Collateral or Collateral Documents which may be necessary to perfect and maintain perfected the security interest in and liens upon the Collateral granted pursuant to the Collateral Documents. (b) The Lenders hereby authorize the Agent~~’s Liens~~ , at its option and in its discretion, to release any Lien granted to or held by the Agent upon any Collateral ~~shall be automatically released~~ (i) upon ~~Full Payment~~ termination of the ~~Obligations;~~ Commitments of all Lenders and payment and satisfaction of all of the Obligations at any time arising under or in respect of this Credit Agreement or the Credit Documents or the transactions contemplated hereby or thereby, (ii) constituting property being sold or disposed of upon ~~a disposition~~ receipt of ~~Collateral permitted~~ the proceeds of such sale by ~~Section 8.8 to a Person that is not an Obligor; (iii)~~ the Agent if ~~any such Collateral constitutes property in which~~ the Obligors owned no interest at the time the Lien was granted or at any time thereafter; (iv) if any such Collateral constitutes property leased to an Obligor under a lease which has expired or been terminated in a transaction permitted under this Agreement; (v) Borrower certifies to the extent the property constituting such Collateral is owned by any Guarantor, upon the release of such Guarantor from its obligations under the Guarantee Agreement (in accordance with the second succeeding sentence and the Guarantee Agreement); (vi) as required by the Collateral Agent to effect any sale, transfer or other Disposition of Collateral in connection with any exercise of remedies of the Collateral 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 the Borrower at any time, subject to the Borrower having certified to the Collateral Agent that the sale or disposition is made in compliance with Section ~~8.8~~ 8.9 hereof (~~which~~ and the ~~Collateral~~ Agent may rely conclusively on any such certificate, without further inquiry)) or (iii) if approved, authorized or ratified in writing by the Majority Lenders, unless such release is required to be approved by all of the Lenders hereunder. Upon request by the Agent at any time, the Lenders will confirm in writing the ~~Collateral~~ Agent’s 's authority to release ~~any applicable Collateral Agent’s Liens upon~~ particular types or items of Collateral pursuant to this Section ~~13.10~~10.10. ~~In addition, the Lenders~~ (c) Upon any sale and ~~each other Secured Party by their acceptance~~ transfer of ~~the benefits of the Loan Documents shall be deemed to) hereby irrevocably authorize (w) the~~ Collateral ~~Agent to 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~~ which is expressly 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 the terms ~~hereof~~of this Credit Agree- ment, or consented to in writing by the ~~Security Documents~~ Majority Lenders or ~~any other contractual arrangement with any Obligor~~all of the Lenders, ~~following the~~ as applicable, and upon at least five (5) Business Days' prior written request by Borrower, Collateral Agent shall (to 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 Liens, 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 ~~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~~ and is hereby irrevocably authorized by the ~~Initial Intercreditor Agreement~~Lenders to)) at the expense of the Obligors. 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 this Section 13.10(a).

Appears in 1 contract

Samples: Credit Agreement (Riverside Group Inc/Fl)

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 if applicable~~Until all obligations have been fully satisfied, ~~any subagent appointed by the Collateral Agent under Section 13.2 or otherwise) to release its Liens on~~ Lender’s security interest in the Collateral, and all proceeds and products thereof, shall continue in full force and effect. During the ~~Collateral Agent’s Liens upon any Collateral shall be automatically released (i) upon Full Payment~~ term of the Obligations; (ii) upon a disposition of Collateral permitted by Section 8.8 to a Person that is not an Obligor; (iii) if any such Collateral constitutes property in which the Obligors owned no interest at the time the Lien was granted or at any time thereafter; (iv) if any such Collateral constitutes property leased to an Obligor under a lease which has expired or been terminated in a transaction permitted under this Agreement; , Borrower shall not permit any lien, claim or encumbrance (vother than Permitted Liens or those granted to Lender and those subordinated and/or approved in writing by Lender) to the extent the property constituting such Collateral is owned by any Guarantor, upon the release of such Guarantor from its obligations under the Guarantee Agreement (in accordance with the second succeeding sentence and the Guarantee Agreement); (vi) as required by the Collateral Agent to effect any sale, transfer or other Disposition of Collateral in connection with any exercise of remedies of the Collateral 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 remain against any of the Collateral ~~Agent~~and Borrower shall perform any and all steps requested by Lender to perfect, maintain and protect Lender’s ~~Liens without the prior written authorization of the Required Lenders (or such other percentage of Lenders whose consent is required~~ security interest 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 the Borrower at any time, subject to the Borrower having certified to the Collateral Agent that the disposition which a security interest 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 applicable Collateral Agent’s Liens upon particular types or items of Collateral pursuant to this Section 13.10. 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 (w) the Collateral Agent to 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 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 Lender under this Agreement or ~~such Person otherwise becomes an Excluded Subsidiary~~any other agreement, including, without limitation, executing and filing financing and continuation statements in ~~each case~~form and substance satisfactory to Lender. Lender may file one or more financing statements disclosing Lender’s security agreement under this Agreement and Borrower shall pay any costs of, ~~solely to the extent such Subsidiary ceasing to constitute a Restricted Subsidiary~~ or ~~otherwise becoming an Excluded Subsidiary is not prohibited by this Agreement~~incidental to, ~~(y) so long as both (1) no Default~~ any recording 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 filing of any ~~Collateral by operation of Section 13.12~~ financing statements concerning the Collateral. Borrower hereby expressly agrees that a carbon, photographic, photostatic, or other reproduction of this Agreement or of a financing statement is sufficient as a financing statement. And further that ~~constitutes Collateral that Obligors are~~ wherever and whenever available and allowed by law Secured Party is authorized to file electronically all documents allowed or required by the Uniform Commercial Code, the Federal Food Security Act, or other applicable law, including but not ~~required~~ limited to financing statements, effective financing statements, and continuations, amendments, assignments, or terminations thereof, WITHOUT the physical signature of Borrower and/or us authorization shall be deemed a digital signature, and/or this authorization shall be deemed a limited power of attorney appointing Lender as Borrower’s agent and attorney-in-fact for the express purpose of signing and executing the aforesaid documents on Borrower’s behalf. Borrower shall execute and deliver to ~~Collateral Agent at such time pursuant~~ Lender all necessary stock powers, assignments, unit powers for limited liability companies, limited powers of attorney, and assignments necessary for Borrower to sell or transfer documents, instruments or securities in the event of default by Borrower. Borrower shall pay or cause to be paid, unless contested in good faith, all taxes, assessments and governmental charges levied, assessed or imposed upon or with respect to the ~~terms hereof~~Loan, the ~~Security Documents~~ Collateral, any part thereof, or ~~any other contractual arrangement with any Obligor~~the Lender by virtue of the Loan transaction. Unless contested in good faith, ~~following~~ if Borrower fails to pay such taxes, assessments and governmental charges, Lender may (but shall not be required to) pay the ~~written request by Borrower, Collateral Agent shall (~~same and charge the cost to the ~~extent not prohibited~~ Borrower payable on demand and secured 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 Liens, 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 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 Obligors. 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 this Section 13.10(a)Collateral.

Appears in 1 contract

Samples: Credit Agreement (Husker Ag 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 if applicable, any subagent appointed by the Collateral Agent under Section 13.2 or otherwise) to release its Liens on the Collateral, and the Collateral Agent’s Liens upon any Collateral shall be automatically released (i) upon Full Payment of the Obligations; (ii) upon a disposition of Collateral permitted by Section 8.8 to a Person that is not an Obligor; (iii) if any such Collateral constitutes property in which the Obligors owned no interest at the time the Lien was granted or at any time thereafter; (iv) if any such Collateral constitutes property leased to an Obligor under a lease which has expired or been terminated in a transaction permitted under this Agreement; (v) to the extent the property constituting such Collateral is owned by any Guarantor, upon the release of such Guarantor from its obligations under the Guarantee Agreement (in accordance with the second succeeding sentence and the Guarantee Agreement); (vi) as required by the Collateral Agent to effect any sale, transfer or other Disposition of Collateral in connection with any exercise of remedies of the Collateral Agent pursuant to the Security Documents, and (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~~ 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 release4.6. Upon request by the Collateral Agent or 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 applicable Collateral Agent’s Liens upon particular types or items of Collateral pursuant to this Section 13.10. 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 (w) the Collateral Agent to 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 8.12(c) or (q) (as to ~~Fixed~~ 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,~~ Agreement and (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 the terms hereof, the Security Documents or any other contractual arrangement with any Obligor, following the written request by ~~Borrower~~Xxxxxxxx, Collateral Agent shall (to the extent not prohibited by applicable law or legal process) deliver such Collateral in accordance with the terms of the ABL Intercreditor Agreement or, if no the ABL Intercreditor Agreement is not 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 Liens, 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 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 Obligors. 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 this Section 13.10(a).

Appears in 1 contract

Samples: Intercreditor Agreement (ProFrac Holding 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~~ each of Agent and Collateral ~~Agent (~~Agent, at its option and ~~if applicable~~in its sole discretion, ~~any subagent appointed by the Collateral Agent under Section 13.2 or otherwise)~~ to release ~~its Liens~~ or authorize the release of any Lien on ~~the Collateral, and the Collateral Agent’s Liens upon~~ any Collateral ~~shall be automatically released~~ (i) upon ~~Full Payment~~ the termination of the Commitments and payment and satisfaction in full by Loan Parties of all Obligations; , (ii) ~~upon~~ constituting property being sold or disposed of if a ~~disposition of Collateral permitted by Section 8.8 to a Person that~~ release is ~~not an Obligor; (iii) if any such Collateral constitutes property in which the Obligors owned no interest at the time the Lien was granted~~ required or at any time thereafter; (iv) if any such Collateral constitutes property leased to an Obligor under a lease which has expired or been terminated in a transaction permitted under this Agreement; (v) to the extent the property constituting such Collateral is owned by any Guarantor, upon the release of such Guarantor from its obligations under the Guarantee Agreement (in accordance with the second succeeding sentence and the Guarantee Agreement); (vi) as required by the Collateral Agent to effect any sale, transfer or other Disposition of Collateral desirable in connection ~~with any exercise of remedies of the Collateral Agent pursuant~~ therewith and if Administrative Borrower certifies 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 the Borrower at any time, subject to the Borrower having certified to the Collateral Agent that the sale or disposition is ~~made in compliance with~~ permitted under Section ~~8.8~~ 7.4 of this Agreement or the other Loan Documents (~~which the~~ and Agent and Collateral Agent may rely conclusively on any such certificate, without further inquiry), (iii) constituting property in which no Loan Party or its Subsidiaries owned any interest at the time the Collateral Agent's Lien was granted nor at any time thereafter, or (iv) constituting property leased to a Loan Party or its Subsidiaries under a lease that has expired or is terminated in a transaction permitted under this Agreement. Except as provided above, neither Agent nor Collateral Agent will execute and deliver or authorize any 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, or (z) otherwise, the Required Lenders. Upon request by Agent or Administrative Borrower at any time, the Lenders will confirm in writing ~~the~~ Agent's or Collateral Agent’s 's authority to release any ~~applicable Collateral Agent’s~~ such Liens ~~upon~~ on particular types or items of Collateral pursuant to this Section ~~13.10. In addition~~16.12; provided, ~~the Lenders~~ however, that (~~and each other Secured Party by their acceptance of the benefits of the Loan Documents~~ 1) neither Agent nor Collateral Agent shall be ~~deemed to) hereby irrevocably authorize (w) the~~ required to execute any document necessary to evidence such release on terms that, in Agent's or Collateral Agent's opinion, would expose Agent or Collateral Agent to ~~subordinate~~ liability or create any obligation or entail any consequence other than the release of such Lien ~~on any property granted to~~ without recourse, representation, or ~~held by the Collateral Agent under any Loan Document to the holder of any Lien on such property that is permitted by Section 8.12(c) or (q) (as to Fixed Asset Collateral only)~~warranty, (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-~~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 Loan Parties in respect of~~-Formula Condition has occurred and is continuing or would result therefrom~~) all interests retained by Loan Parties, ~~then~~including, to the ~~extent that the Collateral Agent obtains possession~~ proceeds of any ~~Collateral by operation~~ sale, all of ~~Section 13.12 of this Agreement that constitutes Collateral that Obligors are not required~~ which shall continue to deliver to Collateral Agent at such time pursuant to the terms hereof, the Security Documents or any other contractual arrangement with any Obligor, following the written request by Borrower, Collateral Agent shall (to the extent not prohibited by applicable law or legal process) deliver such Collateral in accordance with the terms constitute part 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 Liens, 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 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 Obligors. 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 this Section 13.10(a)Collateral.

Appears in 1 contract

Samples: Loan Agreement (Source Interlink Companies 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)~~ L/C Issuers hereby irrevocably authorize the Collateral ~~Agent (~~Agent, at its option and ~~if applicable~~in its sole discretion, ~~any subagent appointed by the Collateral Agent under Section 13.2 or otherwise)~~ to release ~~its Liens~~ any Lien on ~~the Collateral, and the Collateral Agent’s Liens upon~~ any Collateral ~~shall be automatically released~~ (i) upon ~~Full Payment~~ the termination of the ~~Obligations~~Commitments and payment and satisfaction in full of all Obligations owed to the Agents, the Lenders and the L/C Issuers (other than those contingent Obligations for reimbursement and indemnity that expressly survive the termination of this Agreement); (ii) ~~upon~~ constituting property being sold or disposed of if a ~~disposition of Collateral permitted by Section 8.8 to a Person that~~ release is ~~not an Obligor; (iii) if any such Collateral constitutes property in which the Obligors owned no interest at the time the Lien was granted~~ required or at any time thereafter; (iv) if any such Collateral constitutes property leased to an Obligor under a lease which has expired or been terminated in a transaction permitted under this Agreement; (v) to the extent the property constituting such Collateral is owned by any Guarantor, upon the release of such Guarantor from its obligations under the Guarantee Agreement (in accordance with the second succeeding sentence and the Guarantee Agreement); (vi) as required by the Collateral Agent to effect any sale, transfer or other Disposition of Collateral desirable in connection ~~with any exercise of remedies of the Collateral Agent pursuant to the Security Documents, (vii) to the extent such Collateral otherwise becomes an Excluded Stock or an Excluded Asset,~~ therewith 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 Administrative Borrower certifies 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 the Borrower at any time, subject to the Borrower having certified writing to the Collateral Agent that the sale or disposition is ~~made in compliance with Section 8.8~~ permitted under this Agreement or the other Loan Documents (~~which~~ and the Collateral Agent may rely conclusively on any such certificate, without further inquiry); (iii) constituting property in which the Borrowers owned no interest at the time the security interest was granted or at any time thereafter; (iv) constituting property leased to the Borrowers under a lease that has expired or is terminated in a transaction permitted under this Agreement; (v) constituting Equipment which, in the aggregate with all other dispositions of Equipment covered by this clause (v), has a fair market value or book value, whichever is less, of five million Dollars ($5,000,000) or less in any single fiscal year; or (vi) any other release consented by the Required Lenders. Upon request by the Collateral Agent or the Borrowers at any time, the Administrative Agent and the Lenders will confirm in writing the Collateral Agent’s authority to release any ~~applicable Collateral Agent’s~~ such Liens ~~upon~~ on particular types or items of Collateral pursuant to this ~~Section 13.10. In addition~~SECTION 3.11; provided, ~~the Lenders~~ however, that (~~and each other Secured Party by their acceptance of the benefits of the Loan Documents shall be deemed to) hereby irrevocably authorize (w~~A) the Collateral Agent shall not be required to ~~subordinate~~ execute any ~~Lien~~ document necessary to evidence such release on ~~any property granted to or held by~~ terms that, in the Collateral Agent’s opinion, would expose the Collateral Agent ~~under~~ to liability or create any ~~Loan Document to~~ obligation or entail any consequence other than the ~~holder~~ release of ~~any~~ such Lien ~~on such property that is permitted by Section 8.12(c)~~ without recourse, representation, 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 the terms hereof, the Security Documents or any other contractual arrangement with any Obligor, following the written request by Borrower, Collateral Agent shall (to 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 Obligorwarranty, and (zB) ~~if after~~ such release shall not in any manner discharge, affect, or impair the ~~date hereof Collateral Agent’s Lien has been expanded to include Fixed Asset Collateral~~ Obligations or any Liens (other than those expressly being released) upon (or obligations of the Borrowers in ~~connection with incurrence~~ respect of) all interests retained by the Borrowers in any asset(s) transferred, including, the proceeds of ~~Debt pursuant to Section 8.12(q)(x) or (r) so long as~~ any sale, 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) which shall continue to constitute part of the definition of Permitted Liens, 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 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 Obligors. 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 this Section 13.10(a)Collateral.

Appears in 1 contract

Samples: Revolving Credit Agreement (James River Coal CO)

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 to release any Lien upon any Collateral (i) upon the termination of the Commitments and if payment and satisfaction in full of all Obligations (other than (A) contingent indemnification obligations and (B) Obligations in respect of obligations that may thereafter arise with respect to Other Liabilities not yet due and payable; unless the Administrative Agent has received written notice, at least two (2) Business Days prior to the proposed date of any such release of Liens, stating that arrangements reasonably satisfactory to the applicable provider thereof in respect of obligations and liabilities under Cash Management Services and Bank Products constituting Obligations have not been made), all Letters of Credit shall have expired or terminated (or been collateralized or backstopped in a manner reasonably satisfactory to the applicable Issuing Bank) and all Letter of Credit Outstandings have been reduced to zero (or collateralized or backstopped in a manner reasonably satisfactory to the applicable Issuing Bank), or (ii) of a Borrower or a Facility Guarantor upon the consummation of any transaction permitted by this Agreement as a result of which such Borrower or Facility Guarantor (as applicable) ceases to be a Borrower or a Facility Guarantor (provided that the Required Lenders shall have consented to such transaction (to the extent required by the Credit Agreement) and the terms of such consent did not provide otherwise) or (iii) constituting property being sold, ~~any subagent appointed by~~ transferred or disposed of in a Permitted Disposition (other than a Permitted Disposition to a Person required to xxxxx x Xxxx to the Administrative Agent or the Collateral Agent under ~~Section 13.2 or otherwise) to release its Liens on~~ the ~~Collateral~~Loan Documents), and the Collateral Agent’s Liens upon any Collateral shall be automatically released (i) upon Full Payment of the Obligations; (ii) upon a disposition of Collateral permitted by Section 8.8 to a Person that is not an Obligor; (iii) if any such Collateral constitutes property in which the Obligors owned no interest at the time the Lien was granted or at any time thereafter; (iv) if any such Collateral constitutes property leased to an Obligor under a lease which has expired or been terminated in a transaction permitted under this Agreement; (v) subject to the ~~extent~~ conditions thereof, or upon the ~~property constituting such Collateral is owned by~~ effectiveness of any ~~Guarantor, upon~~ written consent to the release of ~~such Guarantor from its obligations under~~ the ~~Guarantee Agreement (~~security interest granted hereby in ~~accordance with the second succeeding sentence and the Guarantee Agreement); (vi) as required by the~~ any Collateral ~~Agent to effect any sale, transfer or other Disposition of Collateral in connection with any exercise of remedies of the Collateral 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~~ [Section]SECTION 9.01 of ~~Lenders required to consent to the Collateral being released hereunder, so consents to the Collateral being released~~this Agreement. Except as provided above, the Collateral Agent will not release any of ~~the~~ [the]such 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 releaseApplicable Lenders. Upon request by ~~the Collateral~~ any Agent or ~~the Borrower~~ any Loan Party 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 ~~applicable Collateral Agent’s~~ Liens upon particular types or items of Collateral pursuant to this Section 13.10. 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 (w) the Collateral Agent to 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 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 the terms hereof, the Security Documents or any other contractual arrangement with any Obligor, following the written request by Borrower, Collateral Agent shall (to 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 Liens, 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 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 Obligors. 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 this Section 13.10(a)SECTION 8.17.

Appears in 1 contract

Samples: Credit Agreement (Gymboree Corp)

Collateral Matters. (a) ~~The Lenders (and each other Secured Party by their acceptance~~ Each of the ~~benefits of~~ Lenders authorizes and directs the Agent to enter into the Loan Documents ~~shall be deemed to) hereby irrevocably authorize~~ relating to the Collateral ~~Agent (~~for the benefit of itself and ~~if applicable,~~ the Holders of Secured Obligations. Each of the Lenders agrees that any ~~subagent appointed~~ action taken by the ~~Collateral~~ Agent ~~under Section 13.2~~ or ~~otherwise~~the Requisite Lenders (or, where required by the express terms of this Agreement or any other Loan Document, a greater proportion of the Lenders) ~~to release its Liens on~~ in accordance with the ~~Collateral~~provisions of this Agreement or the other Loan Documents, and the ~~Collateral Agent’s Liens upon any Collateral~~ exercise by the Agent or the Requisite Lenders (or, where so required, such greater proportion) of the powers set forth herein or therein, together with such other powers as are reasonably incidental thereto, shall be ~~automatically released~~ authorized and binding upon all of the Lenders. Without limiting the generality of the foregoing, the Agent shall have the sole and exclusive right and authority to (i) ~~upon Full Payment of~~ act as the ~~Obligations~~disbursing and collecting agent for the Lenders with respect to all payments and collections arising in connection with this Agreement and the other Loan Documents relating to the Loans or Collateral; (ii) ~~upon a disposition~~ execute and deliver each Loan Document relating to the Collateral and accept delivery of ~~Collateral permitted~~ each such agreement delivered by ~~Section 8.8 to a Person that is not an Obligor~~the Borrower or any of its Subsidiaries; (iii) ~~if any~~ act as collateral agent for the Lenders for purposes of the perfection of all security interests and Liens created by such ~~Collateral constitutes property in which~~ agreements and all other purposes stated therein, provided, however, the ~~Obligors owned no interest at~~ Agent hereby appoints, authorizes and directs the ~~time~~ Lenders to act as collateral sub-agent for the ~~Lien was granted or at any time thereafter~~Agent and the Lenders for purposes of the perfection of all security interests and Liens with respect to the Borrower's and the Borrower's Subsidiaries' respective deposit accounts maintained with, and cash and Cash Equivalents held by, such Lender; (iv) if any such Collateral constitutes property leased to an Obligor under a lease which has expired or been terminated in a transaction permitted under this Agreement; (v) to the extent the property constituting such Collateral is owned by any Guarantormanage, ~~upon the release of such Guarantor from its obligations under the Guarantee Agreement (in accordance~~ supervise and otherwise deal with the second succeeding sentence and the Guarantee Agreement); (vi) as required by the Collateral Agent to effect any sale, transfer or other Disposition of Collateral in connection with any exercise of remedies of the Collateral 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 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 applicable Collateral Agent’s Liens upon particular types or items of Collateral pursuant to this Section 13.10. 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 (w) the Collateral Agent to 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 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 the terms hereof, the Security Documents or any other contractual arrangement with any Obligor, following the written request by Borrower, Collateral Agent shall (to the extent not prohibited by applicable law or legal process) deliver such Collateral in accordance with the terms of this Agreement and the ~~Intercreditor~~ other Loan Documents; (v) take such action as is necessary or desirable to maintain the perfection and priority of the security interests and Liens created or purported to be created by the Loan Documents; and (vi) except as may be otherwise specifically restricted by the terms of this Agreement oror any other Loan Document, ~~if no Intercreditor Agreement is then in effect,~~ exercise all remedies given to the ~~applicable Obligor, and (z) if after~~ Agent or the ~~date hereof Collateral Agent’s Lien has been expanded to include Fixed Asset Collateral in connection~~ Lenders 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 Liens, or, respect to the ~~extent on account of Refinancing Debt~~Collateral under the Loan Documents relating thereto, under applicable law 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 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 Obligors. 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 this Section 13.10(a)otherwise.

Appears in 1 contract

Samples: Credit Agreement (American Classic Voyages Co)

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 (~~Agent, at its option and ~~if applicable~~in its sole discretion, ~~any subagent appointed by the Collateral Agent under Section 13.2 or otherwise)~~ to release ~~its Liens on the Collateral, and the Collateral~~ any Agent’s Liens upon any Collateral ~~shall be automatically released~~ (i) upon ~~Full Payment~~ the termination of the Revolving Credit 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 the termination of all outstanding Letters of Credit (whether or not any of such obligations are due) and all other Obligations; (ii) ~~upon a~~ constituting property being sold or disposed of if the Borrowers certify to the Agent that the sale or disposition ~~of Collateral permitted~~ is made in compliance with Section 7.9, or Section 7.19 (and the Agent may rely conclusively on any such certificate, without further inquiry) and the proceeds are applied to the Obligations to the extent required by ~~Section 8.8 to a Person that is not an Obligor~~this Agreement; (iii) ~~if any such Collateral constitutes~~ constituting property in which ~~the Obligors~~ a Loan Party owned no interest at the time the Lien was granted or at any time thereafter; (iv) ~~if any such Collateral constitutes~~ constituting property leased to ~~an Obligor~~ a Loan Party under a lease which has expired or been terminated in a transaction permitted under this Agreement; (v) constituting property subject to a Capital Lease or purchase money Debt permitted by this Agreement if required by the extent the property constituting such Collateral is owned by any Guarantor, upon the release of such Guarantor from its obligations under the Guarantee Agreement (in accordance with the second succeeding sentence and the Guarantee Agreement)lender or lessor; (vi) constituting Replaced Property (as ~~required by~~ such term is defined in Section 2.8), provided that the ~~Collateral Agent~~ conditions to ~~effect any sale, transfer~~ release set forth in such Section 2.8 have been satisfied; or ~~other Disposition of Collateral in connection with any exercise of remedies of the Collateral Agent pursuant to the Security Documents,~~ (vii) constituting Real Estate not set forth on the Addendum to Schedule 6.11 (which sets forth the ~~extent such~~ Real Estate intended to be subject to Mortgages) as of the Closing Date. In addition (a) any Guaranty may be released if the Guarantor is sold in a transaction permitted under this Agreement, (b) Liens on Collateral ~~otherwise becomes an Excluded Stock or an Excluded Asset,~~ (other than Term Loan Collateral) may be released with the consent of the Revolving Credit Lenders and the Majority Term Lenders and (~~viii~~c) if Liens on the ~~percentage~~ Term Loan Collateral may be released with the consent of ~~Lenders required to consent to~~ only the ~~Collateral being released hereunder, so consents to the Collateral being released~~Term Lenders. 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)~~Lenders; provided ~~that, in addition to~~ that the ~~foregoing, the Collateral~~ Agent may, in its discretion, release ~~such Collateral~~ the Agent’s Liens on Collateral (other than Term Loan Collateral) valued in the aggregate not in excess of $~~1,000,000~~ 3,000,000 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~~ Lenders and the ~~updating~~ Agent may release the Agent’s Liens on Collateral (other than Term Loan Collateral) valued in the aggregate not in excess of $5,000,000 during each Fiscal Year with the ~~Borrowing Base, as the case may be, to reflect the deletion~~ prior written authorization of ~~any assets subject to such release, Availability shall be no less than the Availability immediately prior to such release~~Majority Lenders. Upon request by the ~~Collateral~~ Agent or the ~~Borrower~~ Borrowers 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 ~~applicable Collateral~~ Agent’s Liens upon particular types or items of Collateral or any Guaranty pursuant to this Section 13.10. 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 (w) the Collateral Agent to 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 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 the terms hereof, the Security Documents or any other contractual arrangement with any Obligor, following the written request by Borrower, Collateral Agent shall (to 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 Liens, 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 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 Obligors. 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 this Section 13.10(a)12.11.

Appears in 1 contract

Samples: Credit Agreement (Fleetwood Enterprises Inc/De/)

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 (~~Administrative Agent, at its option and ~~if applicable~~in its sole discretion, ~~any subagent appointed by the Collateral Agent under Section 13.2 or otherwise)~~ to release ~~its Liens on the Collateral, and the Collateral~~ any Administrative Agent~~’s Liens~~ 's Lien upon any Collateral ~~shall be automatically released~~ (i) upon ~~Full Payment~~ the termination 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 the termination of all outstanding Letters of Credit (whether or not any of such obligations are due) and all other Obligations; (ii) ~~upon~~ constituting property (other than Inventory) being sold or disposed of or used as collateral in connection with a borrowing if a Borrower certifies to the Administrative Agent that the sale, disposition ~~of Collateral permitted by~~ or borrowing is made in compliance with Section ~~8.8 to a Person that is not an Obligor~~9.9, 9.13 or 9.20, as appropriate (and the Administrative Agent may rely conclusively on any such certificate, without further inquiry); (iii) ~~if any such Collateral constitutes~~ constituting property in which ~~the Obligors~~ a Credit Party owned no interest at the time the Lien was granted or at any time thereafter; or (iv) ~~if any such Collateral constitutes~~ constituting property leased to ~~an Obligor~~ a Credit Party under a lease which has expired or been terminated in a transaction permitted under this Agreement; (v) to the extent the property constituting such Collateral is owned by any Guarantor, upon the release of such Guarantor from its obligations under the Guarantee Agreement (in accordance with the second succeeding sentence and the Guarantee Agreement); (vi) as required by the Collateral Agent to effect any sale, transfer or other Disposition of Collateral in connection with any exercise of remedies of the Collateral 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~~ Administrative Agent will not release any of the ~~Collateral~~ Administrative Agent’s '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)~~Lenders; provided ~~that, in addition to~~ that the ~~foregoing, the Collateral~~ Administrative Agent may, in its discretion, release ~~such Collateral~~ the Administrative Agent’s '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~~the Lenders; and provided, ~~so long as~~ further, that the Administrative Agent shall be permitted and is authorized to release Collateral which a Credit Party is permitted to sell or otherwise transfer or has obtained consent or does not require consent to sell or otherwise transfer under Section 9.9 (unless such Collateral is Inventory sold outside the ordinary course of business, in which case there shall be no such release unless all ~~proceeds received in~~ Lenders shall have consented to such sale). 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~~ Administrative Agent shall, at the Borrowers' expense, execute and deliver UCC-3 partial releases and/or termination statements, satisfactions of mortgage and/or such other documents and instruments as the applicable Credit Parties may reasonably request to evidence such release. Upon request by the ~~Collateral~~ Administrative Agent or the ~~Borrower~~ Borrowers 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~~ Administrative Agent’s 's authority to release any ~~applicable Collateral~~ Administrative Agent’s 's Liens upon particular types or items of Collateral pursuant to this Section 13.10. 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 (w) the Collateral Agent to 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 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 the terms hereof, the Security Documents or any other contractual arrangement with any Obligor, following the written request by Borrower, Collateral Agent shall (to 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 Liens, 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 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 Obligors. 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 this Section 13.10(a)14.12.

Appears in 1 contract

Samples: Credit Agreement (Ames Department Stores 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 if applicable, any subagent appointed by the Collateral Agent under Section 13.2 or otherwise)~~ to release ~~its Liens on the~~ any Lien upon any Collateral, and ~~the Collateral Agent’s Liens upon any Collateral~~ such Lien shall automatically be ~~automatically released~~ released, (i) upon ~~Full Payment~~ the termination of the ~~Obligations;~~ 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) ~~upon~~ (x) constituting property being sold, transferred or disposed of in a ~~disposition~~ Permitted Disposition or (y) which constitutes property subject to the proviso in the definition of ~~Collateral permitted by~~ “Collateral” in the Security Agreement or subject to the proviso in Section ~~8.8 to a Person that is not an Obligor;~~ 2.1 of the Pledge Agreement, (iii) if as provided in any ~~such Collateral constitutes property in which~~ intercreditor agreement, including the ~~Obligors owned no interest at the time the Lien was granted or at any time thereafter;~~ Intercreditor Agreement with respect to Term Loan Priority Collateral, and (iv) ~~if any such Collateral constitutes property leased to an Obligor under a lease which has expired or been terminated in a transaction permitted under this Agreement; (v)~~ as to the ~~extent the property constituting such~~ Collateral ~~is owned by~~ of any Facility Guarantor, upon ~~the~~ its release ~~of such Guarantor~~ from its ~~obligations under the~~ Facility Guarantee ~~Agreement~~ as a result of a transaction or designation permitted hereunder (~~in accordance with the second succeeding sentence and the Guarantee Agreement~~including as a result of designation as an Unrestricted Subsidiary); (vi) as required by the Collateral Agent to effect any sale, transfer or other Disposition of Collateral in connection with any exercise of remedies of the Collateral 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 releaseApplicable Lenders. Upon request by ~~the Collateral~~ any Agent or ~~the Borrower~~ any Loan Party 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 ~~applicable Collateral Agent’s~~ Liens upon particular types or items of Collateral pursuant to this Section 13.10. 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 (w) the Collateral Agent to 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 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 the terms hereof, the Security Documents or any other contractual arrangement with any Obligor, following the written request by Borrower, Collateral Agent shall (to 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 Liens, 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 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 Obligors. 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 this Section 13.10(a)8.16.

Appears in 1 contract

Samples: Credit Agreement (Burlington Stores, Inc.)

Collateral Matters. Each Lender authorizes and directs Agent to enter into the other Loan Documents for the benefit of Lenders. Each Lender hereby agrees that, except as otherwise set forth herein, any action taken by Required Lenders in accordance with the provisions of this Agreement or the other Loan Documents, and the exercise by the Required Lenders of the powers set forth herein or therein, together with such other powers as are reasonably incidental thereto, shall be authorized and binding upon all Lenders. Agent is hereby authorized on behalf of all Lenders, without the necessity of any notice to or further consent from any Lender to take any action with respect to any Collateral or Loan Documents which may be necessary to perfect and maintain perfected the Liens upon the Collateral granted pursuant to this Agreement and the other Loan Documents. The Lenders irrevocably authorize Agent, at its option and in its discretion, (a) ~~The Lenders (and each other Secured Party~~ to release any Lien granted to or held by ~~their acceptance of the benefits of the Loan Documents shall be deemed to) hereby irrevocably authorize the Collateral Agent (and if applicable, any subagent appointed by the Collateral~~ Agent under ~~Section 13.2 or otherwise) to release its Liens on the Collateral, and the Collateral Agent’s Liens upon~~ any Collateral ~~shall be automatically released~~ Document (i) upon ~~Full Payment~~ termination of the ~~Obligations~~Commitments and payment in full of all Loans and all other obligations of Borrower hereunder and the expiration or termination of all Letters of Credit; (ii) ~~upon a disposition~~ constituting property sold or to be sold or disposed of ~~Collateral permitted by Section 8.8 to a Person that is not an Obligor; (iii) if any such Collateral constitutes property in which the Obligors owned no interest at the time the Lien was granted~~ as part of or at any time thereafter; (iv) if any such Collateral constitutes property leased to an Obligor under a lease which has expired or been terminated in a transaction permitted under this Agreement; (v) to the extent the property constituting such Collateral is owned by any Guarantor, upon the release of such Guarantor from its obligations under the Guarantee Agreement (in accordance with the second succeeding sentence and the Guarantee Agreement); (vi) as required by the Collateral Agent to effect any sale, transfer or other Disposition of Collateral in connection with any ~~exercise~~ disposition permitted hereunder (including the release of ~~remedies of~~ any guarantor); or (iii) subject to Section 15.1, if approved, authorized or ratified in writing by the ~~Collateral Agent pursuant to the Security Documents,~~ Required Lenders; or (~~vii~~b) to ~~the extent~~ subordinate its interest in any Collateral to any holder of a Lien on such Collateral ~~otherwise becomes an Excluded Stock~~ which is permitted by Section 11.2(d)(i) or ~~an Excluded Asset, and~~ Section 11.2(d)(iii) (~~viii) if~~ it being understood that Agent may conclusively rely on a certificate from Borrower in determining whether 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~~ Debt secured by any ~~of the Collateral Agent’s Liens without the prior written authorization of the Required Lenders (or~~ such ~~other percentage of Lenders whose consent~~ Lien is ~~required in accordance with~~ permitted by Section ~~12.1~~11.1(b); 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 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 applicable Collateral Agent’s Liens upon~~ release, or subordinate its interest in, particular types or items of Collateral pursuant to this Section ~~13.10~~14.11. ~~In addition, the Lenders (and each other Secured Party by their acceptance of the benefits of the Loan Documents shall be deemed to)~~ Each Lender hereby ~~irrevocably authorize (w) the Collateral~~ authorizes Agent to 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 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 the terms hereof, the Security Documents or any other contractual arrangement with any Obligor, following the written request by Borrower, Collateral Agent shall (to 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 give blockage notices in connection with ~~incurrence of~~ any Subordinated 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 Liens, 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 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~~ direction of ~~the Obligors. Upon request by any Appointed Agent at any time, the~~ Required Lenders and agrees that it will ~~confirm in writing~~ not act unilaterally to deliver 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 this Section 13.10(a)~~notices.

Appears in 1 contract

Samples: Credit Agreement (Greenlight Capital Re, Ltd.)

Collateral Matters. Each Lender (aincluding in its capacities as a potential Cash Management Bank and a potential Hedge Bank) ~~The Lenders~~ irrevocably authorizes and directs the Collateral Agent to take the actions to be taken by them as set forth in Section 10.24. In each case as specified in this Section 9.12, the applicable Agent will (and each ~~other Secured~~ Lender irrevocably authorizes the applicable Agent to), at the Borrowers’ expense, execute and deliver to the applicable Loan Party ~~by their acceptance~~ such documents as such Loan Party may reasonably request to evidence the release or subordination of such item of Collateral from the ~~benefits of the Loan Documents shall be deemed to) hereby irrevocably authorize~~ assignment and security interest granted under the Collateral ~~Agent (and if applicable~~Documents, ~~any subagent appointed by the Collateral Agent under Section 13.2~~ or ~~otherwise)~~ to release its Liens on the Collateral, and the Collateral Agent’s Liens upon any Collateral shall be automatically released (i) upon Full Payment of the Obligations; (ii) upon a disposition of Collateral permitted by Section 8.8 to a Person that is not an Obligor; (iii) if any such Collateral constitutes property in which the Obligors owned no interest at the time the Lien was granted or at any time thereafter; (iv) if any such Collateral constitutes property leased to an Obligor under a lease which has expired or been terminated in a transaction permitted under this Agreement; (v) to the extent the property constituting such Collateral is owned by any Guarantor, upon evidence the release of such Guarantor from its obligations under the ~~Guarantee Agreement (~~Guaranty, in each case in accordance with the second succeeding sentence and the Guarantee Agreement); (vi) as required by the Collateral Agent to effect any sale, transfer or other Disposition of Collateral in connection with any exercise of remedies terms of the ~~Collateral Agent pursuant to the Security Documents, (vii) to the extent such Collateral otherwise becomes an Excluded Stock or an Excluded Asset,~~ Loan Documents 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 release10.24. Upon request by the ~~Collateral~~ Administrative Agent ~~or 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 applicable Collateral Agent’s Liens upon~~ particular types or items of Collateral pursuant to this Section ~~13.10~~9.12; provided that such confirmation shall not delay the effectiveness of any release of Collateral made pursuant to Section 10.25. ~~In addition~~Each Lender hereby agrees, and each holder of any Note by the acceptance thereof will be deemed to agree, that, except as otherwise set forth herein, any action taken by the Required Lenders in accordance with the provisions of this Agreement or the Collateral Documents, and the exercise by the Required Lenders of the powers set forth herein or therein, together with such other powers as are reasonably incidental thereto, shall be authorized and binding upon all of the Lenders. The Collateral Agent is hereby authorized on behalf of all of the Lenders, without the necessity of any notice to or further consent from any Lender, from time to time prior to an Event of Default, to take any action with respect to any Collateral or Collateral Documents which may be necessary to perfect and maintain perfected the security interest in and liens upon the Collateral granted pursuant to the Collateral Documents. The Collateral Agent shall have no obligation whatsoever to the Lenders ~~(and each~~ or to any other ~~Secured~~ Person to assure that the Collateral exists or is owned by any Loan Party ~~by their acceptance of~~ or is cared for, protected or insured or that the ~~benefits of the Loan Documents shall be deemed to) hereby irrevocably authorize (w)~~ Liens granted to the Collateral Agent herein or pursuant hereto have been properly or sufficiently or lawfully created, perfected, protected or enforced or are entitled to ~~subordinate~~ any ~~Lien on~~ particular priority, or to exercise or to continue exercising at all or in any ~~property~~ manner or under any duty of care, disclosure or fidelity any of the rights, authorities and powers granted or available to ~~or held by~~ the Collateral Agent ~~under~~ in this Section 9.12, Section 10.24 or in any ~~Loan Document to~~ of the ~~holder~~ Collateral Documents, it being understood and agreed that in respect of the Collateral, or any ~~Lien on such property that is permitted by Section 8.12(c)~~ act, omission or ~~(q) (as to Fixed Asset~~ event related thereto, the Collateral ~~only), (x) the~~ Agent ~~to release automatically~~ may act in 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 Subsidiarymanner it may deem appropriate, in ~~each case~~its sole discretion, ~~solely to~~ given 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~~ Collateral Agent’s own interest in the Collateral as ~~both (1) no Default or Event~~ one of ~~Default has occurred~~ the Lenders 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~~ shall have no duty or liability whatsoever to the ~~terms hereof~~Lenders, ~~the Security Documents~~ except for its gross negligence, bad faith or any other contractual arrangement with any Obligor, following the written request by Borrower, Collateral Agent shall (to 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 Liens, 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 Collateral Agent shall release Collateral Agent’s Liens on Fixed Assets Collateral (other than, in each case any Inventory or Fracturing Equipment Parts willful misconduct (as ~~defined~~ determined by a court of competent jurisdiction in the Initial Intercreditor Agreement)) at the expense of the Obligors. 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 this Section 13.10(aa final and non-appealable decision).

Appears in 1 contract

Samples: Syndicated Facility Agreement (DTZ Jersey Holdings LTD)

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~~ BANKS irrevocably authorize the Collateral Agent (and if applicable, any subagent appointed by the Collateral Agent under Section 13.2 or otherwise) to release its Liens on the Collateral, and the Collateral Agent’s Liens upon any Collateral shall be automatically released (i) upon Full Payment of the Obligations; (ii) upon a disposition of Collateral permitted by Section 8.8 to a Person that is not an Obligor; (iii) if any such Collateral constitutes property in which the Obligors owned no interest at the time the Lien was granted or at any time thereafter; (iv) if any such Collateral constitutes property leased to an Obligor under a lease which has expired or been terminated in a transaction permitted under this Agreement; (v) to the extent the property constituting such Collateral is owned by any GuarantorCOLLATERAL AGENT, upon the release of such Guarantor from its obligations under the Guarantee Agreement (in accordance with the second succeeding sentence and the Guarantee Agreement); (vi) as required by the Collateral Agent to effect any sale, transfer or other Disposition of Collateral in connection with any exercise of remedies direction of the ~~Collateral Agent pursuant to the Security Documents~~ADMINISTRATIVE AGENT, (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 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 ~~applicable Collateral Agent’s Liens upon particular types~~ mortgage, deed of trust, pledge, lien, security interest or ~~items~~ other charge or encumbrance of Collateral pursuant to this Section 13.10. 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 (w) the Collateral Agent to subordinate any ~~Lien~~ nature on any property granted to or held by the ~~Collateral Agent~~ COLLATERAL AGENT under any Loan Document to the holder of any Lien on such 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 LOAN DOCUMENT upon BORROWER’s full 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 the terms hereof, the Security Documents or any other contractual arrangement with any Obligor, following the written request by Borrower, Collateral Agent shall (to the extent not prohibited by applicable law or legal process) deliver such Collateral in accordance with the terms final satisfaction 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 Liens, 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 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 ObligorsOBLIGATIONS. Upon request by ~~any Appointed Agent~~ the COLLATERAL AGENT at any time, the ~~Required Lenders~~ BANKS will confirm in writing ~~such Appointed Agent~~the COLLATERAL AGENT’s authority to release ~~or subordinate~~ its interest in particular types or items of ~~property, or to release any Guarantor from its obligations~~ property pursuant to this Section ~~13.10(a).~~9.10. In each case as specified in this Section 9.10, the COLLATERAL AGENT will, at BORROWER’s expense, execute and deliver to BORROWER such documents as BORROWER may reasonably request to evidence the release of such item of collateral from the assignment and security interest granted under the LOAN DOCUMENTS in accordance with the terms of the LOANS DOCUMENTS and this Section 9.10. Notwithstanding anything to the contrary in any LOAN DOCUMENT, the powers conferred on the COLLATERAL AGENT under the LOAN DOCUMENTS are solely to protect its interest (on behalf of the BANKS) in the collateral securing the LOANS and shall not impose any duty upon it to exercise any such powers. Except for the reasonable care of any such collateral in its possession and the accounting for moneys actually received by it under the LOAN DOCUMENTS, the COLLATERAL AGENT shall have no duty as to any such collateral, or responsibility, for (i) ascertaining or taking action with respect to calls, conversions, exchanges, maturities, tenders or other matters relative to any investment property constituting collateral, whether or not the COLLATERAL AGENT has or is deemed to have knowledge of such matters, or (ii) taking any necessary steps to preserve rights against prior parties or any other rights pertaining to any such

Appears in 1 contract

Samples: Construction Loan Agreement (Highwater Ethanol LLC)

Collateral Matters. (a) ~~The Lenders~~ All Liens on Collateral (~~and each other Secured Party by their acceptance~~ i) shall be automatically released upon the termination of the ~~benefits~~ Commitments and payment and satisfaction in full by Borrowers of all Obligations, (ii) constituting property (including the equity interest of a Subsidiary of Parent) being sold or disposed of in a sale or disposition permitted under Section 6.4 of this Agreement or the other Loan Documents shall be ~~deemed to) hereby irrevocably authorize the Collateral Agent (and if applicable, any subagent appointed by the Collateral Agent under Section 13.2~~ automatically released upon such sale or ~~otherwise) to release its Liens on the Collateral~~disposition, and in the ~~Collateral Agent’s Liens upon any Collateral~~ event of a sale or other disposition of all of the equity interests of a Subsidiary of Parent that is a Loan Party permitted under this Agreement and the other Loan Documents, such Subsidiary shall be automatically released ~~(i) upon Full Payment~~ of its obligations under the ~~Obligations; (ii) upon a disposition of Collateral permitted by Section 8.8 to a Person that is not an Obligor;~~ Loan Documents, (iii) ~~if any such Collateral constitutes~~ constituting property in which ~~the Obligors~~ no Loan Party owned no any interest at the time the Agent’s Lien was granted or nor at any time ~~thereafter;~~ thereafter shall be automatically released, or (iv) ~~if any such Collateral constitutes~~ constituting property leased to ~~an Obligor~~ a Borrower or its Subsidiaries under a lease ~~which~~ that has expired or ~~been~~ is terminated in a transaction permitted under this ~~Agreement; (v) to the extent the property constituting such Collateral is owned by any Guarantor, upon the release of such Guarantor from its obligations under the Guarantee~~ Agreement ~~(in accordance with the second succeeding sentence and the Guarantee Agreement); (vi) as required by the Collateral~~ shall be automatically released. The Lenders hereby irrevocably authorize Agent to ~~effect any sale~~take such actions and execute such documents that it deems necessary or appropriate, ~~transfer or other Disposition of Collateral~~ at its option and in ~~connection with any exercise of remedies of~~ its sole discretion, to evidence the Collateral 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 releasedforegoing releases. Except as provided above, ~~the Collateral~~ Agent will not execute and deliver a release of any ~~of the~~ Lien on any Collateral ~~Agent’s Liens~~ without the prior written authorization of (y) if the release is of all or substantially all of the Collateral, all of the Lenders, or (z) otherwise, 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 releaseLenders. Upon request by ~~the Collateral~~ Agent or ~~the~~ Administrative 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 ~~applicable Collateral Agent’s~~ such Liens ~~upon~~ on particular types or items of Collateral pursuant to this Section ~~13.10. In addition~~15.12; provided, the Lenders (and each other Secured Party by their acceptance of the benefits of the Loan Documents shall be deemed to) hereby irrevocably authorize (w) the Collateral Agent to 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 however, 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~~ Agent shall not be required to execute any document necessary to evidence such release on terms that, in Agent’s opinion, would expose Agent to liability or ~~Event~~ create any obligation or entail any consequence other than the release of ~~Default has occurred and is continuing~~ such Lien without recourse, representation, or ~~would result therefrom~~ warranty, and (2) ~~no Out-~~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 Borrowers in respect of~~-Formula Condition has occurred and is continuing or would result therefrom~~) all interests retained by Borrowers, ~~then~~including, to the ~~extent that the Collateral Agent obtains possession~~ proceeds of any ~~Collateral by operation~~ sale, all of ~~Section 13.12 of this Agreement that constitutes Collateral that Obligors are not required~~ which shall continue to deliver to Collateral Agent at such time pursuant to the terms hereof, the Security Documents or any other contractual arrangement with any Obligor, following the written request by Borrower, Collateral Agent shall (to the extent not prohibited by applicable law or legal process) deliver such Collateral in accordance with the terms constitute part 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 Liens, 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 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 Obligors. 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 this Section 13.10(a)Collateral.

Appears in 1 contract

Samples: Credit Agreement (Sitel Corp)

Collateral Matters. Following a Collateral Trigger Event, each Loan Party that owns OP Units at such time or at any time thereafter (aeach such Loan Party, a “Pledgor”) ~~The Lenders~~ shall promptly (and ~~each other Secured Party by their acceptance~~ in any event within 90 days of the ~~benefits~~ Collateral Trigger Event with respect to any OP Units owned at such time and within 90 days of the date of acquisition or formation thereof with respect to any OP Units acquired after the initial Collateral Trigger Event Date or, in each case, such longer period of time as Administrative Agent may agree to in its reasonable discretion or as required to obtain any necessary Gaming Approval) (the latest such date with respect to any OP Units, the “Collateral Trigger Event Date”), subject to compliance with applicable Gaming Laws, grant the Administrative Agent valid and perfected First Priority Liens in all of the OP Units held by such Loan ~~Documents shall be deemed to) hereby irrevocably authorize the~~ Party following a Collateral ~~Agent~~ Trigger Event and all proceeds thereof and rights thereunder (~~and if applicable, any subagent appointed by the Collateral Agent under Section 13.2 or otherwise)~~ subject to ~~release its Liens on the Collateral, and the Collateral Agent’s Liens upon any Collateral shall be automatically released~~ (i) ~~upon Full Payment~~ such OP Units not constituting Excluded Assets, (ii) the limitations set forth in the MGM Growth Properties Operating Partnership LP Agreement, (iii) the maximum aggregate amount of the ~~Obligations~~secured obligations secured at any time by any such Pledge Agreement being limited in a manner that will not require Liens to be granted under any then outstanding senior unsecured notes of the Company and (iv) compliance with applicable Gaming Laws). Such pledges shall be documented pursuant to collateral documentation reasonably satisfactory to the Administrative Agent and the Company, based on the Pledge Agreement (as defined in the Existing Credit Agreement) (the “Pledge Agreement”). On or prior to each Collateral Trigger EventCollateral Matters; Security Interests; Further Assurances . From and after the First Amendment Effective Date, subject to compliance with applicable Gaming Laws, the Administrative Agent shall have received with respect to such OP Units (i) executed counterparts of the Pledge Agreement duly executed by each applicable Loan Party, together with (A) to the extent certificated, certificates representing the Pledged Equity referred to therein accompanied by undated stock powers executed in blank, and (B) financing statements in form appropriate for filing under the Uniform Commercial Code of all jurisdictions that the Administrative Agent may deem necessary in order to perfect the Liens created under the Pledge Agreement, covering the Collateral described in the Pledge Agreement; (ii) ~~upon a disposition~~ an opinion of ~~Collateral permitted by Section 8.8~~ Milbank LLP, counsel to ~~a Person that is not an Obligor; (iii) if any such Collateral constitutes property~~ the Loan Parties, and of local counsel to the Loan Parties in each jurisdiction in which the ~~Obligors owned no interest at~~ Loan Parties are formed, addressed to the ~~time the Lien was granted or at any time thereafter~~Administrative Agent and each Lender; (~~iv)~~ including without limitation, receipt of the consent, receipt of confirmation, or approval of the New Jersey Division of Gaming Enforcement, the New Jersey Casino Control Commission and the New York State Gaming Commission with respect to the grant of Liens on the 108 Collateral), the Loan Parties that own OP Units shall cause the Administrative Agent to have a valid and perfected security interest in the OP Units owned by the Loan Parties. Without limiting the foregoing, if any Loan Party shall own or acquire any OP Units, and such ~~Collateral constitutes property leased to an Obligor under~~ Loan Party is not a ~~lease which has expired or been terminated in a transaction permitted under this Agreement; (v)~~ party to the ~~extent the property constituting~~ Pledge Agreement or such ~~Collateral is owned by any Guarantor, upon the release of such Guarantor from its obligations~~ OP Units are not pledged under the ~~Guarantee~~ Pledge Agreement, such Loan Party, shall promptly, and in any event within 30 days (or such later date as the Administrative Agent may agree), become a Pledgor and a party to the Pledge Agreement (in accordance with the ~~second succeeding sentence~~ terms thereof, and shall deliver documents, certificates and opinions consistent with those delivered by the Pledgors on the First Amendment Effective Date, and take such other actions as are required or reasonably requested by the Administrative Agent to create and perfect the Liens of the Administrative Agent in the OP Units. The Pledgors shall, promptly, upon the reasonable request of the Administrative Agent, and assuming the request does not violate any Gaming Law or, if necessary, is approved by the applicable Gaming Authority, at the Company’s expense, (a) execute, acknowledge and deliver, or cause the execution, acknowledgment and delivery of, and thereafter register, file or record, or cause to be registered, filed or recorded, in an appropriate governmental office, financing statements, or deliver to the Administrative Agent any certificates representing Equity Interests, which are reasonably necessary to create, protect or perfect or for the continued validity, perfection and priority of the Liens on the Collateral subject to no Liens other than Permitted Encumbrances and other Liens permitted pursuant to Section 8.03 and (iiib) deliver a certificate executed by a financial officer of the Company setting forth the aggregate amount of the obligations that may be secured by Liens as of the date of effectiveness of the relevant Pledge Amendment (as defined in the Pledge Agreement) pursuant to Section 4.10(c) of the indenture governing the Company’s 7.750% senior unsecured notes due 2022 and the ~~Guarantee Agreement~~similar provisions contained in the Company’s other indentures governing its other senior unsecured notes, which certificate shall include a calculation of the Company’s Consolidated Net Tangible Assets (as defined in such indenture or such other indentures); ~~(vi)~~ provided that if any such documents, instruments or opinions with respect to any OP Units required to be pledged cannot become effective or delivered or filed at such time as a result of the Gaming Approvals not being obtained, such documents, instruments and opinions with respect to Liens on such OP Units shall become effective or be delivered or filed upon obtaining such Gaming Approvals. The actions . To the extent approvals of any Gaming Authorities for any actions required by the ~~Collateral Agent~~ Pledge Agreement, Section 6.08 or this Section 6.09 are required by applicable Gaming Laws, the Company and/or applicable Loan Party shall, at their own expense, promptly (such timing as reasonably determined by the Company with notice of such timing provided to ~~effect~~ the Administrative Agent) apply for and thereafter use commercially reasonable efforts to pursue such approvals. The actions that the Company and/or the applicable other Loan Party shall take in order to obtain any ~~sale~~necessary Gaming Approval shall include, ~~transfer or~~ among other ~~Disposition~~ requirements of ~~Collateral in connection with any exercise~~ the applicable Gaming Authorities, (i) providing immediate notice of ~~remedies~~ the occurrence of the Collateral Trigger Eventprompt notice to the New Jersey Division of Gaming Enforcement and the New Jersey Casino Control Commission and the New York State Gaming Commission of the requirements to pledge the OP Units (in the case of OP Units existing on the First Amendment Effective Date, promptly (and in any event within two Business Days of the First Amendment Effective Date) and (ii) submitting and diligently pursuing a request to the New Jersey Division of Gaming Enforcement for, the New Jersey Casino Control Commission and the New York State Gaming Commission (in the case of Collateral existing on the First Amendment Effective Date, promptly (and in any event within two Business Days of the First Amendment Effective Date)) for the consent, receipt of confirmation, or approval of the grant of Liens on anythe Collateral. Upon the exercise by the Administrative Agent or the Lenders of any power, right, privilege or remedy pursuant to any Loan Document following the ~~Security Documents~~occurrence and during the continuation of an Event of Default which requires any consent, ~~(vii) to the extent such Collateral otherwise becomes an Excluded Stock~~ approval, registration, qualification 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~~Governmental Authority, the Company and the Restricted Subsidiaries shall 109 use commercially reasonable efforts to execute and deliver all applications, certifications, instruments and other documents and papers that Administrative Agent or the Lenders may be so ~~long~~ required to obtain. If Liens are granted in any Collateral following the occurrence of a Collateral Trigger Event, the security arrangements implemented as ~~all proceeds received~~ a result thereof shall remain in ~~connection with~~ place through the Final Maturity Date at such ~~release are applied~~ time, notwithstanding that at any subsequent date the Rent-Adjusted Total Net Leverage Ratio may be less than or equal to the ~~Obligations~~ Rent-Adjusted Total Net Leverage Ratio then permitted under Section 8.12(a). To the extent approvals of any Gaming Authorities for any actions required by the Pledge Agreement or this Section 6.09 are required by applicable Gaming Laws, the Company and/or applicable Loan Party shall, at their own expense, promptly (such timing as reasonably determined by the Company with notice of such timing provided to the Administrative Agent) apply for and thereafter pursue such approvals. Notwithstanding anything to the contrary in ~~accordance with Section 4.7 and~~this Agreement or in any Loan Document, no Loan Party shall be required to (a) perfect any security interests, or make any filings or take any other actions necessary or desirable to perfect and protect security interests, in Excluded Assets, (b) enter into any control agreement or control or similar arrangement (other than delivery of stock certificates), (c) grant any Lien in, those assets as to which (A) the cost, burden, difficulty or consequence of obtaining or perfecting such Lien (including any mortgage, stamp, intangibles or other tax or expenses relating to such Lien) outweighs the benefit to the Lenders of the security afforded thereby as reasonably determined by the Borrowers and the Administrative Agent, (B) the granting of a Lien on such asset would violate any enforceable anti-assignment provisions of contracts binding on such assets at the time of their acquisition and not entered into in contemplation of such acquisition or applicable law (in each case, after giving effect to the ~~application of such proceeds and the updating~~ applicable anti-assignment provisions of the ~~Borrowing Base~~UCC or other applicable law), ~~as the case may be, to reflect the deletion of any assets subject to~~ or (C) such ~~release, Availability shall~~ Lien would be ~~no less than the Availability immediately prior to such release. Upon request~~ prohibited by the ~~Collateral Agent or~~ MGM Growth Properties Operating Partnership LP Agreement (provided, however, the ~~Borrower at any time, subject~~ Company must use commercially reasonable efforts to obtain the consent of the general partner under the MGM Growth Properties Operating Partnership LP Agreement to the ~~Borrower having certified~~ extent necessary to enable a Loan Party to xxxxx x Xxxx in the ~~Collateral Agent that the disposition is made in compliance with Section 8.8 (which the Collateral Agent may rely conclusively on any~~ OP Units owned by such certificate, without further inquiry), the Lenders will confirm in writing the Collateral Agent’s authority to release any applicable Collateral Agent’s Liens upon particular types or items of Collateral pursuant to this Section 13.10. 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 (w) the Collateral Agent to 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 8.12(cParty) or (~~q) (as to Fixed Asset Collateral only), (x~~D) the ~~Agent to release automatically any Guarantor from its obligations under~~ indentures governing the ~~Guarantee Agreement if~~ Company’s senior notes would require that such ~~Person ceases to~~ notes 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~~ equally and ratably secured by the ~~extent such Subsidiary ceasing to constitute a Restricted Subsidiary or otherwise becoming an Excluded Subsidiary is not prohibited~~ OP Units owned 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 the terms hereof, the Security Documents or any other contractual arrangement with any Obligor, following the written request by Borrower, Collateral Agent shall (to the extent not prohibited by applicable law or legal process) deliver such Collateral Loan Parties in accordance with the terms of ~~the Intercreditor Agreement or, if no Intercreditor Agreement is then in effect, to the applicable Obligor~~such indentures, and (zd) ~~if after the date hereof Collateral Agent’s Lien has been expanded~~ no actions shall be required to ~~include Fixed Asset Collateral~~ be taken in ~~connection with incurrence of Debt pursuant~~ order to ~~Section 8.12(q)(x)~~ create, grant or ~~(r) so long as all~~ perfect any security interest in any assets located outside 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 (U.S. and no ~~commitments for Debt that~~foreign law security or pledge agreements, ~~if incurred would~~ foreign law mortgages or deeds or foreign intellectual property filings or searches shall 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 Liens, 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 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 Obligors. 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 this Section 13.10(a)required.

Appears in 1 contract

Samples: Credit Agreement (MGM Resorts International)

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~~ and direct Agent ~~(and if applicable, any subagent appointed by the Collateral Agent under Section 13.2 or otherwise)~~ to release ~~its Liens on the Collateral, and the Collateral Agent’s~~ any Liens upon any Collateral (and any such Liens shall be automatically ~~released~~ released), without further action by Agent or any other Person, (i) upon ~~Full Payment of~~ the ~~Obligations~~Termination Date; (ii) ~~upon a disposition~~ in respect of ~~Collateral permitted~~ property of any Subsidiary being sold or disposed of or transferred (including property owned by ~~Section 8.8~~ any Subsidiary being sold or disposed of or transferred) to a Person that is not ~~an Obligor~~a Credit Party 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 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) ~~if any such~~ to the extent the applicable Collateral ~~constitutes property~~ is or becomes Excluded Property pursuant to a transaction made in ~~which the Obligors owned no interest at the time the Lien was granted or at any time thereafter~~compliance with this Agreement; (iv) ~~if any such~~ to the extent the applicable Collateral constitutes property leased to ~~an Obligor~~ Credit Parties under a lease which has expired or been terminated in a transaction permitted under this Agreement; (v) to the extent the ~~property constituting~~ Credit Party owning such Collateral is ~~owned by any Guarantor, upon the release of such Guarantor~~ released from its ~~obligations under the Guarantee Agreement~~ Obligations hereunder (~~in accordance with the second succeeding sentence and the Guarantee Agreement~~pursuant to Section 13.10 or otherwise); (vi) as required by the ~~Collateral Agent to effect~~ terms of any ~~sale, transfer~~ Intercreditor Agreement; or ~~other Disposition of Collateral in connection with any exercise of remedies of the Collateral 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 in respect of the ~~Collateral Agent’s Liens without~~ Escrow Account and the ~~prior written authorization of~~ Escrowed Property, on the ~~Required Lenders (or such other percentage of Lenders whose consent is required~~ Escrow Release Date 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 terms hereof 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~~Escrow Agreement. Upon request by ~~the Collateral~~ Agent or ~~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 Xxxxxxx will confirm in writing ~~the Collateral~~ Agent’s authority to release any ~~applicable Collateral Agent’s Liens~~ Lien upon particular types or items of Collateral pursuant to this Section ~~13.10~~10.11. 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 ~~(w) the Collateral~~ Agent to subordinate any Lien ~~on any property~~ granted to or held by ~~the~~ Agent upon any Collateral ~~Agent under any Loan Document~~ to ~~the holder of~~ any Lien on such ~~property that is~~ asset 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 ~~the terms hereof, the Security Documents or any other contractual arrangement with any Obligor, following the written request by Borrower, Collateral Agent shall~~ paragraph (to 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 Liens, 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 (p6)(C) of the definition of “Permitted Liens”” (to the extent relating to Indebtedness permitted to be Incurred pursuant to clause (iv) of Section 7.1(b)). In addition, ~~promptly following~~ the ~~written request~~ Guaranty of the ~~Borrower~~Obligations by, and the ~~Collateral Agent shall release Collateral Agent’s Liens~~ liens on ~~Fixed Assets Collateral (other than~~the assets of, any Restricted Subsidiary which is designated as an Unrestricted Subsidiary in ~~each case any Inventory or Fracturing Equipment Parts (as defined in the Initial Intercreditor Agreement))~~ compliance with this Agreement will automatically be terminated and released at the ~~expense~~ time of ~~the Obligors. 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 this Section 13.10(a)~~designation.

Appears in 1 contract

Samples: Credit Agreement (Forward Air 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 if applicable, any subagent appointed by the ~~Collateral~~ Agent under Section 13.2 or otherwise), and the Agent (and if applicable, any subagent appointed by the Agent under Section 13.2 or otherwise) shall hereby have the obligation to release, subject to the satisfaction of any conditions to release ~~its Liens~~ (if any) set forth herein, including the continuance of the applicable Agent’s Lien on ~~the~~ any proceeds of released Collateral, ~~and the Collateral~~ any such Agent’s Liens upon any Collateral ~~shall be automatically released~~ (i) upon Full Payment of the Obligations; (ii) ~~upon a disposition~~ constituting property being sold, transferred or disposed of ~~Collateral permitted by Section 8.8~~ (to a any Person that is not an Obligor), if the sale, transfer or disposition is made in compliance with this Agreement (which shall, upon reasonable request by the Agent, be certified by the Borrowers’ Agent, and the Agent may rely conclusively on any such certification without further inquiry; provided that no certification shall be required at any time with respect to any sales of items of Rental Equipment in the ordinary course of business so long as such Agent’s Lien continues in the proceeds of such Collateral); (iii) ~~if any such Collateral constitutes~~ constituting property in which the Obligors owned no interest at the time the Lien was granted or at any time thereafter; (iv) ~~if any such Collateral constitutes~~ constituting property leased to an Obligor under a lease which has expired or been terminated in a transaction permitted under this Agreement; (v) constituting Relinquished Property, if such Relinquished Property shall have been delivered to the ~~extent~~ applicable Qualified Intermediary in accordance with the applicable exchange agreement and a first priority perfected security interest shall have been granted by the applicable exchanger to the Agent for the benefit of the Secured Parties of a first priority perfected security interest in the rights of such exchanger in, to and under the related exchange agreement; (vi) constituting any Like-Kind Exchange Account; (vii) subject to Section 7.20(b), constituting property being sold, assigned, pledged or otherwise transferred pursuant to any Securitization Transaction; (viii) being or becoming an Excluded Asset (as defined in the U.S. Security Agreement or the Canadian Security Agreement, as applicable); or (ix) constituting ~~such Collateral~~ property that is owned by ~~any Guarantor, upon the release of such~~ a Guarantor that has been released from its obligations under the U.S. Guarantee Agreement ~~(in accordance with~~ or the ~~second succeeding sentence and the~~ Canadian Guarantee Agreement~~); (vi)~~ , as ~~required by the Collateral Agent to effect any sale~~applicable, ~~transfer or other Disposition of Collateral in connection with any exercise of remedies of the Collateral Agent~~ pursuant to ~~the Security Documents, (vii) to the extent such Collateral otherwise becomes an Excluded Stock~~ this Section 13.11 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~~Section 4.3(h). Except as provided ~~above~~above or in Section 12.1, the ~~Collateral~~ Agent will not release any of ~~the Collateral~~ such 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)~~Lenders; provided that, in addition to the foregoing, (x) the ~~Collateral~~ Agent may, in its discretion, release such Agent’s Liens on Collateral valued, in the aggregate for any such release, not in excess of (A) the greater of (1) $280,000,000 and (2) 3% of Consolidated Net Tangible Assets, or (B) if after giving effect to such sale, conveyance, transfer, lease or other disposition on a pro forma basis Specified Availability is at least $1,000,000,000, the greater of (1) $470,000,000 and (2) 5% of Consolidated Net Tangible Assets; and (y) the Agent may release the Agent’s Liens on Collateral valued in the aggregate not in excess of $~~1,000,000~~ 200,000,000 during each Fiscal Year ~~without~~ with the prior written authorization of ~~any Lender~~Required Lenders, so long as all proceeds received in connection with any such release under clause (x) or (y) above are applied to the Obligations in accordance with Section ~~4.7~~ 4.6 and, after giving effect to the application of such proceeds and the updating of the U.S. Borrowing Base or the Canadian Borrowing Base, as the case may be, to reflect the deletion of any assets subject to such release, U.S. Availability or Canadian Availability, as the case may be, shall be no less than the U.S. Availability or the Canadian Availability, as the case may be, immediately prior to such release. Upon request by the Collateral Agent or 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 applicable Collateral Agent’s Liens upon particular types or items of Collateral pursuant to this Section 13.10. 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 ~~(w)~~ the ~~Collateral~~ Agent to (I) 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 ~~8.12(c~~8.1(d) or and (qII) ~~(as to Fixed Asset Collateral only), (x) the Agent to~~ release ~~automatically~~ any Guarantor from its obligations under the U.S. Guarantee Agreement or the Canadian Guarantee Agreement (1) if such Person ceases to be a ~~Restricted~~ Subsidiary as a result of a transaction permitted ~~under this Agreement~~ hereunder 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,~~ as provided in Section 4.3(h) with respect 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 the terms hereof, the Security Documents or any other contractual arrangement with any Obligor, following the written request by Borrower, Collateral Agent shall (to the extent not prohibited by applicable law or legal process) deliver such Collateral in accordance with the terms obligations of the ~~Intercreditor Agreement or, if no Intercreditor Agreement is then in effect,~~ Canadian Guarantors to guarantee 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 Obligations of the ~~following conditions are satisfied (1) no Default~~ Canadian Borrowers 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~~ as provided 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 Liens, 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 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 Obligors12.1. Upon request by ~~any Appointed~~ the Agent or the Borrowers at any time, the Required Lenders will confirm in writing ~~such Appointed~~ the Agent’s authority to release or subordinate ~~its interest in~~ the applicable Agent’s Liens upon particular types or items of ~~property~~Collateral, or to release any Guarantor from its obligations pursuant to this Section ~~13.10(a~~13.11(a).. 162

Appears in 1 contract

Samples: Credit Agreement (United Rentals North America Inc)

Collateral Matters. (a) ~~The Lenders (~~Each Lender authorizes and ~~each other Secured Party by their acceptance of the benefits of the Loan Documents shall be deemed to) hereby irrevocably authorize~~ directs the Collateral Agent to enter into the Security Documents (which, for purposes of this Section 12, also shall include all Cash Management Control Agreements, Landlord Personal Property Collateral Access Agreements, bailee agreements and ~~if applicable~~similar agreements) and the Intercreditor Agreement for the benefit of the Lenders and the other Secured Parties. Each Lender hereby agrees, and each holder of any Note by the acceptance thereof will be deemed to agree, that, except as otherwise set forth herein, any ~~subagent appointed~~ action taken by the Collateral Agent under Section 13.2 or otherwise) to release its Liens on the Collateral, and the Collateral Agent’s Liens upon any Collateral shall be automatically released (i) upon Full Payment of the Obligations; (ii) upon a disposition of Collateral permitted by Section 8.8 to a Person that is not an Obligor; (iii) if any such Collateral constitutes property in which the Obligors owned no interest at the time the Lien was granted or at any time thereafter; (iv) if any such Collateral constitutes property leased to an Obligor under a lease which has expired or been terminated in a transaction permitted under this Agreement; (v) to the extent the property constituting such Collateral is owned by any Guarantor, upon the release of such Guarantor from its obligations under the Guarantee Agreement (Required Lenders in accordance with the ~~second succeeding sentence~~ provisions of this Agreement, the Security Documents or the Intercreditor Agreement, and the ~~Guarantee Agreement); (vi) as required~~ exercise by the Required Lenders of the powers set forth herein or therein, together with such other powers as are reasonably incidental thereto, shall be authorized and binding upon all of the Lenders. The Collateral Agent ~~to effect any sale, transfer or other Disposition~~ is hereby authorized on behalf of ~~Collateral in connection with any exercise of remedies~~ all of the Lenders, without the necessity of any notice to or further consent from any Lender, from time to time prior to an Event of Default, to take any action with respect to any Collateral ~~Agent~~ or Security Documents which may be necessary to perfect and maintain perfected the security interest in and liens upon the Collateral granted pursuant to the Security Documents, . (~~vii~~b) ~~to the extent such Collateral otherwise becomes an Excluded Stock or an Excluded Asset, and (viii) if the percentage of~~ The 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~~ hereby authorize 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,~~ at its option and 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 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 applicable Collateral Agent’s Liens upon particular types or items of Collateral pursuant to this Section 13.10. 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 (w) the Collateral Agent to subordinate any Lien ~~on any property~~ granted to or held by the Collateral Agent upon any Collateral, and such Lien shall be released by the Collateral Agent (i) upon termination of the Total Revolving Loan Commitment (and all Letters of Credit) and payment and satisfaction of all of the Obligations (other than inchoate indemnification obligations) at any time arising under or in respect of this Agreement or the Credit Documents or the transactions contemplated hereby or thereby, (ii) constituting property being sold or otherwise disposed of (to Persons other than the Company and its Subsidiaries) upon the sale or other disposition thereof in compliance with Section 10.02, (iii) constituting all property owned by any ~~Loan Document to the holder of any Lien on such property that is permitted by Section 8.12(c)~~ Credit Party or ~~(q) (as to Fixed Asset Collateral only)~~its Subsidiary, (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~~ all 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~~ which Equity Interests are sold or otherwise ~~becoming an Excluded Subsidiary is not prohibited~~ disposed of (including by ~~this Agreement, (y~~merger or consolidation) ~~so long as both (1) no Default or Event of Default has occurred~~ to Persons other than the Company 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 the terms hereof, the Security Documents or any other contractual arrangement with any Obligor, following the written request by Borrower, Collateral Agent shall (to the extent not prohibited by applicable law or legal process) deliver such Collateral its Subsidiaries in accordance with the terms and conditions of this Agreement or (y) which is designated or otherwise becomes an Unrestricted Subsidiary in accordance with the ~~Intercreditor Agreement or~~terms and conditions of this Agreement, ~~if no Intercreditor Agreement is then in effect, to the applicable Obligor, and~~ (ziv) if ~~after~~ approved, authorized or ratified in writing by 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)~~ Required Lenders (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 Liens, orLenders hereunder, 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~~ required by Section ~~8.12(q)(x~~13.12) or (~~r)), clause (p~~v) of as otherwise may be expressly provided in the ~~definition of “Permitted Liens”, promptly following the written request of the Borrower~~relevant Security Documents, the last sentence of each of Sections 10.01 and 10.02 or in the Intercreditor Agreement. (c) The Collateral Agent shall ~~release~~ have no obligation whatsoever to the Lenders or to any other Person to assure that the Collateral ~~Agent’s Liens on Fixed Assets Collateral (other than, in each case any Inventory~~ exists or ~~Fracturing Equipment Parts (as defined in the Initial Intercreditor Agreement)) at the expense of the Obligors. Upon request~~ is owned by any ~~Appointed Agent at any time~~Credit Party or is cared for, 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 this Section 13.10(a).133 #93457508v14

Appears in 1 contract

Samples: Abl Credit Agreement (CVR Partners, Lp)

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~~ and direct Agent ~~(and if applicable, any subagent appointed by the Collateral Agent under Section 13.2 or otherwise)~~ to release ~~its Liens on the Collateral, and the Collateral Agent’s~~ any Liens upon any Collateral (and any such Liens shall be automatically ~~released~~ released, without any action by Agent or any other Person), (i) upon ~~Full Payment of~~ the ~~Obligations~~Termination Date; (ii) ~~upon a disposition~~ in respect of ~~Collateral permitted~~ property of any Subsidiary being sold or disposed of or transferred (including property owned by ~~Section 8.8 to a Person that~~ 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 ~~an Obligor~~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) ~~if any such~~ to the extent the applicable Collateral ~~constitutes property in which the Obligors owned no interest at the time the Lien was granted~~ is or ~~at any time thereafter~~becomes Excluded Property and/or Excluded Principal Property; (iv) ~~if any such~~ to the extent the applicable Collateral constitutes property leased to ~~an Obligor~~ Credit Parties under a lease which has expired or been terminated in a transaction permitted under this Agreement; (v) to the extent the ~~property constituting~~ Credit Party owning such Collateral is ~~owned by any Guarantor, upon the release of such Guarantor~~ released from its ~~obligations under the Guarantee Agreement~~ Obligations hereunder (~~in accordance with the second succeeding sentence and the Guarantee Agreement~~pursuant to Section 13.11 or otherwise); or (vi) as required by the ~~Collateral Agent to effect any sale, transfer or other Disposition of Collateral in connection with any exercise of remedies~~ terms of the Collateral 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 releaseABL Intercreditor Agreement. Upon request by ~~the Collateral~~ Agent or ~~the~~ Parent 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 Lxxxxxx will confirm in writing ~~the Collateral~~ Agent’s authority to release any ~~applicable Collateral Agent’s Liens~~ Lien upon particular types or items of Collateral pursuant to this Section ~~13.10~~10.11. 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 ~~(w) the Collateral Agent~~ Agent, to subordinate any Lien ~~on any property~~ granted to or held by ~~the~~ Agent upon any Collateral ~~Agent under any Loan Document~~ to ~~the holder of~~ any Lien on such ~~property that is~~ asset 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 ~~the terms hereof, the Security Documents or any other contractual arrangement with any Obligor, following the written request by Borrower, Collateral Agent shall~~ paragraph (to 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 (r6)(C) of the definition of Permitted ~~Liens~~Lien. In addition, ~~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) Guaranty of the ~~definition of “Permitted Liens”~~Obligations by, ~~promptly following~~ and the ~~written request of~~ liens on the ~~Borrower~~assets of, ~~the Collateral Agent shall release Collateral Agent’s Liens on Fixed Assets Collateral (other than, in each case~~ any ~~Inventory or Fracturing Equipment Parts (~~Restricted Subsidiary which is designated as ~~defined in the Initial Intercreditor Agreement))~~ an Unrestricted Subsidiary will automatically be terminated and released at the ~~expense~~ time of ~~the Obligors. 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 this Section 13.10(a)~~designation.

Appears in 1 contract

Samples: Revolving Loan Credit Agreement (XPO, 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 if applicable, any subagent appointed by the ~~Collateral~~ Agent under Section 13.2 or otherwise), and the Agent (and if applicable, any subagent appointed by the Agent under Section 13.2 or otherwise) shall hereby have the obligation to release, subject to the satisfaction of any conditions to release ~~its Liens~~ (if any) set forth herein, including the continuance of the applicable Agent’s Lien on ~~the~~ any proceeds of released Collateral, ~~and the Collateral~~ any such Agent’s Liens upon any Collateral ~~shall be automatically released~~ (i) upon Full Payment of the Obligations; (ii) ~~upon a disposition~~ constituting property being sold, transferred or disposed of ~~Collateral permitted by Section 8.8~~ (to a any Person that is not an Obligor), if the sale, transfer or disposition is made in compliance with this Agreement (which shall, upon reasonable request by the Agent, be certified by the Borrowers’ Agent, and the Agent may rely conclusively on any such certification without further inquiry; provided that no certification shall be required at any time with respect to any sales of items of Rental Equipment, Service Vehicles or Spare Parts and Merchandise in the ordinary course of business so long as such Agent’s Lien continues in the proceeds of such Collateral); (iii) ~~if any such Collateral constitutes~~ constituting property in which the Obligors owned no interest at the time the Lien was granted or at any time thereafter; (ivi) ~~if any such Collateral constitutes~~ constituting property leased to an Obligor under a lease which has expired or been terminated in a transaction permitted under this Agreement; (vii) constituting Relinquished Property, if such Relinquished Property shall have been delivered to the ~~extent~~ applicable Qualified Intermediary in accordance with the applicable exchange agreement and a first priority perfected security interest shall have been granted by the applicable exchanger to the Agent for the benefit of the Secured Parties of a first priority perfected security interest in the rights of such exchanger in, to and under the related exchange agreement; (vi) constituting any Like-Kind Exchange Account; (vii) constituting property being sold, assigned, pledged or otherwise transferred pursuant to any Securitization Transaction; (viii) being or becoming an Excluded Asset (as defined in the U.S. GCA or the Canadian GCA, as applicable); or (ix) constituting ~~such Collateral~~ property that is owned by ~~any Guarantor, upon the release of such~~ a Guarantor that has been released from its obligations under the ~~Guarantee Agreement (in accordance with~~ U.S. GCA or the ~~second succeeding sentence and the Guarantee Agreement); (vi)~~ Canadian GCA, as ~~required by the Collateral Agent to effect any sale~~applicable, ~~transfer or other Disposition of Collateral in connection with any exercise of remedies of the Collateral Agent~~ pursuant to ~~the Security Documents, (vii) to the extent such Collateral otherwise becomes an Excluded Stock~~ this Section 13.11 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~~Section 4.3(h). Except as provided ~~above~~above or in Section 12.1, the ~~Collateral~~ Agent will not release any of ~~the Collateral~~ such 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)~~Lenders; provided ~~that,~~ that in addition to the foregoing, (x) the ~~Collateral~~ Agent may, in its discretion, release such Agent’s Liens on Collateral valued, in the aggregate for any such release, not in excess of (A) the greater of (1) $125,000,000 and (2) 3% of Consolidated Tangible Assets, or (B) if after giving effect to such sale, conveyance, transfer, lease or other disposition on a pro forma basis Specified Availability is at least $1,000,000,000, the greater of (1) $200,000,000 and (2) 5% of Consolidated Tangible Assets; and (y) the Agent may release the Agent’s Liens on Collateral valued in the aggregate not in excess of $~~1,000,000~~ 250,000,000 during each Fiscal Year ~~without~~ with the prior written authorization of ~~any Lender~~Required Lenders, so long as all proceeds received in connection with any such release under clause (x) or (y) above are applied to the Obligations in accordance with Section ~~4.7~~ 4.6 and, after giving effect to the application of such proceeds and the updating of the U.S. Borrowing Base or the Canadian Borrowing Base, as the case may be, to reflect the deletion of any assets subject to such release, Excess Availability, U.S. Excess Availability or Multicurrency Excess Availability, as the case may be, shall be no less than the Excess Availability, U.S. Excess Availability or the Multicurrency Excess Availability, as the case may be, immediately prior to such release. Upon request by the Collateral Agent or 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 applicable Collateral Agent’s Liens upon particular types or items of Collateral pursuant to this Section 13.10. 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 ~~(w)~~ the ~~Collateral~~ Agent to (I) 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 ~~8.12(c~~8.1(d) or Section 8.1(g) and (qII) ~~(as to Fixed Asset Collateral only), (x) the Agent to~~ release ~~automatically~~ any Guarantor from its obligations under the ~~Guarantee Agreement~~ U.S. GCA or the Canadian GCA (1) if such Person ceases to be a ~~Restricted~~ Subsidiary as a result of a transaction permitted ~~under this Agreement~~ hereunder 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,~~ as provided in Section 4.3(h) with respect 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 the terms hereof, the Security Documents or any other contractual arrangement with any Obligor, following the written request by Borrower, Collateral Agent shall (to the extent not prohibited by applicable law or legal process) deliver such Collateral in accordance with the terms obligations of the ~~Intercreditor Agreement or, if no Intercreditor Agreement is then in effect,~~ Canadian Guarantors to guarantee 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 Obligations of the ~~following conditions are satisfied (1) no Default~~ Canadian Borrowers 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~~ as provided 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 Liens, 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 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 Obligors12.1. Upon request by ~~any Appointed~~ the Agent or the Borrowers at any time, the Required Lenders will confirm in writing ~~such Appointed~~ the Agent’s authority to release or subordinate ~~its interest in~~ the applicable Agent’s Liens upon particular types or items of ~~property~~Collateral, or to release any Guarantor from its obligations pursuant to this Section ~~13.10(a~~13.11(a).

Appears in 1 contract

Samples: Credit Agreement (Herc Holdings Inc)

Collateral Matters. (aA) The Lenders hereby irrevocably authorize (and by entering into a Bank Product Agreement, each ~~other Secured Party by their acceptance of the benefits of the Loan Documents~~ Bank Product Provider shall be deemed toto authorize) ~~hereby irrevocably authorize~~ Agent to release any Lien on any of the Collateral Agent (and if applicable, any subagent appointed by the Collateral Agent under Section 13.2 or otherwise) to release its Liens on the Collateral, and the Collateral Agent’s Liens upon any Collateral shall be automatically released (i) upon ~~Full Payment~~ termination of the Commitments and payment and satisfaction of all of the Obligations; , or (ii) ~~upon a disposition~~ constituting property being sold or disposed of ~~Collateral permitted by Section 8.8~~ if Administrative Borrower or any Loan Party certifies to a Person that is not an Obligor; (iii) if any such Collateral constitutes property in which the Obligors owned no interest at the time the Lien was granted or at any time thereafter; (iv) if any such Collateral constitutes property leased to an Obligor under a lease which has expired or been terminated in a transaction permitted under this Agreement; (v) to the extent the property constituting such Collateral is owned by any Guarantor, upon the release of such Guarantor from its obligations under the Guarantee Agreement (in accordance with the second succeeding sentence and the Guarantee Agreement); (vi) as required by the Collateral Agent to effect any sale, transfer or other Disposition of Collateral in connection with any exercise of remedies of the Collateral 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 the Borrower at any time, subject to the Borrower having certified to the Collateral Agent that the sale or disposition is ~~made in compliance with~~ not prohibited by Section ~~8.8~~ 6.4 (~~which the Collateral~~ and Agent may rely conclusively on any such certificate, without further inquiry), or (iii) constituting property in which any Loan Party did not own an interest at the time the security interest, mortgage or lien was granted or at any time thereafter, or (iv) having a value in the aggregate in any twelve (12) month period of less than $5,000,000, and to the extent Agent may release its Lien on any such Collateral pursuant to the sale or other disposition thereof, such sale or other disposition shall be deemed consented to by Lenders, or (v) if required or permitted under the terms of any of the other Loan Documents, including any intercreditor agreement, or (vi) constituting property leased to a Loan Party under a lease that has expired or is terminated, or (vii) subject to Section 14.1 and the Security Agreement, if the release is approved, authorized or ratified in writing by the Required Lenders. In no event shall the consent or approval of an Issuing Lender to any release of Collateral be required. Nothing contained herein shall be construed to require the consent of any Bank Product Provider to any release of any Collateral or termination of security interests in any Collateral. Upon request by Agent or any Borrower at any time, the Lenders will (and if so requested, the Bank Product Providers will) confirm in writing ~~the Collateral~~ Agent’s 's authority to release any ~~applicable Collateral Agent’s~~ such Liens ~~upon~~ on particular types or items of Collateral pursuant to this Section ~~13.10. In addition~~15.11; provided, that, (1) Agent shall not be required to execute any document necessary to evidence such release on terms that, in Agent's opinion, would expose Agent to liability or create any obligation or entail any consequence other than the release of such Lien without recourse, representation, or warranty, and (2) 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 any Borrower in respect of) all interests retained by any Loan Party, including, the ~~Lenders (and each other Secured Party by their acceptance~~ proceeds of any sale, all of which shall continue to constitute part of the ~~benefits of the Loan Documents shall be deemed to)~~ Collateral. The Lenders further hereby irrevocably authorize (wand by entering into a Bank Product Agreement, each Bank Product Provider shall be deemed to authorize) ~~the Collateral Agent~~ Agent, at its option and in its sole discretion, to subordinate any Lien ~~on any property~~ granted to or held by ~~the Collateral~~ Agent under any Loan Document to the holder of any Permitted Lien on such 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 the terms hereof, the Security Documents or any other contractual arrangement with any Obligor, following the written request by Borrower, Collateral Agent shall (to 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 Permitted 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 secures Permitted Liens, 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 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 Obligors. 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 this Section 13.10(a)Purchase Money Indebtedness.

Appears in 1 contract

Samples: Credit Agreement (Polyone Corp)

Collateral Matters. (a) ~~The Lenders (~~Agent may, at its option, from time to time, at any time on or after an Event of Default and ~~each other Secured Party by their acceptance of~~ for so long as the ~~benefits of the Loan Documents shall be deemed to) hereby irrevocably authorize the Collateral Agent (and if applicable, any subagent appointed by the Collateral Agent under Section 13.2~~ same is continuing or ~~otherwise) to release its Liens on the Collateral, and the Collateral Agent’s Liens~~ upon any ~~Collateral shall be automatically released~~ 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, deems necessary or desirable either (i) ~~upon Full Payment of~~ to preserve or protect the ~~Obligations;~~ Collateral or any portion thereof or (ii) ~~upon a disposition~~ to enhance the likelihood or maximize the amount of ~~Collateral permitted~~ repayment by Borrower 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 ~~8.8~~ 12.8 hereof, shall not cause the total of all outstanding Loans and Letter of Credit Accommodations to ~~a Person that is not an Obligor;~~ exceed the amount of the Revolving Loans and Letter of Credit Accommodations available to Borrower hereunder by more than five percent (5%) of such amount or (iii) if to pay any ~~such Collateral constitutes property in which the Obligors owned no interest at the time the Lien was granted~~ other amount chargeable to Borrower or ~~at any time thereafter; (iv) if any such Collateral constitutes property leased to an~~ Obligor under a lease which has expired or been terminated in a transaction permitted under this Agreement; (v) to the extent the property constituting such Collateral is owned by any Guarantor, upon the release of such Guarantor from its obligations under the Guarantee Agreement (in accordance with the second succeeding sentence and the Guarantee Agreement); (vi) as required by the Collateral Agent to effect any sale, transfer or other Disposition of Collateral in connection with any exercise of remedies of the Collateral 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 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 applicable Collateral Agent’s Liens upon particular types or items of Collateral pursuant to this Section 13.10. 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 (w) the Collateral Agent to 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 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 the terms ~~hereof, the Security Documents~~ of this Agreement or any of the other ~~contractual arrangement with~~ Financing Agreements consisting of costs, fees and expenses and payments to any ~~Obligor, following~~ issuer of Letter of Credit Accommodations. Special Agent Advances shall be repayable on demand and be secured by the ~~written request by Borrower, Collateral~~ Collateral. Special Agent Advances shall not constitute Loans but shall otherwise constitute Obligations hereunder. Agent shall ~~(to the extent not prohibited by applicable law or legal process) deliver~~ notify each Lender and Borrower in writing of each such ~~Collateral in accordance with the terms~~ Special Agent Advance, which notice shall include a description 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 purpose of ~~Debt pursuant to Section 8.12(q)(x) or (r) so long as all~~ such Special Agent Advance. Without limitation 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 Liens, 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 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 Obligors. 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 ~~this~~ Section ~~13.10(a)~~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, 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.

Appears in 1 contract

Samples: Loan and Security Agreement (Reptron Electronics 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 to (~~and if applicable,~~ 1) release any ~~subagent appointed~~ Lien granted to or held by the Collateral Agent ~~under Section 13.2 or otherwise) to release its Liens on the Collateral, and the Collateral Agent’s Liens~~ upon any Collateral ~~shall be automatically released~~ (i) ~~upon Full Payment~~ in accordance with the express terms of the ~~Obligations~~Loan Documents; (ii) upon ~~a disposition~~ termination of ~~Collateral permitted by Section 8.8 to a Person that is not an Obligor~~all Commitments and payment and satisfaction of all Term Loans and all other Obligations in accordance with the terms hereof; or (iii) if (x) constituting property being sold or disposed of in the ordinary course of any ~~such Collateral constitutes~~ Loan Party’s business and otherwise in compliance with the terms of this Agreement and the other Loan Documents; (y) constituting property in which the ~~Obligors~~ Loan Parties owned no interest at the time the Lien was granted or at any time thereafter; or (ivz) if approved, authorized or ratified in writing by the Lenders or (2) subordinate any ~~such Collateral constitutes~~ Lien on any property ~~leased~~ granted to ~~an Obligor under a lease which has expired~~ or been terminated in a transaction permitted under this Agreement; (v) to the extent the property constituting such Collateral is owned by any Guarantor, upon the release of such Guarantor from its obligations under the Guarantee Agreement (in accordance with the second succeeding sentence and the Guarantee Agreement); (vi) as required sold by the Collateral Agent to ~~effect~~ the holder of any ~~sale, transfer or other Disposition of Collateral in connection with any exercise of remedies of the Collateral Agent~~ Lien on property that is permitted to be subordinated 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~~ definition 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“Permitted Liens”. Upon request by the Collateral Agent ~~or 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~~ shall confirm in writing the Collateral Agent’s authority to release ~~any applicable Collateral Agent’s Liens upon~~ or subordinate particular types or items of Collateral pursuant to this ~~Section 13.10~~Agreement. ~~In addition,~~ Without in any manner limiting the Collateral Agent’s authority to act without any specific or further authorization or consent by the Lenders (as set forth in Section 10.08(b)), each Lender agrees to confirm in writing, upon request by the Collateral Agent, the authority to release or subordinate Collateral conferred upon the Collateral Agent under Section 10.08(b). Upon receipt by the Collateral Agent of confirmation from the Required Lenders (or all Lenders KL2 3287103.6 if applicable) of its authority to release or subordinate any particular item or types of Collateral, and ~~each other Secured Party~~ upon prior written request by ~~their acceptance~~ any Loan Party, the Collateral Agent shall (and is hereby irrevocably authorized by the Lenders to) execute such documents as may be necessary to evidence the release of the ~~benefits~~ Liens granted to the Collateral Agent for the benefit of the Agents and the Lenders upon such Collateral; provided, however, that (i) the Collateral Agent shall not be required to execute any such document on terms which, in the Collateral Agent’s opinion, would expose the Collateral Agent to liability or create any obligations or entail any consequence other than the release of such Liens without recourse or warranty, and (ii) such release shall not in any manner discharge, affect or impair the Obligations or any Lien upon (or obligations of any Loan Party in respect of) all interests in the Collateral retained by any Loan Party. Anything contained in any of the Loan Documents to the contrary notwithstanding, the Loan Parties, each Agent and each Lender hereby agree that (i) no Lender shall have any right individually to realize upon any of the Collateral under any Loan Document or to enforce any Guaranty, it being understood and agreed that all powers, rights and remedies under the Loan Documents may be ~~deemed to~~exercised solely by the Collateral Agent for the benefit of the Lenders in accordance with the terms thereof, (ii) ~~hereby irrevocably authorize~~ in the event of a foreclosure by the Collateral Agent on any of the Collateral pursuant to a public or private sale, the Administrative Agent, the Collateral Agent or any Lender may be the purchaser of any or all of such Collateral at any such sale and (wiii) the Collateral Agent, as agent for and representative of the Agents and the Lenders (but not any other Agent or any Lender or Lenders in its or their respective individual capacities unless the Required Lenders shall otherwise agree in writing) shall be entitled (either directly or through one or more acquisition vehicles) for the purpose of bidding and making settlement or payment of the purchase price for all or any portion of the Collateral to ~~subordinate~~ be sold (A) at any ~~Lien on~~ public or private sale, (B) at any ~~property granted to or held~~ sale conducted by the Collateral Agent under ~~any Loan Document~~ the provisions of the Uniform Commercial Code (including pursuant to Sections 9-610 or 9-620 of the ~~holder of any Lien on such property that is permitted by Section 8.12(c) or (q) (as to Fixed Asset Collateral only~~Uniform Commercial Code), (xC) 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 ~~release automatically~~ the provisions of any ~~Guarantor from its obligations under~~ Debtor Relief Law (including Section 363 of the ~~Guarantee Agreement if such Person ceases~~ Bankruptcy Code), to ~~be a Restricted Subsidiary~~ use and apply all or any of the Obligations as a ~~result~~ credit on account of ~~a transaction permitted under~~ the purchase price for any Collateral payable by the Collateral Agent at such sale. The Collateral Agent shall have no obligation whatsoever to any Lender to assure that the Collateral exists or is owned by the Loan Parties or is cared for, protected or insured or has been encumbered or that the Lien granted to the Collateral Agent pursuant to this Agreement or ~~such Person otherwise becomes an Excluded Subsidiary~~any other Loan Document has been properly or sufficiently or lawfully created, perfected, protected or enforced or is entitled to any particular priority, or to exercise at all or in any particular manner or under any duty of care, disclosure or fidelity, or to continue exercising, any of the rights, authorities and powers granted or available to the Collateral Agent in this Section 10.08 or in any other Loan Document, it being understood and agreed that in respect of the Collateral, or any act, omission or event related thereto, the Collateral Agent may act in any manner it may deem appropriate, in ~~each case~~its sole discretion, 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~~ shall have no duty or liability whatsoever to ~~deliver to Collateral Agent at such time pursuant to the terms hereof, the Security Documents or~~ any other ~~contractual arrangement with any Obligor~~Lender, following the written request by Borrower, Collateral Agent shall (to 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 except 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 Liens, 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 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 Obligorsotherwise provided herein. 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 this Section 13.10(a).137 KL2 3287103.6

Appears in 1 contract

Samples: Credit Agreement (Boxlight 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 (~~Agent, at its option and ~~if applicable~~in its sole discretion, ~~any subagent appointed by the Collateral Agent under Section 13.2 or otherwise)~~ to release ~~its Liens on the Collateral, and the~~ any Collateral Agent’s ~~Liens~~ Lien upon any Collateral ~~shall be automatically released~~ and to terminate any Guarantee (i) upon ~~Full Payment~~ the termination of the ~~Obligations~~Commitments and payment and satisfaction in full of all Revolving 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) ~~upon a~~ constituting property being sold or disposed of if the Loan Party disposing of such property certifies to the Collateral Agent that the sale or disposition of is made in compliance with Section 9.9 or Section 9.19 (and the Collateral ~~permitted by Section 8.8 to a Person that is not an Obligor~~Agent may rely conclusively on any such certificate, without further inquiry); (iii) ~~if any such Collateral constitutes~~ constituting property in which ~~the Obligors~~ no Loan Party owned no any interest at the time the Lien was granted or at any time thereafter; (iv) ~~if any such Collateral constitutes~~ constituting property leased to ~~an Obligor~~ a Loan Party under a lease which has expired or been terminated in a transaction permitted under this Agreement; (v) to the extent the property constituting such Collateral is owned by any Guarantor, upon the release of such Guarantor from its obligations under the Guarantee Agreement (in accordance with the second succeeding sentence and the Guarantee Agreement); (vi) as required by the ~~Collateral Agent to effect any sale, transfer~~ Intercreditor Agreement; or ~~other Disposition of Collateral in connection with any exercise of remedies of the Collateral Agent~~ (vi) pursuant to ~~the Security Documents, (vii~~Section 14.11(b) 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 releasedbelow. 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)~~Lenders; provided ~~that, in addition to the foregoing,~~ that the Collateral Agent may, in its discretion, release ~~such~~ the Collateral Agent’s Liens on Collateral valued in the aggregate not in excess of $~~1,000,000~~ 5,000,000 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 the ~~Borrower~~ Borrowers 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 ~~applicable~~ Collateral Agent’s Liens upon particular types or items of Collateral pursuant to this Section 13.10. 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 (w) the Collateral Agent to 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 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 the terms hereof, the Security Documents or any other contractual arrangement with any Obligor, following the written request by Borrower, Collateral Agent shall (to 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 Liens, 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 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 Obligors. 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 this Section 13.10(a)14.11.

Appears in 1 contract

Samples: Loan and Security Agreement (Metals USA Plates & Shapes Southcentral, Inc.)

Common use of Collateral Matters Clause in Contracts