Collateral Matters. (a) The Lenders hereby irrevocably authorize the Collateral Agent to release any Lien upon any Collateral (i) upon the termination of the Commitments and payment and satisfaction in full of all Obligations (other than contingent indemnity obligations with respect to then unasserted claims), all Letters of Credit shall have expired or terminated (or been collateralized in a manner satisfactory to the applicable Issuing Bank) and all Letter of Credit Outstandings have been reduced to zero (or collateralized in a manner satisfactory to the applicable Issuing Bank), or (ii) constituting property being sold, transferred or disposed of in a Permitted Disposition upon receipt by the Administrative Agent of the Net Proceeds thereof to the extent required by 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 Applicable Lenders. Upon request by any Agent or any Loan Party at any time, the Lenders will confirm in writing the Collateral Agent’s authority to release any Liens upon particular types or items of Collateral pursuant to this SECTION 8.16. (b) Upon at least two (2) Business Days’ prior written request by the Lead Borrower, 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 Liens upon any Collateral described in SECTION 8.16(a); provided, however, that (i) the Collateral Agent shall not be required to execute any such document on terms which, in its reasonable opinion, would, under Applicable Law, expose the Collateral Agent to liability or create any obligation or entail any adverse consequence other than the release of such Liens without recourse or warranty, and (ii) such release shall not in any manner discharge, affect or impair the Obligations or any Liens (other than those expressly being released) upon (or obligations of any Loan Party in respect of) all interests retained by any Loan Party, including (without limitation) the proceeds of any sale, all of which shall continue to constitute part of the Collateral.
Appears in 6 contracts
Sources: Credit Agreement (Music123, Inc.), Credit Agreement (Music123, Inc.), Credit Agreement (Music123, Inc.)
Collateral Matters. (a) Each Lender hereby authorizes the Administrative Agent, 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 any Loan Document which may be necessary to perfect and maintain perfected the Liens upon the Collateral granted pursuant to any of the Loan Documents.
(b) The Lenders hereby irrevocably authorize the Collateral Agent Administrative Agent, at its option and in its discretion, to release any Lien granted to or held by the Administrative Agent upon any Collateral (i) upon the termination of the Commitments and indefeasible payment and satisfaction in full of all Obligations (other than contingent indemnity obligations with respect to then unasserted claims), all Letters of Credit shall have expired or terminated (or been collateralized in a manner satisfactory to the applicable Issuing Bank) and all Letter of Credit Outstandings have been reduced to zero (or collateralized in a manner satisfactory to the applicable Issuing Bank), or Guaranteed Obligations; (ii) constituting property being soldas expressly permitted by, transferred but only in accordance with, the terms of the applicable Loan Document; and (iii) if approved, authorized or disposed ratified in writing by the Requisite Lenders (or such greater number of in a Permitted Disposition upon receipt Lenders as this Agreement or any other Loan Document may expressly provide). Upon request by the Administrative Agent of the Net Proceeds thereof to the extent required by 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 Applicable Lenders. Upon request by any Agent or any Loan Party at any time, the Lenders will confirm in writing the Collateral Administrative Agent’s authority to release any Liens upon particular types or items of the Collateral pursuant to this SECTION 8.16Section.
(bc) Upon any sale and transfer of any Collateral which is expressly permitted pursuant to the terms of this Agreement, and upon at least two five (25) Business Days’ prior written request by the Lead Borrower, the Collateral Administrative Agent shall (and is hereby irrevocably authorized by the Lenders to) execute such documents as may be necessary to evidence the release of the Liens granted to the Administrative Agent for its benefit and the benefit of the Lender Parties herein or pursuant hereto upon any the Collateral described in SECTION 8.16(a)that was sold or transferred; provided, however, that (i) the Collateral Administrative Agent shall not be required to execute any such document on terms which, in its reasonable the Administrative Agent’s opinion, would, under Applicable Law, would expose the Collateral Administrative Agent to liability or create any obligation or entail any adverse consequence other than the release of such Liens without recourse or warranty, warranty and (ii) such release shall not in any manner discharge, affect or impair the Guaranteed Obligations or any Liens (other than those expressly being released) upon (or obligations of the Borrower or any other Loan Party in respect of) all interests retained by the Borrower or any other Loan Party, including (including, without limitation) , the proceeds of any salesuch sale or transfer, all of which shall continue to constitute part of the Collateral. In the event of any sale or transfer of Collateral, or any foreclosure with respect to any of the Collateral, the Administrative Agent shall be authorized to deduct all of the expenses reasonably incurred by the Administrative Agent from the proceeds of any such sale, transfer or foreclosure.
(d) The Administrative Agent shall have no obligation whatsoever to any Lender Party or to any other Person to assure that the Collateral exists or is owned by the Borrower, any other Loan Party or any other Subsidiary or is cared for, protected or insured or that the Liens granted to the Administrative Agent herein or pursuant hereto 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 the Administrative Agent in this Section or in any of the Loan Documents, it being understood and agreed that in respect of the Collateral, or any act, omission or event related thereto, the Administrative Agent may act in any manner it may deem appropriate, in its sole discretion, and that the Administrative Agent shall have no duty or liability whatsoever to the Lenders, except to the extent determined by a court of competent jurisdiction by final and nonappealable judgment to have resulted from its gross negligence or willful misconduct.
(e) By their acceptance of the benefits of the Security Documents, each Lender that is at any time itself a Specified Derivatives Provider, or having an Affiliate that is a Specified Derivatives Provider, hereby, for itself, and on behalf of any such Affiliate, in its capacity as a Specified Derivatives Provider, irrevocably appoints and authorizes the Administrative Agent as its collateral agent, to take such action as contractual representative on such Specified Derivatives Provider’s behalf and to exercise such powers under the Security Documents as are specifically delegated to the Administrative Agent by the terms of this Section 12.13., and any Security Document, together with such powers as are reasonably incidental thereto; provided, that this subsection (e) shall not affect any of the terms of a Specified Derivatives Contract or restrict a Specified Derivatives Provider from taking any action permitted by a Specified Derivatives Contract. For the avoidance of doubt, all references in this Section 12.13. to “Lender” or “Lenders” shall be deemed to include each Lender (and Affiliate thereof) in its capacity as a Specified Derivatives Provider.
Appears in 6 contracts
Sources: Credit Agreement (NETSTREIT Corp.), Credit Agreement (NETSTREIT Corp.), Credit Agreement (NETSTREIT 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 any Lien its Liens on the Collateral, and the Collateral Agent’s Liens upon any Collateral shall be automatically released (i) upon the termination Full Payment of the Commitments and payment and satisfaction in full of all Obligations (other than contingent indemnity obligations with respect to then unasserted claims), all Letters of Credit shall have expired or terminated (or been collateralized in a manner satisfactory to the applicable Issuing Bank) and all Letter of Credit Outstandings have been reduced to zero (or collateralized in a manner satisfactory to the applicable Issuing Bank), or Obligations; (ii) constituting 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 being sold, transferred in which the Obligors owned no interest at the time the Lien was granted or disposed of 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 Permitted Disposition upon receipt by the Administrative Agent of the Net Proceeds thereof 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 this Agreementthe 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. Except as provided above, the Collateral Agent will not release any of the Collateral Agent’s Liens without the prior written authorization of the Applicable LendersRequired Lenders (or such other percentage of Lenders whose consent is required in accordance with Section 12.1); provided that, in addition to the foregoing, the Collateral Agent may, in its discretion, release such Collateral Agent’s Liens on Collateral valued in the aggregate not in excess of $2,500,000 during each Fiscal Year without the prior written authorization of any Lender, so long as all proceeds received in connection with such release are applied to the Obligations in accordance with Section 4.7 and, after giving effect to the application of such proceeds and the updating of the Borrowing Base, as the case may be, to reflect the deletion of any assets subject to such release, Availability shall be no less than the Availability immediately prior to such release. Upon request by any the Collateral Agent or any Loan Party 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 8.16Section 13.10. In addition, the Lenders hereby irrevocably authorize (x) 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) and (y) the Agent to release automatically any Guarantor from its obligations under the Guarantee Agreement if such Person ceases to be a Restricted Subsidiary as a result of a transaction permitted under this Agreement or such Person otherwise becomes an Excluded Subsidiary, in each case, solely to the extent such Subsidiary ceasing to constitute a Restricted Subsidiary or otherwise becoming an Excluded Subsidiary is not prohibited by this Agreement. Upon request by any Appointed Agent at any time, the Required Lenders will confirm in writing such Appointed Agent’s authority to release or subordinate its interest in particular types or items of property, or to release any Guarantor from its obligations pursuant to this Section 13.10(a).
(b) Upon receipt by any Appointed Agent of any authorization required pursuant to Section 13.10(a) from the Lenders of such Appointed Agent’s authority to release or subordinate the applicable Collateral Agent’s Liens upon particular types or items of Collateral, or to release any Guarantor from its obligations under the Guarantee Agreement, and upon at least two three (23) Business Days’ prior written request by the Lead Borrower, the Collateral such Appointed Agent shall (and is hereby irrevocably authorized by the Lenders and the other Secured Parties to) execute such documents as may be necessary to evidence the release of the such Collateral Agent’s Liens upon any such Collateral described in SECTION 8.16(a)or to subordinate its interest therein, or to release such Guarantor from its obligations under the Guarantee Agreement; provided, however, that (i) the Collateral such Appointed Agent shall not be required to execute any such document on terms which, in its reasonable such Appointed Agent’s opinion, would, under Applicable Law, would expose the Collateral such Appointed Agent to liability or create any obligation or entail any adverse consequence other than the release of such Liens without recourse or warranty, and (ii) such release shall not in any manner discharge, affect or impair the Obligations or any Liens (other than those expressly being released) upon (or obligations of any Loan Party the Obligors in respect of) all interests retained by any Loan Partythe Obligors, including (without limitation) the proceeds of any sale, all of which shall continue to constitute part of such Collateral.
(c) The Collateral Agent shall have no obligation whatsoever to any of the Lenders to assure that the Collateral exists or is owned by the Obligors or is cared for, protected or insured or has been encumbered, or that the applicable Collateral Agent’s Liens have been properly or sufficiently or lawfully created, perfected, protected or enforced or are entitled to any particular priority, or to exercise at all or in any particular manner or under any duty of care, disclosure or fidelity, or to continue exercising, any of the rights, authorities and powers granted or available to the Collateral Agent pursuant to any of the Loan Documents, it being understood and agreed that in respect of the Collateral, or any act, omission or event related thereto, the Collateral Agent may act in any manner it may deem appropriate, in its sole discretion, given the Collateral Agent’s own interest in the Collateral in its capacity as one of the Lenders and that the Collateral Agent shall have no other duty or liability whatsoever to any Lender as to any of the foregoing.
Appears in 5 contracts
Sources: Credit Agreement (ProPetro Holding Corp.), Restatement Agreement (ProPetro Holding Corp.), Credit Agreement (ProPetro Holding Corp.)
Collateral Matters. (a) The Lenders hereby irrevocably authorize the Collateral Agent to release any Lien upon any Collateral (i) upon the termination of the Commitments and payment and satisfaction in full of all Obligations (other than contingent indemnity obligations with respect to then unasserted claims), all Letters of Credit shall have expired or terminated (or been collateralized in a manner satisfactory to the applicable Issuing Bank) and all Letter of Credit Outstandings have been reduced to zero (or collateralized in a manner satisfactory to the applicable Issuing Bank), or (ii) constituting property being sold, transferred or disposed of in a Permitted Disposition upon receipt by the Administrative Agent of the Net Proceeds thereof to the extent required by 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 Applicable Lenders. Upon request by any Agent or any Loan Party at any time, the Lenders will confirm in writing the Collateral Agent’s authority to release any Liens upon particular types or items of Collateral pursuant to this SECTION 8.16.
(b) Upon at least two (2) Business Days’ prior written request by the Lead Borrower, 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 Liens upon any Collateral described in SECTION 8.16(a8.16(b); provided, however, that (i) the Collateral Agent shall not be required to execute any such document on terms which, in its reasonable opinion, would, under Applicable Law, expose the Collateral Agent to liability or create any obligation or entail any adverse consequence other than the release of such Liens without recourse or warranty, and (ii) such release shall not in any manner discharge, affect or impair the Obligations or any Liens (other than those expressly being released) upon (or obligations of any Loan Party in respect of) all interests retained by any Loan Party, including (without limitation) the proceeds of any sale, all of which shall continue to constitute part of the Collateral.
Appears in 5 contracts
Sources: Credit Agreement (Burlington Coat Factory Investments Holdings, Inc.), Credit Agreement (Burlington Coat Factory Investments Holdings, Inc.), Credit Agreement (Burlington Coat Factory Investments Holdings, Inc.)
Collateral Matters. (a) The Lenders hereby irrevocably authorize the Collateral and direct Agent to release any Lien Liens upon any Collateral (and any such Liens shall be automatically released, without any action by Agent or any other Person), (i) upon the termination of the Commitments and payment and satisfaction in full of all Obligations (other than contingent indemnity obligations with respect to then unasserted claims), all Letters of Credit shall have expired or terminated (or been collateralized in a manner satisfactory to the applicable Issuing Bank) and all Letter of Credit Outstandings have been reduced to zero (or collateralized in a manner satisfactory to the applicable Issuing Bank), or Termination Date; (ii) constituting in respect of property of any Subsidiary being sold, transferred sold or disposed of or transferred (including property owned by any Subsidiary being sold or disposed of or transferred) if the sale or Disposition or transfer is made in compliance with this Agreement and the Loan Documents (or otherwise is not prohibited) (and Agent may, in its discretion, request, and rely conclusively without further inquiry on a Permitted certificate from the Borrower certifying as such prior to Agent taking any action to evidence such release) or such sale or Disposition upon receipt is approved by the Administrative Agent Requisite Lenders (or such greater number of the Net Proceeds thereof Lenders as may be required under Section 12.2); (iii) to the extent the applicable Collateral is or becomes Excluded Property and/or Excluded Principal Property; (iv) to the extent the applicable Collateral constitutes property leased to Credit Parties under a lease which has expired or been terminated in a transaction permitted under this Agreement; (v) to the extent the Credit Party owning such Collateral is released from its Obligations hereunder (pursuant to Section 13.11 or otherwise); or (vi) as required by this Agreement. Except as provided above, the Collateral Agent will not release any terms of the Collateral Agent’s Liens without the prior written authorization of the Applicable LendersABL Intercreditor Agreement. Upon request by any Agent or any Loan Party Parent Borrower at any time, the Lenders will confirm in writing the Collateral Agent’s authority to release any Liens Lien upon particular types or items of Collateral pursuant to this SECTION 8.16Section 10.11. In addition, the Lenders hereby authorize Agent, to subordinate any Lien granted to or held by Agent upon any Collateral to any Lien on such asset permitted pursuant to paragraph (6)(C) of the definition of Permitted Lien. In addition, the Guaranty of the Obligations by, and the liens on the assets of, any Restricted Subsidiary which is designated as an Unrestricted Subsidiary will automatically be terminated and released at the time of such designation.
(b) Upon at least two Promptly, and in any event not later than five (25) Business Days’ prior following written request by the Lead Parent Borrower, the Collateral Agent shall (and is hereby irrevocably authorized and directed by the Lenders to) execute such documents as may be necessary to evidence the release (or subordination) of the its Liens upon any such Collateral described in SECTION 8.16(aas contemplated by Section 10.11(a); provided, however, that (i) the Collateral Agent shall not be required to execute any such document on terms which, in its reasonable Agent’s opinion, would, under Applicable Law, would expose the Collateral Agent to liability or create any obligation or entail any adverse consequence other than the release of such Liens without recourse or warranty, and (ii) such release shall not in any manner discharge, affect or impair the Obligations or any Liens (other than those expressly being released) upon (or obligations of any Loan Party Credit Parties in respect of) all interests retained by any Loan PartyCredit Parties, including (without limitation) the proceeds of any sale, all of which shall continue to constitute part of the CollateralCollateral to the extent contemplated by the Collateral Documents. Co-Collateral Agent shall act in concert with Agent in matters delegated to the both of them under this Agreement; however, in the event of any disagreement or dispute between Agent and Co-Collateral Agent in any such matter, the determination or decision of Agent shall, in all cases, control.
Appears in 5 contracts
Sources: Revolving Loan Credit Agreement (XPO Logistics, Inc.), Revolving Loan Credit Agreement (XPO Logistics, Inc.), Revolving Loan Credit Agreement (XPO Logistics, Inc.)
Collateral Matters. Each Lender (aincluding in its capacities as a potential Cash Management Bank and a potential Hedge Bank) The Lenders hereby irrevocably authorize authorizes and directs the Administrative Agent and the Collateral Agent to release take the actions to be taken by them as set forth in Sections 7.04 and 10.24. Each Lender hereby agrees, and each holder of any Lien upon Note by the acceptance thereof will be deemed to agree, that, except as otherwise set forth herein, any action taken by the Required Lenders or the Required Facility Lenders, as applicable, in accordance with the provisions of this Agreement or the Collateral (i) upon Documents, and the termination exercise by the Required Lenders or the Required Facility Lenders, as applicable, of the Commitments powers set forth herein or therein, together with such other powers as are reasonably incidental thereto, shall be authorized and payment and satisfaction in full binding upon all of the Lenders. The Collateral Agent is hereby authorized on behalf of all Obligations (other than contingent indemnity obligations 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 then unasserted claims), all Letters of Credit shall have expired any Collateral or terminated (or been collateralized Collateral Documents which may be necessary to perfect and maintain perfected the security interest in a manner satisfactory and liens upon the Collateral granted pursuant to the applicable Issuing Bank) and all Letter of Credit Outstandings have been reduced to zero (or collateralized in a manner satisfactory to the applicable Issuing Bank), or (ii) constituting property being sold, transferred or disposed of in a Permitted Disposition upon receipt Collateral Documents. Upon request by the Administrative Agent of the Net Proceeds thereof to the extent required by 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 Applicable Lenders. Upon request by any Agent or any Loan Party at any time, the Lenders will confirm in writing the Collateral Agent’s authority to release any Liens upon particular types or items of Collateral pursuant to this SECTION 8.16.
(b) Upon at least two (2) Business Days’ prior written request by the Lead BorrowerSection 9.12. In each case as specified in this Section 9.12, Section 7.04, Section 10.01 and Section 10.24, the Collateral applicable Agent shall will (and is hereby each Lender irrevocably authorized by authorizes the Lenders applicable Agent to) ), at the Borrower’s expense, execute and deliver to the applicable Loan Party such documents as such Loan Party may be necessary reasonably request to evidence the release or subordination of such item of Collateral from the assignment and security interest granted under the Collateral Documents, or to evidence the release of such Guarantor from its obligations under the Guaranty, in each case in accordance with the terms of the Loan Documents, this Section 9.12, Section 7.04, Section 10.01 and Section 10.24. The Collateral Agent shall have no obligation whatsoever to the Lenders or to any other Person to assure that the Collateral exists or is owned by any Loan Party or is cared for, protected or insured or that the Liens upon 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 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 the Collateral described Agent in SECTION 8.16(a); providedthis Section 9.12, howeverSection 7.04, Section 10.24 or in any of the Collateral Documents, it being understood and agreed that (i) in respect of the Collateral, or any act, omission or event related thereto, the Collateral Agent may act in any manner it may deem appropriate, in its sole discretion, given the Collateral Agent’s own interest in the Collateral as one of the Lenders and that the Collateral Agent shall not be required have no duty or liability whatsoever to execute any such document on terms whichthe Lenders, except for its gross negligence or willful misconduct (as determined by a court of competent jurisdiction in its reasonable opinion, would, under Applicable Law, expose the Collateral Agent to liability or create any obligation or entail any adverse consequence other than the release of such Liens without recourse or warranty, a final and (ii) such release shall not in any manner discharge, affect or impair the Obligations or any Liens (other than those expressly being released) upon (or obligations of any Loan Party in respect of) all interests retained by any Loan Party, including (without limitation) the proceeds of any sale, all of which shall continue to constitute part of the Collateralnon-appealable decision).
Appears in 5 contracts
Sources: Super Priority Credit Agreement (WideOpenWest, Inc.), Super Priority Credit Agreement (WideOpenWest, Inc.), Credit Agreement (WideOpenWest, Inc.)
Collateral Matters. (a) The Lenders hereby irrevocably authorize the Collateral Agent to release any Lien upon any Collateral (i) upon the termination of the Commitments and payment and satisfaction in full of all Obligations (other than contingent indemnity obligations with respect to then unasserted claims), all Letters of Credit shall have expired or terminated (or been collateralized in a manner satisfactory to the applicable Issuing Bank) and all Letter of Credit Outstandings have been reduced to zero (or collateralized in a manner satisfactory to the applicable Issuing Bank), or (ii) constituting property being sold, transferred or disposed of in a Permitted Disposition upon receipt by the Administrative Agent of the Net Proceeds thereof to the extent required by 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 Applicable Lenders. Upon request by any Agent or any Loan Party at any time, the Lenders will confirm in writing the Collateral Agent’s authority to release any Liens upon particular types or items of Collateral pursuant to this SECTION 8.16.received:
(b) Upon at least two (2) Business Days’ prior written request by the Lead Borrower, 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 Liens upon any Collateral described in SECTION 8.16(a); provided, however, that (i) the Collateral Perfection Certificate signed on behalf of the Borrower (or written evidence satisfactory to the Agent shall not be required (which may include transmission by electronic mail of a signed signature page to execute any the Perfection Certificate) that such document on terms which, in its reasonable opinion, would, under Applicable Law, expose party has signed a counterpart of the Collateral Agent to liability or create any obligation or entail any adverse consequence other than Perfection Certificate) dated as of the release of such Liens without recourse or warranty, and Closing Date,
(ii) such release in respect of the Borrower and each of its Subsidiaries, the results of searches for any UCC financing statements, tax Liens or judgment Liens, as applicable, filed against the Borrower, its Subsidiaries or their respective property, which results shall not in show any manner discharge, affect or impair the Obligations or any such Liens (other than those expressly being releasedLiens permitted pursuant to Section 6.02),
(iii) upon (or obligations evidence reasonably satisfactory to the Agent that arrangements are in place for the filing of any financing statements in respect of each Loan Party (other than the Canadian Parent) on Form UCC 1 in respect ofeach of the offices of secretaries of state of those states specified in paragraph 1(a) of the Perfection Certificate,
(iv) evidence reasonably satisfactory to the Agent that arrangements are in place for all interests retained original stock certificates representing all of the Equity Interests required to be pledged pursuant to the Pledge and Security Agreement, accompanied by any Loan Partyundated stock transfer powers or other proper instruments of transfer reasonably acceptable to the Agent executed in blank, including to be delivered to the Agent,
(without limitationv) evidence reasonably satisfactory to the Agent that arrangements are in place for all original promissory notes and other instruments required to be pledged pursuant to the Pledge and Security Agreement, accompanied by note transfer powers or other proper instruments of transfer reasonably acceptable to the Agent executed in blank, to be delivered to the Agent, and
(vi) a certificate of a Responsible Officer of the Borrower certifying that attached thereto are true, complete and correct copies of (A) each Material License as in effect on the Closing Date and (B) the proceeds of any sale, all of which shall continue to constitute part of the CollateralPurchase Agreement.
Appears in 5 contracts
Sources: Credit Agreement (TerrAscend Corp.), Credit Agreement (TerrAscend Corp.), Credit Agreement (TerrAscend Corp.)
Collateral Matters. (a) The Lenders hereby irrevocably authorize the Collateral Agent to release any Lien upon any Collateral (i) upon the termination of the Commitments and payment and satisfaction in full of all Obligations (other than contingent indemnity obligations with respect to then unasserted claims), all Letters of Credit shall have expired or terminated (or been collateralized in a manner satisfactory to the applicable Issuing Bank) and all Letter of Credit Outstandings have been reduced to zero (or collateralized in a manner satisfactory to the applicable Issuing Bank), or (ii) constituting property being sold, transferred or disposed of in a Permitted Disposition upon receipt by the Administrative Agent of the Net Proceeds thereof to the extent required by 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 Applicable Lenders. Upon request by any Agent or any Loan Party at any time, the Lenders will confirm in writing the Collateral Agent’s authority to release any Liens upon particular types or items of Collateral pursuant to this SECTION 8.16.
(b) Upon at least two (2) Business Days’ prior written request by the Lead Borrower, 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 Liens upon any Collateral described in SECTION 8.16(a); provided, however, that (i) the Collateral Agent shall not be required to execute any such document on terms which, in its reasonable opinion, would, under Applicable Law, expose the Collateral Agent to liability or create any obligation or entail any adverse consequence other than the release of such Liens without recourse or warranty, and (ii) such release shall not in any manner discharge, affect or impair the Obligations or any Liens (other than those expressly being released) upon (or obligations of any Loan Party in respect of) all interests retained by any Loan Party, including (without limitation) the proceeds of any sale, all of which shall continue to constitute part of the Collateral.
Appears in 4 contracts
Sources: Credit Agreement (Music123, Inc.), Credit Agreement (Music123, Inc.), Credit Agreement (Music123, Inc.)
Collateral Matters. (a) Each Lender authorizes and directs the Administrative Agent and the Collateral Agent to enter into (x) the Security Documents, the ABL/Term Loan Intercreditor Agreement, any Junior Lien Intercreditor Agreement and any Other Intercreditor Agreement for the benefit of the Lenders and the other Secured Parties, (y) any amendments or waivers of or supplements to or other modifications to the Security Documents, the ABL/Term Loan Intercreditor Agreement, any Junior Lien Intercreditor Agreement and any Other Intercreditor Agreement or other intercreditor agreements 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 a valid, perfected lien (with such priority as may be designated by the Parent Borrower or relevant Subsidiary, to the extent such priority is permitted by the Loan Documents) and (z) any Incremental Commitment Amendment as provided in Subsection 2.8, any Increase Supplement as provided in Subsection 2.8, any Lender Joinder Agreement as provided in Subsection 2.8, any agreement required in connection with a Permitted Debt Exchange Offer pursuant to Subsection 2.9, any Extension Amendment as provided in Subsection 2.10 and any Specified Refinancing Amendment as provided in Subsection 2.11. 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 Administrative Agent, Collateral Agent or the Required Lenders in accordance with the provisions of this Agreement, the Security Documents, the ABL/Term Loan Intercreditor Agreement, any Junior Lien Intercreditor Agreement, any Other Intercreditor Agreement, any Intercreditor Agreement Supplement, any Incremental Commitment Amendment, any Increase Supplement, any Lender Joinder Agreement or any agreement required in connection with a Permitted Debt Exchange Offer or any Extension Amendment or any Specified Refinancing Amendment and the 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 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, to take any action with respect to any applicable Collateral 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. Each Lender agrees that it will not have any 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, it being understood and agreed that such rights and remedies may be exercised only by the Collateral Agent. The Collateral Agent may grant extensions of time for the creation and perfection of security interests in or the obtaining of title insurance, legal opinions or other deliverables with respect to particular assets or the provision of any guarantee by any Subsidiary (including extensions beyond the Closing Date or in connection with assets acquired, or Subsidiaries formed or acquired, after the Closing Date) where it determines that such action cannot be accomplished without undue effort or expense by the time or times at which it would otherwise be required to be accomplished by this Agreement or the Security Documents.
(b) The Lenders hereby irrevocably authorize the Collateral Agent each Agent, in each case at its option and in its discretion, (A) to release any Lien granted to or held by such Agent upon any Collateral (i) upon the termination of the Initial Term Loan Commitments and payment and satisfaction in full of all of the Term Loan Facility Obligations (other than contingent indemnity obligations with under the Loan Documents at any time arising under or in respect to of this Agreement or the Loan Documents or the transactions contemplated hereby or thereby that are then unasserted claims)due and unpaid, all Letters of Credit shall have expired or terminated (or been collateralized in a manner satisfactory to the applicable Issuing Bank) and all Letter of Credit Outstandings have been reduced to zero (or collateralized in a manner satisfactory to the applicable Issuing Bank), or (ii) constituting property being sold, transferred sold or otherwise disposed of (to Persons other than a Loan Party) upon the sale or other disposition thereof, (iii) owned by any Subsidiary Guarantor that becomes an Excluded Subsidiary or ceases to be a Restricted Subsidiary of the Parent Borrower or constituting Capital Stock or other equity interests of an Excluded Subsidiary, (iv) if approved, authorized or ratified in a Permitted Disposition upon receipt writing by the Administrative Agent of the Net Proceeds thereof Required Lenders (or such greater amount, to the extent required by this Agreement. Except Subsection 11.1) or (v) as otherwise may be expressly provided abovein the relevant Security Documents, (B) at the Collateral Agent will not written request of the Borrower Representative to subordinate any Lien on any Excluded Assets or any other property granted to or held by such Agent, as the case may be under any Loan Document to the holder of any Permitted Lien and (C) to release any Subsidiary Guarantor from its Obligations under any Loan Documents to which it is a party if such Person ceases to be a Restricted Subsidiary of the Collateral Agent’s Liens without the prior written authorization of the Applicable LendersParent Borrower or becomes an Excluded Subsidiary. Upon request by any Agent or any Loan Party Agent, at any time, the Required Lenders or all or such other portion of the Lenders as shall be prescribed by this Agreement will confirm in writing the Collateral any Agent’s authority to release any Liens upon particular types or items of Collateral pursuant to this SECTION 8.16Subsection 10.8.
(bc) The Lenders hereby authorize the Administrative Agent and the Collateral Agent, as the case may be, in each case at its option and in its discretion, to enter into any amendment, amendment and restatement, restatement, waiver, supplement or modification, and to make or consent to any filings or to take any other actions, in each case as contemplated by Subsection 11.17. Upon at least two (2) Business Days’ prior written request by the Lead Borrowerany Agent, at any time, the Required Lenders or all or such other portion of the Lenders as shall be prescribed by this Agreement will confirm in writing the Administrative Agent’s and the Collateral Agent’s authority under this Subsection 10.8(c).
(d) No Agent shall (have any obligation whatsoever to the Lenders to assure that the Collateral exists or is owned by Holdings, the Parent Borrower or any of its Restricted Subsidiaries or is cared for, protected or insured or that the Liens granted to any Agent herein or pursuant hereto 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 is hereby irrevocably authorized powers granted or available to the Agents in this Subsection 10.8 or in any of the Security Documents, it being understood and agreed by the Lenders to) execute such documents as may be necessary to evidence the release that in respect of the Liens upon Collateral, or any Collateral described act, omission or event related thereto, each Agent may act in SECTION 8.16(a); provided, however, that (i) the Collateral Agent shall not be required to execute any such document on terms whichmanner it may deem appropriate, in its reasonable opinionsole discretion, would, under Applicable Law, expose given such Agent’s own interest in the Collateral as a Lender and that no Agent shall have any duty or liability whatsoever to liability the Lenders, except for its bad faith, gross negligence or create willful misconduct.
(e) Notwithstanding any obligation provision herein to the contrary, any Security Document may be amended (or entail any adverse consequence other than amended and restated), restated, waived, supplemented or modified as contemplated by and in accordance with either Subsection 11.1 or 11.17, as applicable, with the release written consent of such Liens without recourse or warrantythe Agent party thereto and the Loan Party party thereto.
(f) The Collateral Agent may, and (ii) hereby does, appoint the Administrative Agent as its agent for the purposes of holding any Collateral and/or perfecting the Collateral Agent’s security interest therein and for the purpose of taking such release shall not in any manner discharge, affect or impair other action with respect to the Obligations or any Liens (other than those expressly being released) upon (or obligations of any Loan Party in respect of) all interests retained by any Loan Party, including (without limitation) the proceeds of any sale, all of which shall continue collateral as such Agents may from time to constitute part of the Collateraltime agree.
Appears in 4 contracts
Sources: Credit Agreement (SiteOne Landscape Supply, Inc.), Credit Agreement (SiteOne Landscape Supply, Inc.), Credit Agreement (SiteOne Landscape Supply, Inc.)
Collateral Matters. (i) Each Lender authorizes and directs Agent to enter into the Other Agreements for the benefit of Lenders. Each Lender hereby agrees that, except as otherwise set forth herein, any action taken by Requisite Lenders in accordance with the provisions of this Agreement or the Other Agreements, and the exercise by the Requisite 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 Other Agreements which may be necessary to perfect and maintain perfected the security interest in and liens upon the Collateral granted pursuant to this Agreement and the Other Agreements.
(ii) Agent will not, without the verbal consent of all Lenders, which consent shall (a) The Lenders hereby irrevocably authorize the Collateral Agent to be confirmed promptly thereafter in writing and (b) not be unreasonably withheld or delayed, execute any release any Lien upon of Agent’s security interest in any Collateral except for releases relating to dispositions of Collateral (ix) upon permitted by this Agreement and (y) in connection with the termination of the Commitments and payment and satisfaction repayment in full of all Obligations of the Liabilities by Borrower and the termination of all obligations of Agent and Lenders under this Agreement and the Other Agreements; provided, that with the consent of Requisite Lenders, Agent may release its liens on Collateral having a book value not greater than ten percent (10%) of the total book value of all Collateral, as determined by Agent, either in a single transaction or series of related transactions, not to exceed twenty percent (20%) of the book value of all Collateral in any Fiscal Year. Agent shall not be required to execute any such release on terms which, in Agent’s opinion, would expose Agent to liability or create any obligation or entail any consequence other than contingent indemnity obligations with respect the release of such liens without recourse or warranty. In the event of any sale or transfer of any of the Collateral, Agent shall be authorized to then unasserted claims), deduct all Letters of Credit shall have expired the expenses reasonably incurred by Agent from the proceeds of any such sale or terminated transfer.
(or been collateralized iii) Lenders hereby agree that the lien granted to Agent in a manner satisfactory to the applicable Issuing Bank) and all Letter of Credit Outstandings have been reduced to zero (or collateralized in a manner satisfactory to the applicable Issuing Bank), or (ii) constituting any property being sold, transferred sold or disposed of in a Permitted Disposition upon receipt by accordance with the Administrative Agent provisions of the Net Proceeds thereof to the extent required by this Agreement. Except as provided aboveAgreement shall be automatically released; provided, the Collateral Agent will not release any of the Collateral however that Agent’s Liens without lien shall attach to and continue for the prior written authorization benefit of Agent and Lenders in the Applicable Lenders. Upon request by proceeds and products of such property arising from any Agent such sale or any Loan Party at any time, the Lenders will confirm in writing the Collateral Agent’s authority to release any Liens upon particular types or items of Collateral pursuant to this SECTION 8.16disposition.
(biv) Upon To the extent, pursuant to the provisions of this subsection 19(j), Agent’s execution of a release is required to release its lien upon any sale and transfer of Collateral which is consented to in writing by Requisite Lenders or all Lenders, as applicable, and upon at least two five (25) Business Daysbusiness days’ prior written request by the Lead Borrower, 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 Liens liens granted to Agent for the benefit of Lenders herein or pursuant hereto upon any Collateral described in SECTION 8.16(a); provided, however, that (i) the Collateral that was sold or transferred.
(v) Agent shall not be required have any obligation whatsoever to execute Lenders or to any such document on terms whichother Person to assure that the Collateral exists or is owned by Borrower or any other Obligor or is cared for, protected or insured or that the liens granted to Agent herein or pursuant hereto 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 Agent in this Section 19 or in any of the Other Agreements, it being understood and agreed that in respect of the Collateral, or any act, omission or event related thereto, Agent may act in any manner it may deem appropriate, in its reasonable opinionsole discretion, would, under Applicable Law, expose given Agent’s own interest in the Collateral as one of Lenders and that Agent shall have no duty or liability whatsoever to liability Lenders, except for its gross negligence or create willful misconduct.
(vi) In the event that any obligation Lender receives any Proceeds of any Collateral by setoff, exercise of any banker’s lien or entail any adverse consequence other than the release otherwise, in an amount in excess of such Liens without recourse or warrantyLender’s Pro Rata Share of such Proceeds, such Lender shall purchase for cash (and (iiother Lenders shall sell) interests in each of 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 Loan Party in respect of) all interests retained by any Loan Party, including (without limitation) the proceeds of any sale, all of which shall continue to constitute part Lender’s Pro Rata Share of the CollateralLiabilities as would be necessary to cause all Lenders to share the amount so set off or otherwise received with each other Lender in accordance with their respective Pro Rata Shares. No Lender shall exercise any right of set off or banker’s lien without the prior written consent of Agent.
Appears in 4 contracts
Sources: Loan and Security Agreement (Apac Customer Service Inc), Loan and Security Agreement (Apac Customer Service Inc), Second Lien Loan and Security Agreement (Apac Customer Service 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 any Lien its Liens on the Collateral, and the Collateral Agent’s Liens upon any Collateral shall be automatically released (i) upon the termination Full Payment of the Commitments and payment and satisfaction in full of all Obligations (other than contingent indemnity obligations with respect to then unasserted claims), all Letters of Credit shall have expired or terminated (or been collateralized in a manner satisfactory to the applicable Issuing Bank) and all Letter of Credit Outstandings have been reduced to zero (or collateralized in a manner satisfactory to the applicable Issuing Bank), or Obligations; (ii) constituting 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 being sold, transferred in which the Obligors owned no interest at the time the Lien was granted or disposed of 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 Permitted Disposition upon receipt by the Administrative Agent of the Net Proceeds thereof 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 this Agreementthe 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 Applicable LendersRequired 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 any the Collateral Agent or any Loan Party 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 8.16Section 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).
(b) Upon receipt by any Appointed Agent of any authorization required pursuant to Section 13.10(a) from the Lenders of such Appointed Agent’s authority to release or subordinate the applicable Collateral Agent’s Liens upon particular types or items of Collateral, or to release any Guarantor from its obligations under the Guarantee Agreement, and upon at least two three (23) Business Days’ prior written request by the Lead Borrower, the Collateral such Appointed Agent shall (and is hereby irrevocably authorized by the Lenders and the other Secured Parties to) execute such documents as may be necessary to evidence the release of the such Collateral Agent’s Liens upon any such Collateral described in SECTION 8.16(a)or to subordinate its interest therein, or to release such Guarantor from its obligations under the Guarantee Agreement; provided, however, that (i) the Collateral such Appointed Agent shall not be required to execute any such document on terms which, in its reasonable such Appointed Agent’s opinion, would, under Applicable Law, would expose the Collateral such Appointed Agent to liability or create any obligation or entail any adverse consequence other than the release of such Liens without recourse or warranty, and (ii) such release shall not in any manner discharge, affect or impair the Obligations or any Liens (other than those expressly being released) upon (or obligations of any Loan Party the Obligors in respect of) all interests retained by any Loan Partythe Obligors, including (without limitation) the proceeds of any sale, all of which shall continue to constitute part of such Collateral.
(c) The Collateral Agent shall have no obligation whatsoever to any of the Lenders to assure that the Collateral exists or is owned by the Obligors or is cared for, protected or insured or has been encumbered, or that the applicable Collateral Agent’s Liens have been properly or sufficiently or lawfully created, perfected, protected or enforced or are entitled to any particular priority, or to exercise at all or in any particular manner or under any duty of care, disclosure or fidelity, or to continue exercising, any of the rights, authorities and powers granted or available to the Collateral Agent pursuant to any of the Loan Documents, it being understood and agreed that in respect of the Collateral, or any act, omission or event related thereto, the Collateral Agent may act in any manner it may deem appropriate, in its sole discretion, given the Collateral Agent’s own interest in the Collateral in its capacity as one of the Lenders and that the Collateral Agent shall have no other duty or liability whatsoever to any Lender as to any of the foregoing.
Appears in 4 contracts
Sources: Credit Agreement (ProFrac Holding Corp.), Credit Agreement (ProFrac Holding Corp.), Credit Agreement (ProFrac Holding Corp.)
Collateral Matters. (a) Each Lender authorizes and directs the Administrative Agent and the Collateral Agent to enter into (x) the Security Documents, the ABL Intercreditor Agreement, the Intercreditor Agreement and any Other Intercreditor Agreement for the benefit of the Lenders and the other Secured Parties, (y) any amendments, amendments and restatements, restatements or waivers of or supplements to or other modifications to the Security Documents, the ABL Intercreditor Agreement, the Intercreditor Agreement and any Other Intercreditor Agreement or other intercreditor agreements 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 a valid, perfected lien (with such priority as may be designated by Holdings or relevant Subsidiary, to the extent such priority is permitted by the Loan Documents) and (z) any Incremental Commitment Amendment as provided in Subsection 2.8, any Increase Supplement as provided in Subsection 2.8, any Lender Joinder Agreement as provided in Subsection 2.8, any agreement required in connection with a Permitted Debt Exchange Offer pursuant to Subsection 2.9, any Extension Amendment as provided in Subsection 2.10 and any Specified Refinancing Amendment as provided in Subsection 2.11. 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 Administrative Agent, Collateral Agent or the Required Lenders in accordance with the provisions of this Agreement, the Security Documents, the ABL Intercreditor Agreement, the Intercreditor Agreement, any Other Intercreditor Agreement, any Intercreditor Agreement Supplement, any Incremental Commitment Amendment, any Increase Supplement, any Lender Joinder Agreement or any agreement required in connection with a Permitted Debt Exchange Offer or any Extension Amendment or any Specified Refinancing Amendment and the 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 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, to take any action with respect to any applicable Collateral 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. Each Lender agrees that it will not have any 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, it being understood and agreed that such rights and remedies may be exercised only by the Collateral Agent. The Collateral Agent may grant extensions of time for the creation and perfection of security interests in or the obtaining of title insurance, legal opinions or other deliverables with respect to particular assets or the provision of any guarantee by any Subsidiary (including extensions beyond the Closing Date or in connection with assets acquired, or Subsidiaries formed or acquired, after the Closing Date) where it determines that such action cannot be accomplished without undue effort or expense by the time or times at which it would otherwise be required to be accomplished by this Agreement or the Security Documents.
(b) The Lenders hereby irrevocably authorize the Collateral Agent each Agent, in each case at its option and in its discretion, (A) to release any Lien granted to or held by such Agent upon any Collateral (i) upon the termination of the Commitments and payment and satisfaction in full of all of the Term Loan Facilities Obligations (other than contingent indemnity obligations with respect to then unasserted claims)under the Loan Documents, all Letters of Credit shall have expired or terminated (or been collateralized in a manner satisfactory to the applicable Issuing Bank) and all Letter of Credit Outstandings have been reduced to zero (or collateralized in a manner satisfactory to the applicable Issuing Bank), or (ii) constituting property being sold, transferred sold or otherwise disposed of (to Persons other than a Loan Party) upon the sale or other disposition thereof to the extent such sale or other disposition is made in compliance with the terms of this Agreement (and the Collateral Agent may rely conclusively on a Permitted Disposition certificate to that effect provided to it by any Loan Party upon receipt its reasonable request without further inquiry), (iii) owned by any Subsidiary Guarantor which becomes an Excluded Subsidiary or ceases to be a Restricted Subsidiary of Holdings or constituting Equity Interests of an Excluded Subsidiary (other than the Equity Interests of Foreign Subsidiaries), (iv) if approved, authorized or ratified in writing by the Administrative Agent of the Net Proceeds thereof Required Lenders (or such greater amount, to the extent required by Subsection 11.1) or (v) as otherwise may be expressly provided in the relevant Security Documents, (B) at the written request of the Borrower to subordinate any Lien on any Excluded Assets or any other property granted to or held by such Agent, as the case may be under any Loan Document to the holder of any Permitted Lien (other than Permitted Liens securing the Obligations under the Loan Documents or that are required by the express terms of this Agreement. Except as provided above, Agreement to be pari passu with or junior to the Liens on the Collateral Agent will not securing the Term Loan Facilities Obligations pursuant to the Intercreditor Agreement or an Other Intercreditor Agreement) and (C) to release any Subsidiary Guarantor from its Obligations under any Loan Documents to which it is a party if such Person ceases to be a Restricted Subsidiary of the Collateral Agent’s Liens without the prior written authorization of the Applicable LendersHoldings or becomes an Excluded Subsidiary. Upon request by any Agent or any Loan Party Agent, at any time, the Required Lenders or all or such other portion of the Lenders as shall be prescribed by this Agreement will confirm in writing the Collateral any Agent’s authority to release any Liens upon particular types or items of Collateral pursuant to this SECTION 8.16Subsection 10.8.
(bc) The Lenders hereby authorize the Administrative Agent and the Collateral Agent, as the case may be, in each case at its option and in its discretion, to enter into any amendment, amendment and restatement, restatement, waiver, supplement or modification, and to make or consent to any filings or to take any other actions, in each case as contemplated by Subsection 11.17. Upon at least two (2) Business Days’ prior written request by the Lead Borrowerany Agent, at any time, the Required Lenders will confirm in writing the Administrative Agent’s and the Collateral Agent’s authority under this Subsection 10.8(c).
(d) No Agent shall (have any obligation whatsoever to the Lenders to assure that the Collateral exists or is owned by Holdings, the Borrower or any of its Restricted Subsidiaries or is cared for, protected or insured or that the Liens granted to any Agent herein or pursuant hereto 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 is hereby irrevocably authorized powers granted or available to the Agents in this Subsection 10.8 or in any of the Security Documents, it being understood and agreed by the Lenders to) execute such documents as may be necessary to evidence the release that in respect of the Liens upon Collateral, or any Collateral described act, omission or event related thereto, each Agent may act in SECTION 8.16(a); provided, however, that (i) the Collateral Agent shall not be required to execute any such document on terms whichmanner it may deem appropriate, in its reasonable opinionsole discretion, would, under Applicable Law, expose given such Agent’s own interest in the Collateral as a Lender and that no Agent shall have any duty or liability whatsoever to liability the Lenders, except for its gross negligence or create willful misconduct.
(e) Notwithstanding any obligation provision herein to the contrary, any Security Document may be amended (or entail any adverse consequence other than amended and restated), restated, waived, supplemented or modified as contemplated by and in accordance with either Subsection 11.1 or 11.17, as applicable, with the release written consent of such Liens without recourse or warrantythe Agent party thereto and the Loan Party party thereto.
(f) The Collateral Agent may, and (ii) hereby does, appoint the Administrative Agent as its agent for the purposes of holding any Collateral and/or perfecting the Collateral Agent’s security interest therein and for the purpose of taking such release shall not in any manner discharge, affect or impair other action with respect to the Obligations or any Liens (other than those expressly being released) upon (or obligations of any Loan Party in respect of) all interests retained by any Loan Party, including (without limitation) the proceeds of any sale, all of which shall continue collateral as such Agents may from time to constitute part of the Collateraltime agree.
Appears in 4 contracts
Sources: Credit Agreement (Univar Inc.), Credit Agreement (Univar Inc.), Credit Agreement (Univar Inc.)
Collateral Matters. (a) The Lenders hereby irrevocably authorize the Collateral Agent to release any Lien upon any Collateral (i) upon The Collateral Custodian agrees to cooperate with the termination 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 Commitments and payment and satisfaction Majority Lenders) or the Calculation Agent deems necessary or reasonably desirable in full order to perfect, protect or more fully evidence the security interests granted by the Borrower hereunder, or to enable any of all Obligations (other than contingent indemnity obligations them to exercise or enforce any of their respective rights hereunder or under any Transaction Document, including any rights arising with respect to then unasserted claims)Article VI. In the event the Collateral Custodian receives instructions from the Applicable Servicer which conflict with any instructions received by the Administrative Agent, all Letters of Credit the Collateral Custodian shall have expired or terminated (or been collateralized in a manner satisfactory to rely on and follow the applicable Issuing Bank) and all Letter of Credit Outstandings have been reduced to zero (or collateralized in a manner satisfactory to instructions given by the applicable Issuing Bank), or Administrative Agent.
(ii) constituting property being sold, transferred or disposed of in a Permitted Disposition upon receipt by the The Administrative Agent (acting at the direction of the Net Proceeds thereof Majority Lenders) may direct the Collateral Custodian to take any such incidental action hereunder. With respect to other actions which are incidental to the extent required by this Agreement. Except as provided aboveactions specifically delegated to the Collateral Custodian hereunder, the Collateral Agent will not release any of the Collateral Agent’s Liens without the prior written authorization of the Applicable Lenders. Upon request by any Agent or any Loan Party at any time, the Lenders will confirm in writing the Collateral Agent’s authority to release any Liens upon particular types or items of Collateral pursuant to this SECTION 8.16.
(b) Upon at least two (2) Business Days’ prior written request by the Lead Borrower, 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 Liens upon any Collateral described in SECTION 8.16(a); provided, however, that (i) the Collateral Agent Custodian shall not be required to execute take any such document on terms whichincidental action hereunder, but shall be required to act or to refrain from acting (and 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 or otherwise if the taking of such action, in its the reasonable opiniondetermination of the Collateral Custodian, would, under (A) shall be in violation of any Applicable Law, Law or contrary to any provisions of this Agreement or (B) shall expose the Collateral Agent Custodian to liability hereunder or create any obligation 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 Administrative Agent and the Collateral Custodian does not receive a consent (either positive or entail any adverse consequence other than negative) from the release Administrative Agent within 10 Business Days of its receipt of such Liens without recourse or warrantyrequest, and then the Administrative Agent shall be deemed to have declined to consent to the relevant action.
(iiiii) such release The Collateral Custodian shall not be liable for any action taken, suffered or omitted by it in any manner discharge, affect accordance with the request or impair the Obligations or any Liens (other than those expressly being released) upon (or obligations direction of any Loan Party in respect of) all interests retained by any Loan Secured Party, including (without limitation) to the proceeds extent that this Agreement provides such Secured Party the right to so direct the Collateral Custodian, or the Administrative Agent. The Collateral Custodian shall not be deemed to have notice or knowledge of any salematter hereunder, all including an Event of which shall continue to constitute part Default, unless a Responsible Officer of the CollateralCollateral Custodian has knowledge of such matter or written notice thereof is received by the Collateral Custodian. Notice or knowledge of any matter by the Administrative Agent and other publicly available information shall not constitute notice or actual knowledge of the Collateral Custodian. The Collateral Custodian’s receipt of reports (including monthly distribution reports) and any publicly available information, shall not constitute actual or constructive knowledge or notice of any information contained therein or determinable from information contained therein.
Appears in 4 contracts
Sources: Fourth Amendment and Joinder to Loan and Servicing Agreement (Carlyle Secured Lending, Inc.), Loan and Servicing Agreement (Carlyle Secured Lending III), Loan and Servicing Agreement (Carlyle Secured Lending III)
Collateral Matters. (a) Each Lender authorizes and directs the Collateral Agent to enter into (x) the Security Documents, the Intercreditor Agreements and any Replacement Intercreditor Agreement for the benefit of the Lenders and the other Secured Parties, (y) any amendments, amendments and restatements, restatements or waivers of or supplements to or other modifications to the Security Documents and the Base Intercreditor Agreement, the Cash Flow Intercreditor Agreement or any Replacement Intercreditor Agreement or enter into other intercreditor agreements 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 a valid, perfected lien (with such priority as may be designated by the Borrower or relevant Subsidiary, to the extent such priority is permitted by the Loan Documents) and (z) any Incremental Commitment Amendment as provided in subsection 2.5, any Increase Supplement as provided in subsection 2.5, any Lender Joinder Agreement as provided in subsection 2.5, any agreement required in connection with a Permitted Debt Exchange Offer pursuant to subsection 2.6 and any Extension Amendment as provided in subsection 2.7. 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 Administrative Agent, the Collateral Agent or the Required Lenders in accordance with the provisions of this Agreement, the Security Documents, the Intercreditor Agreements, any Replacement Intercreditor Agreement, any other intercreditor agreement referred to in the previous sentence, any Intercreditor Agreement Supplement, any Incremental Commitment Amendment, any Increase Supplement, any Lender Joinder Agreement, any Extension Amendment or any agreement required in connection with a Permitted Debt Exchange Offer and the 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 Collateral Agent are 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, 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 granted pursuant to the Security Documents.
(b) The Lenders hereby irrevocably authorize the Administrative Agent and the Collateral Agent Agent, as applicable, in each case at its option and in its discretion, to (A) release any Lien granted to or held by such Agent upon any Collateral (i) upon the termination of the Commitments and payment and satisfaction in full of all Obligations (of the obligations under the Loan Documents at any time arising under or in respect of this Agreement or the Loan Documents or the transactions contemplated hereby or thereby and no other than contingent indemnity obligations with respect to then unasserted claims)amounts owing hereunder, all Letters of Credit shall have expired or terminated (or been collateralized in a manner satisfactory to the applicable Issuing Bank) and all Letter of Credit Outstandings have been reduced to zero (or collateralized in a manner satisfactory to the applicable Issuing Bank), or (ii) constituting property being sold, transferred sold or otherwise disposed of (to Persons other than a Loan Party) upon the sale or other disposition thereof in a Permitted Disposition upon receipt compliance with subsection 7.4, (iii) if approved, authorized or ratified in writing by the Administrative Agent of the Net Proceeds thereof Required Lenders (or such greater amount, to the extent required by this Agreement. Except subsection 10.1) or (iv) as otherwise may be expressly provided abovein the relevant Security Documents or the Intercreditor Agreements, (B) enter into any intercreditor agreement on behalf of, and binding with respect to, the Collateral Lenders and their interest in designated assets, to give effect to any Special Purpose Financing, including to clarify the respective rights of all parties in and to designated assets or (C) to subordinate any Lien on any property granted to or held by such Agent, as the case may be under any Loan Document to the holder of any Permitted Lien. Upon request by the Administrative Agent will not release any of or the Collateral Agent, at any time, the Lenders will confirm in writing such Agent’s Liens without authority to release particular types or items of Collateral pursuant to this subsection 9.9.
(c) The Lenders hereby authorize the prior written authorization of Administrative Agent and the Applicable LendersCollateral Agent, as the case may be, in each case at its option and in its discretion, to enter into any amendment, amendment and restatement, restatement, waiver, supplement or modification, and to make or consent to any filings or to take any other actions, in each case as contemplated by subsection 10.17. Upon request by any Agent or any Loan Party Agent, at any time, the Lenders will confirm in writing the Administrative Agent’s and the Collateral Agent’s authority to release any Liens upon particular types or items of Collateral pursuant to under this SECTION 8.16subsection.
(bd) Upon at least two (2) Business Days’ prior written request No Agent shall have any obligation whatsoever to the Lenders to assure that the Collateral exists or is owned by the Lead BorrowerBorrower or any of its Subsidiaries or is cared for, protected or insured or that the Collateral Liens granted to any Agent shall (and is hereby irrevocably authorized by the Lenders to) execute such documents as may be necessary herein or pursuant hereto have been properly or sufficiently or lawfully created, perfected, protected or enforced or are entitled to evidence the release 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 Liens upon rights, authorities and powers granted or available to the Agents in this subsection 9.9 or in any Collateral described of the Security Documents, it being understood and agreed that in SECTION 8.16(a); providedrespect of the Collateral, howeveror any act, that (i) the Collateral omission or event related thereto, each Agent shall not be required to execute may act in any such document on terms whichmanner it may deem appropriate, in its reasonable opinionsole discretion, would, under Applicable Law, expose given such Agent’s own interest in the Collateral as Lender and that no Agent shall have any duty or liability whatsoever to liability the Lenders, except for its gross negligence or create any obligation or entail any adverse consequence other than the release of such Liens without recourse or warrantywillful misconduct.
(e) The Collateral Agent may, and hereby does, appoint the Administrative Agent as its agent for the purposes of holding any Collateral and/or perfecting the Collateral Agent’s security interest therein and for the purpose of taking such other action with respect to the Collateral as such Agents may from time to time agree.
(iif) such release shall not in Notwithstanding any manner dischargeprovision herein to the contrary, affect or impair the Obligations or any Liens (other than those expressly being released) upon Security Document may be amended (or obligations amended and restated), restated, waived, supplemented or modified as contemplated by subsection 10.18 with the written consent of any the Agent party thereto and the Loan Party in respect of) all interests retained by any Loan Party, including (without limitation) the proceeds of any sale, all of which shall continue to constitute part of the Collateralparty thereto.
Appears in 4 contracts
Sources: Credit Agreement (Hd Supply, Inc.), Credit Agreement (Hd Supply, Inc.), Credit Agreement (Hd Supply, Inc.)
Collateral Matters. (a) Each Secured Party authorizes and directs the Collateral Agent to enter into the Security Documents and any Intercreditor Agreement, other intercreditor arrangements or collateral trust arrangements contemplated by this Agreement on behalf of and for the benefit of the Lenders and the other Secured Parties named therein and agrees to be bound by the terms of each Security Document and any Intercreditor Agreement and other agreements or documents. Each Lender hereby agrees, and each holder of any Note and each other Secured Party by the acceptance thereof will be deemed to agree, that, except as otherwise set forth herein, any action taken by the Required Lenders (or such greater number of Lenders as may be required hereunder) in accordance with the provisions of this Agreement or the Security 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 Lenders Collateral Agent is hereby irrevocably 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 granted pursuant to the Security Documents.
(b) The Secured Parties hereby authorize the Collateral Agent to release release, at the Borrower’s sole cost and expense, any Lien granted to or held by the Collateral Agent upon any Collateral (i) upon the termination of the Commitments and payment and satisfaction in full of all of the Obligations (other than contingent indemnity obligations with inchoate indemnification obligations) at any time arising under or in respect to then unasserted claims)of this Agreement or the Loan Documents or the transactions contemplated hereby or thereby, all Letters of Credit shall have expired or terminated (or been collateralized in a manner satisfactory to the applicable Issuing Bank) and all Letter of Credit Outstandings have been reduced to zero (or collateralized in a manner satisfactory to the applicable Issuing Bank), or (ii) constituting property being sold, transferred sold or otherwise disposed of (to Persons other than Holdings and its Subsidiaries) upon the sale or other disposition thereof in a Permitted Disposition upon receipt compliance with Section 9.5, (iii) if approved, authorized or ratified in writing by the Administrative Agent Required Lenders (or all of the Net Proceeds thereof Lenders hereunder, to the extent required by this Agreement. Except Section 13.12) or (iv) as otherwise may be expressly provided above, in the Collateral Agent will not release any of the Collateral Agent’s Liens without the prior written authorization of the Applicable Lendersrelevant Security Documents. Upon request by any the Administrative Agent or any Loan Party at any time, the Lenders will confirm in writing the Collateral Agent’s authority to release any Liens upon particular types or items of Collateral pursuant to this SECTION 8.16Section 12.10.
(bc) Upon The Collateral Agent shall have no obligation whatsoever to the Secured Parties or to any other Person to assure that the Collateral exists or is owned by any Secured Party or is cared for, protected or insured or that the 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 any particular priority, or to exercise or to continue exercising at least two (2) Business Days’ prior written request by all or in any manner or under any duty of care, disclosure or fidelity any of the Lead Borrowerrights, authorities and powers granted or available to the Collateral Agent in this Section 12.10 or in any of the Security Documents, it being understood and agreed that in respect of the Collateral, or any act, omission or event related thereto, the Collateral Agent shall (and is hereby irrevocably authorized by may act in any manner it may deem appropriate, in its sole discretion, given the Collateral Agent’s own interest in the Collateral as one of the Lenders to) execute such documents as may be necessary to evidence the release of the Liens upon any Collateral described in SECTION 8.16(a); provided, however, and that (i) the Collateral Agent shall not be required have no duty or liability whatsoever to execute any such document on terms whichthe Lenders, except for its gross negligence or willful misconduct (as determined by a court of competent jurisdiction in its reasonable opinion, would, under Applicable Law, expose the Collateral Agent to liability or create any obligation or entail any adverse consequence other than the release of such Liens without recourse or warranty, a final and (ii) such release shall not in any manner discharge, affect or impair the Obligations or any Liens (other than those expressly being released) upon (or obligations of any Loan Party in respect of) all interests retained by any Loan Party, including (without limitation) the proceeds of any sale, all of which shall continue to constitute part of the Collateralnon-appealable decision).
Appears in 4 contracts
Sources: Credit and Guaranty Agreement (Ancestry.com LLC), Credit and Guaranty Agreement (Ancestry.com LLC), Credit and Guaranty Agreement (Anvilire)
Collateral Matters. (a) The Lenders hereby irrevocably authorize the Collateral Agent to (1) release any Lien granted to or held by the Collateral Agent upon any Collateral (i) in accordance with the express terms of the Loan Documents; (ii) upon the termination of the all Commitments and payment and satisfaction in full of all Obligations (other than contingent indemnity obligations with respect to then unasserted claims), all Letters of Credit shall have expired or terminated (or been collateralized in a manner satisfactory to the applicable Issuing Bank) Term Loans and all Letter of Credit Outstandings have been reduced to zero (or collateralized other Obligations in a manner satisfactory to accordance with the applicable Issuing Bank), terms hereof; or (iiiii) (x) constituting property being sold, transferred sold or disposed of in a Permitted Disposition upon receipt the ordinary course of any 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 Loan Parties owned no interest at the time the Lien was granted or at any time thereafter; or (z) if approved, authorized or ratified in writing by the Administrative Agent of the Net Proceeds thereof Lenders or (2) subordinate any Lien on any property granted to the extent required or sold by this Agreement. Except as provided above, the Collateral Agent will not release to the holder of any Lien on property that is permitted to be subordinated pursuant to the definition of the Collateral Agent’s Liens without the prior written authorization of the Applicable Lenders“Permitted Liens”. Upon request by any the Collateral Agent or any Loan Party at any time, the Lenders will shall confirm in writing the Collateral Agent’s authority to release any Liens upon or subordinate particular types or items of Collateral pursuant to this SECTION 8.16Agreement.
(b) 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 at least two receipt by the Collateral Agent of confirmation from the Required Lenders (2or all Lenders if applicable) Business Days’ of its authority to release or subordinate any particular item or types of Collateral, and upon prior written request by the Lead Borrowerany 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 Liens granted to the Collateral Agent for the benefit of the Agents and the Lenders upon any Collateral described in SECTION 8.16(a)such Collateral; provided, however, that (i) the Collateral Agent shall not be required to execute any such document on terms which, in its reasonable the Collateral Agent’s opinion, would, under Applicable Law, would expose the Collateral Agent to liability or create any obligation obligations or entail any adverse consequence other than the release of such Liens without recourse or warranty, and (ii) such release shall not in any manner discharge, affect or impair the Obligations or any Liens (other than those expressly being released) Lien upon (or obligations of any Loan Party in respect of) all interests in the Collateral retained by any Loan Party.
(c) Anything contained in any of the Loan Documents to the contrary notwithstanding, including the Loan Parties, each Agent and each Lender hereby agree that (without limitationi) no Lender shall have any right individually to realize upon any of the Collateral under any Loan Document or to enforce any Guaranty, it being understood and agreed that all powers, rights and remedies under the Loan Documents may be exercised solely by the Collateral Agent for the benefit of the Lenders in accordance with the terms thereof, (ii) in the event of a foreclosure by the Collateral Agent on any of the Collateral pursuant to a public or private sale, the Administrative Agent, the Collateral Agent or any Lender may be the purchaser of any or all of such Collateral at any such sale and (iii) the proceeds Collateral Agent, as agent for and representative of the Agents and the Lenders (but not any other Agent or any Lender or Lenders in its or their respective individual capacities unless the Required Lenders shall otherwise agree in writing) shall be entitled (either directly or through one or more acquisition vehicles) for the purpose of bidding and making settlement or payment of the purchase price for all or any portion of the Collateral to be sold (A) at any public or private sale, (B) at any sale conducted by the Collateral Agent under the provisions of the Uniform Commercial Code (including pursuant to Sections 9-610 or 9-620 of the Uniform Commercial Code), (C) at any sale or foreclosure conducted by the Collateral Agent (whether by judicial action or otherwise) in accordance with applicable law or (D) any sale conducted pursuant to the provisions of any Debtor Relief Law (including Section 363 of the Bankruptcy Code), to use and apply all or any of the Obligations as a credit on account of the purchase price for any Collateral payable by the Collateral Agent at such sale.
(d) The Collateral Agent shall have no obligation whatsoever to any Lender to assure that the Collateral exists or is owned by the Loan Parties or is cared for, protected or insured or has been encumbered or that the Lien granted to the Collateral Agent pursuant to this Agreement or any other Loan Document has been properly or sufficiently or lawfully created, perfected, protected or enforced or is entitled to any particular priority, or to exercise at all or in any particular manner or under any duty of which shall care, disclosure or fidelity, or to continue exercising, any of the rights, authorities and powers granted or available to constitute part the Collateral Agent in this Section 10.08 or in any other Loan Document, it being understood and agreed that in respect of the Collateral, or any act, omission or event related thereto, the Collateral Agent may act in any manner it may deem appropriate, in its sole discretion, and that the Collateral Agent shall have no duty or liability whatsoever to any other Lender, except as otherwise provided herein.
Appears in 3 contracts
Sources: Credit Agreement (Boxlight Corp), Credit Agreement (Stronghold Digital Mining, Inc.), Credit Agreement (Boxlight Corp)
Collateral Matters. (a) The Lenders hereby irrevocably authorize the Collateral Agent to release any Lien upon any Collateral (i) upon the termination of the Commitments and payment and satisfaction in full of all Obligations (other than contingent indemnity obligations with respect to then unasserted claims), all Letters of Credit shall have expired or terminated (or been collateralized in a manner satisfactory to the applicable Issuing Bank) and all Letter of Credit Outstandings have been reduced to zero (or collateralized in a manner satisfactory to the applicable Issuing Bank), or (ii) constituting property being sold, transferred or disposed of in a Permitted Disposition upon receipt by to a Person that is not a Loan Party, (iii) which constitutes property subject to the Administrative Agent proviso in the definition of “Collateral” in the Security Agreement or subject to the proviso in Section 2.1 of the Net Proceeds thereof Pledge Agreement, (iv) as provided in any Intercreditor Agreement, including the ABL Intercreditor Agreement with respect to Revolver Priority Collateral and (v) as to the extent required by this AgreementCollateral of any Facility Guarantor, upon its release from its Facility Guarantee (including as a result of designation as an Unrestricted Subsidiary). Except as provided above, the Collateral Agent will not release any of the Collateral Agent’s Liens without the prior written authorization of the Applicable Lenders. Upon request by any Agent or any Loan Party at any time, the Lenders will confirm in writing the Collateral Agent’s authority to release any Liens upon particular types or items of Collateral pursuant to this SECTION Section 8.16.
(b) Upon at least two (2) Business Days’ prior written request by the Lead Borrower, the 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 Liens upon any Collateral described in SECTION Section 8.16(a); provided, however, that (i) the Collateral Agent shall not be required to execute any such document on terms which, in its reasonable opinion, would, under Applicable Law, expose the Collateral Agent to liability or create any obligation or entail any adverse consequence other than the release of such Liens without recourse or warranty, and (ii) such release shall not in any manner discharge, affect or impair the Obligations or any Liens (other than those expressly being released) upon (or obligations of any Loan Party in respect of) all interests retained by any Loan Party, including (without limitation) the proceeds of any sale, all of which shall continue to constitute part of the Collateral.
(c) Each Lender irrevocably authorizes each of the Administrative Agent and the Collateral Agent to (i) release any Guarantor from its obligations under a Facility Guarantee if such Person ceases to be a Restricted Subsidiary as a result of a transaction or designation permitted hereunder and (ii) upon the request of the Borrower and pursuant to documentation reasonably acceptable to the Administrative Agent and/or Collateral Agent, to subordinate any Lien on any property granted to or held by the Administrative Agent or the Collateral Agent under any Loan Document to the holder of any Lien on such property that is permitted under clause (f), (h) or (t) of the definition of Permitted Encumbrances.
(d) The Secured Parties hereby irrevocably authorize the Administrative Agent, at the direction of the Required Lenders, to credit bid all or any portion of the Obligations (including by accepting some or all of the Collateral in satisfaction of some or all of the Obligations pursuant to a deed in lieu of foreclosure or otherwise) and in such manner purchase (either directly or through one or more acquisition vehicles) all or any portion of the Collateral (a) at any sale thereof conducted under the provisions of the Bankruptcy Code, including under Sections 363, 1123 or 1129 of the Bankruptcy Code, or any similar laws in any other jurisdictions to which a Loan Party is subject, or (b) at any other sale, foreclosure or acceptance of collateral in lieu of debt conducted by (or with the consent or at the direction of) the Administrative Agent (whether by judicial action or otherwise) in accordance with any applicable law. In connection with any such credit bid and purchase, the Obligations owed to the Secured Parties shall be entitled to be, and shall be, credit bid by the Administrative Agent at the direction of the Required Lenders on a ratable basis (with Obligations with respect to contingent or unliquidated claims receiving contingent interests in the acquired assets on a ratable basis that shall vest upon the liquidation of such claims in an amount proportional to the liquidated portion of the contingent claim amount used in allocating the contingent interests) for the asset or assets so purchased (or for the equity interests or debt instruments of the acquisition vehicle or vehicles that are issued in connection with such purchase). In connection with any such bid (i) the Administrative Agent shall be authorized to form one or more acquisition vehicles and to assign any successful credit bid to such acquisition vehicle or vehicles (ii) each of the Secured Parties’ ratable interests in the Obligations which were credit bid shall be deemed without any further action under this Agreement to be assigned to such vehicle or vehicles for the purpose of closing such sale, (iii) the Administrative shall be authorized to adopt documents providing for the governance of the acquisition vehicle or vehicles (provided that any actions by the Administrative Agent with respect to such acquisition vehicle or vehicles, including any disposition of the assets or equity interests thereof, shall be governed, directly or indirectly, by, and the governing documents shall provide for, control by the vote of the Required Lenders or their permitted assignees under the terms of this Agreement or the governing documents of the applicable acquisition vehicle or vehicles, as the case may be, irrespective of the termination of this Agreement and without giving effect to the limitations on actions by the Required Lenders contained in Section 9.02 of this Agreement), (iv) the Administrative Agent on behalf of such acquisition vehicle or vehicles shall be authorized to issue to each of the Secured Parties, ratably on account of the relevant Obligations which were credit bid, interests, whether as equity, partnership, limited partnership interests or membership interests, in any such acquisition vehicle and/or debt instruments issued by such acquisition vehicle, all without the need for any Secured Party or acquisition vehicle to take any further action, and (v) to the extent that Obligations that are assigned to an acquisition vehicle are not used to acquire Collateral for any reason (as a result of another bid being higher or better, because the amount of Obligations assigned to the acquisition vehicle exceeds the amount of Obligations credit bid by the acquisition vehicle or otherwise), such Obligations shall automatically be reassigned to the Secured Parties pro rata and the equity interests and/or debt instruments issued by any acquisition vehicle on account of such Obligations shall automatically be cancelled, without the need for any Secured Party or any acquisition vehicle to take any further action. Notwithstanding that the ratable portion of the Obligations of each Secured Party are deemed assigned to the acquisition vehicle or vehicles as set forth in clause (ii) above, each Secured Party shall execute such documents and provide such information regarding the Secured Party (and/or any designee of the Secured Party which will receive interests in or debt instruments issued by such acquisition vehicle) as the Administrative Agent may reasonably request in connection with the formation of any acquisition vehicle, the formulation or submission of any credit bid or the consummation of the transactions contemplated by such credit bid.
Appears in 3 contracts
Sources: Credit Agreement (Burlington Stores, Inc.), Credit Agreement (Burlington Stores, Inc.), Credit Agreement (Burlington Stores, Inc.)
Collateral Matters. In relation to any Liens in the Collateral to secure the Obligations granted on the First Amendment Date:
(a) Each Lender Party (including, by accepting the benefits thereof, each Specified Derivatives Provider) hereby authorizes the Administrative Agent, without the necessity of any notice to or further consent from any Lender Party, from time to time prior to an Event of Default, 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 any of the Loan Documents.
(b) The Lenders hereby irrevocably authorize the Collateral Agent Administrative Agent, at its option and in its discretion, to release any Lien granted to or held by the Administrative Agent upon any Collateral (i) upon the termination of the Commitments and indefeasible payment and satisfaction in full of all Obligations (other than contingent indemnity obligations with respect to then unasserted claims), all Letters of Credit shall have expired or terminated (or been collateralized in a manner satisfactory to the applicable Issuing Bank) and all Letter of Credit Outstandings have been reduced to zero (or collateralized in a manner satisfactory to the applicable Issuing Bank), or Obligations; (ii) constituting property being soldupon the Security Release Date or as otherwise expressly permitted by the terms of the applicable Loan Document; or (iii) if approved, transferred authorized or disposed ratified in writing by the Lenders required to so approve in accordance with the terms of in a Permitted Disposition upon receipt this Agreement. Upon request by the Administrative Agent of the Net Proceeds thereof to the extent required by 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 Applicable Lenders. Upon request by any Agent or any Loan Party at any time, the Lenders will confirm in writing the Collateral Administrative Agent’s authority to release any Liens upon particular types or items of Collateral pursuant to this SECTION 8.16Section.
(bc) Upon at least two Notwithstanding anything set forth herein (2) Business Days’ prior written request by the Lead Borrowerincluding Section 8.17(b)), 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 Liens upon any Collateral described in SECTION 8.16(a); provided, however, that (i) the Collateral Administrative Agent shall not be required to execute any such document on terms which, in its reasonable the Administrative Agent’s opinion, would, under Applicable Law, would expose the Collateral Administrative Agent to liability or create any obligation or entail any adverse consequence other than the release of such Liens without recourse or warranty, warranty and (ii) such any release of the Collateral (or any portion thereof) 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 Borrower or any other Loan Party in respect of) all interests retained by the Borrower or any other Loan Party, including (without limitation) the proceeds of any salesuch sale or transfer, all of which shall continue to constitute part of the Collateral to the extent provided in the Pledge Agreement. In the event of any sale or transfer of Collateral, or any foreclosure with respect to any of the Collateral, the Administrative Agent shall be authorized to deduct all of the expenses reasonably incurred by the Administrative Agent from the proceeds of any such sale, transfer or foreclosure.
(d) The Administrative Agent shall have no obligation whatsoever to the Lender Parties or to any other Person to assure that the Collateral exists or is owned by the Borrower or any other Loan Party or is cared for, protected or insured or that the Liens granted to the Administrative Agent pursuant to any of the Loan 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 the Administrative Agent in this Section or in any of the Loan Documents, it being understood and agreed that in respect of the Collateral, or any act, omission or event related thereto, the Administrative Agent may act in any manner it may deem appropriate, in its sole discretion but subject to the terms and conditions of the Loan Documents, and that the Administrative Agent shall have no duty or liability whatsoever to the Lender Parties, except to the extent resulting from its gross negligence or willful misconduct as determined by a court of competent jurisdiction in a final, non-appealable judgment.
Appears in 3 contracts
Sources: Credit Agreement (DiamondRock Hospitality Co), Credit Agreement (DiamondRock Hospitality Co), Credit Agreement (DiamondRock Hospitality Co)
Collateral Matters. (a) The Administrative Agent is authorized on behalf of all the Lenders without the necessity of any notice to or further consent from the Lenders, from time to time to take any action with respect to the Security Documents or any Collateral thereunder which may be necessary to perfect and maintain perfected the security interest in and Liens upon the Collateral granted pursuant to the Security Documents. The Lenders hereby irrevocably authorize the Collateral Agent Administrative Agent, at its option and in its discretion, to release any Lien granted to or held by the Administrative Agent upon any Collateral (i) upon the termination of the Commitments and payment and satisfaction in full of all Term Loans and all other Obligations (other than contingent indemnity obligations with respect to then unasserted claims), all Letters of Credit shall have expired or terminated (or been collateralized in a manner satisfactory the Loan Parties known to the applicable Issuing Bank) Administrative Agent and all Letter of Credit Outstandings have been reduced to zero (payable under this Agreement or collateralized in a manner satisfactory to the applicable Issuing Bank), or any other Loan Document; (ii) constituting property being sold, transferred Property sold or to be sold or disposed of to a Person that is not a Loan Party as part of or in a Permitted connection with any Asset Disposition upon receipt permitted hereunder; (iii) consisting of an instrument evidencing Indebtedness or other debt instrument, if the Indebtedness evidenced thereby has been paid in full; or (iv) if approved, authorized or ratified in writing by all the Administrative Agent of the Net Proceeds thereof to the extent required by 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 Applicable Lenders. Upon request by any the Administrative Agent or any Loan Party at any time, the Lenders will confirm in writing the Collateral Administrative Agent’s authority to release any Liens upon particular types or items of Collateral pursuant to this SECTION 8.16.
Section 8.11, provided that the absence of any such confirmation for whatever reason shall not affect the Administrative Agent’s rights under this Section 8.11. In the event that any landlord in favor of which a Loan Party has granted a Permitted Lien on Excluded Assets requests an acknowledgement that the Collateral does not include any Excluded Assets secured by such Permitted Lien (b) Upon at least two (2) Business Days’ prior written request by the Lead Borrowera “Permitted Lien Acknowledgement”), the Collateral Administrative Agent shall (and is hereby irrevocably authorized by the Lenders to) execute deliver a Permitted Lien Acknowledgement to such documents as may be necessary to evidence the release of the Liens upon any Collateral described in SECTION 8.16(a); providedlandlord, however, that (i) the Collateral Agent shall not be required to execute any such document on terms which, in its reasonable opinion, would, under Applicable Law, expose the Collateral Agent to liability or create any obligation or entail any adverse consequence other than the release of such Liens without recourse or warrantyand conditions, and (ii) subject to documentation reasonably acceptable to the Administrative Agent and, if required by such release landlord, shall not in amend any manner discharge, affect or impair the Obligations or any Liens (other than those expressly being released) upon (or obligations of any UCC-1 financing statements filed against a Loan Party in respect of) all interests retained by any Loan Party, including (without limitation) the proceeds of any sale, all of which shall continue to constitute part favor of the CollateralAdministrative Agent to exclude the specific Excluded Assets that are the subject of such Permitted Lien Acknowledgement.
Appears in 3 contracts
Sources: Credit Agreement (Hydrofarm Holdings Group, Inc.), Credit Agreement (Hydrofarm Holdings Group, Inc.), Credit Agreement (Hydrofarm Holdings Group, Inc.)
Collateral Matters. (a) The Lenders hereby irrevocably authorize the Collateral Agent to release any Lien upon any Collateral (i) upon The Collateral Custodian agrees to cooperate with the termination Administrative Agent, Facility Servicer and the Portfolio Asset Servicer regarding the delivery of any Portfolio Asset File to the Facility Servicer, Portfolio Asset Servicer or Administrative Agent (pursuant to a written request in the form of Exhibit G), as applicable, as requested in order to take any action that the Administrative Agent (acting at the direction of the Commitments and payment and satisfaction Majority Lenders) or the Facility Servicer deems necessary or desirable in full order to perfect, protect or more fully evidence the security interests granted by the Borrower hereunder, or to enable any of all Obligations (other than contingent indemnity obligations them to exercise or enforce any of their respective rights hereunder, including any rights arising with respect to then unasserted claims)Article VI. In the event the Collateral Custodian receives instructions from the Facility Servicer or the Portfolio Asset Servicer which conflict with any instructions received by the Administrative Agent, all Letters of Credit the Collateral Custodian shall have expired or terminated (or been collateralized in a manner satisfactory to rely on and follow the applicable Issuing Bank) and all Letter of Credit Outstandings have been reduced to zero (or collateralized in a manner satisfactory to instructions given by the applicable Issuing Bank), or Administrative Agent.
(ii) constituting property being sold, transferred or disposed of in a Permitted Disposition upon receipt by the The Administrative Agent (acting at the direction of the Net Proceeds thereof Majority Lenders) may direct the Collateral Custodian to take any such incidental action hereunder. With respect to other actions which are incidental to the extent required by this Agreement. Except as provided aboveactions specifically delegated to the Collateral Custodian hereunder, the Collateral Agent will not release any of the Collateral Agent’s Liens without the prior written authorization of the Applicable Lenders. Upon request by any Agent or any Loan Party at any time, the Lenders will confirm in writing the Collateral Agent’s authority to release any Liens upon particular types or items of Collateral pursuant to this SECTION 8.16.
(b) Upon at least two (2) Business Days’ prior written request by the Lead Borrower, 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 Liens upon any Collateral described in SECTION 8.16(a); provided, however, that (i) the Collateral Agent Custodian shall not be required to execute take any such document on terms whichincidental action hereunder, but shall be required to act or to refrain from acting (and 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 or otherwise if the taking of such action, in its the reasonable opiniondetermination of the Collateral Custodian, would, under (A) shall be in violation of any Applicable Law, Law or contrary to any provisions of this Agreement or (B) shall expose the Collateral Agent Custodian to liability hereunder or create any obligation 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 Administrative Agent and the Collateral Custodian does not receive a consent (either positive or entail any adverse consequence other than negative) from the release Administrative Agent within ten Business Days of its receipt of such Liens without recourse or warrantyrequest, and then the Administrative Agent shall be deemed to have declined to consent to the relevant action.
(iiiii) such release The Collateral Custodian shall not be liable for any action taken, suffered or omitted by it in any manner discharge, affect accordance with the request or impair the Obligations or any Liens (other than those expressly being released) upon (or obligations direction of any Loan Party in respect of) all interests retained by any Loan Secured Party, including (without limitation) to the proceeds extent that this Agreement provides such Secured Party the right to so direct the Collateral Custodian, or the Administrative Agent. The Collateral Custodian shall not be deemed to have notice or knowledge of any salematter hereunder, all including an Event of which shall continue to constitute part Default, unless a Responsible Officer of the CollateralCollateral Custodian has actual knowledge of such matter or written notice thereof is received by the Collateral Custodian.
(iv) In performing its duties, the Collateral Custodian shall comply with the standard of care and express terms of this Agreement with respect to the collateral that it holds hereunder.
Appears in 3 contracts
Sources: Loan and Servicing Agreement (ACRES Commercial Realty Corp.), Loan and Servicing Agreement (ACRES Commercial Realty Corp.), Loan and Servicing Agreement (Exantas Capital Corp.)
Collateral Matters. (a) The Lenders hereby irrevocably authorize the Collateral Agent Agent, at its option and in its discretion, to release any Lien granted to or held by Agent upon any Collateral (i) upon the termination of the Commitments and payment and satisfaction in full in cash of all Obligations (other than contingent indemnity obligations with respect to then unasserted claims), all Letters of Credit shall have expired Obligations; or terminated (or been collateralized in a manner satisfactory to the applicable Issuing Bank) and all Letter of Credit Outstandings have been reduced to zero (or collateralized in a manner satisfactory to the applicable Issuing Bank), or (ii) constituting property being sold, transferred sold or disposed of in a Permitted Disposition upon receipt compliance with the terms of this Agreement and the Other Documents; or constituting property to be financed with Indebtedness permitted under Section 7.8(iii) hereof; or constituting property in which any Loan Party (as applicable) owned no interest at the time the Lien was granted or at any time thereafter; or if approved, authorized or ratified in writing by the Administrative Agent of the Net Proceeds thereof to the extent required by 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 Applicable Required Lenders. Upon request by any Agent or any Loan Party at any time, the Lenders will confirm in writing the Collateral Agent’s authority to release any Liens upon particular types or items of Collateral pursuant to this SECTION 8.16Section 14.13(a).
(b) Upon at least two Without in any manner limiting Agent’s authority to act without any specific or further authorization or consent by the Lenders (2as set forth in Section 14.13(a)), each Lender agrees to confirm in writing, upon request by Agent, the authority to release Collateral conferred upon Agent under Section 14.13(a). Either without such confirmation (if Agent has not requested such confirmation) Business Days’ or upon receipt by Agent of such confirmation (if Agent has requested such confirmation), and upon prior written request by the Lead Borrower, 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 Liens upon any Collateral described in SECTION 8.16(a)granted to Agent to the extent permitted by Section 14.13; provided, however, that (i) the Collateral Agent shall not be required to execute any such document on terms which, in its reasonable Agent’s opinion, would, under Applicable Law, would expose the Collateral Agent to liability or create any obligation obligations or entail any adverse consequence other than the release of such Liens without recourse or warranty, and (ii) such release shall not in any manner discharge, affect or impair the Obligations or any Liens (other than those expressly being released) Lien upon (or obligations of any Loan Party in respect of) all interests in the Collateral retained by such Loan Party (as applicable).
(c) Agent shall have no obligation whatsoever to any Lender to assure that the Collateral exists or is owned by any Loan PartyParty or is cared for, including (without limitation) protected or insured or has been encumbered or that the proceeds Lien granted to Agent pursuant to this Agreement or any Other 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 saleof the rights, all of which shall continue authorities and powers granted or available to constitute part Agent in this Section 14.13 or in any Other Document, it being understood and agreed that in respect of the Collateral, or any act, omission or event related thereto, Agent may act in any manner it may deem appropriate, in its sole discretion, given Agent’s own interest in the Collateral as one of the Lenders and that Agent shall have no duty or liability whatsoever to any other Lender, except as otherwise provided herein.
(d) Each Loan Party and each Lender each hereby irrevocably authorizes Agent, based upon the written instruction of the Required Lenders, to bid and purchase (either directly or through one or more acquisition vehicles) all or any portion of the Collateral at any sale thereof conducted (i) by Agent under the provisions of the Code, including pursuant to Sections 9-610 or 9-620 of the Code, (ii) under the provisions of the Federal Bankruptcy Reform Act of 1978, including Section 363, 365 and/or 1129 thereof, or (iii) conducted by Agent (whether by judicial action or otherwise, including a foreclosure sale) in accordance with Applicable Law (clauses (i), (ii) an (iii), a “Collateral Sale”); and in connection with any Collateral Sale, Agent may accept non-cash consideration, including debt and equity securities issued by such acquisition vehicle under the direction or control of Agent and Agent may offset all or any portion of the Obligations against the purchase price of such Collateral.
Appears in 2 contracts
Sources: Revolving Credit and Security Agreement (Boot Barn Holdings, Inc.), Revolving Credit and Security Agreement (Boot Barn Holdings, Inc.)
Collateral Matters. (a) The Lenders hereby irrevocably authorize the Collateral Agent Agent, at its option and in its sole discretion, to release any Lien upon any Collateral and to terminate any guarantee (i) upon 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 Obligations (other than contingent indemnity indemnification and expense reimbursement obligations with respect to then unasserted claimsfor which no claim has been made), all Letters of Credit shall have expired or terminated (or been collateralized in a manner satisfactory to the applicable Issuing Bank) and all Letter of Credit Outstandings have been reduced to zero (or collateralized in a manner satisfactory to the applicable Issuing Bank), or ; (ii) constituting property being sold, transferred sold or disposed of if the Loan Party disposing of such property certifies to the Collateral Agent that the sale or disposition is made in compliance with Section 6.03 (and the Collateral Agent may rely conclusively on any such certification without further inquiry); (iii) constituting property in which no Loan Party owned any interest at the time the Lien was granted or at any time thereafter; (iv) constituting property leased to a Loan Party under a lease which has expired or been terminated in a Permitted Disposition upon receipt by the Administrative Agent of the Net Proceeds thereof to the extent required by transaction permitted under this Agreement; or (v) pursuant to Section 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 Applicable LendersLenders (as required by Section 9.03); provided that the Collateral Agent may, in its discretion, release the Collateral Agent’s Liens on Collateral valued in the aggregate not in excess of $250,000 during each Fiscal Year without the prior written authorization of any Lender. Upon request by any the Collateral Agent or any Loan Party the Borrowers at any time, the Lenders will confirm in writing the Collateral Agent’s authority to release any Collateral Agent’s Liens upon particular types or items of Collateral pursuant to this SECTION 8.16Section 8.10.
(b) Upon at least two In the event that any Loan Party conveys, sells, leases, assigns, transfers or otherwise disposes of all or any portion of any of the Capital Stock or assets of a Loan Party to a person that is not (2and is not required to become) Business Days’ prior written request a Loan Party, in each case in a transaction not prohibited by the Lead BorrowerSection 6.03 and so long no Event of Default is then continuing or would result therefrom, the Collateral Agent shall promptly (and is hereby irrevocably authorized by the Lenders hereby authorize the Collateral Agent to) take such action and execute any such documents as may be necessary reasonably requested by the Administrative Borrower and at the Administrative Borrower’s expense to evidence release, share or subordinate any Liens created by any Loan Document in respect of such assets or Capital Stock, and, in the release case of a disposition of the Liens upon Capital Stock of any Subsidiary that is a Loan Party in a transaction not prohibited by Section 6.03 and as a result of which such Subsidiary would cease to be a Loan Party, thus terminating such Subsidiary’s Guaranty obligation under the Guarantee and Collateral described in SECTION 8.16(aAgreement (other than with respect to obligations that expressly survive a termination); provided, however, that (i) the Collateral Agent shall not be required to execute any such document on terms which, in its the Collateral Agent’s reasonable opinion, would, under Applicable Law, would expose the Collateral Agent to liability or create any obligation or entail any adverse consequence other than the release of such Liens without recourse or warranty, and (ii) such release shall not in any manner discharge, affect affect, or impair the Obligations or any Liens (other than those expressly being released) upon (or obligations of any Loan Party the Borrowers in respect of) all interests retained by any Loan Partythe Borrowers, including (without limitation) the proceeds of any sale, all of which shall continue to constitute part of the Collateral. In addition, the Collateral Agent agrees to take such actions as are reasonably requested by the Administrative Borrower and at the Administrative Borrower’s expense to terminate the Liens and security interests created by the Loan Documents when all the Obligations (other than in respect of contingent indemnification and expense reimbursement obligations for which no claim has been made) are paid in full and all Letters of Credit and Commitments are terminated, and upon receipt by the Administrative Agent, for the benefit of Agents and Lenders, of liability releases from the Loan Parties in form and substance satisfactory to the Administrative Agent. Any representation, warranty or covenant contained in any Loan Document relating to any such Capital Stock, asset or Subsidiary of the Administrative Borrower shall no longer be deemed to be made once such Capital Stock or asset is so conveyed, sold, leased, assigned, transferred or disposed of. Upon any release or termination in connection with the foregoing, the Collateral Agent shall (and is hereby authorized by the Lenders to) execute such documents as may reasonably requested by the Administrative Borrower to evidence the release of the Collateral Agent’s Liens upon such Collateral all without recourse or warranty. Notwithstanding the foregoing or the payment in full of the Obligations, Collateral Agent shall not be required to terminate its Liens in the Collateral unless, with respect to any loss or damage Agents may incur as a result of dishonored checks or other items of payment received by Agents from any Borrower or any Account Debtor and applied to the Obligations, Agents shall, at their option, (i) have received a written agreement satisfactory to Agents, executed by Administrative Borrower and by any Person whose loans or other advances to Borrowers are used in whole or in part to satisfy the Obligations, indemnifying the Agents and each Lender from any such loss or damage or (ii) have retained cash Collateral or other Collateral for such period of time as the Agents, in their reasonable discretion, may deem necessary to protect the Agent and each Lender from any such loss or damage.
(c) The Collateral Agent shall have no obligation whatsoever to any of the Lenders to assure that the Collateral exists or is owned by any Loan Party or is cared for, protected, or insured or has been encumbered, or that the Collateral Agent’s Liens have been properly or sufficiently or lawfully created, perfected, protected, or enforced or are entitled to any particular priority, or to exercise at all or in any particular manner or under any duty of care, disclosure, or fidelity, or to continue exercising, any of the rights, authorities, and powers granted or available to the Collateral Agent pursuant to any of the Loan Documents, it being understood and agreed that in respect of the Collateral, or any act, omission, or event related thereto, the Collateral Agent may act in any manner it may deem appropriate, in its sole discretion, given the Collateral Agent’s own interest in the Collateral and its capacity as one of the Lenders, and that the Collateral Agent shall have no other duty or liability whatsoever to any Lender as to any of the foregoing.
(d) In the event of a foreclosure by any Agent on any of the Collateral pursuant to a public or private sale or any court ordered sale of the Collateral, such Agent or any Lender may be the purchaser of any or all of such Collateral at any such sale and such Agent, as agent for and representative of Lenders (but not any Lender or Lenders in its or their respective individual capacities unless the Required Lenders shall otherwise agree in writing) shall be entitled, for the purpose of bidding and making settlement or payment of the purchase price for all or any portion of the Collateral sold at any such sale, to use and apply any of the Obligations as a credit on account of the purchase price for any Collateral payable by such Agent at such sale.
(e) Notwithstanding anything to the contrary contained herein or in any other Loan Document, the authority to enforce rights and remedies hereunder and under the other Loan Documents against the Loan Parties or any of them shall be vested exclusively in, and all actions and proceedings in connection with such enforcement shall be instituted and maintained exclusively by, the applicable Agent (or its agents or designees) in accordance with the Loan Documents for the benefit of the applicable Secured Parties; provided that the foregoing shall not prohibit (i) any Agent from exercising on its own behalf the rights and remedies that inure to its benefit (solely in its capacity as such Agent) hereunder and under the other Loan Documents, (ii) each of the Issuing Bank and the Swingline Lender from exercising the rights and remedies that inure to its benefit (solely in its capacity as such) hereunder and under the other Loan Documents, (iii) any Lender or Participant from exercising setoff rights in accordance with Section 9.09, (iv) any Lender from filing proofs of claim or appearing and filing pleadings on its own behalf during the pendency of a proceeding relative to any Loan Party under any Bankruptcy Code or other debtor relief law or (v) any Lender from exercising any express right or remedy of such Lender under the Loan Documents where an Agent does not have the power and authority under the Loan Documents to act on behalf of such Lender; and provided, further, that if at any time there is no Person acting as the Administrative Agent or the Collateral Agent hereunder and under the other Loan Documents, then (A) the Required Lenders shall have the rights otherwise ascribed to the applicable Agent pursuant to Section 8.10 and (B) in addition to the matters set forth in Section 8.10, any Lender may, with the consent of the Required Lenders, enforce any rights and remedies available to it and as authorized by the Required Lenders. Prior to the initial commencement of the exercise of the Collateral Agent’s secured creditor remedies as to the Rigs, the Collateral Agent shall endeavor to consult with the Lenders regarding the nature of the secured remedies it proposes to commence, provided that nothing in this sentence shall (i) confer any right or remedy in favor of any Credit Party or (ii) confer any consent or blocking right in respect of the exercise, the manner of exercise or any other aspect related to such remedies.
Appears in 2 contracts
Sources: Credit Agreement (Independence Contract Drilling, Inc.), Credit Agreement (Independence Contract Drilling, Inc.)
Collateral Matters. (a) The Lenders hereby irrevocably authorize the Collateral Agent to release any Lien upon any Collateral (i) upon the termination of the Commitments and payment and satisfaction in full of all Obligations (other than (A) contingent indemnity indemnification obligations and (B) Obligations in respect of obligations that may thereafter arise with respect to then unasserted claimsOther 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, transferred or disposed of in a Permitted Disposition upon receipt by (other than a Permitted Disposition to a Person required to ▇▇▇▇▇ ▇ ▇▇▇▇ to the Administrative Agent or the Collateral Agent under the Loan Documents), subject to the conditions thereof, or upon the effectiveness of any written consent to the release of the Net Proceeds thereof security interest granted hereby in any Collateral pursuant to the extent required by Section 9.01 of 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 Applicable Lenders. Upon request by any Agent or any Loan Party at any time, the Lenders will confirm in writing the Collateral Agent’s authority to release any Liens upon particular types or items of Collateral pursuant to this SECTION 8.168.17.
(b) Upon at least two (2) Business Days’ prior written request by the Lead BorrowerBorrower (or within such shorter period as the Collateral Agent may agree in writing), 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 Liens upon any Collateral described in SECTION 8.16(a8.17(a); provided, however, that (i) the Collateral Agent shall not be required to execute any such document on terms which, in its reasonable opinion, would, under Applicable Law, expose the Collateral Agent to liability or create any obligation or entail any adverse consequence other than the release of such Liens without recourse or warranty, and (ii) such release shall not in any manner discharge, affect or impair the Obligations or any Liens (other than those expressly being released) upon (or obligations of any Loan Party in respect of) all interests retained by any Loan Party, including (without limitation) the proceeds of any sale, all of which shall continue to constitute part of the Collateral.
Appears in 2 contracts
Sources: Credit Agreement (Gymboree Corp), Credit Agreement (Gym-Card, LLC)
Collateral Matters. (a) The Lenders hereby irrevocably authorize the Collateral Agent to release any Lien upon any Collateral (i) upon The Collateral Custodian agrees to cooperate with the termination Administrative Agent, the Calculation Agent 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 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 Commitments and payment and satisfaction Administrative Agent or the Calculation Agent deems necessary or reasonably desirable in full order to perfect, protect or more fully evidence the security interests granted by the Borrower hereunder, or to enable any of all Obligations (other than contingent indemnity obligations them to exercise or enforce any of their respective rights hereunder or under any Transaction Document, including any rights arising with respect to then unasserted claims)Article VI. In the event the Collateral Custodian receives instructions from the Applicable Servicer which conflict with any instructions received by the Administrative Agent, all Letters of Credit the Collateral Custodian shall have expired or terminated (or been collateralized in a manner satisfactory to rely on and follow the applicable Issuing Bank) and all Letter of Credit Outstandings have been reduced to zero (or collateralized in a manner satisfactory to instructions given by the applicable Issuing Bank), or Administrative Agent.
(ii) constituting property being sold, transferred or disposed of in a Permitted Disposition upon receipt by the The Administrative Agent of may direct the Net Proceeds thereof Collateral Custodian to take any such incidental action hereunder. With respect to other actions which are incidental to the extent required by this Agreement. Except as provided aboveactions specifically delegated to the Collateral Custodian hereunder, the Collateral Agent will not release any of the Collateral Agent’s Liens without the prior written authorization of the Applicable Lenders. Upon request by any Agent or any Loan Party at any time, the Lenders will confirm in writing the Collateral Agent’s authority to release any Liens upon particular types or items of Collateral pursuant to this SECTION 8.16.
(b) Upon at least two (2) Business Days’ prior written request by the Lead Borrower, 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 Liens upon any Collateral described in SECTION 8.16(a); provided, however, that (i) the Collateral Agent Custodian shall not be required to execute take any such document on terms whichincidental action hereunder, but shall be required to act or to refrain from acting (and 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 or otherwise if the taking of such action, in its the reasonable opiniondetermination of the Collateral Custodian, would, under (A) shall be in violation of any Applicable Law, Law or contrary to any provisions of this Agreement or (B) shall expose the Collateral Agent Custodian to liability hereunder or create any obligation 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 Administrative Agent and the Collateral Custodian does not receive a consent (either positive or entail any adverse consequence other than negative) from the release Administrative Agent within 10 Business Days of its receipt of such Liens without recourse or warrantyrequest, and then the Administrative Agent shall be deemed to have declined to consent to the relevant action.
(iiiii) such release The Collateral Custodian shall not be liable for any action taken, suffered or omitted by it in any manner discharge, affect accordance with the request or impair the Obligations or any Liens (other than those expressly being released) upon (or obligations direction of any Loan Party in respect of) all interests retained by any Loan Secured Party, including (without limitation) to the proceeds extent that this Agreement provides such Secured Party the right to so direct the Collateral Custodian, or the Administrative Agent. The Collateral Custodian shall not be deemed to have notice or knowledge of any salematter hereunder, all including an Event of which shall continue to constitute part Default, unless a Responsible Officer of the CollateralCollateral Custodian has knowledge of such matter or written notice thereof is received by the Collateral Custodian.
Appears in 2 contracts
Sources: Loan and Servicing Agreement (Carlyle Credit Solutions, Inc.), Loan and Servicing Agreement (Carlyle Credit Solutions, Inc.)
Collateral Matters. (a) The Lenders (and each other Secured Party by their acceptance of the benefits of the Loan Documents shall be deemed to) hereby irrevocably authorize the Collateral Agent (and if applicable, any subagent appointed by the Collateral Agent under Section 13.2 or otherwise) to release any Lien its Liens on the Collateral, and the Collateral Agent’s Liens upon any Collateral shall be automatically released (i) upon the termination Full Payment of the Commitments and payment and satisfaction in full of all Obligations (other than contingent indemnity obligations with respect to then unasserted claims), all Letters of Credit shall have expired or terminated (or been collateralized in a manner satisfactory to the applicable Issuing Bank) and all Letter of Credit Outstandings have been reduced to zero (or collateralized in a manner satisfactory to the applicable Issuing Bank), or Obligations; (ii) constituting 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 being sold, transferred in which the Obligors owned no interest at the time the Lien was granted or disposed of 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 Permitted Disposition upon receipt by the Administrative Agent of the Net Proceeds thereof 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 this Agreementthe 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, 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 Applicable LendersRequired Lenders (or such other percentage of Lenders whose consent is required in accordance with Section 12.1). Upon request by any the Collateral Agent or any Loan Party 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 8.16Section 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 Current Asset Collateral only), (x) the Agent to release automatically any Guarantor from its obligations under the Guarantee Agreement if such Person ceases to be a Restricted Subsidiary as a result of a transaction permitted under this Agreement or such Person otherwise becomes an Excluded Subsidiary, in each case, solely to the extent (1) such Subsidiary ceasing to constitute a Restricted Subsidiary or otherwise becoming an Excluded Subsidiary is permitted by this Agreement and in the case of a Subsidiary ceasing to constitute a Subsidiary, the Borrower will be deemed to make a new Investment in the residual equity retained directly or indirectly by the Borrower and (2) no Default or Event of Default has occurred or is continuing or would result therefrom and (y) so long as no Default or Event of Default has occurred and is continuing or would result therefrom, then, to the extent that the Collateral Agent obtains possession of any Collateral by operation of Section 13.12 of this Agreement that constitutes Collateral that Obligors are not required to deliver to Collateral Agent at such time pursuant to 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 permitted by applicable law or legal process) deliver such Collateral in accordance with the terms of the ABL Intercreditor Agreement or, if the ABL Intercreditor Agreement is not then in effect, to the applicable Obligor. Promptly upon consummation of the FTS Distribution and Contribution Transaction, solely to the extent true, Borrower shall send a certificate to Agent confirming that FTS does not own any assets other than the Stock of Holdings, net operating losses with immaterial value and/or other property and assets with immaterial value (“FTS Distribution and Contribution Certificate”). Notwithstanding any other provisions set forth herein, upon the full and complete consummation of the FTS Distribution and Contribution Transaction and Agent’s receipt of the FTS Distribution and Contribution Certificate, (i) each of the FTS Pledge Agreements and the FTS Control Agreements shall be deemed terminated and released (automatically and through no further action of any Person), (ii) FTS shall no longer be deemed to be party to the Security Agreement or any other Loan Document (automatically and through no further action of any Person), (iii) the Collateral Agent’s Liens on the Stock and assets of FTS (but not the Stock issued by or the assets of the FTS Subsidiaries) shall be deemed terminated and released (automatically and through no further action of any Person), and (iv) the Lenders (and each other Secured Party by their acceptance of the benefits of the Loan Documents) irrevocably authorize the Collateral Agent to (A) release its Liens on the Stock and assets of FTS (but not the Stock issued by or the assets of the FTS Subsidiaries), and (B) if reasonably requested by the Borrower, promptly execute, as applicable, and deliver to the Borrower any such additional instruments, terminations, lien releases, discharges of security interests, pledges and other similar discharge or release documents or other writings to effect or evidence such release and termination. Upon request by any Appointed Agent at any time, the 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).
(b) Upon receipt by any Appointed Agent of any authorization required pursuant to Section 13.10(a) from the Lenders of such Appointed Agent’s authority to release or subordinate the applicable Collateral Agent’s Liens upon particular types or items of Collateral, or to release any Guarantor from its obligations under the Guarantee Agreement, and upon at least two three (23) Business Days’ prior written request by the Lead Borrower, the Collateral such Appointed Agent shall (and is hereby irrevocably authorized by the Lenders and the other Secured Parties to) execute such documents as may be necessary to evidence the release of the such Collateral Agent’s Liens upon any such Collateral described in SECTION 8.16(a)or to subordinate its interest therein, or to release such Guarantor from its obligations under the Guarantee Agreement; provided, however, that (i) the Collateral such Appointed Agent shall not be required to execute any such document on terms which, in its reasonable such Appointed Agent’s opinion, would, under Applicable Law, would expose the Collateral such Appointed Agent to liability or create any obligation or entail any adverse consequence other than the release of such Liens without recourse or warranty, and (ii) such release shall not in any manner discharge, affect or impair the Obligations or any Liens (other than those expressly being released) upon (or obligations of any Loan Party the Obligors in respect of) all interests retained by any Loan Partythe Obligors, including (without limitation) the proceeds of any sale, all of which shall continue to constitute part of such Collateral.
(c) The Collateral Agent shall have no obligation whatsoever to any of the Lenders to assure that the Collateral exists or is owned by the Obligors or is cared for, protected or insured or has been encumbered, or that the applicable Collateral Agent’s Liens have been properly or sufficiently or lawfully created, perfected, protected or enforced or are entitled to any particular priority, or to exercise at all or in any particular manner or under any duty of care, disclosure or fidelity, or to continue exercising, any of the rights, authorities and powers granted or available to the Collateral Agent pursuant to any of the Loan Documents, it being understood and agreed that in respect of the Collateral, or any act, omission or event related thereto, the Collateral Agent may act with the consent or at the direction of the Required Lenders and that the Collateral Agent shall have no other duty or liability whatsoever to any Lender as to any of the foregoing.
Appears in 2 contracts
Sources: Term Loan Credit Agreement (ProFrac Holding Corp.), Term Loan Credit Agreement (ProFrac Holding Corp.)
Collateral Matters. (a) Each Lender hereby authorizes the Administrative Agent, 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 Loan Documents which may be necessary to perfect and maintain perfected the Liens upon the Collateral granted pursuant to any of the Loan Documents.
(b) The Lenders hereby irrevocably authorize the Collateral Agent Administrative Agent, at its option and in its discretion, to release any Lien granted to or held by the Administrative Agent upon any Collateral (i) upon the termination of the Commitments and indefeasible payment and satisfaction in full of all Obligations (other than contingent indemnity obligations with respect to then unasserted claims), all Letters of Credit shall have expired or terminated (or been collateralized in a manner satisfactory to the applicable Issuing Bank) and all Letter of Credit Outstandings have been reduced to zero (or collateralized in a manner satisfactory to the applicable Issuing Bank), or Obligations; (ii) constituting property being soldas expressly permitted by, transferred but only in accordance with, the terms of the applicable Loan Document; or disposed (iii) if approved, authorized or ratified in writing by the Requisite Lenders (or such greater number of in a Permitted Disposition upon receipt Lenders as this Agreement or any other Loan Document may expressly provide). Upon request by the Administrative Agent of the Net Proceeds thereof to the extent required by 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 Applicable Lenders. Upon request by any Agent or any Loan Party at any time, the Lenders will confirm in writing the Collateral Administrative Agent’s authority to release any Liens upon particular types or items of Collateral pursuant to this SECTION 8.16Section.
(bc) Upon any sale and transfer of Collateral which is expressly permitted pursuant to the terms of this Agreement, and upon at least two five (25) Business Days’ prior written request by the Lead Borrower, the Collateral Administrative Agent shall (and is hereby irrevocably authorized by the Lenders to) execute such documents as may be necessary to evidence the release of the Liens granted to the Administrative Agent for its benefit and the benefit of the Lenders and the Issuing Bank herein or pursuant hereto upon any the Collateral described in SECTION 8.16(a)that was sold or transferred; provided, however, that (i) the Collateral Administrative Agent shall not be required to execute any such document on terms which, in its reasonable the Administrative Agent’s opinion, would, under Applicable Law, would expose the Collateral Administrative Agent to liability or create any obligation or entail any adverse consequence other than the release of such Liens without recourse or warranty, warranty and (ii) such release shall not in any manner discharge, affect or impair the Obligations or any Liens (other than those expressly being released) upon (or obligations of the Borrower or any other Loan Party in respect of) all interests retained by the Borrower or any other Loan Party, including (without limitation) the proceeds of any salesuch sale or transfer, all of which shall continue to constitute part of the Collateral. In the event of any sale or transfer of Collateral, or any foreclosure with respect to any of the Collateral, the Administrative Agent shall be authorized to deduct all of the expenses reasonably incurred by the Administrative Agent from the proceeds of any such sale, transfer or foreclosure.
(d) The Administrative Agent shall have no obligation whatsoever to the Lenders or the Issuing Bank or to any other Person to assure that the Collateral exists or is owned by the Borrower, any other Loan Party or any other Subsidiary or is cared for, protected or insured or that the Liens granted to the Administrative Agent herein or pursuant hereto 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 the Administrative Agent in this Section or in any of the Loan Documents, it being understood and agreed that in respect of the Collateral, or any act, omission or event related thereto, the Administrative Agent may act in any manner it may deem appropriate, in its sole discretion, and that the Administrative Agent shall have no duty or liability whatsoever to the Lenders, except to the extent resulting from its gross negligence or willful misconduct.
Appears in 2 contracts
Sources: Credit Agreement (Select Income REIT), Closing Agreement (Select Income REIT)
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 any Lien upon any its Liens on the Collateral (i) upon the termination Full Payment of the Commitments Obligations; and payment and satisfaction in full of all Obligations (other than contingent indemnity obligations with respect to then unasserted claims), all Letters of Credit shall have expired or terminated (or been collateralized in a manner satisfactory to the applicable Issuing Bank) and all Letter of Credit Outstandings have been reduced to zero (or collateralized in a manner satisfactory to the applicable Issuing Bank), or (ii) constituting property being sold, transferred or disposed upon a disposition of in Collateral permitted by Section 8.8 to a Permitted Disposition upon receipt by Person that is not an Obligor; and (iii) if the Administrative Agent percentage of the Net Proceeds thereof Lenders required to consent to the extent required by this AgreementCollateral being released hereunder, consent to the Collateral being released. Except as provided above, the Collateral Agent will not release any of the Collateral Agent’s Liens without the prior written authorization of the Applicable LendersRequired Lenders (or such other percentage of Lenders whose consent is required in accordance with Section 12.1). Upon request by any the Collateral Agent or any Loan Party 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 8.16Section 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)(i) (as to Current Asset Collateral and, subject to exceeding certain caps, the Fixed Asset Collateral), and (y) so long as no Default or Event of Default has occurred and is continuing or would result therefrom, then, to the extent that the Collateral Agent obtains possession of any Collateral by operation of Section 13.12 of this Agreement that constitutes Collateral that Obligors are not required to deliver to Collateral Agent at such time pursuant to the terms hereof, the Security Documents or any other contractual arrangement with any Obligor, Collateral Agent shall (to the extent 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 the ABL Intercreditor Agreement and the Monarch Acquisition Intercreditor Agreement are not then in effect, to the applicable Obligor. 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).
(b) Upon receipt by any Appointed Agent of any authorization required pursuant to Section 13.10(a) from the Lenders of such Appointed Agent’s authority to release or subordinate the applicable Collateral Agent’s Liens upon particular types or items of Collateral, or to release any Guarantor from its obligations under the Guarantee Agreement, and upon at least two three (23) Business Days’ prior written request by the Lead Borrower, the Collateral such Appointed Agent shall (and is hereby irrevocably authorized by the Lenders and the other Secured Parties to) execute such documents as may be necessary to evidence the release of the such Collateral Agent’s Liens upon any such Collateral described in SECTION 8.16(a)or to subordinate its interest therein, or to release such Guarantor from its obligations under the Guarantee Agreement; provided, however, that (i) the Collateral such Appointed Agent shall not be required to execute any such document on terms which, in its reasonable such Appointed Agent’s opinion, would, under Applicable Law, would expose the Collateral such Appointed Agent to liability or create any obligation or entail any adverse consequence other than the release of such Liens without recourse or warranty, and (ii) such release shall not in any manner discharge, affect or impair the Obligations or any Liens (other than those expressly being released) upon (or obligations of any Loan Party the Obligors in respect of) all interests retained by any Loan Partythe Obligors, including (without limitation) the proceeds of any sale, all of which shall continue to constitute part of such Collateral.
(c) The Collateral Agent shall have no obligation whatsoever to any of the Lenders to assure that the Collateral exists or is owned by the Obligors or is cared for, protected or insured or has been encumbered, or that the applicable Collateral Agent’s Liens have been properly or sufficiently or lawfully created, perfected, protected or enforced or are entitled to any particular priority, or to exercise at all or in any particular manner or under any duty of care, disclosure or fidelity, or to continue exercising, any of the rights, authorities and powers granted or available to the Collateral Agent pursuant to any of the Loan Documents, it being understood and agreed that in respect of the Collateral, or any act, omission or event related thereto, the Collateral Agent may act with the consent or at the direction of the Required Lenders and that the Collateral Agent shall have no other duty or liability whatsoever to any Lender as to any of the foregoing.
Appears in 2 contracts
Sources: 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) to release any Lien its Liens on the Collateral, and the Collateral Agent’s Liens upon any Collateral shall be automatically released (i) upon the termination Full Payment of the Commitments and payment and satisfaction in full of all Obligations (other than contingent indemnity obligations with respect to then unasserted claims), all Letters of Credit shall have expired or terminated (or been collateralized in a manner satisfactory to the applicable Issuing Bank) and all Letter of Credit Outstandings have been reduced to zero (or collateralized in a manner satisfactory to the applicable Issuing Bank), or Obligations; (ii) constituting 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 being sold, transferred in which the Obligors owned no interest at the time the Lien was granted or disposed of 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 Permitted Disposition upon receipt by the Administrative Agent of the Net Proceeds thereof 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 this Agreementthe 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. Except as provided above, the Collateral Agent will not release any of the Collateral Agent’s Liens without the prior written authorization of the Applicable LendersRequired 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 any the Collateral Agent or any Loan Party 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 8.16Section 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), 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 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).
(b) Upon receipt by any Appointed Agent of any authorization required pursuant to Section 13.10(a) from the Lenders of such Appointed Agent’s authority to release or subordinate the applicable Collateral Agent’s Liens upon particular types or items of Collateral, or to release any Guarantor from its obligations under the Guarantee Agreement, and upon at least two three (23) Business Days’ prior written request by the Lead Borrower, the Collateral such Appointed Agent shall (and is hereby irrevocably authorized by the Lenders and the other Secured Parties to) execute such documents as may be necessary to evidence the release of the such Collateral Agent’s Liens upon any such Collateral described in SECTION 8.16(a)or to subordinate its interest therein, or to release such Guarantor from its obligations under the Guarantee Agreement; provided, however, that (i) the Collateral such Appointed Agent shall not be required to execute any such document on terms which, in its reasonable such Appointed Agent’s opinion, would, under Applicable Law, would expose the Collateral such Appointed Agent to liability or create any obligation or entail any adverse consequence other than the release of such Liens without recourse or warranty, and (ii) such release shall not in any manner discharge, affect or impair the Obligations or any Liens (other than those expressly being released) upon (or obligations of any Loan Party the Obligors in respect of) all interests retained by any Loan Partythe Obligors, including (without limitation) the proceeds of any sale, all of which shall continue to constitute part of such Collateral.
(c) The Collateral Agent shall have no obligation whatsoever to any of the Lenders to assure that the Collateral exists or is owned by the Obligors or is cared for, protected or insured or has been encumbered, or that the applicable Collateral Agent’s Liens have been properly or sufficiently or lawfully created, perfected, protected or enforced or are entitled to any particular priority, or to exercise at all or in any particular manner or under any duty of care, disclosure or fidelity, or to continue exercising, any of the rights, authorities and powers granted or available to the Collateral Agent pursuant to any of the Loan Documents, it being understood and agreed that in respect of the Collateral, or any act, omission or event related thereto, the Collateral Agent may act in any manner it may deem appropriate, in its sole discretion, given the Collateral Agent’s own interest in the Collateral in its capacity as one of the Lenders and that the Collateral Agent shall have no other duty or liability whatsoever to any Lender as to any of the foregoing.
Appears in 2 contracts
Sources: Credit Agreement (ProFrac Holding Corp.), Credit Agreement (ProFrac Holding Corp.)
Collateral Matters. (i) Each Lender authorizes and directs Administrative Agent to enter into the Other Agreements for the benefit of Lenders. Each Lender hereby agrees that, except as otherwise set forth herein, any action taken by Requisite Lenders in accordance with the provisions of this Agreement or the Other Agreements, and the exercise by the Requisite 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. 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 Other Agreements which may be necessary to perfect and maintain perfected the security interest in and liens upon the Collateral granted pursuant to this Agreement and the Other Agreements.
(ii) Administrative Agent will not, without the verbal consent of all Lenders, which consent shall (a) The Lenders hereby irrevocably authorize the Collateral Agent to be confirmed promptly thereafter in writing and (b) not be unreasonably withheld or delayed, execute any release any Lien upon of Administrative Agent’s security interest in any Collateral except for releases relating to dispositions of Collateral (ix) upon permitted by this Agreement (including pursuant to Factoring Arrangements) and (y) in connection with the termination of the Commitments and payment and satisfaction repayment in full of all Obligations of the Liabilities by Borrower and the termination of all obligations of Administrative Agent and Lenders under this Agreement and the Other Agreements; provided, that with the consent of Requisite Lenders in the manner set forth above, Administrative Agent may release its liens on Collateral having a book value not greater than ten percent (10%) of the total book value of all Collateral, as determined by Administrative Agent, either in a single transaction or series of related transactions, not to exceed twenty percent (20%) of the book value of all Collateral in any Fiscal Year. Administrative Agent shall not be required to execute any such release on terms which, in Administrative Agent’s opinion, would expose Administrative Agent to liability or create any obligation or entail any consequence other than contingent indemnity obligations with respect the release of such liens without recourse or warranty. In the event of any sale or transfer of any of the Collateral, Administrative Agent shall be authorized to then unasserted claims)deduct all of the expenses reasonably incurred by Administrative Agent from the proceeds of any such sale, all Letters of Credit shall have expired transfer or terminated foreclosure.
(or been collateralized iii) Lenders hereby agree that the lien granted to Administrative Agent in a manner satisfactory to the applicable Issuing Bank) and all Letter of Credit Outstandings have been reduced to zero (or collateralized in a manner satisfactory to the applicable Issuing Bank), or (ii) constituting any property being sold, transferred sold or disposed of in a Permitted Disposition upon receipt by accordance with the provisions of the Agreement shall be automatically released; provided, however that Administrative Agent’s lien shall attach to and continue for the benefit of Administrative Agent and Lenders in the proceeds and products of the Net Proceeds thereof to the extent required by this Agreement. Except as provided above, the Collateral Agent will not release such property arising from any of the Collateral Agent’s Liens without the prior written authorization of the Applicable Lenders. Upon request by any Agent such sale or any Loan Party at any time, the Lenders will confirm in writing the Collateral Agent’s authority to release any Liens upon particular types or items of Collateral pursuant to this SECTION 8.16disposition.
(biv) Upon To the extent, pursuant to the provisions of this subsection 19(j), Administrative Agent’s execution of a release is required to release its lien upon any sale and transfer of Collateral which is consented to in writing by Requisite Lenders or all Lenders, as applicable, and upon at least two five (25) Business Daysbusiness days’ prior written request by the Lead Borrower, the Collateral Administrative Agent shall (and is hereby irrevocably authorized by the Lenders to) execute such documents as may be necessary to evidence the release of the Liens liens granted to Administrative Agent for the benefit of Lenders herein or pursuant hereto upon any Collateral described in SECTION 8.16(a); provided, however, that (i) the Collateral that was sold or transferred.
(v) Administrative Agent shall not be required have any obligation whatsoever to execute Lenders or to any such document on terms whichother Person to assure that the Collateral exists or is owned by Borrower or any other Obligor or is cared for, protected or insured or that the liens granted to Administrative Agent herein or pursuant hereto 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 Administrative Agent in this Section 19 or in any of the Other Agreements, it being understood and agreed that in respect of the Collateral, or any act, omission or event related thereto, Administrative Agent may act in any manner it may deem appropriate, in its reasonable opinionsole discretion, would, under Applicable Law, expose given Administrative Agent’s own interest in the Collateral as one of Lenders and that Administrative Agent shall have no duty or liability whatsoever to liability Lenders, except for its gross negligence or create any obligation or entail any adverse consequence other than the release of such Liens without recourse or warranty, and (ii) such release shall not in any manner discharge, affect or impair the Obligations or any Liens (other than those expressly being released) upon (or obligations of any Loan Party in respect of) all interests retained by any Loan Party, including (without limitation) the proceeds of any sale, all of which shall continue to constitute part of the Collateralwillful misconduct.
Appears in 2 contracts
Sources: Loan and Security Agreement (Cobra Electronics Corp), Loan and Security Agreement (Cobra Electronics Corp)
Collateral Matters. (a) The Lenders hereby irrevocably authorize the Collateral Agent to release any Lien upon on any Collateral (i) upon the termination of the Commitments and payment and satisfaction in full by Borrowers of all Obligations (Obligations; and upon such termination and payment Agent shall deliver to Borrowers, at Borrowers' sole cost and expense, all UCC termination statements and any other than contingent indemnity obligations documents necessary to terminate the Loan Documents and release the Liens with respect to then unasserted claims), all Letters of Credit shall have expired or terminated (or been collateralized in a manner satisfactory to the applicable Issuing Bank) and all Letter of Credit Outstandings have been reduced to zero (or collateralized in a manner satisfactory to the applicable Issuing Bank), or Collateral; (ii) constituting property being sold, transferred sold or disposed of if a release is required or desirable in connection therewith and if Borrowers certifies to Agent that the sale or disposition is permitted under Section 7.4 of this Agreement or the other Loan Documents (and Agent may rely conclusively on any such certificate, without further inquiry); (iii) constituting property in which Borrowers owned no interest at the time the Lien was granted or at any time thereafter; or (iv) constituting property leased to Borrowers under a lease that has expired or been terminated, property used to secure Equipment Financing Indebtedness or property secured by the Ontario Lien in a Permitted Disposition upon receipt by the Administrative Agent of the Net Proceeds thereof to the extent required by transaction permitted under this Agreement. 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 Applicable Required Lenders. Upon request by any Agent or any Loan Party Administrative Borrower at any time, the Lenders will confirm in writing the Collateral Agent’s 's authority to release any such Liens upon on particular types or items of Collateral pursuant to this SECTION 8.16.
(b) Upon at least two (2) Business Days’ prior written request by the Lead Borrower, 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 Liens upon any Collateral described in SECTION 8.16(a)Section 17.11; provided, however, that (i) the Collateral Agent shall not be required to execute any document necessary to evidence such document release on terms whichthat, in its reasonable Agent's opinion, would, under Applicable Law, would expose the Collateral Agent to liability or create any obligation or entail any adverse consequence other than the release of such Liens Lien without recourse recourse, representation, or warranty, and (ii) such release shall not in any manner discharge, affect or impair the Obligations or any Liens (other than those expressly being released) ), upon (or obligations of any Loan Party Borrowers in respect of) all interests retained by any Loan PartyBorrowers, including (without limitation) including, the proceeds of any sale, all of which shall continue to constitute part of the Collateral.
(b) Agent shall have no obligation whatsoever to any of the Lenders to assure that the Collateral exists or is owned by Borrowers, is cared for, protected, or insured or has been encumbered, or that the Liens of the Agent (for the benefit of the Lender Group) have been properly or sufficiently or lawfully created, perfected, protected, or enforced or are entitled to any particular priority, or to exercise at all or in any particular manner or under any duty of care, disclosure, or fidelity, or to continue exercising, any of the rights, authorities and powers granted or available to Agent pursuant to any of the Loan Documents, it being understood and agreed that in respect of the Collateral, or any act, omission or event related thereto, subject to the terms and conditions contained herein, Agent may act in any manner it may deem appropriate, in its sole discretion given Agent's own interest in the Collateral in its capacity as one of the Lenders and that Agent shall have no other duty or liability whatsoever to any Lender as to any of the foregoing, except as otherwise provided herein.
Appears in 2 contracts
Sources: Loan and Security Agreement (Fao Inc), Loan and Security Agreement (Right Start Inc /Ca)
Collateral Matters. (a) The Lenders hereby irrevocably authorize and direct the Collateral Agent to release any Lien granted to or held by Agent upon any Collateral (i) upon the termination cancellation of the Commitments this Agreement and indefeasible payment and satisfaction of the Term Loan and all other Obligations which have matured and which Agent has been notified in full writing are then due and payable, (ii) upon the sale, transfer or other disposition of all Obligations (other than contingent indemnity obligations with respect to then unasserted claims), all Letters of Credit shall have expired or terminated (or been collateralized such Collateral in a manner satisfactory to permitted under the applicable Issuing BankLoan Documents and/or (iii) and all Letter of Credit Outstandings have been reduced to zero (or collateralized in a manner satisfactory to the applicable Issuing Bank), or (ii) constituting property being sold, transferred or disposed of in a Permitted Disposition upon receipt by the Administrative Agent of the Net Proceeds thereof to the extent required by 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 Applicable Lenderssuch asset becoming Excluded Property. Upon request by any Agent or any Loan Party at any time, the Lenders will confirm in writing the Collateral Agent’s authority to release any Liens upon particular types or items of Collateral pursuant to this SECTION 8.16.
section. Notwithstanding anything in Section 12.7 to the contrary, (a) any Guarantor shall automatically be released from its obligations hereunder (and its Guaranty and any Liens on its property constituting Collateral shall be automatically released) (i) upon the consummation of any permitted transaction or series of related transactions or the occurrence of any other permitted event or circumstance if as a result thereof such Guarantor ceases to be a Subsidiary (included by merger or dissolution) or becomes an Excluded Subsidiary as a result of a single transaction or series of related transactions or other event or circumstance permitted hereunder; or (ii) upon the earlier to occur of (x) the Termination Date and (y) the Term Loan Maturity Date and/or (b) Upon at least two any Guarantor that qualifies as an “Excluded Subsidiary” shall be released from its obligations hereunder (2and its Guaranty and any Liens on its property constituting Collateral shall be automatically released) Business Days’ prior written request by the Lead Agent promptly following the request therefor by the Borrower. In connection with any such release, the Collateral Administrative Agent shall (promptly execute and is hereby irrevocably authorized deliver to the relevant Loan Party, at such Loan Party’s expense, all documents that such Loan Party shall reasonably request to evidence termination or release. Any execution and delivery of any document pursuant to the preceding sentence of this Section 14.7 shall be without recourse to or warranty by the Lenders to) execute such documents as may be necessary to evidence the release of the Liens upon any Collateral described in SECTION 8.16(a); provided, however, that (i) the Collateral Agent shall not be required to execute any such document on terms which, in its reasonable opinion, would, under Applicable Law, expose the Collateral Agent to liability or create any obligation or entail any adverse consequence other than the release of such Liens without recourse or warranty, and (ii) such release shall not in any manner discharge, affect or impair the Obligations or any Liens (other than those expressly being releasedas to the Agent’s authority to execute and deliver such documents). The Lenders hereby irrevocably authorize and direct the Agent to enter into the ▇▇▇▇▇▇/TRG Subordination Agreement and any intercreditor agreement as contemplated by clause (z) upon (or obligations of any Loan Party in respect of) all interests retained by any Loan Party, including (without limitation) the proceeds of any sale, all of which shall continue to constitute part of the Collateraldefinition of “Permitted Liens”.
Appears in 2 contracts
Sources: Loan and Security Agreement (Doma Holdings, Inc.), Loan and Security Agreement (Doma Holdings, Inc.)
Collateral Matters. (a) Except as otherwise set forth herein, any action or exercise of powers by the Agent provided under the Loan Documents, together with such other powers as are reasonably incidental thereto, shall be deemed authorized by and binding upon all of the Lenders. At any time and without notice to or consent from any Lender, the Agent may take any action necessary or advisable to perfect and maintain the perfection of the Liens upon the Collateral.
(b) The Lenders hereby irrevocably authorize the Collateral Agent is authorized to release any Lien granted to or held by it upon any Collateral (i) upon the termination of the Commitments and payment and satisfaction in full of all Obligations (other than contingent indemnity obligations with respect to then unasserted claims)of the Obligations, all Letters of Credit shall have expired or terminated (or been collateralized in a manner satisfactory to the applicable Issuing Bank) and all Letter of Credit Outstandings have been reduced to zero (or collateralized in a manner satisfactory to the applicable Issuing Bank), or (ii) constituting property being soldrequired to be delivered from permitted sales of Collateral hereunder, transferred or disposed of in a Permitted Disposition if any, upon receipt of the proceeds by the Administrative Agent of the Net Proceeds thereof to the extent required by this Agreement. Except as provided above(or, if permitted hereunder, the Collateral Borrower) or (iii) if the release can be and is approved by the Required Lenders (or all the Lenders, if so required under Section 11.5). The Agent will not release any of the Collateral Agent’s Liens without the prior written authorization of the Applicable Lenders. Upon may request by any Agent or any Loan Party at any time, and the Lenders will confirm in writing provide confirmation of the Collateral Agent’s 's authority to release any Liens upon particular types or items of Collateral pursuant to this SECTION 8.16Collateral.
(bc) Upon any sale or transfer of Collateral which is expressly permitted pursuant to the terms of this Agreement, or consented to in writing by the Required Lenders or all of the Lenders, as applicable, and upon at least two (2) five Business Days’ ' prior written request by the Lead Borrower, 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 Liens granted to the Agent for the benefit of the Lenders herein or pursuant hereto upon any the Collateral described in SECTION 8.16(a); providedthat was sold or transferred, however, provided that (i) the Collateral Agent shall not be required to execute any such document on terms which, in its the Agent's reasonable opinion, would, under Applicable Law, would expose the Collateral Agent to liability or create any obligation or entail any adverse consequence other than the release of such Liens without recourse or warranty, warranty and (ii) such release shall not in any manner discharge, affect or impair the Obligations or any Liens (other than those expressly being released) upon (or obligations of any Loan Party the Borrower in respect of) all interests retained by any Loan Partythe Borrower, including (without limitation) the proceeds of any the sale, all of which shall continue to constitute part of the Collateral. In the event of any sale or transfer of Collateral, or any foreclosure with respect to any of the Collateral, the Agent shall be authorized to deduct all of the expenses reasonably incurred by the Agent from the proceeds of any such sale, transfer or foreclosure.
(d) The Agent shall not have any obligation to assure that the Collateral exists or is owned by the Borrower, that the Collateral is cared for, protected or insured, or that the Liens on the Collateral have been created or perfected or have any particular priority. With respect to the Collateral, the Agent may act in any manner it may deem appropriate, in its sole discretion, given NFBC's own interest in the Collateral as one of the Lenders, and it shall have no duty or liability whatsoever to the Lenders with respect thereto, except for its gross negligence or willful misconduct.
Appears in 2 contracts
Sources: Loan and Security Agreement (American Railcar Industries, Inc./De), Loan and Security Agreement (American Railcar Industries, Inc./De)
Collateral Matters. (a) The Lenders hereby irrevocably authorize the Collateral (and by entering into a Bank Product Agreement, each Bank Product Provider shall be deemed to authorize) Agent to release any Lien upon on any of the Collateral (i) upon the termination of the Commitments and payment and satisfaction in full of all Obligations (other than contingent indemnity obligations with respect to then unasserted claims), all Letters of Credit shall have expired or terminated (or been collateralized in a manner satisfactory to the applicable Issuing Bank) and all Letter of Credit Outstandings have been reduced to zero (or collateralized in a manner satisfactory to the applicable Issuing Bank)Obligations, or (ii) constituting property being sold, transferred sold or disposed of if Administrative Borrower or any Loan Party certifies to Agent that the sale or disposition is not prohibited by Section 6.4 (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 Permitted Disposition upon receipt by value in the Administrative Agent aggregate in any twelve (12) month period of the Net Proceeds thereof 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 by this Agreement. Except as provided above, or permitted under the Collateral Agent will not release 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 Agent’s Liens without be required. Nothing contained herein shall be construed to require the prior written authorization consent of the Applicable Lendersany Bank Product Provider to any release of any Collateral or termination of security interests in any Collateral. Upon request by any Agent or any Loan Party 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 such Liens upon on particular types or items of Collateral pursuant to this SECTION 8.16.
(b) Upon at least two (2) Business Days’ prior written request by the Lead Borrower, 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 Liens upon any Collateral described in SECTION 8.16(a)Section 15.11; provided, howeverthat, that (i1) the Collateral Agent shall not be required to execute any document necessary to evidence such document release on terms whichthat, in its reasonable Agent’s opinion, would, under Applicable Law, would expose the Collateral Agent to liability or create any obligation or entail any adverse consequence other than the release of such Liens Lien without recourse recourse, representation, or warranty, and (ii2) such release shall not in any manner discharge, affect affect, or impair the Obligations or any Liens (other than those expressly being released) upon (or obligations of any Loan Party Borrower in respect of) all interests retained by any Loan Party, including (without limitation) including, the proceeds of any sale, all of which shall continue to constitute part of the Collateral. The Lenders further hereby irrevocably authorize (and by entering into a Bank Product Agreement, each Bank Product Provider shall be deemed to authorize) Agent, at its option and in its sole discretion, to subordinate any Lien granted to or held by Agent under any Loan Document to the holder of any Permitted Lien on such property if such Permitted Lien secures Permitted Purchase Money Indebtedness.
(b) The Loan Parties and the Lenders hereby irrevocably authorize (and by entering into a Bank Product Agreement, each Bank Product Provider shall be deemed to authorize) Agent, based upon the instruction of the Required Lenders, to (A) consent to, credit bid or purchase (either directly or through one or more acquisition vehicles) all or any portion of the Collateral at any sale thereof conducted under the provisions of the Bankruptcy Code or other bankruptcy or insolvency laws, including under Section 363 of the Bankruptcy Code, (B) credit bid or purchase (either directly or through one or more acquisition vehicles) all or any portion of the Collateral at any sale or other disposition thereof conducted under the provisions of the Code or the PPSA, including pursuant to Sections 9-610 or 9-620 of the Code, or (C) credit bid or purchase (either directly or through one or more acquisition vehicles) all or any portion of the Collateral at any other sale or foreclosure conducted by Agent (whether by judicial action or otherwise) in accordance with applicable law. In connection with any such credit bid or purchase, the Obligations owed to the Lenders and the Bank Product Providers shall be entitled to be, and shall be, credit bid on a ratable basis (with Obligations with respect to contingent or unliquidated claims being estimated for such purpose if the fixing or liquidation thereof would not unduly delay the ability of Agent to credit bid or purchase at such sale or other disposition of the Collateral and, if such claims cannot be estimated without unduly delaying the ability of Agent to credit bid, then such claims shall be disregarded, not credit bid, and not entitled to any interest in the asset or assets purchased by means of such credit bid) and the Lenders and the Bank Product Providers whose Obligations are credit bid shall be entitled to receive interests (ratably based upon the proportion of their Obligations credit bid in relation to the aggregate amount of Obligations so credit bid) in the asset or assets so purchased (or in the Equity Interests of the acquisition vehicle or vehicles that are used to consummate such purchase).
(c) Agent shall have no obligation whatsoever to any of the Lenders (or the Bank Product Providers) to assure that the Collateral exists or is owned by a Loan Party or is cared for, protected, or insured or has been encumbered, or that Agent’s Liens have been properly or sufficiently or lawfully created, perfected, protected, or enforced or are entitled to any particular priority, or that any particular items of Collateral meet the eligibility criteria applicable in respect thereof or whether to impose, maintain, reduce, or eliminate any particular reserve hereunder or whether the amount of any such reserve is appropriate or not, or to exercise at all or in any particular manner or under any duty of care, disclosure or fidelity, or to continue exercising, any of the rights, authorities and powers granted or available to Agent pursuant to any of the Loan Documents, it being understood and agreed that in respect of the Collateral, or any act, omission, or event related thereto, subject to the terms and conditions contained herein, Agent may act in any manner it may deem appropriate, in its sole discretion given Agent’s own interest in the Collateral in its capacity as one of the Lenders and that Agent shall have no other duty or liability whatsoever to any Lender (or Bank Product Provider) as to any of the foregoing, except as otherwise provided herein.
Appears in 2 contracts
Sources: Credit Agreement (Polyone Corp), Credit Agreement (Polyone Corp)
Collateral Matters. (a) The Lenders hereby irrevocably authorize the Collateral Agent Agent, at its option and in its sole discretion, to release any Lien upon on any Collateral (i) upon the termination of the Commitments Commitments, and payment and satisfaction in full in cash by the Borrowers of all Obligations (other than contingent indemnity obligations with respect to then unasserted claims)Obligations, all Letters of Credit shall have expired or terminated (or been collateralized in a manner satisfactory to the applicable Issuing Bank) and all Letter of Credit Outstandings have been reduced to zero (or collateralized in a manner satisfactory to the applicable Issuing Bank), or (ii) constituting property being soldDisposed of if a release is required or desirable in connection therewith and if the Administrative Borrower certifies to the Collateral Agent that the Disposition is permitted under Section 6.5 of this Agreement or the other Loan Documents (and the Collateral Agent may rely conclusively on any such certificate, transferred without further inquiry), constituting property in which no Group Member owned any interest at the time the Agent’s Lien was granted nor at any time thereafter, or disposed of constituting property leased to a Group Member under a Lease or other lease that has expired or is terminated in a Permitted Disposition upon receipt by the Administrative Agent of the Net Proceeds thereof to the extent required by transaction permitted under this Agreement. 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 Applicable release is of all or substantially all of the Collateral, all of the Lenders, or (z) otherwise, the Required Lenders. Upon request by any the Administrative Agent or any Loan Party the Administrative Borrower at any time, the Lenders will confirm in writing the Collateral Agent’s authority to release any such Liens upon on particular types or items of Collateral pursuant to this SECTION 8.16.
(b) Upon at least two (2) Business Days’ prior written request by the Lead Borrower, 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 Liens upon any Collateral described in SECTION 8.16(a)Section 8.18; provided, however, that (i1) the Collateral Agent shall not be required to execute any document necessary to evidence such document release on terms whichthat, in its reasonable the Collateral Agent’s opinion, would, under Applicable Law, would expose the Collateral Agent to liability or create any obligation or entail any adverse consequence other than the release of such Liens Lien without recourse recourse, representation, or warranty, and (ii2) such release shall not in any manner discharge, affect affect, or impair the Obligations or any Liens (other than those expressly being released) upon (or obligations of any Loan Party Obligor in respect of) all property and other interests retained by any Loan Partythe Obligors, including (without limitation) including, the proceeds of any saleDisposition, all of which shall continue to constitute part of the Collateral.
(b) The Agent and its Affiliates and Agent Firm and other representatives shall have no obligation whatsoever to any of the Lenders to assure that the Collateral exists or is owned by the Group Members or is cared for, protected, or insured or has been encumbered, or that the Agent’s Liens have been properly or sufficiently or lawfully created, perfected, protected, or enforced or are entitled to any particular priority, or to exercise at all or in any particular manner or under any duty of care, disclosure or fidelity, or to continue exercising, any of the rights, authorities and powers granted or available to the Agent pursuant to any of the Loan Documents, it being understood and agreed that in respect of the Collateral, or any act, omission, or event related thereto, subject to the terms and conditions contained herein, the Agent may act in any manner it may deem appropriate, in its sole discretion given the Agent’s own interest in the Collateral in its capacity as one of the Lenders and that the Agent shall have no other duty or liability whatsoever to any Lender as to any of the foregoing, except as otherwise expressly provided herein.
Appears in 2 contracts
Sources: Credit Agreement (School Specialty Inc), Credit Agreement (School Specialty Inc)
Collateral Matters. (a) The Lenders (including in its or any of its Affiliate’s capacities as a potential Hedge Bank or Cash Management Bank) hereby irrevocably authorize the Collateral Agent at its option and in its discretion to release any Lien upon any of the Collateral (i) upon the termination of the Commitments Commitment and payment and satisfaction in full of all of the non-contingent Obligations (other than contingent indemnity obligations with respect to then unasserted claims), all Letters and delivery of Credit shall have expired or terminated (or been collateralized in a manner satisfactory cash collateral to the applicable Issuing Bank) and all Letter of Credit Outstandings have been reduced to zero (or collateralized in a manner satisfactory to the applicable Issuing Bankextent required under Section 2.3(a), ; or (ii) constituting property being sold, transferred sold or disposed of in if such sale or disposition is permitted by this Agreement (or permitted pursuant to a Permitted Disposition upon receipt by the Administrative Agent waiver of the Net Proceeds thereof or consent to the extent required a transaction otherwise prohibited by this Agreement); or (iii) constituting property in which 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 of the other Financing Agreements, including any intercreditor agreement; or (v) approved, authorized or ratified in writing in accordance with Section 11.14 hereof. Lenders hereby irrevocably authorize Agent to 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, Lenders hereby irrevocably authorize Agent to release its Lien upon such Collateral. 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 Applicable Lenders. Upon request by any Agent or any Loan Party at any time, the Lenders will confirm required in writing the Collateral Agent’s authority to release any Liens upon particular types or items of Collateral pursuant to this SECTION 8.16accordance with Section 11.14 hereof.
(b) Upon at least two (2) Business Days’ prior written Without in any manner limiting Agent’s authority to act without any specific or further authorization or consent by applicable Lenders, each Lender, as applicable, agrees to confirm in writing, upon request by the Lead BorrowerAgent, the authority to release Collateral conferred upon Agent under this Agreement. Agent shall (and is hereby irrevocably authorized by the Lenders to) execute and deliver to the applicable Credit Party such documents as such Credit Party may be necessary reasonably request to evidence the release of the Liens granted to Agent upon any Collateral described in SECTION 8.16(a); provided, however, that (i) the Collateral Agent shall not be required or to execute any such document on terms which, in its reasonable opinion, would, under Applicable Law, expose the Collateral Agent to liability or create any obligation or entail any adverse consequence other than evidence the release of such Liens without recourse or warrantyCredit Party from its Obligations under the Financing Agreements in each case in accordance with the terms of the Financing Agreements and this Section 11.10; provided, and (ii) that, such release shall not in any manner discharge, affect or impair the Obligations or any Liens (other than those expressly being released) Lien upon (or obligations of any Loan Credit Party in respect of) all interests the Collateral retained by any Loan such Credit Party, including .
(without limitationc) Except for the proceeds exercise of reasonable care in the custody of any saleCollateral in its possession and the accounting for moneys actually received by it hereunder, Agent shall have no obligation whatsoever to any Lender or any other Person to investigate, confirm or assure that the Collateral exists or is owned by any Credit Party or is cared for, protected or insured or has been encumbered, or that the Liens granted to Agent pursuant hereto or any of the Financing Agreements or otherwise have been properly or sufficiently or lawfully created, perfected, protected or enforced or are entitled to any particular priority, or to exercise at all or in any particular manner or under any duty of which care, disclosure or fidelity, or to continue exercising, any of the rights, authorities and powers granted or available to Agent in this Agreement or in any of the other Financing Agreements, it being understood and agreed that in respect of Collateral, or any act, omission or event related thereto, Agent may act in any manner it may deem appropriate, in its discretion, given Agent’s own interest in the Collateral as a Lender and that Agent shall continue have no duty or liability whatsoever to constitute any other Lender.
(d) Each Lender hereunder (i) agrees that it will be bound by and will take no actions contrary to the provisions of the Intercreditor Agreement, as applicable, and (ii) authorizes and instructs Agent, to the extent required by the terms of the Financing Agreements, to enter into any Intercreditor Agreements contemplated by this Agreement as Agent on behalf of such Lender. Each Lender hereby further agrees that (i) Agent may, from time to time on and after the Closing Date, without any further consent of any Lender, enter into any Intercreditor Agreement, any subordination agreement or other intercreditor agreement contemplated by this Agreement with the collateral agent or other representatives of the holders of Debt that is permitted to be secured by a Lien on the Collateral under this Agreement, in each case, in order to effect the relative priority of Liens on the Collateral and to provide for certain additional rights, obligations and limitations in respect of, any Liens permitted by the terms of this Agreement to be pari passu with or junior or senior to the Liens securing the Obligations with respect to part or all of the Collateral, which are, in each case, incurred in accordance with this Agreement, and to establish certain relative rights as between the holders of the Obligations and the holders of the Debt secured by such Liens, and (ii) such Intercreditor Agreements and any other subordination agreement or intercreditor agreement referred to in the foregoing clause (i) entered into by Agent shall be binding on the Secured Parties.
Appears in 2 contracts
Sources: Credit Agreement (Imax Corp), Credit Agreement (Imax Corp)
Collateral Matters. (a) The Lenders hereby irrevocably authorize the Collateral Agent Agent, at its option and in its sole discretion, to release any Lien upon on any Collateral (i) upon the termination of the Commitments and payment and satisfaction in full by Borrowers of all Obligations (other than non-contingent indemnity obligations with respect to then unasserted claims)Obligations, all Letters of Credit shall have expired or terminated (or been collateralized in a manner satisfactory to the applicable Issuing Bank) and all Letter of Credit Outstandings have been reduced to zero (or collateralized in a manner satisfactory to the applicable Issuing Bank), or (ii) constituting property being sold, transferred sold or disposed of if a release is required or desirable in connection therewith and if Administrative Borrower certifies to Agent that the sale or disposition is permitted under Section 6.4 of this Agreement or the other Loan Documents (and Agent may rely conclusively on any such certificate, without further inquiry), (iii) constituting property in which none of any Borrower or any of its Restricted Subsidiaries owned any interest at the time the Agent's Lien was granted nor at any time thereafter, or (iv) constituting property leased to a Borrower or any of its Restricted Subsidiaries under a lease that has expired or is terminated in a Permitted Disposition upon receipt by the Administrative Agent of the Net Proceeds thereof to the extent required by transaction permitted under this Agreement. 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 Applicable release is of all or substantially all of the Collateral, all of the Lenders, or (z) otherwise, the Required Lenders. Upon request by any Agent or any Loan Party Administrative Borrower at any time, the Lenders will confirm in writing the Collateral Agent’s 's authority to release any such Liens upon on particular types or items of Collateral pursuant to this SECTION 8.16.
(b) Upon at least two (2) Business Days’ prior written request by the Lead Borrower, 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 Liens upon any Collateral described in SECTION 8.16(a)Section 15.12; provided, however, that (i1) the Collateral Agent shall not be required to execute any document necessary to evidence such document release on terms whichthat, in its reasonable Agent's opinion, would, under Applicable Law, would expose the Collateral Agent to liability or create any obligation or entail any adverse consequence other than the release of such Liens Lien without recourse recourse, representation, or warranty, and (ii2) such release shall not in any manner discharge, affect affect, or impair the Obligations or any Liens (other than those expressly being released) upon (or obligations of any Loan Party Borrowers in respect of) all interests retained by Borrowers or any Loan Partyof their respective Restricted Subsidiaries, including (without limitation) including, the proceeds of any sale, all of which shall continue to constitute part of the Collateral.
(b) Agent shall have no obligation whatsoever to any of the Lenders to assure that the Collateral exists or is owned by Borrowers or any of their respective Restricted Subsidiaries or is cared for, protected, or insured or has been encumbered, or that the Agent's Liens have been properly or sufficiently or lawfully created, perfected, protected, or enforced or are entitled to any particular priority, or to exercise at all or in any particular manner or under any duty of care, disclosure or fidelity, or to continue exercising, any of the rights, authorities and powers granted or available to Agent pursuant to any of the Loan Documents, it being understood and agreed that in respect of the Collateral, or any act, omission, or event related thereto, subject to the terms and conditions contained herein, Agent may act in any manner it may deem appropriate, in its sole discretion given Agent's own interest in the Collateral in its capacity as one of the Lenders and that Agent shall have no other duty or liability whatsoever to any Lender as to any of the foregoing, except as otherwise provided herein.
Appears in 2 contracts
Sources: Credit Agreement (TB Wood's INC), Credit Agreement (Altra Industrial Motion, Inc.)
Collateral Matters. (a) The Lenders hereby irrevocably authorize the Collateral Agent Agent, at its option and in its discretion, to release any Lien granted to or held by Agent upon any Collateral (i) upon the termination of the Commitments and payment and satisfaction in full in cash of all Obligations (other than contingent indemnity obligations with respect to then unasserted claims), all Letters of Credit shall have expired Obligations; or terminated (or been collateralized in a manner satisfactory to the applicable Issuing Bank) and all Letter of Credit Outstandings have been reduced to zero (or collateralized in a manner satisfactory to the applicable Issuing Bank), or (ii) constituting property being sold, transferred sold or disposed of in a Permitted Disposition upon receipt compliance with the terms of this Agreement and the Other Documents; or constituting property to be financed with Indebtedness permitted under Section 7.8(iii) hereof; or constituting property in which any Loan Party (as applicable) owned no interest at the time the Lien was granted or at any time thereafter; or if approved, authorized or ratified in writing by the Administrative Agent of the Net Proceeds thereof to the extent required by 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 Applicable Required Lenders. Upon request by any Agent or any Loan Party at any time, the Lenders will confirm in writing the Collateral Agent’s authority to release any Liens upon particular types or items of Collateral pursuant to this SECTION 8.16Section 14.13(a).
(b) Upon at least two Without in any manner limiting Agent’s authority to act without any specific or further authorization or consent by the Lenders (2as set forth in Section 14.13(a)), each Lender agrees to confirm in writing, upon request by Agent, the authority to release Collateral conferred upon Agent under Section 14.13(a). Either without such confirmation (if Agent has not requested such confirmation) Business Days’ or upon receipt by Agent of such confirmation (if Agent has requested such confirmation), and upon prior written request by the Lead Borrower, 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 Liens upon any Collateral described in SECTION 8.16(a)granted to Agent to the extent permitted by Section 14.13; provided, however, that (i) the Collateral Agent shall not be required to execute any such document on terms which, in its reasonable Agent’s opinion, would, under Applicable Law, would expose the Collateral Agent to liability or create any obligation obligations or entail any adverse consequence other than the release of such Liens without recourse or warranty, and (ii) such release shall not in any manner discharge, affect or impair the Obligations or any Liens (other than those expressly being released) Lien upon (or obligations of any Loan Party in respect of) all interests in the Collateral retained by such Loan Party (as applicable).
(c) Agent shall have no obligation whatsoever to any Lender to assure that the Collateral exists or is owned by any Loan PartyParty or is cared for, including (without limitation) protected or insured or has been encumbered or that the proceeds Lien granted to Agent pursuant to this Agreement or any Other 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 saleof the rights, all of which shall continue authorities and powers granted or available to constitute part Agent in this Section 14.13 or in any Other Document, it being understood and agreed that in respect of the Collateral, or any act, omission or event related thereto, Agent may act in any manner it may deem appropriate, in its sole discretion, given Agent’s own interest in the Collateral as one of the Lenders and that Agent shall have no duty or liability whatsoever to any other Lender, except as otherwise provided herein.
(d) Each Loan Party and each Lender each hereby irrevocably authorizes Agent, based upon the written instruction of the Required Lenders, to bid and purchase (either directly or through one or more acquisition vehicles) all or any portion of the Collateral at any sale thereof conducted (i) by Agent under the provisions of the Code, including pursuant to Sections 9-610 or 9-620 of the Code (ii) under the provisions of the Federal Bankruptcy Reform Act of 1978, including Section 363, 365 and/or 1129 thereof, or (iii) conducted by Agent (whether by judicial action or otherwise, including a foreclosure sale) in accordance with Applicable Law (clauses (i), (ii) an (iii), a “Collateral Sale”); and in connection with any Collateral Sale, Agent may accept non-cash consideration, including debt and equity securities issued by such acquisition vehicle under the direction or control of Agent and Agent may offset all or any portion of the Obligations against the purchase price of such Collateral.
Appears in 2 contracts
Sources: Term Loan and Security Agreement (Boot Barn Holdings, Inc.), Term Loan and Security Agreement (Boot Barn Holdings, Inc.)
Collateral Matters. (a) The Lenders hereby BANKS irrevocably authorize the Collateral Agent COLLATERAL AGENT, upon the direction of the ADMINISTRATIVE AGENT, to release any Lien mortgage, deed of trust, pledge, lien, security interest or other charge or encumbrance of any nature on any property granted to or held by the COLLATERAL AGENT under any LOAN DOCUMENT upon BORROWER’s full and final satisfaction of the OBLIGATIONS. Upon request by the COLLATERAL AGENT at any Collateral time, the BANKS will confirm in writing the COLLATERAL AGENT’s authority to release its interest in particular types or items of property pursuant to this Section 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) upon the termination of the Commitments and payment and satisfaction in full of all Obligations (other than contingent indemnity obligations ascertaining or taking action with respect to then unasserted claims)calls, all Letters 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 Credit shall have expired or terminated (or been collateralized in a manner satisfactory to the applicable Issuing Bank) and all Letter of Credit Outstandings have been reduced to zero (or collateralized in a manner satisfactory to the applicable Issuing Bank)such matters, or (ii) constituting property being sold, transferred taking any necessary steps to preserve rights against prior parties or disposed 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 a Permitted Disposition upon receipt 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 Administrative Agent of the Net Proceeds thereof COLLATERAL AGENT need not be segregated from other assets except to the extent required by this Agreementlaw. Except 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 provided aboveit may see fit and, if the Collateral Agent will not release 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 Collateral Agent’s Liens without rights or powers vested in it by the prior written authorization LOAN DOCUMENTS at the request, order or direction of the Applicable Lenders. Upon request by any Agent BANKS unless such BANKS have offered to the COLLATERAL AGENT security or any Loan Party at any timeindemnity reasonably satisfactory to the COLLATERAL AGENT against the costs, the Lenders will confirm in writing the Collateral Agent’s authority to release any Liens upon particular types or items of Collateral pursuant to this SECTION 8.16.
(b) Upon at least two (2) Business Days’ prior written request by the Lead Borrower, the Collateral Agent shall (expenses and is hereby irrevocably authorized by the Lenders to) execute such documents as liabilities that may be necessary to evidence the release of the Liens upon any Collateral described incurred by it in SECTION 8.16(a); providedcompliance with such request, however, that (i) the Collateral Agent order or direction. The COLLATERAL AGENT shall not be required to execute 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 document on terms whichrequest 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 its reasonable opinionthe name of BORROWER, wouldany item, under Applicable Lawhowsoever received by the COLLATERAL AGENT, expose the Collateral Agent to liability representing any payment on or create any obligation or entail any adverse consequence other than the release of such Liens without recourse or warranty, and (ii) such release shall not in any manner discharge, affect or impair the Obligations or any Liens (other than those expressly being released) upon (or obligations of any Loan Party in respect of) all interests retained by any Loan Party, including (without limitation) the proceeds of any sale, all of which shall continue to constitute part of the Collateralcollateral for the LOANS.
Appears in 2 contracts
Sources: Construction Loan Agreement (One Earth Energy LLC), Construction Loan Agreement (Rex Stores Corp)
Collateral Matters. (a) The Lenders (including in its or any of its Affiliate’s capacities as a potential Hedge Bank or Cash Management Bank) hereby irrevocably authorize the Collateral Agent at its option and in its discretion to release any Lien upon any of the Collateral (i) upon the termination of the Commitments Revolving Loan Commitment and payment and satisfaction in full of all of the non-contingent Obligations (other than contingent indemnity obligations with respect to then unasserted claims), all Letters and delivery of Credit shall have expired or terminated (or been collateralized in a manner satisfactory cash collateral to the applicable Issuing Bank) and all Letter of Credit Outstandings have been reduced to zero (or collateralized in a manner satisfactory to the applicable Issuing Bank), extent required under Section 13.1 below; or (ii) constituting property being sold, transferred sold or disposed of if applicable Credit Party certifies to Agent that the sale or disposition is made in a Permitted Disposition upon receipt by compliance with Section 8.1 hereof (and Agent may rely conclusively on any such certificate, without further enquiry); or (iii) constituting property in which applicable Credit Party did not own an interest at the Administrative Agent time the Lien was granted or at any time thereafter; or (iv) if required under the terms of any of the Net Proceeds thereof other Financing Agreements, including any intercreditor agreement; or (v) approved, authorized or ratified in writing in accordance with Section 11.14 hereof. Lenders hereby irrevocably authorize Agent to subordinate its Lien upon the extent required by this Agreementspecific Collateral on which another Person has a Lien as permitted under Section 8.2(e) and if such Person will not permit Agent to retain its Lien on such Collateral, Lenders hereby irrevocably authorize Agent to release its Lien upon such Collateral. 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 Applicable Lenders. Upon request by any Agent or any Loan Party at any time, the Lenders will confirm required in writing the Collateral Agent’s authority to release any Liens upon particular types or items of Collateral pursuant to this SECTION 8.16accordance with Section 11.14 hereof.
(b) Upon at least two (2) Business Days’ prior written Without in any manner limiting Agent’s authority to act without any specific or further authorization or consent by applicable Lenders, each Lender, as applicable, agrees to confirm in writing, upon request by the Lead BorrowerAgent, the authority to release Collateral conferred upon Agent under this Section. Agent shall (and is hereby irrevocably authorized by the Lenders to) execute such documents as may be necessary to evidence the release of the Liens granted to Agent upon any Collateral described in SECTION 8.16(a)to the extent set forth above; provided, howeverthat, that (i) the Collateral Agent shall not be required to execute any such document on terms which, in its reasonable Agent’s opinion, would, under Applicable Law, would expose the Collateral Agent to liability or create any obligation obligations or entail any adverse consequence other than the release of such Liens Lien without recourse or warranty, warranty and (ii) such release shall not in any manner discharge, affect or impair the Obligations or any Liens (other than those expressly being released) Lien upon (or obligations of any Loan Credit Party in respect of) all interests the Collateral retained by such Credit Party.
(c) Agent shall have no obligation whatsoever to any Loan PartyLender or any other Person to investigate, including (without limitation) confirm or assure that the proceeds of Collateral exists or is owned by any saleCredit Party or is cared for, all of which shall continue protected or insured or has been encumbered, or that the Liens granted to constitute part Agent pursuant hereto or any of the Financing Agreements or otherwise have been properly or sufficiently or lawfully created, perfected, protected or enforced or are entitled to any particular priority, or to exercise at all or in any particular manner or under any duty of care, disclosure or fidelity, or to continue exercising, any of the rights, authorities and powers granted or available to Agent in this Agreement or in any of the other Financing Agreements, it being understood and agreed that in respect of Collateral, or any act, omission or event related thereto, Agent may act in any manner it may deem appropriate, in its discretion, given Agent’s own interest in the Collateral as a Lender and that Agent shall have no duty or liability whatsoever to any other Lender.
Appears in 2 contracts
Sources: Credit Agreement (Imax Corp), Credit Agreement (Imax Corp)
Collateral Matters. (a) The Lenders hereby irrevocably authorize the Collateral Agent Agent, to release any Lien upon on any Collateral (i) upon the termination of the Commitments and payment and satisfaction in full by Borrowers of all Obligations (Obligations; and upon such termination and payment Agent shall deliver to Administrative Borrower, at Administrative Borrower’s sole cost and expense, all UCC termination statements and any other than contingent indemnity obligations documents necessary to terminate the Loan Documents and release the Liens with respect to then unasserted claims), all Letters of Credit shall have expired or terminated (or been collateralized in a manner satisfactory to the applicable Issuing Bank) and all Letter of Credit Outstandings have been reduced to zero (or collateralized in a manner satisfactory to the applicable Issuing Bank), or Collateral; (ii) constituting property being sold, transferred sold or disposed of if a release is required or desirable in connection therewith and if Administrative Borrower certifies to Agent that the sale or disposition is permitted under Section 7.4 of this Agreement or the other Loan Documents (and Agent may rely conclusively on any such certificate, without further inquiry); (iii) constituting property in which Borrowers owned no interest at the time the Lien was granted or at any time thereafter; or (iv) constituting property leased to Borrowers under a lease that has expired or been terminated in a Permitted Disposition upon receipt by the Administrative Agent of the Net Proceeds thereof to the extent required by transaction permitted under this Agreement. 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 Applicable Lenders. Upon request by any Agent or any Loan Party Administrative Borrower at any time, the Lenders will confirm in writing the Collateral Agent’s authority to release any such Liens upon on particular types or items of Collateral pursuant to this SECTION 8.16.
(b) Upon at least two (2) Business Days’ prior written request by the Lead Borrower, 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 Liens upon any Collateral described in SECTION 8.16(a)Section 17.11; provided, however, that (i) the Collateral Agent shall not be required to execute any document necessary to evidence such document release on terms whichthat, in its reasonable Agent’s opinion, would, under Applicable Law, would expose the Collateral Agent to liability or create any obligation or entail any adverse consequence other than the release of such Liens Lien without recourse recourse, representation, or warranty, and (ii) such release shall not in any manner discharge, affect or impair the Obligations or any Liens (other than those expressly being released) ), upon (or obligations of any Loan Party Borrowers in respect of) all interests retained by any Loan PartyBorrowers, including (without limitation) including, the proceeds of any sale, all of which shall continue to constitute part of the Collateral.
(b) Agent shall have no obligation whatsoever to any of the Lenders to assure that the Collateral exists or is owned by Borrowers, is cared for, protected, or insured or has been encumbered, or that the Liens of the Agent (for the benefit of the Lender Group) have been properly or sufficiently or lawfully created, perfected, protected, or enforced or are entitled to any particular priority, or to exercise at all or in any particular manner or under any duty of care, disclosure, or fidelity, or to continue exercising, any of the rights, authorities and powers granted or available to Agent pursuant to any of the Loan Documents, it being understood and agreed that in respect of the Collateral, or any act, omission or event related thereto, subject to the terms and conditions contained herein, Agent may act in any manner it may deem appropriate, in its sole discretion given Agent’s own interest in the Collateral in its capacity as one of the Lenders and that Agent shall have no other duty or liability whatsoever to any Lender as to any of the foregoing, except as otherwise provided herein.
Appears in 2 contracts
Sources: Letter of Credit Agreement (Childrens Place Retail Stores Inc), Loan and Security Agreement (Childrens Place Retail Stores Inc)
Collateral Matters. (a) The Lenders hereby irrevocably authorize the Collateral Each Lender authorizes and directs Agent to release any Lien upon any Collateral (i) upon enter into the termination other Loan Documents for the benefit of the Commitments Lenders. Each Lender hereby agrees that, except as otherwise set forth herein, any action taken by the Required Lenders (or Agent at the direction of the Required Lenders) in accordance with the provisions of this Agreement or the other Loan Documents, and payment 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 satisfaction in full binding upon all Lenders. Agent is hereby authorized on behalf of all Obligations (other than contingent indemnity obligations Lenders, without the necessity of any notice to or further consent from any Lender to take any action with respect to then unasserted claims), all Letters of Credit shall have expired any Collateral or terminated other Loan Documents which may be necessary to perfect and maintain as perfected and first priority (or been collateralized in a manner satisfactory subject only to Permitted Liens) the applicable Issuing Bank) Security Interest and all Letter of Credit Outstandings have been reduced to zero (or collateralized in a manner satisfactory to the applicable Issuing Bank), or (ii) constituting property being sold, transferred or disposed of in a Permitted Disposition Lien upon receipt by the Administrative Agent of the Net Proceeds thereof to the extent required by 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 Applicable Lenders. Upon request by any Agent or any Loan Party at any time, the Lenders will confirm in writing the Collateral Agent’s authority to release any Liens upon particular types or items of Collateral granted pursuant to this SECTION 8.16Agreement and the other Loan Documents.
(b) Upon Agent will not, without the consent of the Required Lenders, execute any release of Agent’s security interest in substantially all of the Collateral except for releases relating to dispositions of Collateral (x) permitted by this Agreement and (y) in connection with the repayment in full of all of the Obligations by Borrower and the termination of all obligations of Agent and the Lenders under this Agreement and the other Loan Documents. Agent shall not be required to execute any such release on terms which, in Agent’s opinion, would expose Agent to liability or create any obligation or entail any consequence other than the release of such Liens without recourse or warranty. In the event of any sale, transfer or foreclosure of any of the Collateral, Agent shall be authorized to deduct all of the expenses reasonably incurred by Agent from the proceeds of any such sale, transfer or foreclosure.
(c) To the extent, pursuant to the provisions of this Section 10.10, Agent’s execution of a release is required to release its Lien upon any sale and transfer of Collateral which is permitted under this Agreement or consented to in writing by the Required Lenders, and upon at least two three (23) Business Days’ prior written request by the Lead Borrower, 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 Liens granted to Agent for the benefit of Lenders herein or pursuant hereto upon any Collateral described in SECTION 8.16(a); provided, however, that (i) the Collateral that was sold or transferred.
(d) Agent shall not be required have no obligation whatsoever to execute Lenders or to any such document on terms whichother Person to assure that the Collateral exists or is owned by Borrower or any Guarantor or protected or insured or that the Liens granted to Agent herein 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 Agent in this Section 10.10 or in any of the other Loan Documents, it being understood and agreed that in respect of the Collateral, or any act, omission or event related thereto, Agent may act in any manner it may deem appropriate, in its reasonable opinionsole discretion, would, under Applicable Law, expose given Agent’s own interest in the Collateral as one of Lenders and that Agent shall have no duty or liability whatsoever to liability Lenders, except for its gross negligence or create willful misconduct.
(e) In the event that any obligation or entail Lender receives any adverse consequence other than the release of such Liens without recourse or warranty, and (ii) such release shall not in any manner discharge, affect or impair the Obligations or any Liens (other than those expressly being released) upon (or obligations of any Loan Party in respect of) all interests retained by any Loan Party, including (without limitation) the proceeds of any saleCollateral or other payments from the Borrower or any of its Subsidiaries with respect to the Obligations, including by setoff or otherwise, in an amount in excess of such Lender’s Commitment Percentage of such proceeds, such Lender shall purchase for cash (and other Lenders shall sell) interests in each of such other Lender’s Commitment Percentage as would be necessary to cause all Lenders to share the amount so set off or otherwise received with each other Lender in accordance with their respective Commitment Percentages. No Lender shall exercise any right of which shall continue to constitute part set off without the prior written consent of the CollateralRequired Lenders and in all cases such right of setoff shall be subject to this Section 10.10(e).
Appears in 2 contracts
Sources: Debtor in Possession Loan Agreement (Ener1 Inc), Loan Agreement (Ener1 Inc)
Collateral Matters. (a) The Lenders hereby irrevocably authorize the Collateral Agent Agent, at its option and in its sole discretion, to release any Collateral or any Lien upon on any Collateral (i) upon the termination of all of the Commitments and payment and satisfaction in full by Borrower of all Credit Party Obligations (other than unasserted contingent indemnity obligations with respect to then unasserted claimsindemnification obligations), all Letters of Credit shall have expired or terminated (or been collateralized in a manner satisfactory to the applicable Issuing Bank) and all Letter of Credit Outstandings have been reduced to zero (or collateralized in a manner satisfactory to the applicable Issuing Bank), or (ii) constituting property being that is permitted to be sold, transferred or otherwise disposed of under this Agreement or any other Credit Document, (iii) that is owned by a Guarantor that is permitted to be released under this Agreement or any other Credit Documents, or (iv) constituting property in a Permitted Disposition upon receipt by which the Administrative Agent of Loan Parties and their respective Subsidiaries owned no interest at the Net Proceeds thereof to time the extent required by 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 Applicable LendersLien was granted nor at any time thereafter. Upon request by any Agent or any Loan Party Borrower at any time, the Lenders will confirm in writing the Collateral Agent’s authority to release any such Liens upon on particular types or items of Collateral pursuant to this SECTION 8.16.
(b) Upon at least two (2) Business Days’ prior written request by the Lead Borrower, 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 Liens upon any Collateral described in SECTION 8.16(a)Section 8.11; provided, however, that (i1) the Collateral Agent shall not be required to execute any document necessary to evidence such document release on terms whichthat, in its Agent’s reasonable opinion, would, under Applicable Law, would expose the Collateral Agent to liability or create any obligation or entail any adverse consequence other than the release of such Liens Lien without recourse recourse, representation, or warranty, and (ii2) such release shall not in any manner discharge, affect affect, or impair the Credit Party Obligations or any Liens (other than those expressly being released) upon (or obligations of any Loan Credit Party in respect of) all interests retained by any Loan Credit Party, including (without limitation) including, the proceeds of any sale, all of which shall continue to constitute part of the Collateral. Subject to the foregoing proviso, Agent further agrees that, in connection with any transaction described in the foregoing clauses (i) — (iv) and as soon as is reasonably practicable after its receipt of a written request from the Initial Borrower specifying in reasonable detail the Collateral proposed to be released in connection with such transaction and the basis for such release, it will execute and deliver to the Initial Borrower (at the Initial Borrower’s sole cost and expense) such collateral release documentation as the Initial Borrower shall reasonably request to evidence such release; provided that prior to, and immediately after giving effect to, such release no Default or Event of Default is in existence.
(b) The Agent shall not have any obligation whatsoever to any of the Lenders to assure that the Collateral exists or is owned by the Credit Parties or is cared for, protected, or insured or has been encumbered, or that the Agent’s Liens have been properly or sufficiently or lawfully created, perfected, protected, or enforced or are entitled to any particular priority, or to exercise at all or in any particular manner or under any duty of care, disclosure or fidelity, or to continue exercising, any of the rights, authorities and powers granted or available to Agent pursuant to any of the Credit Documents, it being understood and agreed that in respect of the Collateral, or any act, omission, or event related thereto, subject to the terms and conditions contained herein, Agent may act in any manner it may deem appropriate, in its sole discretion given Agent’s own interest in the Collateral in its capacity as one of the Lenders and that Agent shall have no other duty or liability whatsoever to any Lender as to any of the foregoing, except as otherwise provided herein.
(c) Anything contained in any of the Credit Documents to the contrary notwithstanding, the Initial Borrower, the Agent and each Lender hereby agree that no Lender shall have any right individually to realize upon any of the Collateral or to enforce any of the Security Documents, it being understood and agreed that all powers, rights and remedies thereunder may be exercised solely by the Agent, on behalf of the Lenders in accordance with the terms hereof and thereof. Each Lender hereby, on and after the effective date of the HY Intercreditor Agreement, (i) agrees to be bound by the terms thereof and (ii) authorizes the Agent and the collateral agent thereunder to take any and all action required to be taken by such Person (or from refraining from taking any action) pursuant to the terms of the HY Intercreditor Agreement.
Appears in 2 contracts
Sources: Credit Agreement (Capitalsource Inc), Credit Agreement (Capitalsource Inc)
Collateral Matters. (a) The Lenders hereby irrevocably authorize and direct the Collateral Agent to release any Lien granted to or held by Agent upon any Collateral (i) upon the termination cancellation of the Commitments this Agreement and indefeasible payment and satisfaction of the Term Loan and all other Obligations which have matured and which Agent has been notified in full writing are then due and payable, (ii) upon the sale, transfer or other disposition of all Obligations (other than contingent indemnity obligations with respect to then unasserted claims), all Letters of Credit shall have expired or terminated (or been collateralized such Collateral in a manner satisfactory to permitted under the applicable Issuing BankLoan Documents and/or (iii) and all Letter of Credit Outstandings have been reduced to zero (or collateralized in a manner satisfactory to the applicable Issuing Bank), or (ii) constituting property being sold, transferred or disposed of in a Permitted Disposition upon receipt by the Administrative Agent of the Net Proceeds thereof to the extent required by 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 Applicable Lenderssuch asset becoming Excluded Property. Upon request by any Agent or any Loan Party at any time, the Lenders will confirm in writing the Collateral Agent’s authority to release any Liens upon particular types or items of Collateral pursuant to this SECTION 8.16.
section. Notwithstanding anything in Section 12.7 to the contrary, (a) any Guarantor shall automatically be released from its obligations hereunder (and its Guaranty and any Liens on its property constituting Collateral shall be automatically released) (i) upon the consummation of any permitted transaction or series of related transactions or the occurrence of any other permitted event or circumstance if as a result thereof such Guarantor ceases to be a Subsidiary (included by merger or dissolution) or becomes an Excluded Subsidiary as a result of a single transaction or series of related transactions or other event or circumstance permitted hereunder; or (ii) upon the earlier to occur of (x) the Termination Date and (y) the Term Loan Maturity Date and/or (b) Upon at least two any Guarantor that qualifies as an “Excluded Subsidiary” shall be released from its obligations hereunder (2and its Guaranty and any Liens on its property constituting Collateral shall be automatically released) Business Days’ prior written request by the Lead Agent promptly following the request therefor by the Borrower. In connection with any such release, the Collateral Administrative Agent shall (promptly execute and is hereby irrevocably authorized deliver to the relevant Loan Party, at such Loan Party’s expense, all documents that such Loan Party shall reasonably request to evidence termination or release. Any execution and delivery of any document pursuant to the preceding sentence of this Section 14.7 shall be without recourse to or warranty by the Lenders to) execute such documents as may be necessary to evidence the release of the Liens upon any Collateral described in SECTION 8.16(a); provided, however, that (i) the Collateral Agent shall not be required to execute any such document on terms which, in its reasonable opinion, would, under Applicable Law, expose the Collateral Agent to liability or create any obligation or entail any adverse consequence other than the release of such Liens without recourse or warranty, and (ii) such release shall not in any manner discharge, affect or impair the Obligations or any Liens (other than those expressly being releasedas to the Agent’s authority to execute and deliver such documents). The Lenders hereby irrevocably authorize and direct the Agent to enter into any intercreditor agreement as contemplated by clause (z) upon (or obligations of any Loan Party in respect of) all interests retained by any Loan Party, including (without limitation) the proceeds of any sale, all of which shall continue to constitute part of the Collateral.definition of “Permitted Liens”
Appears in 2 contracts
Sources: Loan and Security Agreement (Doma Holdings, Inc.), Loan and Security Agreement (Capitol Investment Corp. V)
Collateral Matters. (a) The Lenders hereby irrevocably authorize and direct the Collateral Agent to release any Lien granted to or held by Agent upon any Collateral (i) upon the termination cancellation of the Commitments this Agreement and indefeasible payment and satisfaction of the Term Loan and all other Obligations which have matured and which Agent has been notified in full writing are then due and payable, (ii) upon the sale, transfer or other disposition of all Obligations (other than contingent indemnity obligations with respect to then unasserted claims), all Letters of Credit shall have expired or terminated (or been collateralized such Collateral in a manner satisfactory to permitted under the applicable Issuing BankLoan Documents and/or (iii) and all Letter of Credit Outstandings have been reduced to zero (or collateralized in a manner satisfactory to the applicable Issuing Bank), or (ii) constituting property being sold, transferred or disposed of in a Permitted Disposition upon receipt by the Administrative Agent of the Net Proceeds thereof to the extent required by 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 Applicable Lenderssuch asset becoming Excluded Property. Upon request by any Agent or any Loan Party at any time, the Lenders will confirm in writing the Collateral Agent’s authority to release any Liens upon particular types or items of Collateral pursuant to this SECTION 8.16.
section. Notwithstanding anything in Section 12.7 to the contrary, (a) any Guarantor shall automatically be released from its obligations hereunder (and its Guaranty and any Liens on its property constituting Collateral shall be automatically released) (i) upon the consummation of any permitted transaction or series of related transactions or the occurrence of any other permitted event or circumstance if as a result thereof such Guarantor ceases to be a Subsidiary (included by merger or dissolution) or becomes an Excluded Subsidiary as a result of a single transaction or series of related transactions or other event or circumstance permitted hereunder; or (ii) upon the earlier to occur of (x) the Termination Date and (y) the Term Loan Maturity Date and/or (b) Upon at least two any Guarantor that qualifies as an “Excluded Subsidiary” shall be released from its obligations hereunder (2and its Guaranty and any Liens on its property constituting Collateral shall be automatically released) Business Days’ prior written request by the Lead Agent promptly following the request therefor by the Borrower. In connection with any such release, the Collateral Administrative Agent shall (promptly execute and is hereby irrevocably authorized deliver to the relevant Loan Party, at such Loan Party’s expense, all documents that such Loan Party shall reasonably request to evidence termination or release. Any execution and delivery of any document pursuant to the preceding sentence of this Section 14.7 shall be without recourse to or warranty by the Lenders to) execute such documents as may be necessary to evidence the release of the Liens upon any Collateral described in SECTION 8.16(a); provided, however, that (i) the Collateral Agent shall not be required to execute any such document on terms which, in its reasonable opinion, would, under Applicable Law, expose the Collateral Agent to liability or create any obligation or entail any adverse consequence other than the release of such Liens without recourse or warranty, and (ii) such release shall not in any manner discharge, affect or impair the Obligations or any Liens (other than those expressly being releasedas to the Agent’s authority to execute and deliver such documents). The Lenders hereby irrevocably authorize and direct the Agent to enter into the H▇▇▇▇▇/TRG Subordination Agreement and any intercreditor agreement as contemplated by clause (z) upon (or obligations of any Loan Party in respect of) all interests retained by any Loan Party, including (without limitation) the proceeds of any sale, all of which shall continue to constitute part of the Collateraldefinition of “Permitted Liens”.
Appears in 2 contracts
Sources: Loan and Security Agreement (Doma Holdings, Inc.), Loan and Security Agreement (Doma Holdings, Inc.)
Collateral Matters. (a) The Lenders hereby irrevocably authorize the Collateral Agent Agent, at its option and in its reasonable business judgment, to release any Lien upon any Collateral (i) upon the termination of the Commitments and payment and satisfaction in full of all Obligations (other than contingent indemnity obligations with respect to then unasserted claims), all Letters of Credit shall have expired or terminated (or been collateralized in a manner satisfactory to the applicable Issuing Bank) Loans and all Letter of Credit Outstandings have other Obligations and which the Collateral Agent has been reduced to zero (or collateralized notified in a manner satisfactory to the applicable Issuing Bank), or writing are then due and payable; (ii) constituting property being sold, transferred sold or disposed of if the applicable Borrower certifies to the Collateral Agent that the sale or disposition is made in compliance with Section ------- 6.03 (and the Collateral Agent may rely conclusively on any such certificate, ---- without further inquiry); or (iii) constituting property leased to the applicable Borrower under a lease which has expired or been terminated in a Permitted Disposition upon receipt transaction permitted under this Agreement or which will expire imminently and which has not been, and is not intended by the Administrative Agent of the Net Proceeds thereof such Borrower to the extent required by this Agreementbe, renewed or extended and with respect to which such Borrower has not exercised any purchase option. Except as provided above, the Collateral Agent will not release or subordinate any of the Collateral Agent’s Liens without the prior written authorization of the Applicable Requisite Lenders; provided that the Collateral Agent may not release or -------- subordinate the Liens on Collateral valued in the aggregate in excess of $500,000 without the prior written authorization of the Requisite Lenders and may not release all or substantially all of the Collateral or subordinate the Liens thereon without the consent of the Lenders. Upon request by any the Collateral Agent or any Loan Party the Borrowers at any time, the Lenders will confirm in writing the Collateral Agent’s 's authority to release any Liens upon particular types or items of Collateral pursuant to this SECTION 8.16.Section 10.08(a). ----------------
(b) Upon receipt by the Collateral Agent of any authorization required pursuant to Section 10.08(a) from the Requisite Lenders or Lenders, as ---------------- applicable, of the Collateral Agent's authority to release any Liens upon particular types or items of Collateral, and upon at least two five (25) Business Days’ ' prior written request by the Lead applicable Borrower, and provided that no Event of Default has occurred and is then continuing, 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 Liens upon any Collateral described in SECTION 8.16(a)such Collateral; provided, however, that (i) the Collateral Agent shall not be required to -------- ------- execute any such document on terms which, in its reasonable the Collateral Agent's opinion, would, under Applicable Law, would expose the Collateral Agent to liability or create any obligation or entail any adverse consequence other than the release of such Liens without recourse or warranty, and (ii) such release shall not in any manner discharge, affect or impair the Obligations or any Liens (other than those expressly being released) upon (or obligations of any Loan Party the applicable Borrower in respect of) all interests retained by any Loan Partythe applicable Borrower, including (without limitation) the proceeds of any sale, all of which shall continue to constitute part of the Collateral.
(c) The Collateral Agent shall have no obligation whatsoever to any of the Lenders to assure that the Collateral exists or is owned by any Borrower or is cared for, protected or insured or has been encumbered, or, other than a duty to act without recklessness, willful misconduct or gross (but not mere) negligence, that the Liens have been properly or sufficiently or lawfully created, perfected, protected or enforced or are entitled to any particular priority, or to exercise at all or in any particular manner or under any duty of care, disclosure or fidelity, or to continue exercising, any of the rights, authorities and powers granted or available to the pursuant to this Section ------- 10.08 or pursuant to any of the Loan Documents, it being understood and agreed ----- that in respect of the Collateral, or any act, omission or event related thereto, the Collateral Agent may act in any manner it may deem appropriate, in its reasonable business judgment, given the Collateral Agent's own interest in the Collateral in its capacity as one of the Lenders and that the Collateral Agent shall have no other duty or liability whatsoever to any Lender as to any of the foregoing.
Appears in 2 contracts
Sources: Loan and Security Agreement (Paetec Corp), Loan and Security Agreement (Paetec Corp)
Collateral Matters. (a) The Lenders hereby irrevocably authorize the Collateral Agent at its option and in its discretion to release any Lien upon any of the Collateral (i) upon the termination of the Commitments and payment and satisfaction in full of all of the Obligations (other than contingent indemnity obligations with respect to then unasserted claims), all Letters and delivery of Credit shall have expired or terminated (or been collateralized in a manner satisfactory cash collateral to the applicable Issuing Bank) and all Letter of Credit Outstandings have been reduced to zero (or collateralized in a manner satisfactory to the applicable Issuing Bank), extent required under Section 13.1 below; or (ii) constituting property being sold, transferred sold or disposed of if Borrower certifies to Agent that the sale or disposition is made in a Permitted Disposition upon receipt by compliance with Section 9.7 hereof (and Agent may rely conclusively on any such certificate, without further enquiry); or (iii) constituting property in which Borrower did not own an interest at the Administrative Agent time the Lien was granted or at any time thereafter; or (iv) if required under the terms of any of the Net Proceeds thereof to the extent required by this Agreementother Financing Agreements, including any intercreditor agreement; or (v) approved, authorized or ratified in writing in accordance with Section 11.15 hereof. 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 Applicable Lenders. Upon request by any Agent or any Loan Party at any time, the Lenders will confirm required in writing the Collateral Agent’s authority to release any Liens upon particular types or items of Collateral pursuant to this SECTION 8.16accordance with Section 11.15 hereof.
(b) Upon at least two (2) Business Days’ prior written Without any manner limiting Agent’s authority to act without any specific or further authorization or consent by applicable Lenders, each Lender, as applicable, agrees to confirm in writing, upon request by the Lead BorrowerAgent, the authority to release Collateral conferred upon Agent under this Section. Agent shall (and is hereby irrevocably authorized by the Lenders to) execute such documents as may be necessary to evidence the release of the Liens granted to Agent upon any Collateral described in SECTION 8.16(a)to the extent set forth above; provided, howeverthat, that (i) the Collateral Agent shall not be required to execute any such document on terms which, in its reasonable Agent’s opinion, would, under Applicable Law, would expose the Collateral Agent to liability or create any obligation obligations or entail any adverse consequence other than the release of such Liens Lien without recourse or warranty, warranty and (ii) such release shall not in any manner discharge, affect or impair the Obligations or any Liens (other than those expressly being released) Lien upon (or obligations of any Loan Party Borrower in respect of) all interests the Collateral retained by Borrower.
(c) Agent shall have no obligation whatsoever to any Loan PartyLender or any other Person to investigate, including (without limitation) confirm or assure that the proceeds Collateral exists or is owned by Borrower or is cared for, protected or insured or has been encumbered, or that any particular items of any sale, all of which shall continue to constitute part Collateral meet the eligibility criteria applicable in respect of the Loans hereunder, or whether any particular reserves are appropriate, or that the Liens granted to Agent pursuant hereto or any of the Financing Agreements or otherwise have been properly or sufficiently or lawfully created, perfected, protected or enforced or are entitled to any particular priority, or to exercise at all or in any particular manner or under any duty of care, disclosure or fidelity, or to continue exercising, any of the rights, authorities and powers granted or available to Agent in this Agreement or in any of the other Financing Agreements, it being understood and agreed that in respect of Collateral, or any act, omission or event related thereto, Agent may act in any manner it may deem appropriate, in its discretion, given Agent’s own interest in the Collateral as a Lender and that Agent shall have no duty or liability whatsoever to any other Lender.
Appears in 2 contracts
Sources: Credit Agreement (Imax Corp), Credit Agreement (Imax Corp)
Collateral Matters. (a) The Lenders Each Participating Lender hereby irrevocably authorize authorizes the Collateral Agent and any permitted sub-agent, at its option and in its sole discretion, to release any Lien upon on any or all Collateral (i) upon the termination of the Commitments and the payment and satisfaction in full of all Obligations (other than contingent indemnity obligations with respect to then unasserted claims), all Letters of Credit shall have expired or terminated (or been collateralized in a manner satisfactory to the applicable Issuing Bank) and all Letter of Credit Outstandings have been reduced to zero (or collateralized in a manner satisfactory to the applicable Issuing Bank), or Obligations; (ii) constituting property being sold, transferred sold or disposed of if a release is required or desirable in a Permitted Disposition upon receipt by connection therewith and if the Administrative Agent of the Net Proceeds thereof Company certifies in writing to the extent required by this Agreement. Except as provided above, the Collateral Agent will not release that the sale or disposition is permitted under this Agreement or the other Loan Documents (and the Collateral Agent may rely conclusively on any such certificate, without further inquiry); (iii) constituting Property in which the Credit Parties owned no interest at the time the security interest was granted or at any time thereafter; (iv) constituting property leased to the Credit Parties under a lease that has expired or is terminated in a transaction permitted under this Agreement; or (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 over the life of the Collateral Agent’s Liens without the prior written authorization of the Applicable LendersLoans. Upon request by any the Collateral Agent or any Loan Party the Company at any time, the Administrative Agent, the Revolving Agent and the Lenders will confirm in writing the Collateral Agent’s authority to release any such Liens upon on particular types or items of Collateral pursuant to this SECTION 8.16.
(b) Upon at least two (2) Business Days’ prior written request by Section 12.07. Notwithstanding the Lead Borrowerforegoing, the Collateral Agent shall (is not and is hereby irrevocably authorized by the Lenders to) execute such documents as may be necessary to evidence the release of the Liens upon any Collateral described in SECTION 8.16(a); provided, however, that (i) the Collateral Agent shall not be required to execute any such document necessary to evidence the release of any Lien on terms whichthat, in its reasonable the Collateral Agent’s opinion, would, under Applicable Law, would expose the Collateral Agent to liability or liability, create any obligation obligation, or entail any adverse consequence other than the release of such Liens Lien without recourse recourse, representation, or warranty, and (ii) such . No release of any Lien shall not in any manner discharge, affect affect, or impair the Obligations or any Liens (other than those expressly being released) Lien, including, the Collateral Agent’s Lien upon (or obligations of any Loan Party in respect of) all interests retained by any Loan Party, including (without limitation) the proceeds of sale of any saleCollateral that is the subject of any such release.
(b) The Collateral Agent shall have no obligation whatsoever to any Secured Party (i) to assure that the Collateral exists or is owned by the applicable Credit Party or is cared for, protected, or insured or has been encumbered, or (ii) to assure that the Liens of the Collateral Agent or any other Secured Party have been properly or sufficiently or lawfully created, perfected, protected, or enforced or are entitled to any particular priority, or (iii) to exercise at all or in any particular manner or under any duty of which shall care, disclosure or fidelity, or to continue exercising, any of the rights, authorities and powers granted or available to constitute part the Collateral Agent pursuant to any of the Loan Documents. It is understood and agreed that in respect of the Collateral, or any act, omission or event related thereto, subject to the terms and conditions contained herein, the Collateral Agent may act in any manner it may deem appropriate, in its sole discretion given the Collateral Agent’s own interest in the Collateral and in its capacity as one of the Secured Parties and that the Collateral Agent shall have no other duty or liability whatsoever to any Secured Party as to any of the foregoing, except as otherwise provided herein.
Appears in 2 contracts
Sources: Credit Agreement (Global Power Equipment Group Inc/), Credit Agreement (Global Power Equipment Group Inc/)
Collateral Matters. (a) The Lenders hereby irrevocably authorize the Collateral Administrative Agent and the Canadian Agent, as applicable, to release any Lien upon any Collateral Collateral: (i) upon the termination of the Domestic Commitments and the Canadian Commitments, as applicable, and payment and satisfaction in full by the Domestic Borrowers of all Obligations and the Canadian Borrower of all Canadian Liabilities, as applicable and, if the Obligations have been accelerated and Liquidation has commenced, the Other Liabilities then due and payable (in any event other than contingent indemnity obligations with respect to then unasserted claims), all Letters of Credit shall have expired or terminated (or been collateralized in a manner satisfactory to the applicable Issuing BankBanks) and all Letter of Credit Outstandings have been reduced to zero (or collateralized in a manner satisfactory to the applicable Issuing BankBanks), or ; (ii) constituting property being sold, transferred or disposed of in a Permitted Disposition upon receipt by the Administrative Agent or the Canadian Agent, as applicable, of the Net Proceeds thereof to the extent required by this Agreement; or (iii) upon request of the Lead Borrower, constituting Real Estate being transferred from a Domestic Loan Party to another Domestic Loan Party but only to the extent that after such transfer, no Event of Default exists. Except as provided above, the Collateral Administrative Agent or the Canadian Agent, as applicable, will not release any of the Collateral Agent’s or Canadian Agent’s Liens without the prior written authorization of the Applicable Lenders. Upon request by any the Administrative Agent, the Canadian Agent or any Loan Party at any time, the Lenders will confirm in writing the Collateral Administrative Agent’s or the Canadian Agent’s authority to release any Liens upon particular types or items of Collateral pursuant to this SECTION 8.168.18.
(b) The Lenders hereby authorize the Administrative Agent and the Canadian Agent, as applicable, to take such actions, including making filings and entering into agreements and any amendments or supplements to any Security Document or Intercreditor Agreement, as may be necessary or desirable to reflect the intent of this Agreement and the refinancing of any Indebtedness permitted hereunder. Upon request by the Administrative Agent, the Canadian Agent or any Loan Party at any time, the Lenders will confirm in writing the Administrative Agent’s or the Canadian Agent’s authority to enter into such agreements, amendments or supplements.
(c) Upon at least two (2) Business Days’ prior written request by the Lead Borrower or the Canadian Borrower, as applicable, the Collateral Administrative Agent or the Canadian Agent shall (and is hereby irrevocably authorized by the Lenders to) execute such documents as may be necessary to evidence the release of the Liens upon any Collateral described in SECTION 8.16(a8.18(a); provided, however, that (i) neither the Collateral Administrative Agent nor the Canadian Agent shall not be required to execute any such document on terms which, in its reasonable opinion, would, under Applicable Law, expose the Collateral Administrative Agent or the Canadian Agent to liability or create any obligation or entail any adverse consequence other than the release of such Liens without recourse or warranty, and (ii) such release shall not in any manner discharge, affect or impair the Obligations Obligations, the Other Liabilities, the Canadian Liabilities, or any Liens (other than those expressly being released) upon (or obligations of any Loan Party in respect of) all interests retained by any Loan Party, including (without limitation) the proceeds of any sale, all of which shall continue to constitute part of the Collateral.
Appears in 2 contracts
Sources: Credit Agreement (Toys R Us Inc), Credit Agreement (Toys R Us Inc)
Collateral Matters. (a) The Lenders hereby irrevocably authorize the Collateral Agent to release any Lien upon any Collateral (i) upon the termination of the Commitments and payment and satisfaction in full of all Obligations (other than contingent indemnity obligations with respect to then unasserted claims), all Letters of Credit shall have expired or terminated (or been collateralized or backstopped in a manner satisfactory to the applicable Issuing Bank) and all Letter of Credit Outstandings have been reduced to zero (or collateralized or backstopped in a manner satisfactory to the applicable Issuing Bank), or (ii) constituting property being sold, transferred or disposed of in a Permitted Disposition upon receipt by the Administrative Agent of the Net Proceeds thereof to the extent required by 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 Applicable Lenders. Upon request by any Agent or any Loan Party at any time, the Lenders will confirm in writing the Collateral Agent’s authority to release any Liens upon particular types or items of Collateral pursuant to this SECTION 8.168.17.
(b) Upon at least two (2) Business Days’ prior written request by the Lead Borrower, 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 Liens upon any Collateral described in SECTION 8.16(a8.17(a); provided, however, that (i) the Collateral Agent shall not be required to execute any such document on terms which, in its reasonable opinion, would, under Applicable Law, expose the Collateral Agent to liability or create any obligation or entail any adverse consequence other than the release of such Liens without recourse or warranty, and (ii) such release shall not in any manner discharge, affect or impair the Obligations or any Liens (other than those expressly being released) upon (or obligations of any Loan Party in respect of) all interests retained by any Loan Party, including (without limitation) the proceeds of any sale, all of which shall continue to constitute part of the Collateral.
Appears in 2 contracts
Sources: Credit Agreement (Michaels Stores Inc), Credit Agreement (Michaels Stores Inc)
Collateral Matters. (a) The Lenders hereby irrevocably authorize the Collateral Each Lender authorizes and directs Agent to release enter into the Loan Documents for the benefit of Lenders. Each Lender hereby agrees that, except as otherwise set forth herein, any Lien upon any Collateral (i) upon action taken by Requisite Lenders in accordance with the termination provisions of this Agreement or the Loan Documents, and the exercise by the Requisite Lenders of the Commitments powers set forth herein or therein, together with such other powers as are reasonably incidental thereto, shall be authorized and payment and satisfaction in full binding upon all Lenders. Agent is hereby authorized on behalf of all Obligations (other than contingent indemnity obligations Lenders, without the necessity of any notice to or further consent from any Lender to take any action with respect to then unasserted claims), all Letters of Credit shall have expired any Collateral or terminated (or been collateralized Loan Documents which may be necessary to perfect and maintain perfected the security interest in a manner satisfactory to the applicable Issuing Bank) and all Letter of Credit Outstandings have been reduced to zero (or collateralized in a manner satisfactory to the applicable Issuing Bank), or (ii) constituting property being sold, transferred or disposed of in a Permitted Disposition liens upon receipt by the Administrative Agent of the Net Proceeds thereof to the extent required by 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 Applicable Lenders. Upon request by any Agent or any Loan Party at any time, the Lenders will confirm in writing the Collateral Agent’s authority to release any Liens upon particular types or items of Collateral granted pursuant to this SECTION 8.16Agreement and the Loan Documents.
(b) Upon Agent will not, without the verbal consent of all Lenders, which consent shall (a) be confirmed promptly thereafter in writing and (b) not be unreasonably withheld or delayed, execute any release of Agent’s security interest in any Collateral except for releases relating to dispositions of Collateral (x) permitted by this Agreement or any other Loan Document or (y) in connection with the payment in full of all of the Obligations by Borrowers and the termination of all obligations of Agent and Lenders under this Agreement and the Loan Documents; provided, that without the consent of any Lenders, Agent may release its liens on Collateral having a book value not greater than ten percent (10%) of the total book value of all Collateral in any fiscal year. Agent shall not be required to execute any such release on terms which, in Agent’s opinion, would expose Agent to liability or create any obligation or entail any consequence other than the release of such liens without recourse or warranty. In the event of any sale or transfer of any of the Collateral, Agent shall be authorized to deduct all of the out-of-pocket expenses reasonably incurred by Agent from the proceeds of any such sale or transfer.
(c) Lenders hereby agree that the lien granted to Agent in any property sold or disposed of in accordance with the provisions of the Agreement shall be automatically released; provided, however that Agent’s lien shall attach to and continue for the benefit of Agent and Lenders in the proceeds and products of such property arising from any such sale or disposition.
(d) To the extent, pursuant to the provisions of this Section 13.10, Agent’s execution of a release is required to release its lien upon any sale and transfer of Collateral which is consented to in writing by Requisite Lenders or all Lenders, as applicable, and upon at least two five (25) Business Days’ prior written request by the Lead BorrowerBorrowers of any sale or transfer permitted under this Agreement or any other Loan Document, 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 Liens liens granted to Agent for the benefit of Lenders herein or pursuant hereto upon any Collateral described in SECTION 8.16(a); provided, however, that (i) the Collateral that was sold or transferred.
(e) Agent shall not be required have any obligation whatsoever to execute Lenders or to any such document on terms whichother Person to assure that the Collateral exists or is owned by Borrowers or any other Obligor or is cared for, protected or insured or that the liens granted to Agent herein or pursuant hereto 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 Agent in this Section 13 or in any of the Loan Documents, it being understood and agreed that in respect of the Collateral, or any act, omission or event related thereto, Agent may act in any manner it may deem appropriate, in its reasonable opinionsole discretion, would, under Applicable Law, expose given Agent’s own interest in the Collateral as one of the Lenders and that Agent shall have no duty or liability whatsoever to liability Lenders, except for its gross negligence or create willful misconduct.
(f) In the event that any obligation Lender receives any Proceeds of any Collateral by setoff, exercise of any banker’s lien or entail any adverse consequence other than the release otherwise, in an amount in excess of such Liens without recourse or warrantyLender’s Pro Rata Share of such Proceeds, such Lender shall purchase for cash (and (iiother Lenders shall sell) interests in each of such release shall not in any manner discharge, affect or impair other Lender’s Pro Rata Share of the Obligations as would be necessary to cause all Lenders to share the amount so set off or otherwise received with each other Lender in accordance with their respective Pro Rata Shares. No Lender shall exercise any Liens (other than those expressly being released) upon (right of set off or obligations banker’s lien without the prior written consent of any Loan Party in respect of) all interests retained by any Loan Party, including (without limitation) the proceeds of any sale, all of which shall continue to constitute part of the CollateralAgent.
Appears in 2 contracts
Sources: Credit Agreement (Lawson Products Inc/New/De/), Credit Agreement (Lawson Products Inc/New/De/)
Collateral Matters. (a) The Lenders hereby irrevocably authorize the Collateral Agent Agent, at its option and in its sole discretion, to release any Lien upon on any Collateral (i) upon the termination of the Commitments and payment and satisfaction in full by Subsidiary Borrower of all Obligations (other than contingent indemnity obligations with respect to then unasserted claims)Obligations, all Letters of Credit shall have expired or terminated (or been collateralized in a manner satisfactory to the applicable Issuing Bank) and all Letter of Credit Outstandings have been reduced to zero (or collateralized in a manner satisfactory to the applicable Issuing Bank), or (ii) constituting property being sold, transferred sold or disposed of if a release is required or desirable in connection therewith and if Subsidiary Borrower certifies to Agent that the sale or disposition is permitted under Section 7.4 of this Agreement or the other Irish Loan Documents (and Agent may rely conclusively on any such certificate, without further inquiry), (iii) constituting property in which Subsidiary Borrower owned no interest at the time the security interest was granted or at any time thereafter, or (iv) constituting property leased to Subsidiary Borrower under a lease that has expired or is terminated in a Permitted Disposition upon receipt by the Administrative Agent of the Net Proceeds thereof to the extent required by transaction permitted under this Agreement. 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 Applicable release is of all or substantially all of the Collateral, all of the Lenders, or (z) otherwise, the Required Lenders. Upon request by any Agent or any Loan Party Subsidiary Borrower at any time, the Lenders will confirm in writing the Collateral Agent’s 's authority to release any such Liens upon on particular types or items of Collateral pursuant to this SECTION 8.16.
(b) Upon at least two (2) Business Days’ prior written request by the Lead Borrower, 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 Liens upon any Collateral described in SECTION 8.16(a)Section 16.12; provided, however, that (i1) the Collateral Agent shall not be required to execute any document necessary to evidence such document release on terms whichthat, in its reasonable Agent's opinion, would, under Applicable Law, would expose the Collateral Agent to liability or create any obligation or entail any adverse consequence other than the release of such Liens Lien without recourse recourse, representation, or warranty, and (ii2) such release shall not in any manner discharge, affect affect, or impair the Obligations or any Liens (other than those expressly being released) upon (or obligations of any Loan Party Subsidiary Borrower in respect of) all interests retained by any Loan PartySubsidiary Borrower, including (without limitation) including, the proceeds of any sale, all of which shall continue to constitute part of the Collateral.
(b) Agent shall have no obligation whatsoever to any of the Lenders to assure that the Collateral exists or is owned by Subsidiary Borrower or is cared for, protected, or insured or has been encumbered, or that the Agent's Liens have been properly or sufficiently or lawfully created, perfected, protected, or enforced or to exercise at all or in any particular manner or under any duty of care, disclosure or fidelity, or to continue exercising, any of the rights, authorities and powers granted or available to Agent pursuant to any of the Irish Loan Documents, it being understood and agreed that in respect of the Collateral, or any act, omission, or event related thereto, subject to the terms and conditions contained herein, Agent may act in any manner it may deem appropriate, in its sole discretion given Agent's own interest in the Collateral in its capacity as one of the Lenders and that Agent shall have no other duty or liability whatsoever to any Lender as to any of the foregoing, except as otherwise provided herein.
Appears in 2 contracts
Sources: Loan Agreement (Palm Inc), Loan Agreement (Palm Inc)
Collateral Matters. (a) 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 a Default, to take any action with respect to any Pledged Collateral which may be necessary to perfect and maintain perfected the security interest in and Liens upon the Pledged Collateral.
(b) The Lenders hereby irrevocably authorize the Collateral Agent, and the Collateral Agent to shall, release any Lien granted to or held by the Collateral Agent upon any Collateral Pledged Collateral
(i) upon the termination of the Commitments and payment and satisfaction in full of all Obligations (other than contingent indemnity obligations with respect to then unasserted claims), all Letters of Credit shall have expired or terminated (or been collateralized in a manner satisfactory to the applicable Issuing Bank) and all Letter of Credit Outstandings have been reduced to zero (or collateralized in a manner satisfactory to the applicable Issuing Bank), Liabilities or (ii) constituting property being soldif approved, transferred authorized or disposed of ratified in a Permitted Disposition upon receipt writing by the Administrative Agent of the Net Proceeds thereof to the extent required by 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 Applicable Directing Lenders. Upon request by any the Collateral Agent or any Loan Party at any time, the Lenders will confirm in writing the Collateral Agent’s 's authority to release any Liens upon particular types or items of Pledged Collateral pursuant to this SECTION 8.16Section 18.9.
(bc) Upon any sale and transfer of Pledged Collateral which is expressly permitted pursuant to the terms of the Financing Agreement, the Loan Agreement or this Agreement or consented to in writing by the Directing Lenders, and upon at least two five (25) Business Days’ ' prior written request by the Lead BorrowerPledgor, 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 Liens granted to the Collateral Agent for its benefit and the benefit of the Lenders herein or pursuant hereto upon any the Pledged Collateral described in SECTION 8.16(a)that was sold or transferred; provided, however, provided that (i) the Collateral Agent shall not be required to execute any such document on terms which, in its reasonable the Collateral Agent's opinion, would, under Applicable Law, would expose the Collateral Agent or the Lenders to liability or create any obligation or entail any adverse consequence other than the release of such Liens without recourse or warranty, warranty and (ii) such release shall not in any manner discharge, affect or impair the Obligations Liabilities or any Liens (other than those expressly being released) upon (or obligations of any Loan Party in respect of) all interests retained by any Loan Partythe Pledgor, including (without limitation) the proceeds of any the sale, all of which shall continue to constitute part of the Pledged Collateral. In the event of any sale or transfer of Pledged Collateral, or any foreclosure with respect to any of the Pledged Collateral, the Collateral Agent shall be authorized to deduct all of the expenses reasonably incurred by the Collateral Agent from the proceeds of any such sale, transfer or foreclosure.
(d) The Collateral Agent shall have no obligation whatsoever to the Lenders or to any other Person to assure that the Pledged Collateral exists or is owned by the Pledgor or is cared for, protected or insured or that the 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 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 the Collateral Agent in this Section 18.9, it being understood and agreed that in respect of the Pledged Collateral, or any act, omission or event related thereto, the Collateral Agent may act in any manner it may deem appropriate, in its sole discretion, given the Collateral Agent's own interest in the Pledged Collateral as one of the Lenders and that the Collateral Agent shall have no duty or liability whatsoever to the Lenders, except for its gross negligence or willful misconduct.
Appears in 2 contracts
Sources: Borrower Pledge Agreement (Hughes Electronics Corp), Borrower Pledge Agreement (Geotek Communications Inc)
Collateral Matters. (a) Each Lender authorizes and directs the U.S. Collateral Agent to enter into the Security Documents 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 or participant in Letters of Credit by the acceptance thereof will be deemed to agree, that, except as otherwise set forth herein, any action taken by the U.S. Collateral Agent or the Required Lenders in accordance with the provisions of this Agreement, the Security Documents or the Intercreditor Agreement, and the 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 U.S. 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, 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 granted pursuant to the Security Documents.
(b) The Lenders hereby irrevocably authorize the applicable Administrative Agent and Collateral Agent Agent, in each case at its option and in its discretion, to release any Lien granted to or held by such Agent upon any Collateral (i) upon the termination of the Commitments and payment and satisfaction in full of all Obligations (other than contingent indemnity of the obligations with under the Loan Documents at any time arising under or 165 in respect to then unasserted claims)of this Agreement or the Loan Documents or the transactions contemplated hereby or thereby, all Letters of Credit shall have expired or terminated (or been collateralized in a manner satisfactory to the applicable Issuing Bank) and all Letter of Credit Outstandings have been reduced to zero (or collateralized in a manner satisfactory to the applicable Issuing Bank), or (ii) constituting property being sold, transferred sold or otherwise disposed of (to Persons other than a Loan Party) upon the sale or other disposition thereof in a Permitted Disposition upon receipt compliance with subsection 8.6, (iii) if approved, authorized or ratified in writing by the Administrative Agent of the Net Proceeds thereof Required Lenders (or such greater amount, to the extent required by this Agreement. Except subsection 11.1) or (iv) as otherwise may be expressly provided above, in the Collateral Agent will not release any of the Collateral Agent’s Liens without the prior written authorization of the Applicable Lendersrelevant Security Documents. Upon request by any the U.S. Administrative Agent, the U.S. Collateral Agent, the Canadian Administrative Agent or any Loan Party the Canadian Collateral Agent, at any time, the Lenders will confirm in writing the Collateral such Agent’s 's authority to release any Liens upon particular types or items of Collateral pursuant to this SECTION 8.16subsection 10.9.
(bc) Upon at least two (2) Business Days’ prior written request by No Agent shall have any obligation whatsoever to the Lead Borrower, Lenders to assure that the Collateral exists or is owned by Holdings or any of its Subsidiaries or is cared for, protected or insured or that the Liens granted to any Agent shall (and is hereby irrevocably authorized by the Lenders to) execute such documents as may be necessary herein or pursuant hereto have been properly or sufficiently or lawfully created, perfected, protected or enforced or are entitled to evidence the release 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 Liens upon rights, authorities and powers granted or available to the Agents in this subsection 10.9 or in any Collateral described of the Security Documents, it being understood and agreed that in SECTION 8.16(a); providedrespect of the Collateral, howeveror any act, that (i) the Collateral omission or event related thereto, each Agent shall not be required to execute may act in any such document on terms whichmanner it may deem appropriate, in its reasonable opinionsole discretion, would, under Applicable Law, expose given such Agent's own interest in the Collateral as Lender and that no Agent shall have any duty or liability whatsoever to liability the Lenders, except for its gross negligence or create any obligation or entail any adverse consequence other than the release willful misconduct (as determined in a final non-appealable decision issued by a court of such Liens without recourse or warrantycompetent jurisdiction).
(d) The U.S. Collateral Agent may, and (ii) hereby does, appoint the U.S. Administrative Agent as its agent for the purposes of holding any Collateral and/or perfecting the U.S. Collateral Agent's security interest therein and for the purpose of taking such release shall not in other action with respect to the collateral as such Agents may from time to time agree. The Canadian Collateral Agent may, and hereby does, appoint the Canadian Administrative Agent as its agent for the purposes of holding any manner discharge, affect or impair Collateral and/or perfecting the Obligations or any Liens (Canadian Collateral Agent's security interest therein and for the purpose of taking such other than those expressly being released) upon (or obligations of any Loan Party in action with respect of) all interests retained by any Loan Party, including (without limitation) to the proceeds of any sale, all of which shall continue collateral as such Agents may from time to constitute part of the Collateraltime agree.
Appears in 1 contract
Sources: Credit Agreement (RSC Holdings Inc.)
Collateral Matters. (a) The Lenders hereby irrevocably authorize the Collateral Agent to release any Lien upon any Collateral (i) upon the termination of the Commitments and payment and satisfaction in full of all Obligations (other than contingent indemnity obligations with respect to then unasserted claims), all Letters of Credit shall have expired or terminated (or been collateralized in a manner satisfactory to the applicable Issuing Bank) and all Letter of Credit Outstandings have been reduced to zero (or collateralized in a manner satisfactory to the applicable Issuing Bank), or (ii) constituting property being sold, transferred or disposed of in a Permitted Disposition upon receipt by to a Person that is not a Loan Party, (iii) which constitutes property subject to the Administrative Agent proviso in the definition of “Collateral” in the Security Agreement or subject to the proviso in SECTION 2.1 of the Net Proceeds thereof Pledge Agreement, (iv) as provided in any Intercreditor Agreement, including the ABL Intercreditor Agreement with respect to Revolver Priority Collateral and (v) as to the extent required by this AgreementCollateral of any Facility Guarantor, upon its release from its Facility Guarantee (including as a result of designation as an Unrestricted Subsidiary). Except as provided above, the Collateral Agent will not release any of the Collateral Agent’s Liens without the prior written authorization of the Applicable Lenders. Upon request by any Agent or any Loan Party at any time, the Lenders will confirm in writing the Collateral Agent’s authority to release any Liens upon particular types or items of Collateral pursuant to this SECTION 8.16.
(b) Upon at least two (2) Business Days’ prior written request by the Lead Borrower, the 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 Liens upon any Collateral described in SECTION 8.16(a); provided, however, that (i) the Collateral Agent shall not be required to execute any such document on terms which, in its reasonable opinion, would, under Applicable Law, expose the Collateral Agent to liability or create any obligation or entail any adverse consequence other than the release of such Liens without recourse or warranty, and (ii) such release shall not in any manner discharge, affect or impair the Obligations or any Liens (other than those expressly being released) upon (or obligations of any Loan Party in respect of) all interests retained by any Loan Party, including (without limitation) the proceeds of any sale, all of which shall continue to constitute part of the Collateral.
(c) Each Lender irrevocably authorizes each of the Administrative Agent and the Collateral Agent to (i) release any Guarantor from its obligations under a Facility Guarantee if such Person ceases to be a Restricted Subsidiary as a result of a transaction or designation permitted hereunder and (ii) upon the request of the Borrower and pursuant to documentation reasonably acceptable to the Administrative Agent and/or Collateral Agent, to subordinate any Lien on any property granted to or held by the Administrative Agent or the Collateral Agent under any Loan Document to the holder of any Lien on such property that is permitted under clause (f) or (h) of the definition of Permitted Encumbrances.
Appears in 1 contract
Collateral Matters. (a) The Lenders hereby irrevocably authorize the Collateral Agent to release any Lien upon any Collateral (i) upon The Collateral Custodian agrees to cooperate with the termination Administrative Agent, Facility Servicer and the Portfolio Asset Servicer regarding the delivery of any Portfolio Asset File to the Facility Servicer, Portfolio Asset Servicer or Administrative Agent (pursuant to a written request in the form of Exhibit G), as applicable, as requested in order to take any action that the Administrative Agent (acting at the direction of the Commitments and payment and satisfaction Majority Lenders) or the Facility Servicer deems necessary or desirable in full order to perfect, protect or more fully evidence the security interests granted by the Borrower hereunder, or to enable any of all Obligations (other than contingent indemnity obligations them to exercise or enforce any of their respective rights hereunder, including any rights arising with respect to then unasserted claims)Article VI. In the event the Collateral Custodian receives instructions from the Facility Servicer or the Portfolio Asset Servicer which conflict with any instructions received by the Administrative Agent, all Letters of Credit the Collateral Custodian shall have expired or terminated (or been collateralized in a manner satisfactory to rely on and follow the applicable Issuing Bank) and all Letter of Credit Outstandings have been reduced to zero (or collateralized in a manner satisfactory to instructions given by the applicable Issuing Bank), or Administrative Agent.
(ii) constituting property being sold, transferred or disposed of in a Permitted Disposition upon receipt by the The Administrative Agent (acting at the direction of the Net Proceeds thereof Majority Lenders) may direct the Collateral Custodian to take any such incidental action hereunder. With respect to other actions which are incidental to the extent required by this Agreement. Except as provided aboveactions specifically delegated to the Collateral Custodian hereunder, the Collateral Agent will not release any of the Collateral Agent’s Liens without the prior written authorization of the Applicable Lenders. Upon request by any Agent or any Loan Party at any time, the Lenders will confirm in writing the Collateral Agent’s authority to release any Liens upon particular types or items of Collateral pursuant to this SECTION 8.16.
(b) Upon at least two (2) Business Days’ prior written request by the Lead Borrower, 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 Liens upon any Collateral described in SECTION 8.16(a); provided, however, that (i) the Collateral Agent Custodian shall not be required to execute take any such document on terms whichincidental action hereunder, but shall be required to act or to refrain from acting (and 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 or otherwise if the taking of such action, in its the reasonable opiniondetermination of the Collateral Custodian, would, under (A) shall be in violation of any Applicable Law, Law or contrary to any provisions of this Agreement or (B) shall expose the Collateral Agent Custodian to liability hereunder or create any obligation 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 Administrative Agent and the Collateral Custodian does not receive a consent (either positive or entail any adverse consequence other than negative) from the release Administrative Agent within ten Business Days of its receipt of such Liens without recourse or warrantyrequest, and then the Administrative Agent shall be deemed to have declined to consent to the relevant action.
(iiiii) such release The Collateral Custodian shall not be liable for any action taken, suffered or omitted by it in any manner discharge, affect accordance with the request or impair the Obligations or any Liens (other than those expressly being released) upon (or obligations direction of any Loan Party in respect of) all interests retained by any Loan Secured Party, including (without limitation) to the proceeds extent that this Agreement provides such Secured Party the right to so direct the Collateral Custodian, or the Administrative Agent. The Collateral Custodian shall not be deemed to have notice or knowledge of any salematter hereunder, all including an Event of which shall continue to constitute part Default, unless a Responsible Officer of the CollateralCollateral Custodian has actual knowledge of such matter or written notice thereof is received by the Collateral Custodian. NAI-1528532842v5
(iv) In performing its duties, the Collateral Custodian shall comply with the standard of care and express terms of this Agreement with respect to the collateral that it holds hereunder.
Appears in 1 contract
Sources: Loan and Servicing Agreement (ACRES Commercial Realty Corp.)
Collateral Matters. (a) The Lenders hereby irrevocably authorize the Collateral Agent Administrative Agent, to release any Lien upon on any Collateral (i) upon the termination of the Commitments and payment and satisfaction in full by Borrower of all Obligations (Obligations; and upon such termination and payment Administrative Agent shall deliver to Borrower, at Borrower's sole cost and expense, all UCC termination statements and any other than contingent indemnity obligations documents necessary to terminate the Loan Documents and release the Liens with respect to then unasserted claims), all Letters of Credit shall have expired or terminated (or been collateralized in a manner satisfactory to the applicable Issuing Bank) and all Letter of Credit Outstandings have been reduced to zero (or collateralized in a manner satisfactory to the applicable Issuing Bank), or Collateral; (ii) constituting property being sold, transferred 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 is permitted under SECTION 7.4 of this Agreement or the other Loan Documents (and Administrative Agent may rely conclusively on any such certificate, without further inquiry); (iii) constituting property in which Borrower owned no interest at the time the Lien was granted or at any time thereafter; or (iv) constituting property leased to Borrower under a lease that has expired or been terminated in a Permitted Disposition upon receipt by the Administrative Agent of the Net Proceeds thereof to the extent required by transaction permitted under this Agreement. Except as provided above, the Collateral Administrative Agent will not release any of the Lien on any Collateral Agent’s Liens without the prior written authorization of the Applicable Lenders. Upon request by any Administrative Agent or any Loan Party Borrower at any time, the Lenders will confirm in writing the Collateral Administrative Agent’s 's authority to release any such Liens upon on particular types or items of Collateral pursuant to this SECTION 8.16.
(b) Upon at least two (2) Business Days’ prior written request by the Lead Borrower17.11; PROVIDED, 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 Liens upon any Collateral described in SECTION 8.16(a); provided, howeverHOWEVER, that (i) the Collateral Administrative Agent shall not be required to execute any document necessary to evidence such document release on terms whichthat, in its reasonable Administrative Agent's opinion, would, under Applicable Law, would expose the Collateral Administrative Agent to liability or create any obligation or entail any adverse consequence other than the release of such Liens Lien without recourse recourse, representation, or warranty, and (ii) such release shall not in any manner discharge, affect or impair the Obligations or any Liens (other than those expressly being released) ), upon (or obligations of any Loan Party Borrower in respect of) all interests retained by any Loan PartyBorrower, including (without limitation) including, the proceeds of any sale, all of which shall continue to constitute part of the Collateral.
(b) Administrative Agent shall have no obligation whatsoever to any of the Lenders to assure that the Collateral exists or is owned by Borrower, is cared for, protected, or insured or has been encumbered, or that the Liens of the Administrative Agent (for the benefit of the Lender Group) have been properly or sufficiently or lawfully created, perfected, protected, or enforced or are entitled to any particular priority, or to exercise at all or in any particular manner or under any duty of care, disclosure, or fidelity, or to continue exercising, any of the rights, authorities and powers granted or available to Administrative Agent pursuant to any of the Loan Documents, it being understood and agreed that in respect of the Collateral, or any act, omission or event related thereto, subject to the terms and conditions contained herein, Administrative Agent may act in any manner it may deem appropriate, in its sole discretion given Administrative Agent's own interest in the Collateral in its capacity as one of the Lenders and that Administrative Agent shall have no other duty or liability whatsoever to any Lender as to any of the foregoing, except as otherwise provided herein.
Appears in 1 contract
Collateral Matters. (a) The Lenders hereby irrevocably authorize the Collateral Each Lender authorizes and directs Agent to release enter into the Financing Agreements for the benefit of Lenders. Each Lender hereby agrees that, except as otherwise set forth herein, any Lien upon any Collateral (i) upon action taken by Required Lenders in accordance with the termination provisions of this Agreement or the Financing Agreements, and the exercise by the Required Lenders of the Commitments powers set forth herein or therein, together with such other powers as are reasonably incidental thereto, shall be authorized and payment and satisfaction in full binding upon all Lenders. Agent is hereby authorized on behalf of all Obligations (other than contingent indemnity obligations Lenders, without the necessity of any notice to or further consent from any Lender to take any action with respect to then unasserted claims), all Letters of Credit shall have expired any Collateral or terminated (or been collateralized Financing Agreements which may be necessary to perfect and maintain perfected the security interest in a manner satisfactory to the applicable Issuing Bank) and all Letter of Credit Outstandings have been reduced to zero (or collateralized in a manner satisfactory to the applicable Issuing Bank), or (ii) constituting property being sold, transferred or disposed of in a Permitted Disposition liens upon receipt by the Administrative Agent of the Net Proceeds thereof to the extent required by 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 Applicable Lenders. Upon request by any Agent or any Loan Party at any time, the Lenders will confirm in writing the Collateral Agent’s authority to release any Liens upon particular types or items of Collateral granted pursuant to this SECTION 8.16Agreement and the Financing Agreements.
(b) Agent will not, without the verbal consent of all Lenders, which consent shall (a) be confirmed promptly thereafter in writing and (b) not be unreasonably withheld or delayed, execute any release of Agent's security interest in any Collateral except for releases relating to dispositions of Collateral (x) permitted by this Agreement or (y) in connection with the repayment in full of all of the Liabilities (other than contingent indemnification Liabilities not yet asserted) and the termination of all obligations of Agent and Lenders under this Agreement and the Financing Agreements; provided, that with the consent of Required Lenders, Agent may release its liens on Collateral having a book value not greater than ten percent (10%) of the total book value of all Collateral, as determined by Agent, either in a single transaction or series of related transactions, not to exceed twenty percent (20%) of the book value of all Collateral in any Fiscal Year. Upon at least two payment in full of all of the Liabilities (2other than unasserted contingent indemnification Liabilities), and termination of the Revolving Commitment, Agent shall release the Liens. Agent shall not be required to execute any such release on terms which, in Agent's opinion, would expose Agent to liability or create any obligation or entail any consequence other than the release of such liens and execution or filing of termination statements and releases without recourse or warranty. In the event of any sale or transfer of any of the Collateral, Agent shall be authorized to deduct all of the expenses reasonably incurred by Agent from the proceeds of any such sale or transfer.
(c) Business Days’ prior written request by Lenders hereby agree that the Lead Borrowerlien granted to Agent in any property sold or disposed of in accordance with the provisions of the Agreement shall be automatically released; provided, however that Agent's lien shall attach to and continue for the benefit of Agent and Lenders in the proceeds and products of such property arising from any such sale or disposition.
(d) To the extent, pursuant to the provisions of this Section 9.10, Agent's execution of a release is required (i) to release its lien upon any permitted sale and transfer of Collateral or (ii) to release Liens on all Collateral in connection with the payment in full of all of the Liabilities (other than unasserted contingent indemnification Liabilities) and the termination of the Revolving Commitment hereunder, Agent shall (and is hereby irrevocably authorized by the Lenders to) promptly execute such documents as may be necessary to evidence the release of the Liens liens granted to Agent for the benefit of Lenders herein or pursuant hereto upon any Collateral described in SECTION 8.16(a); provided, however, that (i) the Collateral that was sold or transferred.
(e) Agent shall not be required have any obligation whatsoever to execute Lenders or to any such document on terms whichother Person to assure that the Collateral exists or is owned by Borrower Representative or any of Borrower Representative’s Subsidiaries or is cared for, protected or insured or that the liens granted to Agent herein or pursuant hereto 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 Agent in this Article 9 or in any of the Financing Agreements, it being understood and agreed that in respect of the Collateral, or any act, omission or event related thereto, Agent may act in any manner it may deem appropriate, in its reasonable opinionsole discretion, would, under Applicable Law, expose given Agent's own interest in the Collateral as one of Lenders and that Agent shall have no duty or liability whatsoever to liability Lenders, except for its gross negligence or create willful misconduct.
(f) In the event that any obligation or entail Lender receives any adverse consequence other than the release of such Liens without recourse or warranty, and (ii) such release shall not in any manner discharge, affect or impair the Obligations or any Liens (other than those expressly being released) upon (or obligations of any Loan Party in respect of) all interests retained by any Loan Party, including (without limitation) the proceeds of any saleCollateral by setoff, all exercise of which any banker's lien or otherwise, in an amount in excess of such Lender's Pro Rata Share of such proceeds, such Lender shall continue to constitute part purchase for cash (and other Lenders shall sell) interests in each of such other Lender's Pro Rata Share of the CollateralLiabilities as would be necessary to cause all Lenders to share the amount so set off or otherwise received with each other Lender in accordance with their respective Pro Rata Shares. No Lender shall exercise any right of set off or banker's lien without the prior written consent of Agent.
Appears in 1 contract
Sources: Credit Agreement (Multiband Corp)
Collateral Matters. (a) The Lenders hereby Purchasers irrevocably authorize agree that, from and after the execution and delivery of the Collateral Documents pursuant to Section 6.13, any Lien on any property granted to or held by the Collateral Agent to release under any Lien upon any Collateral Note Document for the benefit of the Secured Parties shall be automatically released (i) upon the termination of the Commitments and payment and satisfaction in full of all Obligations (other than contingent indemnity obligations it being understood and agreed that the conversion in full of a Note by the Holder thereof shall be deemed, for purposes of this Section 9.6, to be a repayment of the entire outstanding principal amount (including all capitalized interest) of such Note together with respect to then unasserted claimsany unpaid accrued interest thereon on the date of such conversion), all Letters of Credit shall have expired or terminated (or been collateralized in a manner satisfactory to the applicable Issuing Bank) and all Letter of Credit Outstandings have been reduced to zero (or collateralized in a manner satisfactory to the applicable Issuing Bank), or (ii) constituting property being soldsubject to Section 10.9, transferred if the release of such Lien is approved, authorized or disposed of ratified in a Permitted Disposition upon receipt writing by the Administrative Agent Purchasers or (iii) upon the sale, transfer or other disposition of any Collateral that is not prohibited by the Net Proceeds thereof to the extent required by 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 Applicable LendersNote Documents. Upon request by any the Collateral Agent or any Loan Party at any timetime from and after the execution and delivery of the Collateral Documents pursuant to Section 6.13, the Lenders Purchasers will confirm in writing the Collateral Agent’s authority to release any Liens upon particular types or items of property. In each case as specified in this Section 9.7, the Collateral Agent will, from and after the execution and delivery of the Collateral Documents pursuant to this SECTION 8.16.
Section 6.13, promptly (b) Upon and each Purchaser irrevocably authorizes the Collateral Agent to), at least two (2) Business Days’ prior written the Company’s expense, execute and deliver to the Company such documents as the Company may reasonably request by to evidence the Lead Borrowerrelease of such item of Collateral from the assignment and security interest granted under the Note Documents. In connection with any such release, the Collateral Agent shall (be entitled to a certificate of a Responsible Officer of the Company stating that such release is authorized and is hereby irrevocably authorized permitted by the Lenders to) execute such documents as may be necessary to evidence the release of the Liens Note Documents, upon any Collateral described in SECTION 8.16(a); provided, however, that (i) which the Collateral Agent may conclusively rely. Each party to this Agreement acknowledges and agrees that the Agents shall not be required have an obligation to execute any such document on terms whichfile financing statements, in its reasonable opinionamendments to financing statements, wouldor continuation statements, under Applicable Law, expose or to perfect or maintain the perfection of the Collateral Agent to liability or create any obligation or entail any adverse consequence other than the release of such Liens without recourse or warranty, and (ii) such release shall not in any manner discharge, affect or impair the Obligations or any Liens (other than those expressly being released) upon (or obligations of any Loan Party in respect of) all interests retained by any Loan Party, including (without limitation) the proceeds of any sale, all of which shall continue to constitute part of Agent’s Lien on the Collateral.
Appears in 1 contract
Sources: Convertible Note Purchase Agreement (Power & Digital Infrastructure Acquisition Corp.)
Collateral Matters. (a) Each Lender and each Issuing Bank hereby authorize the Administrative Agent, 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 Loan Documents which may be necessary to perfect and maintain perfected the Liens upon the Collateral granted pursuant to any of the Loan Documents.
(b) The Lenders and the Issuing Banks hereby irrevocably authorize the Collateral Administrative Agent to release any Lien granted to or held by the Administrative Agent upon any Collateral (i) upon the termination of the Commitments and indefeasible payment and satisfaction in full of all of the Obligations (other than contingent indemnity indemnification obligations with respect to then unasserted claimsfor which no claim has been made or asserted), all Letters of Credit shall have expired or terminated (or been collateralized in a manner satisfactory to the applicable Issuing Bank) and all Letter of Credit Outstandings have been reduced to zero (or collateralized in a manner satisfactory to the applicable Issuing Bank), or ; (ii) constituting property being soldas permitted by, transferred or disposed of but only in a Permitted Disposition upon receipt by accordance with, the Administrative Agent terms of the Net Proceeds thereof to the extent required applicable Loan Document; or (iii) if approved, authorized or ratified in writing by this Agreement. Except all Lenders as provided above, the Collateral Agent will not release any of the Collateral Agent’s Liens without the prior written authorization of the Applicable Lendersunder Section 12.6.(b)(xi). Upon request by any the Agent or any Loan Party at any time, the Lenders and the Issuing Banks will confirm in writing the Collateral Administrative Agent’s authority to release any Liens upon particular types or items of Collateral pursuant to this SECTION 8.16Section.
(bc) Upon any sale and transfer of Collateral which is permitted pursuant to the terms of this Agreement, and upon at least two seven (27) Business Days’ prior written request by the Lead BorrowerBorrower (or within such fewer number of Business Days as the Administrative Agent may agree), the Collateral Administrative Agent shall (and is hereby irrevocably authorized by the Lenders to) execute such documents as may be necessary to evidence the release of the Liens granted to the Administrative Agent for its benefit and the benefit of the Lender Parties herein or pursuant hereto upon any the Collateral described in SECTION 8.16(a)that was sold or transferred; provided, however, that (i) the Collateral Administrative Agent shall not be required to execute any such document on terms which, in its reasonable the Administrative Agent’s opinion, would, under Applicable Law, would expose the Collateral Administrative Agent to liability or create any obligation or entail any adverse consequence other than the release of such Liens without recourse or warranty, warranty and (ii) such release shall not in any manner discharge, affect or impair the Obligations or any Liens (other than those expressly being released) upon (or obligations of the Borrower or any other Loan Party in respect of) all interests retained by any Borrower or any other Loan Party, including (without limitation) the proceeds of any salesuch sale or transfer, all of which shall continue to constitute part of the Collateral. In the event of any sale or transfer of Collateral, or any foreclosure with respect to any of the Collateral, the Administrative Agent shall be authorized to deduct all of the expenses reasonably incurred by the Administrative Agent from the proceeds of any such sale, transfer or foreclosure.
(d) The Administrative Agent shall have no obligation whatsoever to the Lenders, the Issuing Banks or to any other Person to assure that the Collateral exists or is owned by the Borrower or any other Loan Party or is cared for, protected or insured or that the Liens granted to the Administrative Agent pursuant to any of the Loan 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 the Administrative Agent in this Section or in any of the Loan Documents, it being understood and agreed that in respect of the Collateral, or any act, omission or event related thereto, the Administrative Agent may act in any manner it may deem appropriate, in its sole discretion, and that the Administrative Agent shall have no duty or liability whatsoever to the Lenders or the Issuing Banks, except to the extent resulting from its gross negligence or willful misconduct as determined by a court of competent jurisdiction in a final, non-appealable judgment.
(e) In the event that the Loan Parties ▇▇▇▇▇ ▇ ▇▇▇▇ in any real property, the Administrative Agent will endeavor to give at least thirty (30) days’ written notice to the Lenders before taking a Lien in such real property as security for any repayment of the Obligations. Upon the earlier of (i) the expiration of such 30-day period or (b) receipt of confirmation from each Lender that such Lender has completed any necessary flood insurance due diligence to its reasonable satisfaction, the Administrative Agent may accept such Lien on such real property.
Appears in 1 contract
Collateral Matters. (a) The Lenders hereby irrevocably authorize the Collateral Each Lender authorizes and directs Agent to release enter into the other Loan Documents for the benefit of Lenders. Each Lender hereby agrees that, except as otherwise set forth herein, any Lien upon any Collateral action taken by Agent (iwhether in accordance with the instructions of Requisite Lenders or otherwise) upon in accordance with the termination provisions of this Agreement or the other Loan Documents, and the exercise by the Agent of the Commitments powers set forth herein or therein, together with such other powers as are reasonably incidental thereto, shall be authorized and payment and satisfaction in full binding upon all Lenders. Agent is hereby authorized (but not obligated) on behalf of all Obligations (other than contingent indemnity obligations Lenders, without the necessity of any notice to or further consent from any Lender, to take any action with respect to then unasserted claims)any Collateral or other Loan Documents which may be necessary or advisable, all Letters of Credit shall have expired or terminated (or been collateralized in a manner satisfactory Agent’s sole and absolute discretion, to perfect and maintain perfected the applicable Issuing Bank) security interest in and all Letter of Credit Outstandings have been reduced to zero (or collateralized in a manner satisfactory to the applicable Issuing Bank), or (ii) constituting property being sold, transferred or disposed of in a Permitted Disposition liens upon receipt by the Administrative Agent of the Net Proceeds thereof to the extent required by 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 Applicable Lenders. Upon request by any Agent or any Loan Party at any time, the Lenders will confirm in writing the Collateral Agent’s authority to release any Liens upon particular types or items of Collateral granted pursuant to this SECTION 8.16Agreement and the other Loan Documents.
(b) Upon at least two Agent will not, without the verbal consent of all Lenders, which consent shall (i) be confirmed promptly thereafter in writing and (ii) not be unreasonably withheld or delayed, execute any release of Agent's security interest in any Collateral except for releases relating to dispositions of Collateral (x) permitted by this Agreement and (y) in connection with the repayment in full of all of the Liabilities by Borrower and the termination of all obligations of Agent and Lenders under this Agreement and the other Loan Documents; provided, that with the consent of (1) Supermajority Lenders, Agent may release its liens on less than all or substantially all of the Collateral and (2) Business DaysRequisite Lenders, Agent may release its liens on Collateral having a book value not greater than ten percent (10%) of the total book value of all Collateral, as determined by Agent (in its sole and absolute discretion), either in a single transaction or series of related transactions, not to exceed twenty percent (20%) of the book value of all Collateral in any Fiscal Year. Agent shall not be required to execute any such release on terms which, in Agent's opinion, would expose Agent to liability or create any obligation or entail any consequence other than the release of such liens without recourse or warranty. In the event of any sale or transfer of any of the Collateral, Agent shall be authorized to deduct all of the expenses reasonably incurred by Agent from the proceeds of any such sale or transfer.
(c) Lenders hereby agree that the lien granted to Agent in any property sold or disposed of in accordance with the provisions of the Agreement shall be automatically released; provided, however that Agent’s lien shall attach to and continue for the benefit of Agent and Lenders in the proceeds and products of such property arising from any such sale or disposition.
(d) To the extent, pursuant to the provisions of this Section, Agent’s execution of a release is required to release its lien upon any sale and transfer of Collateral which is consented to in writing by Requisite Lenders or all Lenders, as applicable, and upon at least five (5) business days’ prior written request by the Lead Borrower, 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 Liens liens granted to Agent for the benefit of Lenders herein or pursuant hereto upon any Collateral described in SECTION 8.16(a); provided, however, that (i) the Collateral that was sold or transferred.
(e) Notwithstanding anything in this Agreement or the other Loan Documents to the contrary, Agent shall not have any obligation whatsoever to Lenders or to any other Person to assure that the Collateral exists or is owned by Borrower or is cared for, protected or insured or that the liens granted to Agent herein or pursuant hereto 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 Agent in this Section, elsewhere in this Agreement or in any of the other Loan Documents, it being understood and agreed that in respect of the Collateral, or any act, omission or event related thereto, Agent may act in any manner it may deem appropriate, in its sole discretion and that Agent shall have no duty or liability whatsoever to Lenders, except for its gross negligence or willful misconduct.
(f) In the event that any Lender receives any Proceeds of any Collateral by setoff, exercise of any banker’s lien or otherwise, in an amount in excess of such Lender’s Pro Rata Share of such Proceeds, such Lender shall turn the same over to Agent, in kind, and with such endorsements as may be required to execute any such document on terms whichnegotiate the same to Agent or, in its reasonable opinionimmediately available funds, wouldas applicable, under Applicable Law, expose for the Collateral Agent account of all Lenders and for application to liability the Liabilities in accordance with the terms of this Agreement. No Lender shall exercise any right of set off or create any obligation or entail any adverse consequence other than banker’s lien without the release prior written consent of such Liens without recourse or warranty, and (ii) such release shall not in any manner discharge, affect or impair the Obligations or any Liens (other than those expressly being released) upon (or obligations of any Loan Party in respect of) all interests retained by any Loan Party, including (without limitation) the proceeds of any sale, all of which shall continue to constitute part of the CollateralAgent.
Appears in 1 contract
Collateral Matters. (a) The Lenders hereby irrevocably authorize the Collateral Agent to release any Lien upon any All Liens on Collateral (i) shall be automatically released upon the termination of the Commitments and payment and satisfaction in full by Borrowers of all Obligations (other than contingent indemnity obligations with respect to then unasserted claims)Obligations, all Letters of Credit shall have expired or terminated (or been collateralized in a manner satisfactory to the applicable Issuing Bank) and all Letter of Credit Outstandings have been reduced to zero (or collateralized in a manner satisfactory to the applicable Issuing Bank), or (ii) constituting property (including the equity interests of a Subsidiary of Parent) being sold, transferred sold or disposed of in a Permitted Disposition sale or disposition permitted under Section 6.4 of this Agreement or the other Loan Documents shall be automatically released upon receipt by such sale or disposition, and in the Administrative Agent event of a sale or other disposition of all of the Net Proceeds thereof 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 of its obligations under the Loan Documents, (iii) constituting property in which no Loan Party owned any interest at the time the Agent’s Lien was granted nor at any time thereafter shall be automatically released, 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 shall be automatically released. The Lenders hereby irrevocably authorize Collateral Agent to take such actions and execute such documents that it deems necessary or appropriate, at its option and in its sole discretion, to evidence the extent required by this Agreementforegoing 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 Applicable release is of all or substantially all of the Collateral, all of the Lenders, or (z) otherwise, the Required Lenders. Upon request by any Collateral Agent or any Loan Party Administrative Borrower at any time, the Lenders will confirm in writing the Collateral Agent’s authority to release any such Liens upon on particular types or items of Collateral pursuant to this SECTION 8.16.
(b) Upon at least two (2) Business Days’ prior written request by the Lead Borrower, 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 Liens upon any Collateral described in SECTION 8.16(a)Section 15.12; provided, however, that (i1) the Collateral Agent shall not be required to execute any document necessary to evidence such document release on terms whichthat, in its reasonable Collateral Agent’s opinion, would, under Applicable Law, would expose the Collateral Agent to liability or create any obligation or entail any adverse consequence other than the release of such Liens Lien without recourse recourse, representation, or warranty, and (ii2) such release shall not in any manner discharge, affect affect, or impair the Obligations or any Liens (other than those expressly being released) upon (or obligations of any Loan Party Borrowers in respect of) all interests retained by any Loan PartyBorrowers, including (without limitation) including, the proceeds of any sale, all of which shall continue to constitute part of the Collateral.
(b) Collateral Agent agrees, at the request of the Administrative Borrower, to take such actions and execute such documents that are reasonably requested by Administrative Borrower to evidence the release of all Liens on Collateral (i) upon the termination of the 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 if Administrative Borrower certifies to Collateral Agent that the sale or disposition is permitted under Section 6.4 of this Agreement or the other Loan Documents and, in the 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, to evidence the release of such Subsidiary’s obligations under the Loan Documents (and Lenders hereby agree Collateral Agent may rely conclusively on any such certificate, without further inquiry), (iii) constituting property in which no Loan Party owned any interest at the time the Agent’s Lien was granted nor at any time thereafter, and (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. Agents and Lenders agree that after the payment in full of the Term Loan A and the Term B Debt and the receipt by Collateral Agent of evidence, in form and substance reasonably satisfactory to Collateral Agent, that all Liens securing the Term B Debt have been released (or will be released contemporaneously), Collateral Agent shall take such actions and execute such documents that are reasonably requested by Administrative Borrower to evidence the release of all Agent’s Liens on the Stock of Foreign Subsidiaries, Real Property of the US Borrowers and the assets of the US Borrowers referred to in clauses (c), (e), (f), (g), (h), (i), (j), and (k) of Section 2 of the US Security Agreement other than (i) General Intangibles (as defined in the US Security Agreement) relating to Accounts, (ii) Stock of US Loan Parties, (iii) all monetary obligations owed by a Borrower to another Borrower in connection with any intercompany loans or advances and all promissory notes and instruments evidencing any such monetary obligation, loan or advance and (iv) letters of credit, letter of credit rights and Supporting Obligations (as defined in the US Security Agreement) issued in support of Accounts (and, following such release, such assets shall no longer constitute “Collateral” for purposes of the Loan Documents).
(c) Collateral Agent shall have no obligation whatsoever to any of the Lenders to assure that the Collateral exists or is owned by Borrowers or is cared for, protected, or insured or has been encumbered, or that the Agent’s Liens have been properly or sufficiently or lawfully created, perfected, protected, or enforced or are entitled to any particular priority, or to exercise at all or in any particular manner or under any duty of care, disclosure or fidelity, or to continue exercising, any of the rights, authorities and powers granted or available to Collateral Agent pursuant to any of the Loan Documents, it being understood and agreed that in respect of the Collateral, or any act, omission, or event related thereto, subject to the terms and conditions contained herein, Collateral Agent may act in any manner it may deem appropriate, in its sole discretion given Collateral Agent’s own interest in the Collateral in its capacity as one of the Lenders and that Collateral Agent shall have no other duty or liability whatsoever to any Lender as to any of the foregoing, except as otherwise provided herein.
Appears in 1 contract
Sources: Credit Agreement (Sitel Corp)
Collateral Matters. (a) The Lenders hereby irrevocably authorize the Collateral Agent Agent, at its option and in its discretion, to release any Lien granted to or held by the Collateral Agent upon any Collateral (i) upon the termination of the Commitments and payment and satisfaction in full of all Obligations (other than contingent indemnity obligations with respect to then unasserted claims), all Letters of Credit shall have expired or terminated (or been collateralized in a manner satisfactory to the applicable Issuing Bank) Loans and all Letter of Credit Outstandings other Obligations which have matured and which the Collateral Agent has been reduced to zero (notified in writing are then due and payable; or collateralized in a manner satisfactory to the applicable Issuing Bank), or (ii) constituting property being sold, transferred sold or disposed of in a Permitted Disposition upon receipt compliance with the terms of this Agreement and the other Loan Documents; or constituting property in which the Loan Parties owned no interest at the time the Lien was granted or at any time thereafter; or if approved, authorized or ratified in writing by the Administrative Agent of the Net Proceeds thereof to the extent required by 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 Applicable Lenders. Upon request by any the Collateral Agent or any Loan Party at any time, the Lenders will confirm in writing the Collateral Agent’s authority to release any Liens upon particular types or items of Collateral pursuant to this SECTION 8.16Section 10.08(a).
(b) 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(a)), each Lender agrees to confirm in writing, upon request by the Collateral Agent, the authority to release Collateral conferred upon the Collateral Agent under Section 10.08(a). Upon at least two (2) Business Days’ receipt by the Collateral Agent of confirmation from the Lenders of its authority to release any particular item or types of Collateral, and upon prior written request by the Lead Borrowerany 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 Liens granted to the Collateral Agent for the benefit of the Lenders upon any Collateral described in SECTION 8.16(a)such Collateral; provided, however, that (i) the Collateral Agent shall not be required to execute any such document on terms which, in its reasonable the Collateral Agent’s opinion, would, under Applicable Law, would expose the Collateral Agent to liability or create any obligation obligations or entail any adverse consequence other than the release of such Liens without recourse or warranty, and (ii) such release shall not in any manner discharge, affect or impair the Obligations or any Liens (other than those expressly being released) Lien upon (or obligations of any Loan Party in respect of) all interests in the Collateral retained by any Loan Party.
(c) 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, including (without limitation) protected or insured or has been encumbered or that the proceeds Lien granted to the Collateral Agent pursuant to this Agreement or any other Loan Document has been properly or sufficiently or lawfully created, perfected, protected or enforced or is entitled to any particular priority, or to exercise at all or in any particular manner or under any duty of care, disclosure or fidelity, or to continue exercising, any saleof the rights, all of which shall continue authorities and powers granted or available to constitute part the Collateral Agent in this Section 10.08 or in any other Loan Document, it being understood and agreed that in respect of the Collateral, or any act, omission or event related thereto, the Collateral Agent may act in any manner it may deem appropriate, in its sole discretion, given the Collateral Agent’s own interest in the Collateral as one of the Lenders and that the Collateral Agent shall have no duty or liability whatsoever to any other Lender, except as otherwise provided herein.
Appears in 1 contract
Collateral Matters. (a) The Lenders hereby BANKS irrevocably authorize the Collateral Agent COLLATERAL AGENT, upon the direction of the ADMINISTRATIVE AGENT, to release any Lien mortgage, deed of trust, pledge, lien, security interest or other charge or encumbrance of any nature on any property granted to or held by the COLLATERAL AGENT under any LOAN DOCUMENT upon BORROWER’s full and final satisfaction of the OBLIGATIONS. Upon request by the COLLATERAL AGENT at any Collateral time, the BANKS will confirm in writing the COLLATERAL AGENT’s authority to release its interest in particular types or items of property pursuant to this Section 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) upon the termination of the Commitments and payment and satisfaction in full of all Obligations (other than contingent indemnity obligations ascertaining or taking action with respect to then unasserted claims)calls, all Letters 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 Credit shall have expired or terminated (or been collateralized in a manner satisfactory to the applicable Issuing Bank) and all Letter of Credit Outstandings have been reduced to zero (or collateralized in a manner satisfactory to the applicable Issuing Bank)such matters, or (ii) constituting property being sold, transferred taking any necessary steps to preserve rights against prior parties or disposed 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 a Permitted Disposition upon receipt 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 Administrative Agent of the Net Proceeds thereof COLLATERAL AGENT need not be segregated from other assets except to the extent required by this Agreementlaw. Except 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 provided aboveit may see fit and, if the Collateral Agent will not release 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 Collateral Agent’s Liens without rights or powers vested in it by the prior written authorization LOAN DOCUMENTS at the request, order or direction of the Applicable Lenders. Upon request by any Agent BANKS unless such BANKS have offered to the COLLATERAL AGENT security or any Loan Party at any timeindemnity reasonably satisfactory to the COLLATERAL AGENT against the costs, the Lenders will confirm in writing the Collateral Agent’s authority to release any Liens upon particular types or items of Collateral pursuant to this SECTION 8.16.
(b) Upon at least two (2) Business Days’ prior written request by the Lead Borrower, the Collateral Agent shall (expenses and is hereby irrevocably authorized by the Lenders to) execute such documents as liabilities that may be necessary to evidence the release of the Liens upon any Collateral described incurred by it in SECTION 8.16(a); providedcompliance with such request, however, that (i) the Collateral Agent order or direction. The COLLATERAL AGENT shall not be required to execute 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 document on terms whichrequest 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 its reasonable opinionthe name of BORROWER, wouldany item, under Applicable Lawhowsoever received by the COLLATERAL AGENT, expose the Collateral Agent to liability representing any payment on or create any obligation or entail any adverse consequence other than the release of such Liens without recourse or warranty, and (ii) such release shall not in any manner discharge, affect or impair the Obligations or any Liens (other than those expressly being released) upon (or obligations of any Loan Party in respect of) all interests retained by any Loan Party, including (without limitation) the proceeds of any sale, all of which shall continue to constitute part of the Collateralcollateral for the LOANS.
Appears in 1 contract
Collateral Matters. (a) The Lenders hereby irrevocably authorize the Collateral Agent Agent, at the direction of the Required Lenders, to release any Lien granted to or held by the Collateral Agent upon any Collateral (i) upon the termination of the Commitments and payment and satisfaction in full of all Obligations (other than contingent indemnity obligations with respect to then unasserted claims), all Letters of Credit shall have expired or terminated (or been collateralized in a manner satisfactory to the applicable Issuing Bank) Loans and all Letter of Credit Outstandings have been reduced to zero (other Obligations in accordance with the terms hereof; or collateralized in a manner satisfactory to the applicable Issuing Bank), or (ii) constituting property being sold, transferred sold or disposed of in a Permitted Disposition upon receipt compliance with the terms of this Agreement and the other Loan Documents; or constituting property in which the Loan Parties owned no interest at the time the Lien was granted or at any time thereafter; or if approved, authorized or ratified in writing by the Administrative Agent of the Net Proceeds thereof to the extent required by 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 Applicable Lenders. Upon request by any the Collateral Agent or any Loan Party at any time, the Lenders will confirm in writing the Collateral Agent’s authority to release any Liens upon particular types or items of Collateral pursuant to this SECTION 8.16Section 8.08(a).
(b) 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 8.08(a)), each Lender agrees to confirm in writing, upon request by the Collateral Agent, the authority to release Collateral conferred upon the Collateral Agent under Section 8.08(a). Upon at least two (2) Business Days’ receipt by the Collateral Agent of confirmation from the Lenders of its authority to release any particular item or types of Collateral, and upon prior written request by the Lead Borrowerany 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 Liens granted to the Collateral Agent for the benefit of the Lenders upon any Collateral described in SECTION 8.16(a)such Collateral; provided, however, that (i) the Collateral Agent shall not be required to execute any such document on terms which, in its reasonable the Collateral Agent’s opinion, would, under Applicable Law, would expose the Collateral Agent to liability or create any obligation obligations or entail any adverse consequence other than the release of such Liens without recourse or warranty, and (ii) such release shall not in any manner discharge, affect or impair the Obligations or any Liens (other than those expressly being released) Lien upon (or obligations of any Loan Party in respect of) all interests in the Collateral retained by any Loan Party.
(c) 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, including (without limitation) protected or insured or has been encumbered or that the proceeds Lien granted to the Collateral Agent pursuant to this Agreement or any other Loan Document has been properly or sufficiently or lawfully created, perfected, protected or enforced or is entitled to any particular priority, or to exercise at all or in any particular manner or under any duty of care, disclosure or fidelity, or to continue exercising, any saleof the rights, all of which shall continue authorities and powers granted or available to constitute part the Collateral Agent in this Section 8.08 or in any other Loan Document, it being understood and agreed that in respect of the Collateral, or any act, omission or event related thereto, the Collateral Agent may act in any manner it may deem appropriate, in its sole discretion, given the Collateral Agent’s own interest in the Collateral as one of the Lenders and that the Collateral Agent shall have no duty or liability whatsoever to any other Lender, except as otherwise provided herein.
Appears in 1 contract
Collateral Matters. (a) The Lenders hereby irrevocably authorize the Collateral Agent to release any Lien upon any Collateral (i) upon the termination applicable requirements of Section 6.20 of the Commitments and payment and satisfaction Credit Agreement shall complied with substantially concurrently with the consummation of the Specified Transactions on the Specified Acquisition Tranche Funding Date with respect to subsidiaries organized in, or Collateral located in, the United States that are a part of the Specified Acquisition Targets; provided that to the extent any security interest in full of all Obligations the intended Collateral (other than contingent indemnity obligations 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 then unasserted claimswhich the Parent has not received such certificates from the Specified Acquisition Sellers after the use of commercially reasonable efforts to obtain such certificates)) is not provided on the Specified Acquisition Tranche Funding Date after the Parent’s use of commercially reasonable efforts to do so without undue burden or expense, all Letters the provision of Credit such EXECUTION VERSION perfected security interest(s) shall have expired or terminated (or been collateralized in not constitute a manner satisfactory condition precedent to the applicable Issuing Bank) and all Letter of Credit Outstandings have been reduced to zero (or collateralized in a manner satisfactory to the applicable Issuing Bank), or (ii) constituting property being sold, transferred or disposed of in a Permitted Disposition upon receipt by the Administrative Agent funding of the Net Proceeds thereof Specified Acquisition Loans but (to the extent perfected Collateral is required by this Agreement. Except as provided above, under the Collateral Agent will not release any of Credit Agreement or the Collateral Agent’s Liens without the prior written authorization of the Applicable Lenders. Upon request by any Agent or any other Loan Party at any time, the Lenders will confirm in writing the Collateral Agent’s authority to release any Liens upon particular types or items of Collateral pursuant to this SECTION 8.16.
(bDocuments) Upon at least two (2) Business Days’ prior written request by the Lead Borrower, 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 Liens upon any Collateral described in SECTION 8.16(a); provided, however, that (i) the Collateral Agent shall not be required to execute be delivered after the Specified Acquisition Tranche Funding Date pursuant to any such document applicable requirements of Section 6.20 of the Credit Agreement. To the extent any security interest in the intended Collateral is not provided on terms whichthe Specified Acquisition Tranche Funding Date after the Parent’s use of commercially reasonable efforts to do so without undue burden or expense, in its reasonable opinion, would, under Applicable Law, expose the Collateral Agent to liability or create any obligation or entail any adverse consequence other than the release provision of such Liens without recourse or warranty, and (iiperfected security interest(s) such release shall not in any manner discharge, affect or impair constitute a condition precedent to the Obligations or any Liens (other than those expressly being released) upon (or obligations of any Loan Party in respect of) all interests retained by any Loan Party, including (without limitation) the proceeds of any sale, all of which shall continue to constitute part funding of the CollateralSpecified Acquisition Loans but shall be required to be delivered after the Specified Acquisition Tranche Funding Date pursuant to arrangements and timing to be mutually agreed between the Parent and the Administrative Agent.
Appears in 1 contract
Sources: Specified Acquisition Loan Joinder (Casella Waste Systems Inc)
Collateral Matters. Following a Collateral Trigger Event, each Loan Party that owns OP Units at such time or at any time thereafter (each such Loan Party, a “Pledgor”) shall promptly (and in any event within 90 days of the 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 Party following a Collateral Trigger Event and all proceeds thereof and rights thereunder (subject to (i) 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 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) an opinion of Milbank LLP, counsel to 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 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) The Lenders hereby irrevocably authorize the Collateral Agent perfect any security interests, or make any filings or take any other actions necessary or desirable to release perfect and protect security interests, in Excluded Assets, (b) enter into any Lien upon any Collateral (i) upon the termination of the Commitments and payment and satisfaction in full of all Obligations control agreement or control or similar arrangement (other than contingent indemnity obligations with respect to then unasserted claimsdelivery of stock certificates), all Letters (c) grant any Lien in, those assets as to which (A) the cost, burden, difficulty or consequence of Credit shall have expired obtaining or terminated perfecting such Lien (including any mortgage, stamp, intangibles or been collateralized 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 a manner satisfactory contemplation of such acquisition or applicable law (in each case, after giving effect to the applicable Issuing Bank) and all Letter anti-assignment provisions of Credit Outstandings have been reduced to zero (the UCC or collateralized in a manner satisfactory to the other applicable Issuing Banklaw), or (iiC) constituting property being sold, transferred or disposed of in a Permitted Disposition upon receipt such Lien would be prohibited by the Administrative Agent of the Net Proceeds thereof to the extent required by 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 Applicable Lenders. Upon request by any Agent or any Loan Party at any time, the Lenders will confirm in writing the Collateral Agent’s authority to release any Liens upon particular types or items of Collateral pursuant to this SECTION 8.16.
MGM Growth Properties Operating Partnership LP Agreement (b) Upon at least two (2) Business Days’ prior written request by the Lead Borrower, 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 Liens upon any Collateral described in SECTION 8.16(a); provided, however, that the 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 extent necessary to enable a Loan Party to ▇▇▇▇▇ ▇ ▇▇▇▇ in the OP Units owned by such Loan Party) or (iD) the Collateral Agent indentures governing the Company’s senior notes would require that such notes be equally and ratably secured by the OP Units owned by the Loan Parties in accordance with the terms of such indentures, and (d) no actions shall not be required to execute be taken in order to create, grant or perfect any such document on terms which, in its reasonable opinion, would, under Applicable Law, expose the Collateral Agent to liability or create any obligation or entail any adverse consequence other than the release of such Liens without recourse or warranty, and (ii) such release shall not security interest in any manner discharge, affect or impair the Obligations or any Liens (other than those expressly being released) upon (or obligations of any Loan Party in respect of) all interests retained by any Loan Party, including (without limitation) the proceeds of any sale, all of which shall continue to constitute part assets located outside of the CollateralU.S. and no foreign law security or pledge agreements, foreign law mortgages or deeds or foreign intellectual property filings or searches shall be required.
Appears in 1 contract
Collateral Matters. (i) Each Lender authorizes and directs Agent to enter into the Other Agreements for the benefit of Lenders. Each Lender hereby agrees that, except as otherwise set forth herein, any action taken by Requisite Lenders in accordance with the provisions of this Agreement or the Other Agreements, and the exercise by the Requisite 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 Other Agreements which may be necessary to perfect and maintain perfected the security interest in and liens upon the Collateral granted pursuant to this Agreement and the Other Agreements.
(ii) Agent will not, without the verbal consent of all Lenders, which consent shall (a) The Lenders hereby irrevocably authorize the Collateral Agent to be confirmed promptly thereafter in writing and (b) not be unreasonably withheld or delayed, execute any release any Lien upon of Agent's security interest in any Collateral except for releases relating to dispositions of Collateral (ix) upon permitted by this Agreement and (y) in connection with the termination of the Commitments and payment and satisfaction repayment in full of all Obligations of the Liabilities by Borrowers and the termination of all obligations of Agent and Lenders under this Agreement and the Other Agreements; provided, that with the consent of Requisite Lenders, Agent may release its liens on Collateral having a book value not greater than ten percent (10%) of the total book value of all Collateral, as determined by Agent, either in a single transaction or series of related transactions, not to exceed twenty percent (20%) of the book value of all Collateral in any Fiscal Year. Agent shall not be required to execute any such release on terms which, in Agent's opinion, would expose Agent to liability or create any obligation or entail any consequence other than contingent indemnity obligations with respect the release of such liens without recourse or warranty. In the event of any sale or transfer of any of the Collateral, Agent shall be authorized to then unasserted claims), deduct all Letters of Credit shall have expired the expenses reasonably incurred by Agent from the proceeds of any such sale or terminated transfer.
(or been collateralized iii) Lenders hereby agree that the lien granted to Agent in a manner satisfactory to the applicable Issuing Bank) and all Letter of Credit Outstandings have been reduced to zero (or collateralized in a manner satisfactory to the applicable Issuing Bank), or (ii) constituting any property being sold, transferred sold or disposed of in a Permitted Disposition upon receipt by accordance with the Administrative Agent provisions of the Net Proceeds thereof Agreement shall be automatically released; provided, however that Agent's lien shall attach to and continue for the extent required by this Agreement. Except as provided above, benefit of Agent and Lenders in the Collateral Agent will not release proceeds and products of such property arising from any of the Collateral Agent’s Liens without the prior written authorization of the Applicable Lenders. Upon request by any Agent such sale or any Loan Party at any time, the Lenders will confirm in writing the Collateral Agent’s authority to release any Liens upon particular types or items of Collateral pursuant to this SECTION 8.16disposition.
(biv) Upon To the extent, pursuant to the provisions of this subsection 20(j), Agent's execution of a release is required to release its lien upon any sale and transfer of Collateral which is consented to in writing by Requisite Lenders or all Lenders, as applicable, and upon at least two five (25) Business Days’ business days' prior written request by the Lead BorrowerBorrower Representative, 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 Liens liens granted to Agent for the benefit of Lenders herein or pursuant hereto upon any Collateral described in SECTION 8.16(a); provided, however, that (i) the Collateral that was sold or transferred.
(v) Agent shall not be required have any obligation whatsoever to execute Lenders or to any such document on terms whichother Person to assure that the Collateral exists or is owned by Borrowers or any other Obligor or is cared for, protected or insured or that the liens granted to Agent herein or pursuant hereto 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 Agent in this Section 20 or in any of the Other Agreements, it being understood and agreed that in respect of the Collateral, or any act, omission or event related thereto, Agent may act in any manner it may deem appropriate, in its reasonable opinionsole discretion, would, under Applicable Law, expose given Agent's own interest in the Collateral as one of Lenders and that Agent shall have no duty or liability whatsoever to liability Lenders, except for its gross negligence or create willful misconduct.
(vi) In the event that any obligation Lender receives any Proceeds of any Collateral by setoff, exercise of any banker's lien or entail any adverse consequence other than the release otherwise, in an amount in excess of such Liens without recourse or warrantyLender's Pro Rata Share of such Proceeds, such Lender shall purchase for cash (and (iiother Lenders shall sell) interests in each of 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 Loan Party in respect of) all interests retained by any Loan Party, including (without limitation) the proceeds of any sale, all of which shall continue to constitute part Lender's Pro Rata Share of the CollateralLiabilities as would be necessary to cause all Lenders to share the amount so set off or otherwise received with each other Lender in accordance with their respective Pro Rata Shares. No Lender shall exercise any right of set off or banker's lien without the prior written consent of Agent.
Appears in 1 contract
Sources: Loan and Security Agreement (Amcon Distributing Co)
Collateral Matters. (a) The Lenders hereby irrevocably authorize the Collateral Agent to release any Lien upon any Collateral (i) upon The Collateral Custodian agrees to cooperate with the termination Administrative Agent, the Calculation Agent 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 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 Commitments and payment and satisfaction Administrative Agent or the Calculation Agent deems necessary or reasonably desirable in full order to perfect, protect or more fully evidence the security interests granted by the Borrower hereunder, or to enable any of all Obligations (other than contingent indemnity obligations them to exercise or enforce any of their respective rights hereunder or under any Transaction Document, including any rights arising with respect to then unasserted claims)Article VI. In the event the Collateral Custodian receives instructions from the Applicable Servicer which conflict with any instructions received by the Administrative Agent, all Letters of Credit the Collateral Custodian shall have expired or terminated (or been collateralized in a manner satisfactory to rely on and follow the applicable Issuing Bank) and all Letter of Credit Outstandings have been reduced to zero (or collateralized in a manner satisfactory to instructions given by the applicable Issuing Bank), or Administrative Agent.
(ii) constituting property being sold, transferred or disposed of in a Permitted Disposition upon receipt by the The Administrative Agent of may direct the Net Proceeds thereof Collateral Custodian to take any such incidental action hereunder. With respect to other actions which are incidental to the extent required by this Agreement. Except as provided aboveactions specifically delegated to the Collateral Custodian hereunder, the Collateral Agent will not release any of the Collateral Agent’s Liens without the prior written authorization of the Applicable Lenders. Upon request by any Agent or any Loan Party at any time, the Lenders will confirm in writing the Collateral Agent’s authority to release any Liens upon particular types or items of Collateral pursuant to this SECTION 8.16.
(b) Upon at least two (2) Business Days’ prior written request by the Lead Borrower, 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 Liens upon any Collateral described in SECTION 8.16(a); provided, however, that (i) the Collateral Agent Custodian shall not be required to execute take any such document on terms whichincidental action hereunder, but shall be required to act or to refrain from acting (and shall be fully protected in acting or refraining from acting) upon the direction of the -102- 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 or otherwise if the taking of such action, in its the reasonable opiniondetermination of the Collateral Custodian, would, under (A) shall be in violation of any Applicable Law, Law or contrary to any provisions of this Agreement or (B) shall expose the Collateral Agent Custodian to liability hereunder or create any obligation 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 Administrative Agent and the Collateral Custodian does not receive a consent (either positive or entail any adverse consequence other than negative) from the release Administrative Agent within 10 Business Days of its receipt of such Liens without recourse or warrantyrequest, and then the Administrative Agent shall be deemed to have declined to consent to the relevant action.
(iiiii) such release The Collateral Custodian shall not be liable for any action taken, suffered or omitted by it in any manner discharge, affect accordance with the request or impair the Obligations or any Liens (other than those expressly being released) upon (or obligations direction of any Loan Party in respect of) all interests retained by any Loan Secured Party, including (without limitation) to the proceeds extent that this Agreement provides such Secured Party the right to so direct the Collateral Custodian, or the Administrative Agent. The Collateral Custodian shall not be deemed to have notice or knowledge of any salematter hereunder, all including an Event of which shall continue to constitute part Default, unless a Responsible Officer of the CollateralCollateral Custodian has knowledge of such matter or written notice thereof is received by the Collateral Custodian.
Appears in 1 contract
Collateral Matters. (a) The Lenders hereby irrevocably authorize the Collateral Agent to to, and promptly after the Administrative Borrower's written request and at the sole cost and expense of the Borrowers (and without recourse, representation or warranty of any kind) the Collateral Agent shall, release any Lien granted to or held by the Collateral Agent upon any Collateral (i) upon the termination of the Commitments Total Commitment and payment and satisfaction in full of all Loans and all other Obligations in accordance with the terms hereof (other than contingent indemnity obligations with respect to then unasserted claimsContingent Indemnification Obligations), all Letters of Credit shall have expired ; or terminated (or been collateralized in a manner satisfactory to the applicable Issuing Bank) and all Letter of Credit Outstandings have been reduced to zero (or collateralized in a manner satisfactory to the applicable Issuing Bank), or (ii) constituting property being sold, transferred sold or disposed of in a Permitted Disposition upon receipt the ordinary course of any Loan Party's business or otherwise in compliance with the terms of this Agreement and the other Loan Documents; or constituting property in which the Loan Parties owned no interest at the time the Lien was granted or at any time thereafter; or if approved, authorized or ratified in writing by the Administrative Agent of the Net Proceeds thereof to the extent required by 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 Applicable Lenders. Upon request by any the Collateral Agent or any Loan Party at any time, the Lenders will confirm in writing the Collateral Agent’s 's authority to release any Liens upon particular types or items of Collateral pursuant to this SECTION 8.16Section 10.08(a).
(b) 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(a)), each Lender agrees to confirm in writing, upon request by the Collateral Agent, the authority to release Collateral conferred upon the Collateral Agent under Section 10.08(a). Upon at least two (2) Business Days’ receipt by the Collateral Agent of confirmation from the Lenders and/or the Required Lenders, as applicable, of its authority to release any particular item or types of Collateral, and upon prior written request by the Lead Borrowerany 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 Liens granted to the Collateral Agent for the benefit of the Agents and the Lenders upon any Collateral described in SECTION 8.16(a)such Collateral; provided, however, that (i) the Collateral Agent shall not be required to execute any such document on terms which, in its reasonable the Collateral Agent's opinion, would, under Applicable Law, would expose the Collateral Agent to liability or create any obligation obligations or entail any adverse consequence other than the release of such Liens without recourse or warranty, and (ii) such release shall not in any manner discharge, affect or impair the Obligations or any Liens (other than those expressly being released) Lien upon (or obligations of any Loan Party in respect of) all interests in the Collateral retained by any Loan Party.
(c) Anything contained in any of the Loan Documents to the contrary notwithstanding, including the Loan Parties, each Agent and each Lender hereby agree that (without limitationi) no Lender shall have any right individually to realize upon any of the Collateral under any Loan Document or to enforce any Guaranty, it being understood and agreed that all powers, rights and remedies under the Loan Documents may be exercised solely by the Collateral Agent for the benefit of the Lenders in accordance with the terms thereof, (ii) in the event of a foreclosure by the Collateral Agent on any of the Collateral pursuant to a public or private sale, the Administrative Agent, the Collateral Agent or any Lender may be the purchaser of any or all of such Collateral at any such sale and (iii) the proceeds Collateral Agent, as agent for and representative of the Agents and the Lenders (but not any other Agent or any Lender or Lenders in its or their respective individual capacities unless the Required Lenders shall otherwise agree in writing) shall be entitled (either directly or through one or more acquisition vehicles) for the purpose of bidding and making settlement or payment of the purchase price for all or any portion of the Collateral to be sold (A) at any public or private sale, (B) at any sale conducted by the Collateral Agent under the provisions of the Uniform Commercial Code (including pursuant to Sections 9-610 or 9-620 of the Uniform Commercial Code), (C) at any sale or foreclosure conducted by the Collateral Agent (whether by judicial action or otherwise) in accordance with applicable Law or (D) any sale conducted pursuant to the provisions of the Bankruptcy Code (including Section 363 of the Bankruptcy Code), to use and apply all or any of which the Obligations as a credit on account of the purchase price for any Collateral payable by the Collateral Agent at such sale.
(d) The Collateral Agent shall have no obligation whatsoever to any Lender to assure that the Collateral exists or is owned by the Loan Parties or is cared for, protected or insured or has been encumbered or that the Lien granted to the Collateral Agent pursuant to this Agreement or any other Loan Document has been properly or sufficiently or lawfully created, perfected, protected or enforced or is entitled to any particular priority, or to exercise at all or in any particular manner or under any duty of care, disclosure or fidelity, or to continue exercising, any of the rights, authorities and powers granted or available to constitute part the Collateral Agent in this Section 10.08 or in any other Loan Document, it being understood and agreed that in respect of the Collateral, or any act, omission or event related thereto, the Collateral Agent may act in any manner it may deem appropriate, in its sole discretion, given the Collateral Agent's own interest in the Collateral as one of the Lenders, if applicable, and that the Collateral Agent shall have no duty or liability whatsoever to any other Lender, except as otherwise provided herein.
Appears in 1 contract
Sources: Financing Agreement (Dico, Inc.)
Collateral Matters. (a) The Lenders Each of the Credit Parties hereby irrevocably authorize the Collateral Agent to release any Lien upon on any property granted to or held by the Collateral Agent under any Loan Document automatically (i) upon the termination of the Total Commitments and payment and satisfaction in full of all Obligations (other than contingent indemnity obligations with respect to then unasserted claims), indemnification obligations) and the expiration or termination of all Letters of Credit shall have expired or terminated (or been collateralized in a manner satisfactory to the applicable Issuing Bank) and all Letter of Credit Outstandings have been reduced to zero (or collateralized in a manner satisfactory to the applicable Issuing Bank)Credit, or (ii) constituting property being sold, transferred that is sold or otherwise disposed of or to be sold or otherwise disposed of as part of or in connection with any sale or other disposition permitted hereunder or under any other Loan Document to a Permitted Disposition upon receipt by the Administrative Agent of the Net Proceeds thereof Person that is not a Loan Party, (iii) that constitutes “Excluded Property”, (iv) if approved, authorized or ratified in writing in accordance with Section 16.12 or (v) to the extent required that the property constituting such Collateral is owned by this Agreement. Except as provided aboveany Guarantor, upon the Collateral Agent will not release any of the Collateral Agent’s Liens without the prior written authorization of the Applicable Lenderssuch Guarantor from its obligations under its Guaranty. Upon request by any the Collateral Agent or any Loan Party at any time, the Required Lenders will confirm in writing the Collateral Agent’s authority to release any Liens upon or subordinate its interest in particular types or items of property. In each case as specified in this Section 14.13, the Collateral pursuant Agent will, at BGI’s expense, execute and deliver to this SECTION 8.16the applicable Loan Party such documents as such Loan Party may reasonably request to evidence the release of such item of Collateral from the assignment and security interest granted under the Security Documents.
(b) Upon at least two Obligations of BGI or any of its Subsidiaries under Specified Hedge Agreements (2after giving effect to all netting arrangements relating to such Specified Hedge Agreements) Business Days’ prior written request or Cash Management Agreements shall be secured and guaranteed pursuant to the Security Documents only to the extent that, and for so long as, the other Obligations are so secured and guaranteed. No person shall have any voting rights under any Loan Document solely as a result of the existence of obligations owed to it under any such Cash Management Agreement or Specified Hedge Agreement. For the avoidance of doubt, no release of Collateral or Guarantors effected in the manner permitted by this Agreement shall require the consent of any holder of obligations under any Cash Management Agreements or Specified Hedge Agreements.
(c) Each of the Credit Parties hereby agrees to be bound by the Lead Borrowerterms of any Intercreditor Agreement and hereby authorizes and directs the Administrative Agent to enter into any Intercreditor Agreement on behalf of such Credit Party and agrees that the Administrative Agent may take such actions on its behalf as is contemplated by the terms of any Intercreditor Agreement. In addition, each Lender and the Administrative Agent acknowledges and agrees that (a) the rights and remedies of the Administrative Agent, the Collateral Agent shall and Lenders hereunder and under the other Loan Documents are subject to any such Intercreditor Agreement and (b) notwithstanding anything contained in the Loan Documents to the contrary, in the event of a conflict between any provisions in such Intercreditor Agreement and is hereby irrevocably authorized by any provisions in any Loan Document with respect to the Lenders to) execute such documents as may be necessary priority of any liens granted to evidence the release Administrative Agent and Collateral Agent and/or the exercise of any rights and remedies of the Liens upon any Administrative Agent and the Collateral described in SECTION 8.16(a); providedAgent, however, that the Intercreditor Agreement shall control.
(id) the The Collateral Agent shall not be required responsible for or have a duty to execute ascertain or inquire into any such document on terms whichrepresentation or warranty regarding the existence, in its reasonable opinionvalue or collectability of the Collateral, wouldthe existence, under Applicable Law, expose priority or perfection of the Collateral Agent to liability or create any obligation or entail any adverse consequence other than the release of such Liens without recourse or warrantyAgent’s Lien thereon, and (ii) such release shall not in any manner discharge, affect or impair the Obligations or any Liens (other than those expressly being released) upon (or obligations of certificate prepared by any Loan Party in respect of) all interests retained by connection therewith, nor shall the Collateral Agent be responsible or liable to the Lenders for any Loan Party, including (without limitation) the proceeds of failure to monitor or maintain any sale, all of which shall continue to constitute part portion of the Collateral.
Appears in 1 contract
Sources: Credit Agreement (Barnes Group Inc)
Collateral Matters. (a) Except as otherwise set forth herein, any action or exercise of powers by the Agent provided under the Loan Documents, together with such other powers as are reasonably incidental thereto, shall be deemed authorized by and binding upon all of the Lenders. At any time and without notice to or consent from any Lender, the Agent may take any action necessary or advisable to perfect and maintain the perfection of the Liens upon the Collateral.
(b) The Lenders hereby irrevocably authorize the Collateral Agent is authorized to release any Lien granted to or held by it upon any Collateral (i) upon the termination of the Commitments and payment and satisfaction in full of all Obligations (other than contingent indemnity obligations with respect to then unasserted claims)of the Obligations, all Letters of Credit shall have expired or terminated (or been collateralized in a manner satisfactory to the applicable Issuing Bank) and all Letter of Credit Outstandings have been reduced to zero (or collateralized in a manner satisfactory to the applicable Issuing Bank), or (ii) constituting property being soldrequired to be delivered from permitted sales of Collateral hereunder, transferred or disposed of in a Permitted Disposition if any, upon receipt of the proceeds by the Administrative Agent of the Net Proceeds thereof to the extent required by this Agreement. Except as provided above(or, if permitted hereunder, the Collateral applicable Borrower) or (iii) if the release can be and is approved by the Required Lenders (or all the Lenders, if so required under Section 11.5). The Agent will not release any of the Collateral Agent’s Liens without the prior written authorization of the Applicable Lenders. Upon may request by any Agent or any Loan Party at any time, and the Lenders will confirm in writing provide confirmation of the Collateral Agent’s authority to release any Liens upon particular types or items of Collateral pursuant to this SECTION 8.16Collateral.
(bc) Upon any sale or transfer of Collateral which is expressly permitted pursuant to the terms of this Agreement, or consented to in writing by the Required Lenders or all of the Lenders, as applicable, and upon at least two (2) five Business Days’ prior written request by the Lead Borrower, 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 Liens granted to the Agent for the benefit of the Lenders herein or pursuant hereto upon any the Collateral described in SECTION 8.16(a); providedthat was sold or transferred, however, provided that (i) the Collateral Agent shall not be required to execute any such document on terms which, in its the Agent’s reasonable opinion, would, under Applicable Law, would expose the Collateral Agent to liability or create any obligation or entail any adverse consequence other than the release of such Liens without recourse or warranty, warranty and (ii) such release shall not in any manner discharge, affect or impair the Obligations or any Liens (other than those expressly being released) upon (or obligations of any Loan Party the Borrower in respect of) all interests retained by any Loan Partythe Borrower, including (without limitation) the proceeds of any the sale, all of which shall continue to constitute part of the Collateral. In the event of any sale or transfer of Collateral, or any foreclosure with respect to any of the Collateral, the Agent shall be authorized to deduct all of the expenses reasonably incurred by the Agent from the proceeds of any such sale, transfer or foreclosure.
(d) The Agent shall not have any obligation to assure that the Collateral exists or is owned by the Borrower, that the Collateral is cared for, protected or insured, or that the Liens on the Collateral have been created or perfected or have any particular priority. With respect to the Collateral, the Agent may act in any manner it may deem appropriate, in its sole discretion, given NFBC’s own interest in the Collateral as one of the Lenders, and it shall have no duty or liability whatsoever to the Lenders with respect thereto, except for its gross negligence or willful misconduct.
Appears in 1 contract
Sources: Loan and Security Agreement (American Railcar Industries, Inc.)
Collateral Matters. (a) The Each of the Lenders and the other Secured Parties hereby irrevocably authorize and instruct the Administrative Agent and the Collateral Agent (or its designee) to release take the actions to be taken by them as set forth in Sections 7.04 and 10.24. Each Lender hereby agrees, that, except as otherwise set forth herein, any Lien upon any action taken by the Required Lenders (or such greater percentage of Lenders required) in accordance with the provisions of this Agreement or the Collateral Documents, and the exercise by the Required Lenders (ior such greater percentage of Lenders required) upon the termination of the Commitments powers set forth herein or therein, together with such other powers as are reasonably incidental thereto, shall be authorized and payment and satisfaction in full binding upon all of the Lenders. The Collateral Agent is hereby authorized on behalf of all Obligations 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 (other than contingent indemnity obligations but shall have no obligation), to take any action with respect to then unasserted claims), all Letters of Credit shall have expired any Collateral or terminated (or been collateralized Collateral Documents which may be necessary to perfect and maintain perfected the security interest in a manner satisfactory and liens upon the Collateral granted pursuant to the applicable Issuing Bank) and all Letter of Credit Outstandings have been reduced to zero (or collateralized in a manner satisfactory to the applicable Issuing Bank), or (ii) constituting property being sold, transferred or disposed of in a Permitted Disposition upon receipt Collateral Documents. Upon request by the Administrative Agent of the Net Proceeds thereof to the extent required by this Agreement. Except as provided above, or the Collateral Agent will not release any of the Collateral Agent’s Liens without the prior written authorization of the Applicable Lenders. Upon request by any Agent or any Loan Party at any time, the Required Lenders will confirm in writing the Collateral Agent’s authority to release any Liens upon particular types or items of Collateral pursuant to this SECTION 8.16.
Section 9.12. In each case as specified in and subject to the provisions of this Section 9.12, the applicable Agent will (b) Upon and each Lender irrevocably authorizes the applicable Agent to), at least two (2) Business Days’ prior written 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 Collateral Documents, or to evidence the release of such Guarantor from its obligations under the Guaranty, in each case in accordance with the terms of the Loan Documents and this Section 9.12. The Collateral Agent shall have no obligation whatsoever to the Lenders or to any other Person to assure that the Collateral exists or is owned by any Loan Party or is cared for, protected or insured or that the Lead BorrowerLiens 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 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 the Collateral Agent in this Section 9.12, Section 10.24 or in any of the Collateral Documents; it being understood and agreed that in respect of the Collateral, or any act, omission or event related thereto, the Collateral Agent shall 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 is hereby irrevocably authorized 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 to) execute such documents as may be necessary for any failure to evidence the release monitor or maintain any portion of the Collateral, Liens upon any Collateral described therein or financing statements filed in SECTION 8.16(a); provided, however, that (i) the connection therewith. The Collateral Agent shall not be required under any obligation to execute insure any of the Collateral, to require any other person to maintain any insurance, to verify any person or third party’s obligation to arrange or maintain insurance or to otherwise monitor the status or sufficiency of any insurance on any collateral (including flood insurance). The Collateral Agent shall not be responsible for any loss which may be suffered by any person as a result of the lack of or inadequacy of any insurance on any Collateral. Where the Collateral Agent is named on any insurance policy as a loss payee or an insured party, it shall not be responsible for any loss which may be suffered by reason of, directly or indirectly, its failure to notify the insurers of any material fact relating to the Collateral, the risk assumed by the insurers or any insurers or any other information of any kind. In the event that, following a foreclosure in respect of any Mortgaged Property, the Collateral Agent acquirers title to any portion of such document on terms whichMortgaged Property or takes any managerial action of any kind in regard thereto in order to carry out any fiduciary or trust obligation for the benefit of another, which in its reasonable opinion, would, under Applicable Law, expose the Collateral Agent’s sole discretion may cause the Collateral Agent to be considered an “owner or operator” under the provisions of CERCLA or otherwise cause the Agent to incur liability under CERCLA or create any obligation other Federal, state or entail local law, the Collateral Agent reserves the right, instead of taking such action, to either resign as Collateral Agent or arrange for the transfer of the title or control of the assets to a court-appointed receiver. The Collateral Agent reserves the right to conduct an environmental audit prior to foreclosing on any adverse consequence real estate Collateral or Mortgage. 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 release Agents) shall have any right individually to realize upon any of such Liens without recourse the Collateral or warrantyto 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, as applicable, for the benefit of the Secured Parties in accordance with the terms hereof and thereof, and (ii) in the event of a foreclosure or similar enforcement action by the Collateral Agent on any of the 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 any other 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 or any other Debtor Relief Law with similar effect), may be the purchaser or licensor of any or all of such release 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 not in 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 manner dischargeportion of the Collateral sold at any such sale or disposition, affect or impair to use and apply any of the Obligations or any Liens (other than those expressly being released) upon (or obligations of any Loan Party in respect of) all interests retained by any Loan Party, including (without limitation) the proceeds of any sale, all of which shall continue to constitute part as a credit on account of the Collateralpurchase price for any collateral payable by the Collateral Agent at such sale or other disposition.
Appears in 1 contract
Sources: Credit Agreement (Mallinckrodt PLC)
Collateral Matters. Each of the Collateral Agents irrevocably authorize the Foreign Collateral Agent, at its option and in its Permitted Discretion;to release any Lien or any other claim on any Foreign Collateral granted to or held by the Foreign Collateral Agent, for the benefit of the Secured Parties, under any Foreign Collateral Document (A) upon the Discharge of the Notes Obligations and the Discharge of the LC Obligations, as applicable, in which case such Lien shall only be released with respect to the Obligations so Discharged; (B) that is sold or otherwise disposed of or to be sold or otherwise disposed of as part of or in connection with any sale or other disposition permitted hereunder or under the Foreign Collateral Documents, Notes Documents and LC Documents or (C) if approved, authorized or ratified in writing in accordance with Section 6.08(b).
(a) The Lenders hereby irrevocably authorize the Collateral Agent to release any Lien upon any Collateral (i) upon the termination of the Commitments and payment and satisfaction in full of all Obligations (other than contingent indemnity obligations with respect to then unasserted claims), all Letters of Credit shall have expired or terminated (or been collateralized in a manner satisfactory to the applicable Issuing Bank) and all Letter of Credit Outstandings have been reduced to zero (or collateralized in a manner satisfactory to the applicable Issuing Bank), or (ii) constituting property being sold, transferred or disposed of in a Permitted Disposition upon receipt by the Administrative Agent of the Net Proceeds thereof to the extent required by 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 Applicable Lenders. Upon request by any the Foreign Collateral Agent or any Loan Party at any time, the Lenders Controlling Parties will confirm in writing the Foreign Collateral Agent’s authority to release any Liens upon or subordinate its interest in particular types or items of property or take any other action necessary to administer the Foreign Collateral. In each case, as specified in this Section 6.08, the Foreign Collateral pursuant Agent will, at the Grantors’ joint and several expense, execute and deliver to this SECTION 8.16the applicable Grantor such documents as such Grantor may reasonably request to evidence the release of such item of Foreign Collateral from the assignment and security interest granted under the Foreign Collateral Documents or to subordinate its interest in such item, or to release such Grantor from its obligations under the Foreign Collateral Documents, in each case in accordance with the terms hereof and the terms of the Foreign Collateral Documents.
(b) Upon at least two (2) Business Days’ prior written request by the Lead Borrower, 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 Liens upon any Collateral described in SECTION 8.16(a); provided, however, that (i) the The Foreign Collateral Agent shall not be required responsible for or have a duty to execute ascertain or inquire into any such document on terms whichrepresentation or warranty regarding the existence, value or collectability of the Foreign Collateral, the existence, priority or perfection of the Foreign Collateral Agent’s Lien thereon, or any certificate prepared by any Grantor in its reasonable opinionconnection therewith, would, under Applicable Law, expose nor shall the Foreign Collateral Agent be responsible or liable to liability the Secured Parties for any failure to monitor or create maintain any obligation or entail any adverse consequence other than the release of such Liens without recourse or warranty, and (ii) such release shall not in any manner discharge, affect or impair the Obligations or any Liens (other than those expressly being released) upon (or obligations of any Loan Party in respect of) all interests retained by any Loan Party, including (without limitation) the proceeds of any sale, all of which shall continue to constitute part portion of the Foreign Collateral.
Appears in 1 contract
Sources: Intercreditor Agreement (Weatherford International PLC)
Collateral Matters. (a) The Lenders hereby irrevocably authorize the Collateral Each Lender authorizes and directs Agent to release enter into the Other Agreements for the benefit of Lenders. Each Lender hereby agrees that, except as otherwise set forth herein, any Lien upon any Collateral (i) upon action taken by Requisite Lenders in accordance with the termination provisions of this Agreement or the Other Agreements, and the exercise by the Requisite Lenders of the Commitments powers set forth herein or therein, together with such other powers as are reasonably incidental thereto, shall be authorized and payment and satisfaction in full binding upon all Lenders. Agent is hereby authorized on behalf of all Obligations (other than contingent indemnity obligations Lenders, without the necessity of any notice to or further consent from any Lender, to take any action with respect to then unasserted claims), all Letters of Credit shall have expired any Collateral or terminated (or been collateralized Other Agreements which may be necessary to perfect and maintain perfected the security interest in a manner satisfactory to the applicable Issuing Bank) and all Letter of Credit Outstandings have been reduced to zero (or collateralized in a manner satisfactory to the applicable Issuing Bank), or (ii) constituting property being sold, transferred or disposed of in a Permitted Disposition Liens upon receipt by the Administrative Agent of the Net Proceeds thereof to the extent required by 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 Applicable Lenders. Upon request by any Agent or any Loan Party at any time, the Lenders will confirm in writing the Collateral Agent’s authority to release any Liens upon particular types or items of Collateral granted pursuant to this SECTION 8.16Agreement and the Other Agreements.
(b) Upon Agent will not, without the verbal consent of all Lenders, which consent shall (i) be confirmed promptly thereafter in writing and (ii) not be unreasonably withheld or delayed, execute any release of Agent’s security interest in any Collateral except for releases relating to dispositions of Collateral (A) permitted by this Agreement and (B) in connection with the repayment in full of all of the Liabilities by the Credit Parties and the termination of all obligations of Agent and Lenders under this Agreement and the Other Agreements; provided that with the consent of Requisite Lenders, Agent may release its Liens on Collateral having a book value not greater than ten percent (10%) of the total book value of all Collateral, as determined by Agent, either in a single transaction or series of related transactions, not to exceed twenty percent (20%) of the book value of all Collateral in any Fiscal Year. Agent shall not be required to execute any such release on terms which, in Agent’s opinion, would expose Agent to liability or create any obligation or entail any consequence other than the release of such Liens without recourse or warranty. In the event of any sale or transfer of any of the Collateral, Agent shall be authorized to deduct all of the expenses reasonably incurred by Agent from the proceeds of any such sale or transfer.
(c) Lenders hereby agree that the Lien granted to Agent in any property sold or disposed of in accordance with the provisions of the Agreement shall be automatically released; provided, however, that Agent’s Lien shall attach to and continue for the benefit of Agent and Lenders in the proceeds and products of such property arising from any such sale or disposition.
(d) To the extent, pursuant to the provisions of this Section 18.10(d), Agent’s execution of a release is required to release its Lien upon any sale and transfer of Collateral which is consented to in writing by Requisite Lenders or all Lenders, as applicable, and upon at least two five (25) Business Daysbusiness days’ prior written request by the Lead BorrowerBorrower Representative, 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 Liens granted to Agent for the benefit of Lenders herein or pursuant hereto upon any Collateral described in SECTION 8.16(a); provided, however, that (i) the Collateral that was sold or transferred.
(e) Agent shall not be required have any obligation whatsoever to execute Lenders or to any such document on terms whichother Person to assure that the Collateral exists or is owned by the Credit Parties or any other Obligor or is cared for, protected or insured or that the Liens granted to Agent herein or pursuant hereto 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 Agent in this Article 18 or in any of the Other Agreements, it being understood and agreed that in respect of the Collateral, or any act, omission or event related thereto, Agent may act in any manner it may deem appropriate, in its reasonable opinionsole discretion, would, under Applicable Law, expose given Agent’s own interest in the Collateral as one of Lenders and that Agent shall have no duty or liability whatsoever to liability Lenders, except for its gross negligence or create willful misconduct.
(f) In the event that any obligation Lender receives any Proceeds of any Collateral by setoff, exercise of any banker’s Lien or entail any adverse consequence other than the release otherwise, in an amount in excess of such Liens without recourse or warrantyLender’s Pro Rata Share of such Proceeds, such Lender shall purchase for cash (and (iiother Lenders shall sell) interests in each of 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 Loan Party in respect of) all interests retained by any Loan Party, including (without limitation) the proceeds of any sale, all of which shall continue to constitute part Lender’s Pro Rata Share of the CollateralLiabilities as would be necessary to cause all Lenders to share the amount so set off or otherwise received with each other Lender in accordance with their respective Pro Rata Shares. No Lender shall exercise any right of set off or banker’s lien without the prior written consent of Agent.
Appears in 1 contract
Collateral Matters. (i) Each Lender authorizes and directs Agent to enter into the Other Agreements for the benefit of Lenders. Each Lender hereby agrees that, except as otherwise set forth herein, any action taken by Requisite Lenders in accordance with the provisions of this Agreement or the Other Agreements, and the exercise by the Requisite 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 Other Agreements which may be necessary to perfect and maintain perfected the security interest in and liens upon the Collateral granted pursuant to this Agreement and the Other Agreements.
(ii) Agent will not, without the verbal consent of all Lenders, which consent shall (a) The Lenders hereby irrevocably authorize the Collateral Agent to be confirmed promptly thereafter in writing and (b) not be unreasonably withheld or delayed, execute any release any Lien upon of Agent’s security interest in any Collateral except for releases relating to dispositions of Collateral (ix) upon permitted by this Agreement and (y) in connection with the termination of the Commitments and payment and satisfaction repayment in full of all Obligations of the Liabilities by Borrowers and the termination of all obligations of Agent and Lenders under this Agreement and the Other Agreements; provided, that with the consent of Requisite Lenders, Agent may release its liens on Collateral having a book value not greater than ten percent (10%) of the total book value of all Collateral, as determined by Agent, either in a single transaction or series of related transactions, not to exceed twenty percent (20%) of the book value of all Collateral in any Fiscal Year. Agent shall not be required to execute any such release on terms which, in Agent’s opinion, would expose Agent to liability or create any obligation or entail any consequence other than contingent indemnity obligations with respect the release of such liens without recourse or warranty. In the event of any sale or transfer of any of the Collateral, Agent shall be authorized to then unasserted claims), deduct all Letters of Credit shall have expired the expenses reasonably incurred by Agent from the proceeds of any such sale or terminated transfer.
(or been collateralized iii) Lenders hereby agree that the lien granted to Agent in a manner satisfactory to the applicable Issuing Bank) and all Letter of Credit Outstandings have been reduced to zero (or collateralized in a manner satisfactory to the applicable Issuing Bank), or (ii) constituting any property being sold, transferred sold or disposed of in a Permitted Disposition upon receipt by accordance with the Administrative Agent provisions of the Net Proceeds thereof to the extent required by this Agreement. Except as provided aboveAgreement shall be automatically released; provided, the Collateral Agent will not release any of the Collateral however that Agent’s Liens without lien shall attach to and continue for the prior written authorization benefit of Agent and Lenders in the Applicable Lenders. Upon request by proceeds and products of such property arising from any Agent such sale or any Loan Party at any time, the Lenders will confirm in writing the Collateral Agent’s authority to release any Liens upon particular types or items of Collateral pursuant to this SECTION 8.16disposition.
(biv) Upon To the extent, pursuant to the provisions of this subsection 20(j), Agent’s execution of a release is required to release its lien upon any sale and transfer of Collateral which is consented to in writing by Requisite Lenders or all Lenders, as applicable, and upon at least two five (25) Business Daysbusiness days’ prior written request by the Lead BorrowerBorrower Representative, 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 Liens liens granted to Agent for the benefit of Lenders herein or pursuant hereto upon any Collateral described in SECTION 8.16(a); provided, however, that (i) the Collateral that was sold or transferred.
(v) Agent shall not be required have any obligation whatsoever to execute Lenders or to any such document on terms whichother Person to assure that the Collateral exists or is owned by Borrowers or any other Obligor or is cared for, protected or insured or that the liens granted to Agent herein or pursuant hereto 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 Agent in this Section 20 or in any of the Other Agreements, it being understood and agreed that in respect of the Collateral, or any act, omission or event related thereto, Agent may act in any manner it may deem appropriate, in its reasonable opinionsole discretion, would, under Applicable Law, expose given Agent’s own interest in the Collateral as one of Lenders and that Agent shall have no duty or liability whatsoever to liability Lenders, except for its gross negligence or create willful misconduct.
(vi) In the event that any obligation Lender receives any Proceeds of any Collateral by setoff, exercise of any banker’s lien or entail any adverse consequence other than the release otherwise, in an amount in excess of such Liens without recourse or warrantyLender’s Pro Rata Share of such Proceeds, such Lender shall purchase for cash (and (iiother Lenders shall sell) interests in each of 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 Loan Party in respect of) all interests retained by any Loan Party, including (without limitation) the proceeds of any sale, all of which shall continue to constitute part Lender’s Pro Rata Share of the CollateralLiabilities as would be necessary to cause all Lenders to share the amount so set off or otherwise received with each other Lender in accordance with their respective Pro Rata Shares. No Lender shall exercise any right of set off or banker’s lien without the prior written consent of Agent.
Appears in 1 contract
Sources: Loan and Security Agreement (Amcon Distributing Co)
Collateral Matters. (a) The Lenders hereby irrevocably authorize the Collateral Agent Administrative Agent, at its option and in its sole discretion, to release any Administrative Agent's Lien upon any Collateral (i) upon the termination of the Commitments and payment and satisfaction in full by the Borrowers of all Obligations (other than contingent indemnity Loans and reimbursement obligations with in respect to then unasserted claims), all of Letters of Credit shall have expired and Credit Support, and the termination of all outstanding Letters of Credit (whether or terminated (or been collateralized in a manner satisfactory to the applicable Issuing Banknot any of such obligations are due) and all Letter of Credit Outstandings have been reduced to zero (or collateralized in a manner satisfactory to the applicable Issuing Bank), or other Obligations; (ii) constituting property (other than Inventory) being sold, transferred sold or disposed of or used as collateral in connection with a Permitted Disposition upon receipt by borrowing if a Borrower certifies to the Administrative Agent of that the Net Proceeds thereof sale, disposition or borrowing is made in compliance with Section 9.9, 9.13 or 9.20, as appropriate (and the Administrative Agent may rely conclusively on any such certificate, without further inquiry); (iii) constituting property in which a Credit Party owned no interest at the time the Lien was granted or at any time thereafter; or (iv) constituting property leased to the extent required by a Credit Party under a lease which has expired or been terminated in a transaction permitted under this Agreement. 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 Applicable Lenders; provided that the Administrative Agent may, in its discretion, release the Administrative Agent's Liens on Collateral valued in the aggregate not in excess of $1,000,000 without the prior written authorization of the Lenders; and provided, 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 Lenders shall have consented to such sale). In connection with any such release, the 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 any the Administrative Agent or any Loan Party the Borrowers at any time, the Lenders will confirm in writing the Collateral Administrative Agent’s 's authority to release any Administrative Agent's Liens upon particular types or items of Collateral pursuant to this SECTION 8.16Section 14.12.
(b) Upon receipt by the Administrative Agent of any authorization required pursuant to Section 14.12(a) from the Lenders of the Administrative Agent's authority to release the Administrative Agent's Liens upon particular types or items of Collateral, and upon at least two five (25) Business Days’ ' prior written request by the Lead BorrowerBorrowers, the Collateral Administrative Agent shall (and is hereby irrevocably authorized by the Lenders to) execute such documents as may be necessary to evidence the release of the Administrative Agent's Liens upon any Collateral described in SECTION 8.16(a)such Collateral; provided, however, that (i) the Collateral Administrative Agent shall not be required to execute any such document on terms which, in its reasonable the Administrative Agent's opinion, would, under Applicable Law, would expose the Collateral Administrative Agent to liability or create any obligation or entail any adverse consequence other than the release of such Liens without recourse or warranty, and (ii) such release shall not in any manner discharge, affect or impair the Obligations or any Liens (other than those expressly being released) upon (or obligations of any Loan Party the Credit Parties in respect of) all interests retained by any Loan Credit Party, including (without limitation) the proceeds of any sale, all of which shall continue to constitute part of the Collateral. 118
(c) The Administrative Agent shall have no obligation whatsoever to any of the Lenders to assure that the Collateral exists or is owned by any Credit Party or is cared for, protected or insured or has been encumbered, or that the Administrative Agent's Liens have been properly or sufficiently or lawfully created, perfected, protected or enforced or are entitled to any particular priority, or to exercise at all or in any particular manner or under any duty of care, disclosure or fidelity, or to continue exercising, any of the rights, authorities and powers granted or available to the Administrative Agent pursuant to any of the Loan Documents, it being understood and agreed that in respect of the Collateral, or any act, omission or event related thereto, the Administrative Agent may act in any manner it may deem appropriate, in its sole discretion given the Administrative Agent's own interest in the Collateral in its capacity as one of the Lenders and that the Administrative Agent shall have no other duty or liability whatsoever to any Lender as to any of the foregoing.
Appears in 1 contract
Collateral Matters. (a) i. The Lenders hereby irrevocably authorize Collateral Custodian agrees to cooperate with the Administrative Agent, the Calculation Agent 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 or the Administrative Agent (pursuant to release a written request in the form of Exhibit E), as applicable, as requested in order to take any Lien upon action that the Administrative Agent 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 Collateral (i) upon the termination of the Commitments and payment and satisfaction in full them to exercise or enforce any of all Obligations (other than contingent indemnity obligations their respective rights hereunder or under any Transaction Document, including any rights arising with respect to then unasserted claims), all Letters of Credit shall have expired or terminated (or been collateralized in a manner satisfactory to Article VI. In the applicable Issuing Bank) and all Letter of Credit Outstandings have been reduced to zero (or collateralized in a manner satisfactory to event the applicable Issuing Bank), or (ii) constituting property being sold, transferred or disposed of in a Permitted Disposition upon receipt Collateral Custodian receives instructions from the Applicable Servicer which conflict with any instructions received by the Administrative Agent of the Net Proceeds thereof to the extent required by this Agreement. Except as provided aboveAgent, the Collateral Custodian shall rely on and follow the instructions given by the Administrative Agent.
ii. The Administrative Agent will not release any of may direct the Collateral Agent’s Liens without Custodian to take any such incidental action hereunder. With respect to other actions which are incidental to the prior written authorization of the Applicable Lenders. Upon request by any Agent or any Loan Party at any time, the Lenders will confirm in writing actions specifically delegated to the Collateral Agent’s authority to release any Liens upon particular types or items of Collateral pursuant to this SECTION 8.16.
(b) Upon at least two (2) Business Days’ prior written request by the Lead BorrowerCustodian hereunder, 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 Liens upon any Collateral described in SECTION 8.16(a); provided, however, that (i) the Collateral Agent Custodian shall not be required to execute take any such document on terms whichincidental action hereunder, but shall be required to act or to refrain from acting (and shall be fully protected in acting or refraining from acting) upon the direction of the NAI-15121569431515895953v1213 -103- 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 or otherwise if the taking of such action, in its the reasonable opiniondetermination of the Collateral Custodian, would, under (A) shall be in violation of any Applicable Law, Law or contrary to any provisions of this Agreement or (B) shall expose the Collateral Agent Custodian to liability hereunder or create any obligation 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 Administrative Agent and the Collateral Custodian does not receive a consent (either positive or entail any adverse consequence other than negative) from the release Administrative Agent within 10 Business Days of its receipt of such Liens without recourse or warrantyrequest, and (ii) such release then the Administrative Agent shall be deemed to have declined to consent to the relevant action.
iii. The Collateral Custodian shall not be liable for any action taken, suffered or omitted by it in any manner discharge, affect accordance with the request or impair the Obligations or any Liens (other than those expressly being released) upon (or obligations direction of any Loan Party in respect of) all interests retained by any Loan Secured Party, including (without limitation) to the proceeds extent that this Agreement provides such Secured Party the right to so direct the Collateral Custodian, or the Administrative Agent. The Collateral Custodian shall not be deemed to have notice or knowledge of any salematter hereunder, all including an Event of which shall continue to constitute part Default, unless a Responsible Officer of the CollateralCollateral Custodian has knowledge of such matter or written notice thereof is received by the Collateral Custodian.
Appears in 1 contract
Collateral Matters. (a) [Reserved].
(b) The Lenders hereby irrevocably authorize the Collateral Agent to release any Lien granted to or held by the Collateral Agent upon any Collateral (i) upon the termination of the Commitments Total Commitment and payment and satisfaction the indefeasible Payment in full Full in cash of all Obligations (other than contingent indemnity obligations in accordance with respect to then unasserted claims), all Letters of Credit shall have expired the terms hereof; or terminated (or been collateralized in a manner satisfactory to the applicable Issuing Bank) and all Letter of Credit Outstandings have been reduced to zero (or collateralized in a manner satisfactory to the applicable Issuing Bank), or (ii) constituting property being sold, transferred sold or disposed of in a Permitted Disposition upon receipt the ordinary course of any Loan Party’s business or otherwise in compliance with the terms of this Agreement and the other Loan Documents; or constituting property in which the Loan Parties owned no interest at the time the Lien was granted or at any time thereafter; or if approved, authorized or ratified in writing by the Administrative Agent of the Net Proceeds thereof to the extent required by 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 Applicable LendersLenders in accordance with Section 11.02. Upon request by any the Collateral Agent or any Loan Party at any time, the Lenders will confirm in writing the Collateral Agent’s authority to release any Liens upon particular types or items of Collateral pursuant to this SECTION 8.16Section 9.08(b).
(bc) 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 9.08(b)), each Lender agrees to confirm in writing, upon request by the Collateral Agent, the authority to release Collateral conferred upon the Collateral Agent under Section 9.08(b). Upon at least two (2) Business Days’ receipt by the Collateral Agent of confirmation from the Lenders of its authority to release any particular item or types of Collateral, and upon prior written request by the Lead Borrowerany 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 Liens granted to the Collateral Agent for the benefit of the Agents and the Lenders upon any Collateral described in SECTION 8.16(a)such Collateral; provided, however, that (i) the Collateral Agent shall not be required to execute any such document on terms which, in its reasonable the Collateral Agent’s opinion, would, under Applicable Law, would expose the Collateral Agent to liability or create any obligation obligations or entail any adverse consequence other than the release of such Liens without recourse or warranty, and (ii) such release shall not in any manner discharge, affect or impair the Obligations or any Liens (other than those expressly being released) Lien upon (or obligations of any Loan Party in respect of) all interests in the Collateral retained by any Loan Party.
(d) Anything contained in any of the Loan Documents to the contrary notwithstanding, including the Loan Parties, each Agent and each Lender hereby agree that (without limitationi) no Lender shall have any right individually to realize upon any of the Collateral under any Loan Document or to enforce any Guaranty, it being understood and agreed that all powers, rights and remedies under the Loan Documents may be exercised solely by the Collateral Agent for the benefit of the Lenders in accordance with the terms thereof, (ii) in the event of a foreclosure by the Collateral Agent on any of the Collateral pursuant to a public or private sale, the Administrative Agent, the Collateral Agent or any Lender may be the purchaser of any or all of such Collateral at any such sale, and (iii) the proceeds Collateral Agent, as agent for and representative of the Agents and the Lenders (but not any other Agent or any Lender or Lenders in its or their respective individual capacities unless the Required Lenders shall otherwise agree in writing) shall be entitled (either directly or through one or more acquisition vehicles) for the purpose of bidding and making settlement or payment of the purchase price for all or any portion of the Collateral to be sold (A) at any public or private sale, (B) at any sale conducted by the Collateral Agent under the provisions of the Uniform Commercial Code (including pursuant to Sections 9-610 or 9-620 of the Uniform Commercial Code), (C) at any sale or foreclosure conducted by the Collateral Agent (whether by judicial action or otherwise) in accordance with applicable law, or (D) at any sale conducted pursuant to the provisions of any Debtor Relief Law (including Section 363 of the Bankruptcy Code), to use and apply all or any of the Obligations as a credit on account of the purchase price for any Collateral payable by the Collateral Agent at such sale.
(e) The Collateral Agent shall have no obligation whatsoever to any Lender to assure that the Collateral exists or is owned by the Loan Parties or is cared for, protected or insured or has been encumbered or that the Lien granted to the Collateral Agent pursuant to this Agreement or any other Loan Document has been properly or sufficiently or lawfully created, perfected, protected or enforced or is entitled to any particular priority, or to exercise at all or in any particular manner or under any duty of which shall care, disclosure or fidelity, or to continue exercising, any of the rights, authorities and powers granted or available to constitute part the Collateral Agent in this Section 9.08 or in any other Loan Document, it being understood and agreed that in respect of the Collateral, or any act, omission or event related thereto, the Collateral Agent may act in any manner it may deem appropriate, in its sole discretion, given the Collateral Agent’s own interest in the Collateral as one of the Lenders and that the Collateral Agent shall have no duty or liability whatsoever to any other Lender, except as otherwise provided herein.
Appears in 1 contract
Sources: Financing Agreement (Wheeler Real Estate Investment Trust, Inc.)
Collateral Matters. (a) The [Reserved]
(b) Lenders hereby irrevocably authorize the Collateral Agent Agent, at its option and in its discretion to release any Lien upon security interest in, mortgage or lien upon, any of the Collateral (i) upon the termination of the Commitments and payment and satisfaction in full of all of the Obligations (other than contingent indemnity obligations with respect to then unasserted claims), all Letters and delivery of Credit shall have expired or terminated (or been collateralized in a manner satisfactory cash collateral to the applicable Issuing Bank) and all Letter of Credit Outstandings have been reduced to zero (or collateralized in a manner satisfactory to the applicable Issuing Bank)extent required under Section 13.1 below, or (ii) constituting property being sold, transferred sold or disposed of if Administrative Borrower or any Loan Party certifies to Agent that the sale or disposition is made in compliance with Section 9.7 hereof (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 Permitted Disposition upon receipt net book value in the aggregate in any twelve (12) month period of less than $10,000,000, or (v) if approved, authorized or ratified in writing by the Administrative Agent all of the Net Proceeds thereof to the extent required by this AgreementLenders. Except as provided above, the Collateral Agent will not release any security interest in, mortgage or lien upon, any of the Collateral Agent’s Liens without the prior written authorization of the Applicable all of Lenders. Upon request by any Agent or any Loan Party at any time, the Lenders will promptly confirm in writing the Collateral Agent’s authority to release any Liens upon particular types or items of Collateral pursuant to this SECTION 8.16Section.
(bc) Upon at least two (2) Business Days’ prior written Without any manner limiting Agent’s authority to act without any specific or further authorization or consent by the Required Lenders, each Lender agrees to confirm in writing, upon request by the Lead BorrowerAgent, the authority to release Collateral conferred upon Agent under this Section. Agent shall (and is hereby irrevocably authorized by the Lenders to) execute such documents as may be necessary to evidence the release of the Liens security interest, mortgage or liens granted to Agent upon any Collateral described in SECTION 8.16(a)to the extent set forth above; provided, howeverthat, that (i) the Collateral Agent shall not be required to execute any such document on terms which, in its reasonable Agent’s opinion, would, under Applicable Law, would expose the Collateral Agent to liability or create any obligation obligations or entail any adverse consequence other than the release of such Liens security interest, mortgage or liens without recourse or warranty, warranty and (ii) such release shall not in any manner discharge, affect or impair the Obligations or any Liens (other than those expressly being released) security interest, mortgage or lien upon (or obligations of any Loan Party in respect of) all interests the Collateral retained by such Loan Party.
(d) Agent shall have no obligation whatsoever to any Lender or any other Person to investigate, confirm or assure that the Collateral exists or is owned by any Loan PartyParty or is cared for, including (without limitation) protected or insured or has been encumbered, or that any particular items of Collateral meet the proceeds eligibility criteria applicable in respect of the Loans or Letter of Credit Accommodations hereunder, or whether any saleparticular reserves are appropriate, or that the liens and security interests granted to Agent pursuant hereto or any of the Financing Agreements or otherwise have been properly or sufficiently or lawfully created, perfected, protected or enforced or are entitled to any particular priority, or to exercise at all or in any particular manner or under any duty of which shall care, disclosure or fidelity, or to continue exercising, any of the rights, authorities and powers granted or available to constitute part Agent in this Agreement or in any of the other Financing Agreements, it being understood and agreed that in respect of the Collateral, or any act, omission or event related thereto, Agent may act in any manner it may deem appropriate, in its discretion, given Agent’s own interest in the Collateral as a Lender and that Agent shall have no duty or liability whatsoever to any other Lender.
Appears in 1 contract
Sources: Loan and Security Agreement (Remy International, Inc.)
Collateral Matters. (a) The Lenders hereby irrevocably authorize the Collateral Agent to release any Lien upon any Collateral (i) upon the termination of the Commitments and payment and satisfaction in full of all Obligations (other than contingent indemnity obligations with respect to then unasserted claims), all Letters of Credit shall have expired or terminated (or been collateralized in a manner satisfactory to the applicable Issuing Bank) and all Letter of Credit Outstandings have been reduced to zero (or collateralized in a manner satisfactory to the applicable Issuing Bank), or (ii) constituting property being sold, transferred or disposed of in a Permitted Disposition upon receipt by to a Person that is not a Loan Party, (iii) which constitutes property subject to the Administrative Agent proviso in the definition of “Collateral” in the Security Agreement or subject to the proviso in SECTION 2.1 of the Net Proceeds thereof Pledge Agreement, (iv) as provided in any Intercreditor Agreement, including the ABL Intercreditor Agreement with respect to Revolver Priority Collateral and (v) as to the extent required by this AgreementCollateral of any Facility Guarantor, upon its release from its Facility Guarantee (including as a result of designation as an Unrestricted Subsidiary). Except as provided above, the Collateral Agent will not release any of the Collateral Agent’s Liens without the prior written authorization of the Applicable Lenders. Upon request by any Agent or any Loan Party at any time, the Lenders will confirm in writing the Collateral Agent’s authority to release any Liens upon particular types or items of Collateral pursuant to this SECTION 8.16.
(b) Upon at least two (2) Business Days’ prior written request by the Lead Borrower, the 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 Liens upon any Collateral described in SECTION 8.16(a); provided, however, that (i) the Collateral Agent shall not be required to execute any such document on terms which, in its reasonable opinion, would, under Applicable Law, expose the Collateral Agent to liability or create any obligation or entail any adverse consequence other than the release of such Liens without recourse or warranty, and (ii) such release shall not in any manner discharge, affect or impair the Obligations or any Liens (other than those expressly being released) upon (or obligations of any Loan Party in respect of) all interests retained by any Loan Party, including (without limitation) the proceeds of any sale, all of which shall continue to constitute part of the Collateral.
(c) Each Lender irrevocably authorizes each of the Administrative Agent and the Collateral Agent to (i) release any Guarantor from its obligations under a Facility Guarantee if such Person ceases to be a Restricted Subsidiary as a result of a transaction or designation permitted hereunder and (ii) upon the request of the Borrower and pursuant to documentation reasonably acceptable to the Administrative Agent and/or Collateral Agent, to subordinate any Lien on any property granted to or held by the Administrative Agent or the Collateral Agent under any Loan Document to the holder of any Lien on such property that is permitted under clause (f) or (h) of the definition of Permitted Encumbrances.
(d) The Secured Parties hereby irrevocably authorize the Administrative Agent, at the direction of the Required Lenders, to credit bid all or any portion of the Obligations (including by accepting some or all of the Collateral in satisfaction of some or all of the Obligations pursuant to a deed in lieu of foreclosure or otherwise) and in such manner purchase (either directly or through one or more acquisition vehicles) all or any portion of the Collateral (a) at any sale thereof conducted under the provisions of the Bankruptcy Code, including under Sections 363, 1123 or 1129 of the Bankruptcy Code, or any similar laws in any other jurisdictions to which a Loan Party is subject, or (b) at any other sale, foreclosure or acceptance of collateral in lieu of debt conducted by (or with the consent or at the direction of) the Administrative Agent (whether by judicial action or otherwise) in accordance with any applicable law. In connection with any such credit bid and purchase, the Obligations owed to the Secured Parties shall be entitled to be, and shall be, credit bid by the Administrative Agent at the direction of the Required Lenders on a ratable basis (with Obligations with respect to contingent or unliquidated claims receiving contingent interests in the acquired assets on a ratable basis that shall vest upon the liquidation of such claims in an amount proportional to the liquidated portion of the contingent claim amount used in allocating the contingent interests) for the asset or assets so purchased (or for the equity interests or debt instruments of the acquisition vehicle or vehicles that are issued in connection with such purchase). In connection with any such bid (i) the Administrative Agent shall be authorized to form one or more acquisition vehicles and to assign any successful credit bid to such acquisition vehicle or vehicles (ii) each of the Secured Parties’ ratable interests in the Obligations which were credit bid shall be deemed without any further action under this Agreement to be assigned to such vehicle or vehicles for the purpose of closing such sale, (iii) the Administrative shall be authorized to adopt documents providing for the governance of the acquisition vehicle or vehicles (provided that any actions by the Administrative Agent with respect to such acquisition vehicle or vehicles, including any disposition of the assets or equity interests thereof, shall be governed, directly or indirectly, by, and the governing documents shall provide for, control by the vote of the Required Lenders or their permitted assignees under the terms of this Agreement or the governing documents of the applicable acquisition vehicle or vehicles, as the case may be, irrespective of the termination of this Agreement and without giving effect to the limitations on actions by the Required Lenders contained in SECTION 9.02 of this Agreement), (iv) the Administrative Agent on behalf of such acquisition vehicle or vehicles shall be authorized to issue to each of the Secured Parties, ratably on account of the relevant Obligations which were credit bid, interests, whether as equity, partnership, limited partnership interests or membership interests, in any such acquisition vehicle and/or debt instruments issued by such acquisition vehicle, all without the need for any Secured Party or acquisition vehicle to take any further action, and (v) to the extent that Obligations that are assigned to an acquisition vehicle are not used to acquire Collateral for any reason (as a result of another bid being higher or better, because the amount of Obligations assigned to the acquisition vehicle exceeds the amount of Obligations credit bid by the acquisition vehicle or otherwise), such Obligations shall automatically be reassigned to the Secured Parties pro rata and the equity interests and/or debt instruments issued by any acquisition vehicle on account of such Obligations shall automatically be cancelled, without the need for any Secured Party or any acquisition vehicle to take any further action. Notwithstanding that the ratable portion of the Obligations of each Secured Party are deemed assigned to the acquisition vehicle or vehicles as set forth in clause (ii) above, each Secured Party shall execute such documents and provide such information regarding the Secured Party (and/or any designee of the Secured Party which will receive interests in or debt instruments issued by such acquisition vehicle) as the Administrative Agent may reasonably request in connection with the formation of any acquisition vehicle, the formulation or submission of any credit bid or the consummation of the transactions contemplated by such credit bid.
Appears in 1 contract
Collateral Matters. (a) The Lenders hereby irrevocably authorize the Collateral Agent to release any Lien upon any Collateral (i) upon The Collateral Custodian agrees to cooperate with the termination Administrative Agent, Facility Servicer and the Portfolio Asset Servicer and provide any electronic copies of the Commitments and payment and satisfaction Portfolio Asset File to the Facility Servicer, Portfolio Asset Servicer or Administrative Agent (pursuant to a written request in full the form of all Obligations Exhibit E), as applicable, as requested in order to take any action that the Administrative Agent (other than contingent indemnity obligations acting at the written direction of the Majority Lenders) or the Facility Servicer deems necessary or 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 then unasserted claims)Article VI. In the event the Collateral Custodian receives instructions from the Facility Servicer or the Portfolio Asset Servicer which conflict with any instructions received by the Administrative Agent, all Letters of Credit the Collateral Custodian shall have expired or terminated (or been collateralized in a manner satisfactory to rely on and follow the applicable Issuing Bank) and all Letter of Credit Outstandings have been reduced to zero (or collateralized in a manner satisfactory to instructions given by the applicable Issuing Bank), or Administrative Agent.
(ii) constituting property being sold, transferred or disposed of in a Permitted Disposition upon receipt by the The Administrative Agent (acting at the written direction of the Net Proceeds thereof Majority Lenders) may direct the Collateral Custodian to take any such incidental action hereunder. With respect to other actions which are incidental to the extent required by this Agreement. Except as provided aboveactions specifically delegated to the Collateral Custodian hereunder, the Collateral Agent will not release any of the Collateral Agent’s Liens without the prior written authorization of the Applicable Lenders. Upon request by any Agent or any Loan Party at any time, the Lenders will confirm in writing the Collateral Agent’s authority to release any Liens upon particular types or items of Collateral pursuant to this SECTION 8.16.
(b) Upon at least two (2) Business Days’ prior written request by the Lead Borrower, 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 Liens upon any Collateral described in SECTION 8.16(a); provided, however, that (i) the Collateral Agent Custodian shall not be required to execute take any such document on terms whichincidental action hereunder, but shall be required to act or to refrain from acting (and 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 or otherwise if the taking of such action, in its the reasonable opiniondetermination of the Collateral Custodian, would, under (A) shall be in violation of any Applicable Law, Law or contrary to any provisions of this Agreement or (B) shall expose the Collateral Agent Custodian to liability hereunder or create any obligation 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 Administrative Agent and the Collateral Custodian does not receive a consent (either positive or entail any adverse consequence other than negative) from the release Administrative Agent within ten (10) Business Days of its receipt of such Liens without recourse or warrantyrequest, and then the Administrative Agent shall be deemed to have declined to consent to the relevant action.
(iiiii) such release The Collateral Custodian shall not be liable for any action taken, suffered or omitted by it in any manner discharge, affect accordance with the request or impair the Obligations or any Liens (other than those expressly being released) upon (or obligations direction of any Loan Party in respect of) all interests retained by any Loan Secured Party, including (without limitation) to the proceeds extent that this Agreement provides such Secured Party the right to so direct the Collateral Custodian, or the Administrative Agent. The Collateral Custodian shall not be deemed to have notice or knowledge of any salematter hereunder, all including a Event of which shall continue Default, Unmatured Event of Default or Servicer Termination Event, unless the Collateral Custodian has received written notice from a Lender, the Borrower, the Facility Servicer or the Portfolio Asset Servicer referring to constitute part this Agreement, describing such Event of Default, Unmatured Event of Default or Servicer Termination Event and stating that such notice is a "Notice of Event of Default", "Notice of Unmatured Event of Default", or “Notice of Servicer Termination Event, as applicable. In the Collateralabsence of receipt of such notice, the Collateral Custodian may conclusively assume that there is no Event of Default, Unmatured Event of Default or Servicer Termination Event.
Appears in 1 contract
Sources: Loan and Servicing Agreement (Business Development Corp of America)
Collateral Matters. (a) The Lenders hereby irrevocably authorize the Collateral Agent to release any Lien upon any All Liens on Collateral (i) shall be automatically released upon the termination of the Commitments and payment and satisfaction in full by Borrowers of all Obligations (other than contingent indemnity obligations with respect to then unasserted claims)Obligations, all Letters of Credit shall have expired or terminated (or been collateralized in a manner satisfactory to the applicable Issuing Bank) and all Letter of Credit Outstandings have been reduced to zero (or collateralized in a manner satisfactory to the applicable Issuing Bank), or (ii) constituting property (including the equity interest of a Subsidiary of Parent) being sold, transferred sold or disposed of in a Permitted Disposition sale or disposition permitted under Section 6.4 of this Agreement or the other Loan Documents shall be automatically released upon receipt by such sale or disposition, and in the Administrative Agent event of a sale or other disposition of all of the Net Proceeds thereof 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 of its obligations under the Loan Documents, (iii) constituting property in which no Loan Party owned any interest at the time the Agent’s Lien was granted nor at any time thereafter shall be automatically released, 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 shall be automatically released. The Lenders hereby irrevocably authorize Agent to take such actions and execute such documents that it deems necessary or appropriate, at its option and in its sole discretion, to evidence the extent required by this Agreementforegoing 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 Applicable release is of all or substantially all of the Collateral, all of the Lenders, or (z) otherwise, the Required Lenders. Upon request by any Agent or any Loan Party Administrative Borrower at any time, the Lenders will confirm in writing the Collateral Agent’s authority to release any such Liens upon on particular types or items of Collateral pursuant to this SECTION 8.16.
(b) Upon at least two (2) Business Days’ prior written request by the Lead Borrower, 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 Liens upon any Collateral described in SECTION 8.16(a)Section 15.12; provided, however, that (i1) the Collateral Agent shall not be required to execute any document necessary to evidence such document release on terms whichthat, in its reasonable Agent’s opinion, would, under Applicable Law, would expose the Collateral Agent to liability or create any obligation or entail any adverse consequence other than the release of such Liens Lien without recourse recourse, representation, or warranty, and (ii2) such release shall not in any manner discharge, affect affect, or impair the Obligations or any Liens (other than those expressly being released) upon (or obligations of any Loan Party Borrowers in respect of) all interests retained by any Loan PartyBorrowers, including (without limitation) including, the proceeds of any sale, all of which shall continue to constitute part of the Collateral.
(b) Agent agrees, at the request of the Administrative Borrower, to take such actions and execute such documents that are reasonably requested by Administrative Borrower to evidence the release of all Liens on Collateral (i) upon the termination of the Commitments and payment and satisfaction in full by Borrowers of all Obligations, (ii) constituting property (including the equity interests of a Subsidiary of the Parent) being sold or disposed of if Administrative Borrower certifies to Agent that the sale or disposition is permitted under Section 6.4 of this Agreement or the other Loan Documents and in the event of a sale or other disposition of all of the equity interests of a Subsidiary of the Parent that is a Loan Party permitted under this Agreement and the other Loan Documents, to evidence the release of such Subsidiary’s obligations under the Loan Documents (and Lenders hereby agree Agent may rely conclusively on any such certificate, without further inquiry), (iii) constituting property in which no Loan Party owned any interest at the time the Agent’s Lien was granted nor at any time thereafter, and (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.
(c) Agent shall have no obligation whatsoever to any of the Lenders to assure that the Collateral exists or is owned by Borrowers or is cared for, protected, or insured or has been encumbered, or that the Agent’s Liens have been properly or sufficiently or lawfully created, perfected, protected, or enforced or are entitled to any particular priority, or to exercise at all or in any particular manner or under any duty of care, disclosure or fidelity, or to continue exercising, any of the rights, authorities and powers granted or available to Agent pursuant to any of the Loan Documents, it being understood and agreed that in respect of the Collateral, or any act, omission, or event related thereto, subject to the terms and conditions contained herein, Agent may act in any manner it may deem appropriate, in its sole discretion given Agent’s own interest in the Collateral in its capacity as one of the Lenders and that Agent shall have no other duty or liability whatsoever to any Lender as to any of the foregoing, except as otherwise provided herein.
Appears in 1 contract
Sources: Credit Agreement (Sitel Corp)
Collateral Matters. (a) The Lenders hereby irrevocably authorize the Collateral Agent Administrative Agent, at its option and in its sole discretion, to release any Lien upon on any Collateral (i) upon the termination of the Commitments Aggregate Commitment and payment and satisfaction in full by Borrower of all Obligations (other than contingent indemnity obligations with respect to then unasserted claims), all Letters of Credit shall have expired or terminated (or been collateralized in a manner satisfactory to the applicable Issuing Bank) and all Letter of Credit Outstandings have been reduced to zero (or collateralized in a manner satisfactory to the applicable Issuing Bank), or Obligations; (ii) constituting property being sold, transferred 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 is permitted under Section 7.4 of this Agreement or the other Loan Documents (and Administrative Agent may rely conclusively on any such certificate, without further inquiry); (iii) constituting property in which Borrower does not own any interest at the time the security interest was granted or at any time thereafter; or (iv) constituting property leased to Borrower under a lease that has expired or is terminated in a Permitted Disposition upon receipt by the Administrative Agent of the Net Proceeds thereof to the extent required by transaction permitted under this Agreement. Except as provided above, the Collateral Administrative 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 Applicable release is of all or a substantial portion of the Collateral, all of the Lenders, or (z) otherwise, the Required Lenders. Upon request by any Administrative Agent or any Loan Party Borrower at any time, the Lenders will confirm in writing the Collateral Administrative Agent’s authority to release any such Liens upon on particular types or items of Collateral pursuant to this SECTION 8.16.
(b) Upon at least two (2) Business Days’ prior written request by the Lead Borrower, 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 Liens upon any Collateral described in SECTION 8.16(a)Section 17.11; provided, however, that (i1) the Collateral Administrative Agent shall not be required to execute any document necessary to evidence such document release on terms whichthat, in its reasonable Administrative Agent’s opinion, would, under Applicable Law, would expose the Collateral Administrative Agent to liability or create any obligation or entail any adverse consequence other than the release of such Liens Lien without recourse recourse, representation, or warranty, and (ii2) such release shall not in any manner discharge, affect affect, or impair the Obligations or any Liens (other than those expressly being released) upon (or obligations of any Loan Party Borrower in respect of) all interests retained by any Loan PartyBorrower, including (without limitation) including, the proceeds of any sale, all of which shall continue to constitute part of the Collateral.
(b) Administrative Agent shall have no obligation whatsoever to any of the Lenders to assure that the Collateral exists or is owned by Borrower or any of its Subsidiaries or is cared for, protected, or insured or has been encumbered, or that the Administrative Agent’s Liens have been properly or sufficiently or lawfully created, perfected, protected, or enforced or are entitled to any particular priority, or to exercise at all or in any particular manner or under any duty of care, disclosure or fidelity, or to continue exercising, any of the rights, authorities and powers granted or available to Administrative Agent pursuant to any of the Loan Documents, it being understood and agreed that in respect of the Collateral, or any act, omission or event related thereto, subject to the terms and conditions contained herein, Administrative Agent may act in any manner it may deem appropriate, in its sole discretion given Administrative Agent’s own interest in the Collateral in its capacity as one of the Lenders and that Administrative Agent shall have no other duty or liability whatsoever to any Lender as to any of the foregoing, except as otherwise provided herein.
Appears in 1 contract
Collateral Matters. (a) The Lenders hereby irrevocably authorize Prior to the completion by the Borrower of a Qualified Public Offering the Borrower shall:
(i) cause all of the Pledged Interests to, in each case, be subject at all times to first priority, perfected security interests in favor of the Collateral Agent to release any Lien upon any Collateral (i) upon secure the termination Obligations pursuant to the terms and conditions of the Commitments and payment and satisfaction in full of all Obligations Collateral Documents;
(other than contingent indemnity obligations ii) with respect to then unasserted claimsany Collateral described in the foregoing clause (i), all Letters deliver such other documentation as any Agent may request in connection with the foregoing, including, without limitation, appropriate UCC-1 financing statements, certified resolutions and other organizational and authorizing documents of Credit such Person, favorable opinions of counsel to such Person (which shall have expired or terminated (or been collateralized in a manner satisfactory to cover, among other things, the applicable Issuing Bank) legality, validity, binding effect and all Letter of Credit Outstandings have been reduced to zero (or collateralized in a manner satisfactory to the applicable Issuing Bank), or (ii) constituting property being sold, transferred or disposed of in a Permitted Disposition upon receipt by the Administrative Agent enforceability of the Net Proceeds thereof documentation referred to above and the extent required by this Agreement. Except as provided above, the Collateral Agent will not release any perfection of the Collateral Agent’s Liens without the prior written authorization thereunder) and other items of the Applicable Lenders. Upon request types required to be delivered pursuant to Section 5.1(a)(iv), all in form, content and scope satisfactory to the Agents; and
(iii) shall indemnify and/or reimburse (as applicable) the Agents for any and all costs, expenses, losses, claims, fees or other amounts paid or incurred by the Agents to the extent paid or incurred in connection with the filing or recording of any Agent documents, agreement or instruments related to the Collateral, the protection of any of the Collateral, their respective rights and interests therein or any Loan Party at Party’s underlying rights and interests therein or the enforcement of any timeof its other rights with respect to the Collateral; provided, that the Lenders will confirm reimbursement and indemnity obligations set forth in writing this clause (iii) shall be in addition to and in furtherance of all other reimbursement or indemnity obligations of the Collateral Agent’s authority to release Borrowers referenced herein or in any Liens upon particular types or items of Collateral pursuant to this SECTION 8.16other Loan Document.
(b) Upon at least two (2) Business Days’ prior written The Borrower may request by in writing that the Lead BorrowerCollateral Agent release, and upon receipt of such request the Collateral Agent shall (release Collateral granted under the Collateral Documents at the Borrower’s expense and is hereby irrevocably authorized by execute and deliver to the Lenders to) execute applicable Loan Party such documents as such Loan Party may be necessary reasonably request to evidence the release of such item of Collateral from the Liens upon any assignment and security interest granted under the Collateral described in SECTION 8.16(a); provided, however, that Documents so long as: (i) a Qualified Public Offering shall have been completed by the Borrower; (ii) no Default or Event of Default shall then be in existence or would occur as a result of such release, including without limitation, a Default or Event of Default resulting from a violation of any of the covenants contained in Section 9.1; and (iii) the Collateral Agent shall not have received such written request at least 5 Business Days (or such shorter period as may be required acceptable to execute any the Collateral Agent) prior to the requested date of release (such document on terms whichdate of release, in its reasonable opinion, would, under Applicable Law, expose the “Collateral Release Date”). Delivery by the Borrower to the Collateral Agent to liability or create of any obligation or entail any adverse consequence other than such request shall constitute a representation by the release Borrower that the matters set forth in the preceding sentence (both as of the date of the giving of such Liens without recourse or warranty, request and (ii) such release shall not in any manner discharge, affect or impair the Obligations or any Liens (other than those expressly being released) upon (or obligations of any Loan Party in respect of) all interests retained by any Loan Party, including (without limitation) the proceeds of any sale, all of which shall continue to constitute part as of the CollateralCollateral Release Date) are true and correct with respect to such request.
Appears in 1 contract
Collateral Matters. (a) The Lenders hereby irrevocably authorize the Collateral Agent to release any Lien upon any Collateral (i) upon the termination of the Commitments and payment and satisfaction in full of all Obligations (other than contingent indemnity obligations with respect to then unasserted claims), all Letters of Credit shall have expired or terminated (or been collateralized in a manner satisfactory to the applicable Issuing Bank) and all Letter of Credit Outstandings have been reduced to zero (or collateralized in a manner satisfactory to the applicable Issuing Bank), or (ii) constituting property being sold, transferred or disposed of in a Permitted Disposition upon receipt by to a Person that is not a Loan Party, (iii) which constitutes property subject to the Administrative Agent proviso in the definition of “Collateral” in the Security Agreement or subject to the proviso in SECTION 2.1 of the Net Proceeds thereof Pledge Agreement, (iv) as provided in any Intercreditor Agreement, including the ABL Intercreditor Agreement with respect to Revolver Priority Collateral and (v) as to the extent required by this AgreementCollateral of any Facility Guarantor, upon its release from its Facility Guarantee (including as a result of designation as an Unrestricted Subsidiary). Except as provided above, the Collateral Agent will not release any of the Collateral Agent’s Liens without the prior written authorization of the Applicable Lenders. Upon request by any Agent or any Loan Party at any time, the Lenders will confirm in writing the Collateral Agent’s authority to release any Liens upon particular types or items of Collateral pursuant to this SECTION 8.16.
(b) Upon at least two (2) Business Days’ prior written request by the Lead Borrower, the 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 Liens upon any Collateral described in SECTION 8.16(a); provided, however, that (i) the Collateral Agent shall not be required to execute any such document on terms which, in its reasonable opinion, would, under Applicable Law, expose the Collateral Agent to liability or create any obligation or entail any adverse consequence other than the release of such Liens without recourse or warranty, and (ii) such release shall not in any manner discharge, affect or impair the Obligations or any Liens (other than those expressly being released) upon (or obligations of any Loan Party in respect of) all interests retained by any Loan Party, including (without limitation) the proceeds of any sale, all of which shall continue to constitute part of the Collateral.
(c) Each Lender irrevocably authorizes each of the Administrative Agent and the Collateral Agent to (i) release any Guarantor from its obligations under a Facility Guarantee if such Person ceases to be a Restricted Subsidiary as a result of a transaction or designation permitted hereunder and (ii) upon the request of the Borrower and pursuant to documentation reasonably acceptable to the Administrative Agent and/or Collateral Agent, to subordinate any Lien on any property granted to or held by the Administrative Agent or the Collateral Agent under any Loan Document to the holder of any Lien on such property that is permitted under clause (f), (h) or (t) of the definition of Permitted Encumbrances.
(d) The Secured Parties hereby irrevocably authorize the Administrative Agent, at the direction of the Required Lenders, to credit bid all or any portion of the Obligations (including by accepting some or all of the Collateral in satisfaction of some or all of the Obligations pursuant to a deed in lieu of foreclosure or otherwise) and in such manner purchase (either directly or through one or more acquisition vehicles) all or any portion of the Collateral (a) at any sale thereof conducted under the provisions of the Bankruptcy Code, including under Sections 363, 1123 or 1129 of the Bankruptcy Code, or any similar laws in any other jurisdictions to which a Loan Party is subject, or (b) at any other sale, foreclosure or acceptance of collateral in lieu of debt conducted by (or with the consent or at the direction of) the Administrative Agent (whether by judicial action or otherwise) in accordance with any applicable law. In connection with any such credit bid and purchase, the Obligations owed to the Secured Parties shall be entitled to be, and shall be, credit bid by the Administrative Agent at the direction of the Required Lenders on a ratable basis (with Obligations with respect to contingent or unliquidated claims receiving contingent interests in the acquired assets on a ratable basis that shall vest upon the liquidation of such claims in an amount proportional to the liquidated portion of the contingent claim amount used in allocating the contingent interests) for the asset or assets so purchased (or for the equity interests or debt instruments of the acquisition vehicle or vehicles that are issued in connection with such purchase). In connection with any such bid (i) the Administrative Agent shall be authorized to form one or more acquisition vehicles and to assign any successful credit bid to such acquisition vehicle or vehicles (ii) each of the Secured Parties’ ratable interests in the Obligations which were credit bid shall be deemed without any further action under this Agreement to be assigned to such vehicle or vehicles for the purpose of closing such sale, (iii) the Administrative shall be authorized to adopt documents providing for the governance of the acquisition vehicle or vehicles (provided that any actions by the Administrative Agent with respect to such acquisition vehicle or vehicles, including any disposition of the assets or equity interests thereof, shall be governed, directly or indirectly, by, and the governing documents shall provide for, control by the vote of the Required Lenders or their permitted assignees under the terms of this Agreement or the governing documents of the applicable acquisition vehicle or vehicles, as the case may be, irrespective of the termination of this Agreement and without giving effect to the limitations on actions by the Required Lenders contained in SECTION 9.02 of this Agreement), (iv) the Administrative Agent on behalf of such acquisition vehicle or vehicles shall be authorized to issue to each of the Secured Parties, ratably on account of the relevant Obligations which were credit bid, interests, whether as equity, partnership, limited partnership interests or membership interests, in any such acquisition vehicle and/or debt instruments issued by such acquisition vehicle, all without the need for any Secured Party or acquisition vehicle to take any further action, and (v) to the extent that Obligations that are assigned to an acquisition vehicle are not used to acquire Collateral for any reason (as a result of another bid being higher or better, because the amount of Obligations assigned to the acquisition vehicle exceeds the amount of Obligations credit bid by the acquisition vehicle or otherwise), such Obligations shall automatically be reassigned to the Secured Parties pro rata and the equity interests and/or debt instruments issued by any acquisition vehicle on account of such Obligations shall automatically be cancelled, without the need for any Secured Party or any acquisition vehicle to take any further action. Notwithstanding that the ratable portion of the Obligations of each Secured Party are deemed assigned to the acquisition vehicle or vehicles as set forth in clause (ii) above, each Secured Party shall execute such documents and provide such information regarding the Secured Party (and/or any designee of the Secured Party which will receive interests in or debt instruments issued by such acquisition vehicle) as the Administrative Agent may reasonably request in connection with the formation of any acquisition vehicle, the formulation or submission of any credit bid or the consummation of the transactions contemplated by such credit bid.
Appears in 1 contract
Collateral Matters. (a) The Lenders hereby irrevocably authorize the Collateral Agent Agent, at its option and in its discretion, to release any Lien granted to or held by the Collateral Agent upon any Collateral (i) upon the termination of the Commitments Commitment and payment and satisfaction in full of all Loans and all other Obligations (other than contingent indemnity obligations Contingent Indemnity Obligations) in accordance with respect to then unasserted claims), all Letters of Credit shall have expired the terms hereof; or terminated (or been collateralized in a manner satisfactory to the applicable Issuing Bank) and all Letter of Credit Outstandings have been reduced to zero (or collateralized in a manner satisfactory to the applicable Issuing Bank), or (ii) constituting property being sold, transferred sold or disposed of in a Permitted Disposition upon receipt the ordinary course of the Borrower’s business or otherwise in compliance with the terms of this Agreement and the other Loan Documents; or constituting property in which the Borrower owned no interest at the time the Lien was granted or at any time thereafter; or if approved, authorized or ratified in writing by the Administrative Agent of the Net Proceeds thereof to the extent required by 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 Applicable LendersLenders in accordance with Section 9.02. Upon request by any the Collateral Agent or any Loan Party at any time, the Lenders will confirm in writing the Collateral Agent’s authority to release any Liens upon particular types or items of Collateral pursuant to this SECTION 8.16Section 8.08(a).
(b) 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 8.08(a)), each Lender agrees to confirm in writing, upon request by the Collateral Agent, the 737240988 authority to release Collateral conferred upon the Collateral Agent under Section 8.08(a). Upon at least two (2) Business Days’ receipt by the Collateral Agent of confirmation from the Lenders of its authority to release any particular item or types of Collateral, and upon prior written request by the Lead Borrower, 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 Liens granted to the Collateral Agent for the benefit of the Agents and the Lenders upon any Collateral described in SECTION 8.16(a)such Collateral; provided, however, that (i) the Collateral Agent shall not be required to execute any such document on terms which, in its reasonable the Collateral Agent’s opinion, would, under Applicable Law, would expose the Collateral Agent to liability or create any obligation obligations or entail any adverse consequence other than the release of such Liens without recourse or warranty, and (ii) such release shall not in any manner discharge, affect or impair the Obligations or any Liens (other than those expressly being released) Lien upon (or obligations of any Loan Party the Borrower in respect of) all interests in the Collateral retained by the Borrower.
(c) Anything contained in any of the Loan Documents to the contrary notwithstanding, the Borrower, each Agent and each Lender hereby agree that (i) no Lender shall have any right individually to realize upon any of the Collateral under any Loan PartyDocument, including it being understood and agreed that all powers, rights and remedies under the Loan Documents may be exercised solely by the Collateral Agent for the benefit of the Lenders in accordance with the terms thereof, (without limitationii) in the event of a foreclosure by the Collateral Agent on any of the Collateral pursuant to a public or private sale, the Administrative Agent, the Collateral Agent or any Lender may be the purchaser of any or all of such Collateral at any such sale and (iii) the proceeds Collateral Agent, as agent for and representative of the Agents and the Lenders (but not any other Agent or any Lender or Lenders in its or their respective individual capacities unless the Required Lenders shall otherwise agree in writing) shall be entitled (either directly or through one or more acquisition vehicles) for the purpose of bidding and making settlement or payment of the purchase price for all or any portion of the Collateral to be sold (A) at any public or private sale, (B) at any sale conducted by the Collateral Agent under the provisions of the Uniform Commercial Code (including pursuant to Sections 9-610 or 9-620 of the Uniform Commercial Code), (C) at any sale or foreclosure conducted by the Collateral Agent (whether by judicial action or otherwise) in accordance with applicable law or (D) any sale conducted pursuant to the provisions of any Debtor Relief Law (including Section 363 of the Bankruptcy Code), to use and apply all or any of the Obligations as a credit on account of the purchase price for any Collateral payable by the Collateral Agent at such sale.
(d) The Collateral Agent shall have no obligation whatsoever to any Lender to assure that the Collateral exists or is owned by the Borrower or the Pledgor or is cared for, protected or insured or has been encumbered or that the Lien granted to the Collateral Agent pursuant to this Agreement or any other Loan Document has been properly or sufficiently or lawfully created, perfected, protected or enforced or is entitled to any particular priority, or to exercise at all or in any particular manner or under any duty of which shall care, disclosure or fidelity, or to continue exercising, any of the rights, authorities and powers granted or available to constitute part the Collateral Agent in this Section 8.08 or in any other Loan Document, it being understood and agreed that in respect of the Collateral., or any act, omission or event related thereto, the Collateral Agent may act in any manner it may deem appropriate, in its sole discretion, given the Collateral Agent’s own interest in the Collateral as one of the Lenders and that the Collateral Agent shall have no duty or liability whatsoever to any other Lender, except as otherwise provided herein. 737240988
Appears in 1 contract
Sources: Loan Agreement (Vivint Solar, Inc.)
Collateral Matters. (a) The Lenders hereby irrevocably authorize the Collateral Agent to release any Lien upon any Collateral (i) upon The Collateral Custodian agrees to cooperate with the termination Administrative Agent, Facility Servicer and the Portfolio Asset Servicer regarding the delivery of any Loan Asset File to the Facility Servicer, Portfolio Asset Servicer or Administrative Agent (pursuant to a written request in the form of Exhibit G), as applicable, as requested in order to take any action that the Administrative Agent (acting at the direction of the Commitments and payment and satisfaction Majority Lenders) or the Facility Servicer deems necessary or desirable in full order to perfect, protect or more fully evidence the security interests granted by the Borrower hereunder, or to enable any of all Obligations (other than contingent indemnity obligations them to exercise or enforce any of their respective rights hereunder, including any rights arising with respect to then unasserted claims)Article VI. In the event the Collateral Custodian receives instructions from the Facility Servicer or the Portfolio Asset Servicer which conflict with any instructions received by the Administrative Agent, all Letters of Credit the Collateral Custodian shall have expired or terminated (or been collateralized in a manner satisfactory to rely on and follow the applicable Issuing Bank) and all Letter of Credit Outstandings have been reduced to zero (or collateralized in a manner satisfactory to instructions given by the applicable Issuing Bank), or Administrative Agent.
(ii) constituting property being sold, transferred or disposed of in a Permitted Disposition upon receipt by the The Administrative Agent (acting at the direction of the Net Proceeds thereof Initial Lender) may direct the Collateral Custodian to take any such incidental action hereunder. With respect to other actions which are incidental to the extent required by this Agreement. Except as provided aboveactions specifically delegated to the Collateral Custodian hereunder, the Collateral Agent will not release any of the Collateral Agent’s Liens without the prior written authorization of the Applicable Lenders. Upon request by any Agent or any Loan Party at any time, the Lenders will confirm in writing the Collateral Agent’s authority to release any Liens upon particular types or items of Collateral pursuant to this SECTION 8.16.
(b) Upon at least two (2) Business Days’ prior written request by the Lead Borrower, 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 Liens upon any Collateral described in SECTION 8.16(a); provided, however, that (i) the Collateral Agent Custodian shall not be required to execute take any such document on terms whichincidental action hereunder, but shall be required to act or to refrain from acting (and 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 or otherwise if the taking of such action, in its the reasonable opiniondetermination of the Collateral Custodian, would, under (A) shall be in violation of any Applicable Law, Law or contrary to any provisions of this Agreement or (B) shall expose the Collateral Agent Custodian to liability hereunder or create any obligation 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 Administrative Agent and the Collateral Custodian does not receive a consent (either positive or entail any adverse consequence other than negative) from the release Administrative Agent within ten Business Days of its receipt of such Liens without recourse or warrantyrequest, and then the Administrative Agent shall be deemed to have declined to consent to the relevant action.
(iiiii) such release The Collateral Custodian shall not be liable for any action taken, suffered or omitted by it in any manner discharge, affect accordance with the request or impair the Obligations or any Liens (other than those expressly being released) upon (or obligations direction of any Loan Party in respect of) all interests retained by any Loan Secured Party, including (without limitation) to the proceeds extent that this Agreement provides such Secured Party the right to so direct the Collateral Custodian, or the Administrative Agent. The Collateral Custodian shall not be deemed to have notice or knowledge of any salematter hereunder, all including an Event of which shall continue to constitute part Default, unless a Responsible Officer of the CollateralCollateral Custodian has actual knowledge of such matter or written notice thereof is received by the Collateral Custodian.
(iv) In performing its duties, the Collateral Custodian shall comply with the standard of care and express terms of this Agreement with respect to the collateral that it holds hereunder.
Appears in 1 contract
Sources: Loan and Servicing Agreement (FS Credit Real Estate Income Trust, Inc.)
Collateral Matters. (a) The Lenders hereby irrevocably authorize the Collateral Agent Agent, at its option and in its discretion, to release any Lien granted to or held by the Collateral Agent upon any Collateral (i) upon the termination of the Commitments and payment and satisfaction in full of the Term Loan and all other Obligations (other than contingent indemnity obligations Contingent Indemnity Obligations) in accordance with respect to then unasserted claims), all Letters of Credit shall have expired the terms hereof; or terminated (or been collateralized in a manner satisfactory to the applicable Issuing Bank) and all Letter of Credit Outstandings have been reduced to zero (or collateralized in a manner satisfactory to the applicable Issuing Bank), or (ii) constituting property being sold, transferred sold or disposed of in a the ordinary course of any Loan Party’s business or otherwise in compliance with the terms of this Agreement and the other Loan Documents (including, without limitation, pursuant to any Permitted Disposition upon receipt Disposition); or constituting property in which the Loan Parties owned no interest at the time the Lien was granted or at any time thereafter; or if approved, authorized or ratified in writing by the Administrative Agent of the Net Proceeds thereof to the extent required by 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 Applicable LendersLenders in accordance with Section 12.02. Upon request by any the Collateral Agent or any Loan Party at any time, the Lenders will confirm in writing the Collateral Agent’s authority to release any Liens upon particular types or items of Collateral pursuant to this SECTION 8.16Section 10.08(a).
(b) 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(a)), each Lender agrees to confirm in writing, upon request by the Collateral Agent, the authority to release Collateral conferred upon the Collateral Agent under Section 10.08(a). Upon at least two (2) Business Days’ receipt by the Collateral Agent of confirmation from the Lenders of its authority to release any particular item or types of Collateral, and upon prior written request by the Lead Borrowerany 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 Liens granted to the Collateral Agent for the benefit of the Agents and the Lenders upon any Collateral described in SECTION 8.16(a)such Collateral; provided, however, that (i) the Collateral Agent shall not be required to execute any such document on terms which, in its reasonable the Collateral Agent’s opinion, would, under Applicable Law, would expose the Collateral Agent to liability or create any obligation obligations or entail any adverse consequence other than the release of such Liens without recourse or warranty, and (ii) such release shall not in any manner discharge, affect or impair the Obligations or any Liens (other than those expressly being released) Lien upon (or obligations of any Loan Party in respect of) all interests in the Collateral retained by any Loan Party.
(c) Anything contained in any of the Loan Documents to the contrary notwithstanding, including the Loan Parties, each Agent and each Lender hereby agree that (without limitationi) no Lender shall have any right individually to realize upon any of the Collateral under any Loan Document or to enforce any Guaranty, it being understood and agreed that all powers, rights and remedies under the Loan Documents may be exercised solely by the Collateral Agent for the benefit of the Lenders in accordance with the terms thereof, (ii) in the event of a foreclosure by the Collateral Agent on any of the Collateral pursuant to a public or private sale, the Administrative Agent, the Collateral Agent or any Lender may be the purchaser of any or all of such Collateral at any such sale and (iii) the proceeds Collateral Agent, as agent for and representative of the Agents and the Lenders (but not any other Agent or any Lender or Lenders in its or their respective individual capacities unless the Required Lenders shall otherwise agree in writing) shall be entitled (either directly or through one or more acquisition vehicles) for the purpose of bidding and making settlement or payment of the purchase price for all or any portion of the Collateral to be sold (A) at any public or private sale, (B) at any sale conducted by the Collateral Agent under the provisions of the Uniform Commercial Code (including pursuant to Sections 9-610 or 9-620 of the Uniform Commercial Code), (C) at any sale or foreclosure conducted by the Collateral Agent (whether by judicial action or otherwise) in accordance with applicable law or (D) any sale conducted pursuant to the provisions of any Debtor Relief Law (including Section 363 of the Bankruptcy Code), to use and apply all or any of the Obligations as a credit on account of the purchase price for any Collateral payable by the Collateral Agent at such sale.
(d) The Collateral Agent shall have no obligation whatsoever to any Lender to assure that the Collateral exists or is owned by the Loan Parties or is cared for, protected or insured or has been encumbered or that the Lien granted to the Collateral Agent pursuant to this Agreement or any other Loan Document has been properly or sufficiently or lawfully created, perfected, protected or enforced or is entitled to any particular priority, or to exercise at all or in any particular manner or under any duty of which shall care, disclosure or fidelity, or to continue exercising, any of the rights, authorities and powers granted or available to constitute part the Collateral Agent in this Section 10.08 or in any other Loan Document, it being understood and agreed that in respect of the Collateral, or any act, omission or event related thereto, the Collateral Agent may act in any manner it may deem appropriate, in its sole discretion, given the Collateral Agent’s own interest in the Collateral as one of the Lenders and that the Collateral Agent shall have no duty or liability whatsoever to any other Lender, except as otherwise provided herein.
Appears in 1 contract
Collateral Matters. (a) The Lenders hereby irrevocably authorize the Collateral Agent Agent, at its option and in its discretion, to release any Lien granted to or held by the Collateral Agent upon any Collateral (i) upon the termination of the Term Loan Commitments and payment and satisfaction in full of all Term Loans and all other Obligations (other than contingent indemnity obligations Contingent Indemnity Obligations) in accordance with respect to then unasserted claims), all Letters of Credit shall have expired the terms hereof; or terminated (or been collateralized in a manner satisfactory to the applicable Issuing Bank) and all Letter of Credit Outstandings have been reduced to zero (or collateralized in a manner satisfactory to the applicable Issuing Bank), or (ii) constituting property being sold, transferred sold or disposed of in a Permitted Disposition upon receipt the ordinary course of any Loan Party’s business or otherwise in compliance with the terms of this Agreement and the other Loan Documents; or constituting property in which the Loan Parties owned no interest at the time the Lien was granted or at any time thereafter; or if approved, authorized or ratified in writing by the Administrative Agent of the Net Proceeds thereof to the extent required by 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 Applicable LendersLenders in accordance with Section 12.02. Upon request by any the Collateral Agent or any Loan Party at any time, the Lenders will confirm in writing the Collateral Agent’s authority to release any Liens upon particular types or items of Collateral pursuant to this SECTION 8.16Section 10.08(a).
(b) 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(a)), each Lender agrees to confirm in writing, upon request by the Collateral Agent, the authority to release Collateral conferred upon the Collateral Agent under Section 10.08(a). Upon at least two (2) Business Days’ receipt by the Collateral Agent of confirmation from the Lenders of its authority to release any particular item or types of Collateral, and upon prior written request by the Lead Borrowerany 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 Liens granted to the Collateral Agent for the benefit of the Agents and the Lenders upon any Collateral described in SECTION 8.16(a)such Collateral; provided, however, that (i) the Collateral Agent shall not be required to execute any such document on terms which, in its reasonable the Collateral Agent’s opinion, would, under Applicable Law, would expose the Collateral Agent to liability or create any obligation obligations or entail any adverse consequence other than the release of such Liens without recourse or warranty, and (ii) such release shall not in any manner discharge, affect or impair the Obligations or any Liens (other than those expressly being released) Lien upon (or obligations of any Loan Party in respect of) all interests in the Collateral retained by any Loan Party.
(c) Anything contained in any of the Loan Documents to the contrary notwithstanding, including the Loan Parties, each Agent and each Lender hereby agree that (without limitationi) no Lender shall have any right individually to realize upon any of the Collateral under any Loan Document or to enforce any Guaranty, it being understood and agreed that all powers, rights and remedies under the Loan Documents may be exercised solely by the Collateral Agent for the benefit of the Lenders in accordance with the terms thereof, (ii) in the event of a foreclosure by the Collateral Agent on any of the Collateral pursuant to a public or private sale, the Administrative Agent, the Collateral Agent or any Lender may be the purchaser of any or all of such Collateral at any such sale and (iii) the proceeds Collateral Agent, as agent for and representative of the Agents and the Lenders (but not any other Agent or any Lender or Lenders in its or their respective individual capacities unless the Required Lenders shall otherwise agree in writing) shall be entitled (either directly or through one or more acquisition vehicles) for the purpose of bidding and making settlement or payment of the purchase price for all or any portion of the Collateral to be sold (A) at any public or private sale, (B) at any sale conducted by the Collateral Agent under the provisions of the Uniform Commercial Code (including pursuant to Sections 9-610 or 9-620 of the Uniform Commercial Code), (C) at any sale or foreclosure conducted by the Collateral Agent (whether by judicial action or otherwise) in accordance with applicable law or (D) any sale conducted pursuant to the provisions of any Debtor Relief Law (including Section 363 of the Bankruptcy Code), to use and apply all or any of the Obligations as a credit on account of the purchase price for any Collateral payable by the Collateral Agent at such sale.
(d) The Collateral Agent shall have no obligation whatsoever to any Lender to assure that the Collateral exists or is owned by the Loan Parties or is cared for, protected or insured or has been encumbered or that the Lien granted to the Collateral Agent pursuant to this Agreement or any other Loan Document has been properly or sufficiently or lawfully created, perfected, protected or enforced or is entitled to any particular priority, or to exercise at all or in any particular manner or under any duty of which shall care, disclosure or fidelity, or to continue exercising, any of the rights, authorities and powers granted or available to constitute part the Collateral Agent in this Section 10.08 or in any other Loan Document, it being understood and agreed that in respect of the Collateral, or any act, omission or event related thereto, the Collateral Agent may act in any manner it may deem appropriate, in its sole discretion, given the Collateral Agent’s own interest in the Collateral as one of the Lenders and that the Collateral Agent shall have no duty or liability whatsoever to any other Lender, except as otherwise provided herein.
Appears in 1 contract
Sources: Senior Secured Superpriority Priming Debtor in Possession Financing Agreement (AgileThought, Inc.)
Collateral Matters. (a) The Lenders hereby irrevocably authorize the Collateral Agent to release any Lien upon any Collateral (i) upon The Company agrees to use its best efforts, and to cause each applicable Subsidiary to use its best efforts, to deliver to the termination Agent not later than April 15, 2003 all original vehicle titles for the vehicles set forth on Exhibit A of the Commitments and payment and satisfaction in full of all Obligations officer’s certificate required to be delivered pursuant to Section 4(e) (other than contingent indemnity obligations with respect to then unasserted claims), all Letters of Credit shall have expired or terminated (or been collateralized in a manner satisfactory to the applicable Issuing Bank) and all Letter of Credit Outstandings have been reduced to zero (or collateralized in a manner satisfactory to the applicable Issuing Bank), or (ii) constituting property being sold, transferred or disposed of in a Permitted Disposition upon receipt by the Administrative Agent of the Net Proceeds thereof to the extent required by this Agreement. Except as provided above, not previously delivered to the Collateral Agent will not release any of the Collateral Agent’s Liens without the prior written authorization of the Applicable Lenders. Upon request by any Agent or any Loan Party at any time, the Lenders will confirm in writing the Collateral Agent’s authority ) and to release any Liens upon particular types or items of Collateral pursuant to this SECTION 8.16.
(b) Upon at least two (2) Business Days’ prior written request by the Lead Borrower, the Collateral Agent shall (and is hereby irrevocably authorized by the Lenders to) execute take such documents other actions as may be necessary or advisable to evidence note the release lien of the Liens upon any Collateral described in SECTION 8.16(a)Agent on each such vehicle title; provided, however, provided that the foregoing shall not apply to vehicle titles that have been lost or destroyed so long as (ix) the Collateral Agent shall not be required to execute any such document Company provides a list of the applicable vehicles on terms whichor before April 15, in its reasonable opinion2003, would, under Applicable Law, expose (y) the Collateral Agent to liability or create any obligation or entail any adverse consequence other than the release aggregate number of such Liens without recourse or warrantyvehicles is less than 75 and (z) the Company delivers a certificate certifying that it has sought the issuance of replacement vehicle titles for such vehicles from the appropriate governmental authorities and will, and will cause the applicable Subsidiaries to, deliver such replacement vehicle titles to the Agent promptly upon receipt.
(ii) The Company agrees (x) to execute and deliver, and to cause each applicable Subsidiary to execute and deliver, to the Agent a mortgage on each parcel of real estate owned by the Company or such release shall Subsidiary (to the extent not in previously delivered to the Agent) not later than April 15, 2003 and (y) to use its best efforts, and to cause each applicable Subsidiary use its best efforts, to execute and deliver to the Agent (and obtain any manner dischargenecessary landlord consent to) a leasehold mortgage on each parcel of real estate leased by the Company or such Subsidiary (to the extent not previously delivered to the Agent) not later than April 30, affect or impair the Obligations or any Liens 2003.
(iii) The Company agrees to use its best efforts, and to cause each applicable Subsidiary to use its best efforts, to cause each depository bank (other than those expressly any Bank) at which the Company or such Subsidiary maintains a deposit account to execute and deliver to the Agent not later than April 30, 2003 a blocked account agreement in form and substance satisfactory to the Agent, it being releasedunderstood that the Company shall, and shall cause each applicable Subsidiary to, close each account maintained with a depositary bank (other than any Bank) upon (which has not so delivered a blocked account agreement and cause the amounts deposited in such accounts to be deposited into accounts maintained with one or obligations of any Loan Party in respect of) all interests retained by any Loan Party, including (without limitation) the proceeds of any sale, all of which shall continue to constitute part more of the CollateralBanks not later than May 31, 2003.
Appears in 1 contract
Sources: Credit Agreement (U S Liquids Inc)
Collateral Matters. (a) The Lenders hereby irrevocably authorize Until all obligations have been fully satisfied, Lender’s security interest in the Collateral Agent to release any Lien upon any Collateral (i) upon the termination of the Commitments Collateral, and payment all proceeds and satisfaction products thereof, shall continue in full force and effect. During the term of all Obligations this Agreement, Borrower shall not permit any lien, claim or encumbrance (other than contingent indemnity obligations with respect those granted Lender and those subordinated and/or approved in writing by Lender) to then unasserted claims), all Letters of Credit shall have expired or terminated (or been collateralized in a manner satisfactory to the applicable Issuing Bank) and all Letter of Credit Outstandings have been reduced to zero (or collateralized in a manner satisfactory to the applicable Issuing Bank), or (ii) constituting property being sold, transferred or disposed of in a Permitted Disposition upon receipt by the Administrative Agent of the Net Proceeds thereof to the extent required by this Agreement. Except as provided above, the Collateral Agent will not release remain against any of the Collateral Agentand 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 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 interest 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 carbon, photographic, photostatic, or other reproduction of this Agreement or of a financing statement is sufficient as a financing statement. And further that 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 limited to financing statements, effective financing statements, and continuations, amendments, assignments, or terminations thereof, WITHOUT the physical signature of Borrower and/or this authorization shall be deemed a digital signature, and/or this authorization shall be deemed a limited power of attorney appointing Secured Party 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 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 Loans, the Collateral, any part thereof, or the Lender by virtue of the Applicable LendersLoan transactions. Upon request by any Agent or any Loan Party at any timeUnless contested in good faith, the Lenders will confirm in writing the Collateral Agent’s authority if Borrower fails to release any Liens upon particular types or items of Collateral pursuant to this SECTION 8.16.
pay such taxes, assessments and governmental charges, Lender may (b) Upon at least two (2) Business Days’ prior written request by the Lead Borrower, 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 Liens upon any Collateral described in SECTION 8.16(a); provided, however, that (i) the Collateral Agent but shall not be required to) pay the same and charge the cost to execute any such document the Borrower payable on terms which, in its reasonable opinion, would, under Applicable Law, expose the Collateral Agent to liability or create any obligation or entail any adverse consequence other than the release of such Liens without recourse or warranty, demand and (ii) such release shall not in any manner discharge, affect or impair the Obligations or any Liens (other than those expressly being released) upon (or obligations of any Loan Party in respect of) all interests retained secured by any Loan Party, including (without limitation) the proceeds of any sale, all of which shall continue to constitute part of the Collateral.
Appears in 1 contract
Collateral Matters. (a) The Lenders hereby irrevocably authorize the Collateral Agent to release any Lien upon any Collateral (i) upon the termination of the Commitments and payment and satisfaction in full of all Obligations (other than contingent indemnity obligations with respect to then unasserted claims), all Letters of Credit shall have expired or terminated (or been collateralized in a manner satisfactory to the applicable Issuing Bank) and all Letter of Credit Outstandings have been reduced to zero (or collateralized in a manner satisfactory to the applicable Issuing Bank), or (ii) constituting property being sold, transferred or disposed of in a Permitted Disposition upon receipt by to a Person that is not a Loan Party, (iii) which constitutes property subject to the Administrative Agent proviso in the definition of “Collateral” in the Security Agreement or subject to the proviso in SECTION 2.1 of the Net Proceeds thereof Pledge Agreement, (iv) as provided in any Intercreditor Agreement, including the ABL Intercreditor Agreement with respect to Revolver Priority Collateral and (v) as to the extent required by this AgreementCollateral of any Facility Guarantor, upon its release from its Facility Guarantee (including as a result of designation as an Unrestricted Subsidiary). Except as provided above, the Collateral Agent will not release any of the Collateral Agent’s Liens without the prior written authorization of the Applicable Lenders. Upon request by any Agent or any Loan Party at any time, the Lenders will confirm in writing the Collateral Agent’s authority to release any Liens upon particular types or items of Collateral pursuant to this SECTION 8.16.
(b) Upon at least two (2) Business Days’ prior written request by the Lead Borrower, the 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 Liens upon any Collateral described in SECTION 8.16(a); provided, however, that (i) the Collateral Agent shall not be required to execute any such document on terms which, in its reasonable opinion, would, under Applicable Law, expose the Collateral Agent to liability or create any obligation or entail any adverse consequence other than the release of such Liens without recourse or warranty, and (ii) such release shall not in any manner discharge, affect or impair the Obligations or any Liens (other than those expressly being released) upon (or obligations of any Loan Party in respect of) all interests retained by any Loan Party, including (without limitation) the proceeds of any sale, all of which shall continue to constitute part of the Collateral.
(c) Each Lender irrevocably authorizes each of the Administrative Agent and the Collateral Agent to (i) release any Guarantor from its obligations under a Facility Guarantee if such Person ceases to be a Restricted Subsidiary as a result of a transaction or designation permitted hereunder and (ii) upon the request of the Borrower and pursuant to documentation reasonably acceptable to the Administrative Agent and/or Collateral Agent, to subordinate any Lien on any property granted to or held by the Administrative Agent or the Collateral Agent under any Loan Document to the holder of any Lien on such property that is permitted under clause (f), (h) or (ht) of the definition of Permitted Encumbrances.
(d) The Secured Parties hereby irrevocably authorize the Administrative Agent, at the direction of the Required Lenders, to credit bid all or any portion of the Obligations (including by accepting some or all of the Collateral in satisfaction of some or all of the Obligations pursuant to a deed in lieu of foreclosure or otherwise) and in such manner purchase (either directly or through one or more acquisition vehicles) all or any portion of the Collateral (a) at any sale thereof conducted under the provisions of the Bankruptcy Code, including under Sections 363, 1123 or 1129 of the Bankruptcy Code, or any similar laws in any other jurisdictions to which a Loan Party is subject, or (b) at any other sale, foreclosure or acceptance of collateral in lieu of debt conducted by (or with the consent or at the direction of) the Administrative Agent (whether by judicial action or otherwise) in accordance with any applicable law. In connection with any such credit bid and purchase, the Obligations owed to the Secured Parties shall be entitled to be, and shall be, credit bid by the Administrative Agent at the direction of the Required Lenders on a ratable basis (with Obligations with respect to contingent or unliquidated claims receiving contingent interests in the acquired assets on a ratable basis that shall vest upon the liquidation of such claims in an amount proportional to the liquidated portion of the contingent claim amount used in allocating the contingent interests) for the asset or assets so purchased (or for the equity interests or debt instruments of the acquisition vehicle or vehicles that are issued in connection with such purchase). In connection with any such bid (i) the Administrative Agent shall be authorized to form one or more acquisition vehicles and to assign any successful credit bid to such acquisition vehicle or vehicles (ii) each of the Secured Parties’ ratable interests in the Obligations which were credit bid shall be deemed without any further action under this Agreement to be assigned to such vehicle or vehicles for the purpose of closing such sale, (iii) the Administrative shall be authorized to adopt documents providing for the governance of the acquisition vehicle or vehicles (provided that any actions by the Administrative Agent with respect to such acquisition vehicle or vehicles, including any disposition of the assets or equity interests thereof, shall be governed, directly or indirectly, by, and the governing documents shall provide for, control by the vote of the Required Lenders or their permitted assignees under the terms of this Agreement or the governing documents of the applicable acquisition vehicle or vehicles, as the case may be, irrespective of the termination of this Agreement and without giving effect to the limitations on actions by the Required Lenders contained in SECTION 9.02 of this Agreement), (iv) the Administrative Agent on behalf of such acquisition vehicle or vehicles shall be authorized to issue to each of the Secured Parties, ratably on account of the relevant Obligations which were credit bid, interests, whether as equity, partnership, limited partnership interests or membership interests, in any such acquisition vehicle and/or debt instruments issued by such acquisition vehicle, all without the need for any Secured Party or acquisition vehicle to take any further action, and (v) to the extent that Obligations that are assigned to an acquisition vehicle are not used to acquire Collateral for any reason (as a result of another bid being higher or better, because the amount of Obligations assigned to the acquisition vehicle exceeds the amount of Obligations credit bid by the acquisition vehicle or otherwise), such Obligations shall automatically be reassigned to the Secured Parties pro rata and the equity interests and/or debt instruments issued by any acquisition vehicle on account of such Obligations shall automatically be cancelled, without the need for any Secured Party or any acquisition vehicle to take any further action. Notwithstanding that the ratable portion of the Obligations of each Secured Party are deemed assigned to the acquisition vehicle or vehicles as set forth in clause (ii) above, each Secured Party shall execute such documents and provide such information regarding the Secured Party (and/or any designee of the Secured Party which will receive interests in or debt instruments issued by such acquisition vehicle) as the Administrative Agent may reasonably request in connection with the formation of any acquisition vehicle, the formulation or submission of any credit bid or the consummation of the transactions contemplated by such credit bid.
Appears in 1 contract
Collateral Matters. (a) The Lenders hereby irrevocably authorize the Collateral Agent Agent, at its option and in its sole discretion, to release any Collateral Agent’s Lien upon any Collateral and to terminate any Guarantee (i) upon the termination of the 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 indemnity indemnification and expense reimbursement obligations with respect to then unasserted claimsfor which no claim has been made), all Letters of Credit shall have expired or terminated (or been collateralized in a manner satisfactory to the applicable Issuing Bank) and all Letter of Credit Outstandings have been reduced to zero (or collateralized in a manner satisfactory to the applicable Issuing Bank), or ; (ii) constituting property being sold, transferred sold or disposed of if the Loan Party disposing of such property certifies to the Collateral Agent that the sale or disposition is made in compliance with Section 9.9 or Section 9.19 (and the Collateral Agent may rely conclusively on any such certificate, without further inquiry); (iii) constituting property in which no Loan Party owned any interest at the time the Lien was granted or at any time thereafter; (iv) constituting property leased to a Loan Party under a lease which has expired or been terminated in a Permitted Disposition upon receipt transaction permitted under this Agreement; (v) as required by the Administrative Agent of the Net Proceeds thereof Intercreditor Agreement; or (vi) pursuant to the extent required by this AgreementSection 14.11(b) below. Except as provided above, the Collateral Agent will not release any of the Collateral Agent’s Liens without the prior written authorization of the Applicable Lenders; provided that the Collateral Agent may, in its discretion, release the Collateral Agent’s Liens on Collateral valued in the aggregate not in excess of $5,000,000 during each Fiscal Year without the prior written authorization of any Lender. Upon request by any the Collateral Agent or any Loan Party the Borrowers at any time, the Lenders will confirm in writing the Collateral Agent’s authority to release any Collateral Agent’s Liens upon particular types or items of Collateral pursuant to this SECTION 8.16Section 14.11.
(b) Upon at least two In the event that any Loan Party conveys, sells, leases, assigns, transfers or otherwise disposes of all or any portion of any of the Capital Stock or assets of a Loan Party to a person that is not (2and is not required to become) Business Days’ prior written request a Loan Party in a transaction not prohibited by the Lead BorrowerSection 9.9 , the Collateral Agent shall promptly (and is hereby irrevocably authorized by the Lenders hereby authorize the Collateral Agent to) take such action and execute any such documents as may be necessary reasonably requested by Parent and at Parent’s expense to evidence release, share or subordinate any Liens created by any Loan Document in respect of such assets or Capital Stock, and, in the release case of a disposition of the Liens upon Capital Stock of any Collateral described Subsidiary that is a Loan Party in SECTION 8.16(a); a transaction not prohibited by Section 9.9 and as a result of which such Subsidiary would cease to be a Loan Party, terminate such Subsidiary’s obligations under its Guarantee provided, however, that (i) the Collateral Agent shall not be required to execute any such document on terms which, in its the Collateral Agent’s reasonable opinion, would, under Applicable Law, would expose the Collateral Agent to liability or create any obligation or entail any adverse consequence other than the release of such Liens without recourse or warranty, and (ii) such release shall not in any manner discharge, affect affect, or impair the Obligations or any Liens (other than those expressly being released) upon (or obligations of any Loan Party the Borrowers in respect of) all interests retained by any Loan Partythe Borrowers, including (without limitation) the proceeds of any sale, all of which shall continue to constitute part of the Collateral. In addition, the Collateral Agent agrees to take such actions as are reasonably requested by Parent and at Parent’s expense to terminate the Liens and security interests created by the Loan Documents when (i) all the Obligations (other than in respect of contingent indemnification and expense reimbursement obligations for which no claim has been made) are paid in full and all Letters of Credit and Commitments are terminated and (ii) required under the Intercreditor Agreement. Any representation, warranty or covenant contained in any Loan Document relating to any such Capital Stock, asset or Subsidiary of Holdings shall no longer be deemed to be made once such Capital Stock or asset is so conveyed, sold, leased, assigned, transferred or disposed of. Upon any release or termination in connection with the foregoing, the Collateral Agent shall (and is hereby authorized by the Lenders to) execute such documents as may reasonably requested by Parent to evidence the release of the Collateral Agent’s Liens upon such Collateral (including without limitation UCC-3 termination statements) all without recourse or warranty.
(c) The Collateral Agent shall have no obligation whatsoever to any of the Lenders to assure that the Collateral exists or is owned by any Loan Party or is cared for, protected, or insured or has been encumbered, or that the Collateral Agent’s Liens have been properly or sufficiently or lawfully created, perfected, protected, or enforced or are entitled to any particular priority, or to exercise at all or in any particular manner or under any duty of care, disclosure, or fidelity, or to continue exercising, any of the rights, authorities, and powers granted or available to the Collateral Agent pursuant to any of the Loan Documents, it being understood and agreed that in respect of the Collateral, or any act, omission, or event related thereto, the Collateral Agent may act in any manner it may deem appropriate, in its sole discretion given the Collateral Agent’s own interest in the Collateral in its capacity as one of the Lenders and that the Collateral Agent shall have no other duty or liability whatsoever to any Lender as to any of the foregoing.
Appears in 1 contract
Sources: Loan and Security Agreement (Metals USA Plates & Shapes Southcentral, Inc.)
Collateral Matters. (a) The Lenders hereby irrevocably authorize the Collateral Agent Agent, at its option and in its sole discretion, to release any Agent's Lien upon any Collateral Collateral
(i) upon the termination of the Commitments and payment and satisfaction in full by Borrower of all Obligations (other than contingent indemnity Loans and reimbursement obligations with in respect to then unasserted claims)of Letters of Credit, Credit Support and Indemnity Obligations, and the termination of all outstanding Letters of Credit shall have expired (whether or terminated (or been collateralized in a manner satisfactory to the applicable Issuing Banknot any of such obligations are due) and all Letter of Credit Outstandings have been reduced to zero (or collateralized in a manner satisfactory to the applicable Issuing Bank), or other Obligations; (ii) constituting property being sold, transferred sold or disposed of if the Loan Party owning such property certifies to the Agent that the sale or disposition is made in compliance with Section 9.9 (and the Agent may rely conclusively on any such certificate, without further inquiry); (iii) constituting property in which neither the Borrower nor other Loan Party owned any interest at the time the Lien was granted or at any time thereafter; or (iv) constituting property leased to the Borrower or other Loan Party under a lease which has expired or been terminated in a Permitted Disposition upon receipt by the Administrative Agent of the Net Proceeds thereof to the extent required by transaction permitted under this Agreement. 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 Applicable Lenders; provided that the Agent may, in its discretion, release the Agent's Liens on Collateral valued in the aggregate not in excess of $1,000,000 in any one year period without the prior written authorization of the Lenders. Upon request by any the Agent or any Loan Party the Borrower at any time, the Lenders will confirm in writing the Collateral Agent’s 's authority to release any Agent's Liens upon particular types or items of Collateral pursuant to this SECTION 8.16Section 14.11.
(b) Upon receipt by the Agent of any authorization required pursuant to Section 14.11(a) from the Lenders of the Agent's authority to release any Agent's Liens upon particular types or items of Collateral, and upon at least two five (25) Business Days’ ' prior written request by the Lead Borrower, 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 Agent's Liens upon any Collateral described in SECTION 8.16(a)such Collateral; provided, however, that (i) the Collateral Agent shall not be required to execute any such document on terms which, in its reasonable the Agent's opinion, would, under Applicable Law, would expose the Collateral Agent to liability or create any obligation or entail any adverse consequence other than the release of such Liens without recourse or warranty, and (ii) such release shall not in any manner discharge, affect or impair the Obligations or any Liens (other than those expressly being released) upon (or obligations of any the Borrower or other Loan Party in respect of) all interests retained by any the Borrower or such other Loan Party, including (without limitation) the proceeds of any sale, all of which shall continue to constitute part of the Collateral.
(c) The Agent shall have no obligation whatsoever to any of the Lenders to assure that the Collateral exists or is owned by the Borrower or other Loan Party or is cared for, protected or insured or has been encumbered, or that the Agent's Liens have been properly or sufficiently or lawfully created, perfected, protected or enforced or are entitled to any particular priority, or to exercise at all or in any particular manner or under any duty of care, disclosure or fidelity, or to continue exercising, any of the rights, authorities and powers granted or available to the Agent pursuant to any of the Loan Documents, it being understood and agreed that in respect of the Collateral, or any act, omission or event related thereto, the Agent may act in any manner it may deem appropriate, in its sole discretion given the Agent's own interest in the Collateral in its capacity as one of the Lenders and that the Agent shall have no other duty or liability whatsoever to any Lender as to any of the foregoing.
Appears in 1 contract
Collateral Matters. (a) The Lenders hereby irrevocably authorize the Collateral Administrative Agent and the Canadian Agent, as applicable, to release any Lien upon any Collateral (i) upon the termination of the Domestic Commitments and the Canadian Commitments, as applicable, and payment and satisfaction in full by the Domestic Borrowers of all Obligations and the Canadian Borrower of all Canadian Liabilities, as applicable and, if the Obligations have been accelerated and Liquidation has commenced, the Other Liabilities then due and payable (in any event other than contingent indemnity obligations with respect to then unasserted claims), all Letters of Credit shall have expired or terminated (or been collateralized in a manner satisfactory to the applicable Issuing BankBanks) and all Letter of Credit Outstandings have been reduced to zero (or collateralized in a manner satisfactory to the applicable Issuing BankBanks), or (ii) constituting property being sold, transferred or disposed of in a Permitted Disposition upon receipt by the Administrative Agent or the Canadian Agent, as applicable, of the Net Proceeds thereof to the extent required by this Agreement; or (iii) upon request of the Lead Borrower, constituting Real Estate being transferred from a Domestic Loan Party to another Domestic Loan Party but only to the extent that after such transfer, no Event of Default exists. Except as provided above, the Collateral Administrative Agent or the Canadian Agent, as applicable, will not release any of the Collateral Agent’s or Canadian Agent’s Liens without the prior written authorization of the Applicable Lenders. Upon request by any the Administrative Agent, the Canadian Agent or any Loan Party at any time, the Lenders will confirm in writing the Collateral Administrative Agent’s or the Canadian Agent’s authority to release any Liens upon particular types or items of Collateral pursuant to this SECTION 8.168.18.
(b) Upon at least two (2) Business Days’ prior written request by the Lead Borrower or the Canadian Borrower, as applicable, the Collateral Administrative Agent or the Canadian Agent shall (and is hereby irrevocably authorized by the Lenders to) execute such documents as may be necessary to evidence the release of the Liens upon any Collateral described in SECTION 8.16(a8.18(a); provided, however, that (i) the Collateral Administrative Agent and the Canadian Agent shall not be required to execute any such document on terms which, in its reasonable opinion, would, under Applicable Law, expose the Collateral Administrative Agent or the Canadian Agent to liability or create any obligation or entail any adverse consequence other than the release of such Liens without recourse or warranty, and (ii) such release shall not in any manner discharge, affect or impair the Obligations Obligations, the Other Liabilities, the Canadian Liabilities, or any Liens (other than those expressly being released) upon (or obligations of any Loan Party in respect of) all interests retained by any Loan Party, including (without limitation) the proceeds of any sale, all of which shall continue to constitute part of the Collateral.
(c) The Lenders hereby agree that after the consummation of the TRU Acquisition and the transactions described on Schedule 1.4 hereto, the Initial Borrower shall be automatically released from its obligations as a Borrower and Loan Party hereunder, without any further action of any Credit Party, and the Borrowers (other than the Initial Borrower) shall automatically be deemed to have assumed the obligations of the Initial Borrower hereunder and become a party to this Agreement and the other Loan Documents without any further action of any such Borrower. The Administrative Agent shall execute and deliver to the Initial Borrower, at the Domestic Loan Parties’ expense, such documents as the Initial Borrower may reasonably request to evidence the foregoing release.
Appears in 1 contract
Sources: Credit Agreement (Toys R Us Inc)
Collateral Matters. (i) Each Lender authorizes and directs Agent to enter into the Other Agreements for the benefit of Lenders. Each Lender hereby agrees that, except as otherwise set forth herein, any action taken by Requisite Lenders in accordance with the provisions of this Agreement or the Other Agreements, and the exercise by the Requisite 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 Other Agreements which may be necessary to perfect and maintain perfected the security interest in and liens upon the Collateral granted pursuant to this Agreement and the Other Agreements.
(ii) Agent will not, without the verbal consent of all Lenders, which consent shall (a) The Lenders hereby irrevocably authorize the Collateral Agent to be confirmed promptly thereafter in writing and (b) not be unreasonably withheld or delayed, execute any release any Lien upon of Agent's security interest in any Collateral except for releases relating to dispositions of Collateral (ix) upon permitted by this Agreement (including pursuant to Factoring Arrangements) and (y) in connection with the termination of the Commitments and payment and satisfaction repayment in full of all Obligations (other than contingent indemnity obligations with respect to then unasserted claims), all Letters of Credit shall have expired or terminated (or been collateralized in a manner satisfactory to the applicable Issuing Bank) and all Letter of Credit Outstandings have been reduced to zero (or collateralized in a manner satisfactory to the applicable Issuing Bank), or (ii) constituting property being sold, transferred or disposed of in a Permitted Disposition upon receipt by the Administrative Agent of the Net Proceeds thereof to Liabilities by Borrower and the extent required by termination of all obligations of Agent and Lenders under this Agreement. Except as provided above, Agreement and the Collateral Agent will not release any of the Collateral Agent’s Liens without the prior written authorization of the Applicable Lenders. Upon request by any Agent or any Loan Party at any time, the Lenders will confirm in writing the Collateral Agent’s authority to release any Liens upon particular types or items of Collateral pursuant to this SECTION 8.16.
(b) Upon at least two (2) Business Days’ prior written request by the Lead Borrower, 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 Liens upon any Collateral described in SECTION 8.16(a)Other Agreements; provided, howeverthat with the consent of Requisite Lenders in the manner set forth above, that Agent may release its liens on Collateral having a book value not greater than ten percent (i10%) of the total book value of all Collateral, as determined by Agent, either in a single transaction or series of related transactions, not to exceed twenty percent (20%) of the book value of all Collateral in any Fiscal Year. Agent shall not be required to execute any such document release on terms which, in its reasonable Agent's opinion, would, under Applicable Law, would expose the Collateral Agent to liability or create any obligation or entail any adverse consequence other than the release of such Liens liens without recourse or warranty, and (ii) such release shall not in any manner discharge, affect or impair . In the Obligations or any Liens (other than those expressly being released) upon (or obligations event of any Loan Party in respect of) sale or transfer of any of the Collateral, Agent shall be authorized to deduct all interests retained of the expenses reasonably incurred by any Loan Party, including (without limitation) Agent from the proceeds of any such sale, all transfer or foreclosure.
(iii) Lenders hereby agree that the lien granted to Agent in any property sold or disposed of which shall continue to constitute part in accordance with the provisions of the CollateralAgreement shall be automatically released; provided, however that Agent's -------- ------- lien shall attach to and continue for the benefit of Agent and Lenders in the proceeds and products of such property arising from any such sale or disposition.
(iv) To the extent, pursuant to the provisions of this subsection ---------- 19
Appears in 1 contract
Sources: Loan and Security Agreement (Cobra Electronics Corp)
Collateral Matters. (a) The Lenders hereby irrevocably authorize the Collateral Agent Administrative Agent, at its option and in its sole discretion, to release any Lien upon on any Collateral (i) upon the termination of the Commitments and payment and satisfaction in full by Borrower of all Obligations (other than contingent indemnity obligations with respect to then unasserted claims)Obligations, all Letters of Credit shall have expired or terminated (or been collateralized in a manner satisfactory to the applicable Issuing Bank) and all Letter of Credit Outstandings have been reduced to zero (or collateralized in a manner satisfactory to the applicable Issuing Bank), or (ii) constituting property being sold, transferred 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 is permitted under this Agreement or the other Loan Documents (and Administrative 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 the Administrative 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 Permitted Disposition upon receipt by the Administrative Agent of the Net Proceeds thereof to the extent required by transaction permitted under this Agreement. Except as provided above, the Collateral Administrative 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 Applicable release is of all or substantially all of the Collateral, all of the Lenders, or (z) otherwise, the Required Lenders. Upon request by any Administrative Agent or any Loan Party Borrower at any time, the Lenders will confirm in writing the Collateral Administrative Agent’s 's authority to release any such Liens upon on particular types or items of Collateral pursuant to this SECTION 8.16.
(b) Upon at least two (2) Business Days’ prior written request by the Lead Borrower, 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 Liens upon any Collateral described in SECTION 8.16(a)Section 13.10; provided, however, that (i1) the Collateral Administrative Agent shall not be required to execute any document necessary to evidence such document release on terms whichthat, in its reasonable Administrative Agent's opinion, would, under Applicable Law, would expose the Collateral Administrative Agent to liability or create any obligation or entail any adverse consequence other than the release of such Liens Lien without recourse recourse, representation, or warranty, and (ii2) such release shall not in any manner discharge, affect affect, or impair the Obligations or any Liens (other than those expressly being released) upon (or obligations of any Loan Party Borrower in respect of) all interests retained by any Loan PartyBorrower, including (without limitation) including, the proceeds of any sale, all of which shall continue to constitute part of the Collateral.
(b) Administrative Agent shall have no obligation whatsoever to any of the Lenders to assure that the Collateral exists or is owned by Borrower or its Subsidiaries or is cared for, protected, or insured or has been encumbered, or that the Administrative Agent's Liens have been properly or sufficiently or lawfully created, perfected, protected, or enforced or are entitled to any particular priority, or to exercise at all or in any particular manner or under any duty of care, disclosure or fidelity, or to continue exercising, any of the rights, authorities and powers granted or available to Administrative Agent LOAN AND SECURITY AGREEMENT - Page 47 pursuant to any of the Loan Documents, it being understood and agreed that in respect of the Collateral, or any act, omission, or event related thereto, subject to the terms and conditions contained herein, Administrative Agent may act in any manner it may deem appropriate, in its sole discretion given Administrative Agent's own interest in the Collateral in its capacity as one of the Lenders and that Administrative Agent shall have no other duty or liability whatsoever to any Lender as to any of the foregoing, except as otherwise provided herein.
Appears in 1 contract
Sources: Loan and Security Agreement (Icts International N V)
Collateral Matters. (ai) The Lenders hereby irrevocably authorize the Collateral Agent Agent, at its option and in its discretion, to release any Lien lien granted to or held by the Collateral Agent, for the benefit of the Lenders, upon any Collateral (i) upon the termination of the Commitments and payment and satisfaction in full of all Obligations Term Loans (other than contingent indemnity obligations with respect to then unasserted claims), all Letters of Credit shall have expired whether or terminated (or been collateralized in a manner satisfactory to the applicable Issuing Banknot due) and all Letter of Credit Outstandings other Obligations which have matured and which the Collateral Agent has been reduced to zero (or collateralized notified in a manner satisfactory to the applicable Issuing Bank), or writing are then due and payable; (ii) constituting property being sold, transferred sold or disposed of if such sale has been approved by the Lenders; (iii) constituting property leased to the Company or the Parent under a lease which has expired or been terminated in a Permitted Disposition upon receipt transaction permitted under this Agreement or which will expire imminently and which has not been, and is not intended by the Administrative Agent of Company or the Net Proceeds thereof Parent to be, renewed or extended; or (iv) if approved, authorized or ratified in writing by the extent required by 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 Applicable Lenders. Upon request by any the Collateral Agent or any Loan Party the Company or the Parent at any time, the Lenders will confirm in writing the Collateral Agent’s 's authority to release any Liens lien granted to or held by the Collateral Agent, for the benefit of the Majority Lenders, upon particular types or items of Collateral pursuant to this SECTION 8.16Collateral.
(bii) Upon So long as no Event of Default as described in this Agreement or any Security Agreement has occurred and is then continuing, upon receipt by the Collateral Agent of confirmation from the Lenders, of its authority to release any lien granted to or held by the Collateral Agent, for the benefit of the Lenders, upon particular types or items of Collateral, and upon at least two five (25) Business Days’ , prior written request by the Lead BorrowerCompany or the Parent, 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 Liens liens granted to the Collateral Agent, for the ratable benefit of itself and the Lenders, herein or pursuant hereto upon any such Collateral described in SECTION 8.16(a)Agent, for the ratable benefit of itself and the Lenders, herein or pursuant hereto upon such Collateral; provided, however, that (i) the Collateral Agent shall not be required to execute any such document on terms which, in its reasonable the Collateral Agent's opinion, would, under Applicable Law, would expose the Collateral Agent to liability or create any obligation or entail any adverse consequence other than the release of such Liens liens without recourse or warranty, and (ii) such release shall not in any manner discharge, affect or impair the Obligations or any Liens liens (other than those expressly being released) upon (or obligations of any Loan Party either Grantor in respect of) all interests retained by any Loan Partythe Company or the Parent, including (without limitation) the proceeds of any sale, all of which shall continue to constitute part of the Collateral.
(iii) The Collateral Agent shall have no obligation whatsoever to any Lender to assure that the Collateral exists or is owned by the Company or the Parent or is cared for, protected or insured or has been encumbered or that the Liens granted to the Collateral Agent, for the ratable benefit of itself and the Lenders, herein or pursuant hereto have been properly or sufficiently or lawfully created, perfected, protected or enforced or are entitled to any particular priority, or to exercise at all or in any particular manner or under any duty of care, disclosure or fidelity, or to continue exercising, any of the rights, authorities and powers granted or available to the Collateral Agent pursuant to this Section 12 or pursuant to any of the Security Documents, it being understood and agreed that in respect of the Collateral, or any act, omission or event related thereto, the Collateral Agent may act in any manner it may deem appropriate, in its sole discretion, given the Collateral Agent's own interest in the Collateral in its capacity as one of the Lenders and that the Collateral Agent shall have no duty or liability whatsoever to any Lender as to any of the foregoing.
(iv) The Collateral Agent shall hold the Collateral and any proceeds thereof (whether through foreclosure or otherwise) for the ratable benefit of itself and the Lenders in accordance with each Lender's Pro Rata Portion. Proceeds of Collateral shall be distributed to each Lender based on such Lender's Pro Rata Portion.
Appears in 1 contract
Sources: Term Loan Agreement (Long Distance International 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 release (and if applicable, any Lien subagent appointed by the Collateral Agent under Section 13.2 or otherwise), and the Collateral Agent’s Liens upon any Collateral shall be automatically released (i) upon the termination Full Payment of the Commitments and payment and satisfaction in full of all Obligations (other than contingent indemnity obligations with respect to then unasserted claims), all Letters of Credit shall have expired or terminated (or been collateralized in a manner satisfactory to the applicable Issuing Bank) and all Letter of Credit Outstandings have been reduced to zero (or collateralized in a manner satisfactory to the applicable Issuing Bank), or Obligations; (ii) constituting property being sold, transferred or disposed of to a Person that is not an Obligor; (iii) constituting property in which the Obligors owned no interest at the time the Lien was granted or at any time thereafter; (iv) constituting property leased to an Obligor under a lease which has expired or been terminated in a Permitted Disposition upon receipt by the Administrative Agent of the Net Proceeds thereof 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 this Agreementthe 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. Except as provided above, the Collateral Agent will not release any of the Collateral Agent’s Liens without the prior written authorization of the Applicable LendersRequired Lenders (or such other percentage of Lenders whose consent is required in accordance with Section 12.1); provided that, in addition to the foregoing, the Collateral Agent may, in its discretion, release such Collateral Agent’s Liens on Collateral valued in the aggregate not in excess of $2,500,000 during each Fiscal Year without the prior written authorization of any Lender, so long as all proceeds received in connection with such release are applied to the Obligations in accordance with Section 4.7 and, after giving effect to the application of such proceeds and the updating of the Borrowing Base, as the case may be, to reflect the deletion of any assets subject to such release, Availability shall be no less than the Availability immediately prior to such release. Upon request by any the Collateral Agent or any Loan Party 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 8.16Section 13.10. In addition, the Lenders hereby irrevocably authorize (x) 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) and (y) the Agent to release automatically any Guarantor from its obligations under the Guarantee Agreement if such Person ceases to be a Restricted Subsidiary as a result of a transaction permitted under this Agreement or such Person otherwise becomes an Excluded Subsidiary, in each case, solely to the extent such Subsidiary ceasing to constitute a Restricted Subsidiary or otherwise becoming an Excluded Subsidiary is not prohibited by this Agreement. Upon request by any Appointed Agent at any time, the Required Lenders will confirm in writing such Appointed Agent’s authority to release or subordinate its interest in particular types or items of property, or to release any Guarantor from its obligations pursuant to this Section 13.10(a).
(b) Upon receipt by any Appointed Agent of any authorization required pursuant to Section 13.10(a) from the Lenders of such Appointed Agent’s authority to release or subordinate the applicable Collateral Agent’s Liens upon particular types or items of Collateral, or to release any Guarantor from its obligations under the Guarantee Agreement, and upon at least two three (23) Business Days’ prior written request by the Lead Borrower, the Collateral such Appointed Agent shall (and is hereby irrevocably authorized by the Lenders and the other Secured Parties to) execute such documents as may be necessary to evidence the release of the such Collateral Agent’s Liens upon any such Collateral described in SECTION 8.16(a)or to subordinate its interest therein, or to release such Guarantor from its obligations under the Guarantee Agreement; provided, however, that (i) the Collateral such Appointed Agent shall not be required to execute any such document on terms which, in its reasonable such Appointed Agent’s opinion, would, under Applicable Law, would expose the Collateral such Appointed Agent to liability or create any obligation or entail any adverse consequence other than the release of such Liens without recourse or warranty, and (ii) such release shall not in any manner discharge, affect or impair the Obligations or any Liens (other than those expressly being released) upon (or obligations of any Loan Party the Obligors in respect of) all interests retained by any Loan Partythe Obligors, including (without limitation) the proceeds of any sale, all of which shall continue to constitute part of such Collateral.
(c) The Collateral Agent shall have no obligation whatsoever to any of the Lenders to assure that the Collateral exists or is owned by the Obligors or is cared for, protected or insured or has been encumbered, or that the applicable Collateral Agent’s Liens have been properly or sufficiently or lawfully created, perfected, protected or enforced or are entitled to any particular priority, or to exercise at all or in any particular manner or under any duty of care, disclosure or fidelity, or to continue exercising, any of the rights, authorities and powers granted or available to the Collateral Agent pursuant to any of the Loan Documents, it being understood and agreed that in respect of the Collateral, or any act, omission or event related thereto, the Collateral Agent may act in any manner it may deem appropriate, in its sole discretion, given the Collateral Agent’s own interest in the Collateral in its capacity as one of the Lenders and that the Collateral Agent shall have no other duty or liability whatsoever to any Lender as to any of the foregoing.
Appears in 1 contract
Collateral Matters. (a) The Lenders hereby irrevocably authorize the Collateral Agent Agent, at its option and in its sole discretion, to release any Lien upon any Collateral and to terminate any guarantee (i) upon 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 Obligations (other than contingent indemnity indemnification and expense reimbursement obligations with respect to then unasserted claimsfor which no claim has been made), all Letters of Credit shall have expired or terminated (or been collateralized in a manner satisfactory to the applicable Issuing Bank) and all Letter of Credit Outstandings have been reduced to zero (or collateralized in a manner satisfactory to the applicable Issuing Bank), or ; (ii) constituting property being sold, transferred sold or disposed of if the Loan Party disposing of such property certifies to the Collateral Agent that the sale or disposition is made in compliance with Section 6.03 (and the Collateral Agent may rely conclusively on any such certification without further inquiry); (iii) constituting property in which no Loan Party owned any interest at the time the Lien was granted or at any time thereafter; (iv) constituting property leased to a Loan Party under a lease which has expired or been terminated in a Permitted Disposition upon receipt by the Administrative Agent of the Net Proceeds thereof to the extent required by transaction permitted under this Agreement; or (v) pursuant to Section 8.10(b) below. 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 Applicable LendersLenders (as required by Section 9.03); provided that the Collateral Agent may, in its discretion, release 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. Upon request by any the Collateral Agent or any Loan Party the Borrowers at any time, the Lenders will confirm in writing the Collateral Agent’s authority to release any Collateral Agent’s Liens upon particular types or items of Collateral pursuant to this SECTION 8.16Section 8.10.
(b) Upon at least two In the event that any Loan Party conveys, sells, leases, assigns, transfers or otherwise disposes of all or any portion of any of the Capital Stock or assets of a Loan Party to a person that is not (2and is not required to become) Business Days’ prior written request a Loan Party in a transaction not prohibited by the Lead BorrowerSection 6.03, the Collateral Agent shall promptly (and is hereby irrevocably authorized by the Lenders hereby authorize the Collateral Agent to) take such action and execute any such documents as may be necessary reasonably requested by the Administrative Borrower and at the Administrative Borrower’s expense to evidence release, share or subordinate any Liens created by any Loan Document in respect of such assets or Capital Stock, and, in the release case of a disposition of the Liens upon Capital Stock of any Subsidiary that is a Loan Party in a transaction not prohibited by Section 6.03 and as a result of which such Subsidiary would cease to be a Loan Party, thus terminating such Subsidiary’s Guaranty obligation under the Guarantee and Collateral described in SECTION 8.16(a)Agreement; provided, however, that (i) the Collateral Agent shall not be required to execute any such document on terms which, in its the Collateral Agent’s reasonable opinion, would, under Applicable Law, would expose the Collateral Agent to liability or create any obligation or entail any adverse consequence other than the release of such Liens without recourse or warranty, and (ii) such release shall not in any manner discharge, affect affect, or impair the Obligations or any Liens (other than those expressly being released) upon (or obligations of any Loan Party the Borrowers in respect of) all interests retained by any Loan Partythe Borrowers, including (without limitation) the proceeds of any sale, all of which shall continue to constitute part of the Collateral. In addition, the Collateral Agent agrees to take such actions as are reasonably requested by the Administrative Borrower and at the Administrative Borrower’s expense to terminate the Liens and security interests created by the Loan Documents when all the Obligations (other than in respect of contingent indemnification and expense reimbursement obligations for which no claim has been made) are paid in full and all Letters of Credit and Commitments are terminated, and upon receipt by the Administrative Agent, for the benefit of Agents and Lenders, of liability releases from the Loan Parties in form and substance satisfactory to the Administrative Agent. Any representation, warranty or covenant contained in any Loan Document relating to any such Capital Stock, asset or Subsidiary of the Administrative Borrower shall no longer be deemed to be made once such Capital Stock or asset is so conveyed, sold, leased, assigned, transferred or disposed of. Upon any release or termination in connection with the foregoing, the Collateral Agent shall (and is hereby authorized by the Lenders to) execute such documents as may reasonably requested by the Administrative Borrower to evidence the release of the Collateral Agent’s Liens upon such Collateral all without recourse or warranty. Notwithstanding the foregoing or the payment in full of the Obligations, Collateral Agent shall not be required to terminate its Liens in the Collateral unless, with respect to any loss or damage Agents may incur as a result of dishonored checks or other items of payment received by Agents from any Borrower or any Account Debtor and applied to the Obligations, Agents shall, at their option, (i) have received a written agreement satisfactory to Agents, executed by Administrative Borrower and by any Person whose loans or other advances to Borrowers are used in whole or in part to satisfy the Obligations, indemnifying the Agents and each Lender from any such loss or damage or (ii) have retained cash Collateral or other Collateral for such period of time as the Agents, in their reasonable discretion, may deem necessary to protect the Agent and each Lender from any such loss or damage.
(c) In the event of a foreclosure by Collateral Agent on any of the Collateral pursuant to a public or private sale or any sale of the any of the Collateral in connection with an insolvency proceeding, Collateral Agent or any Lender may be the purchaser of any or all of such Collateral at any such sale and Collateral Agent, as agent for and representative of Secured Parties (but not any Lender or Lenders in its or their respective individual capacities unless Required Lenders shall otherwise agree in writing) shall be entitled, for the purpose of bidding and making settlement or payment of the purchase price for all or any portion of the Collateral sold at any such sale, to use and apply any of the Obligations as a credit on account of the purchase price for any collateral payable by Collateral Agent at such sale.
(d) The Collateral Agent shall have no obligation whatsoever to any of the Lenders to assure that the Collateral exists or is owned by any Loan Party or is cared for, protected, or insured or has been encumbered, or that the Collateral Agent’s Liens have been properly or sufficiently or lawfully created, perfected, protected, or enforced or are entitled to any particular priority, or to exercise at all or in any particular manner or under any duty of care, disclosure, or fidelity, or to continue exercising, any of the rights, authorities, and powers granted or available to the Collateral Agent pursuant to any of the Loan Documents, it being understood and agreed that in respect of the Collateral, or any act, omission, or event related thereto, the Collateral Agent may act in any manner it may deem appropriate, in its sole discretion, given the Collateral Agent’s own interest in the Collateral and its capacity as one of the Lenders, and that the Collateral Agent shall have no other duty or liability whatsoever to any Lender as to any of the foregoing.
Appears in 1 contract