Collateral Documents and Guaranty. (a) The Secured Parties irrevocably authorize the Collateral Agent, at its option and in its discretion, (i) to release any Lien on any property granted to or held by the Collateral Agent under any Credit Document (v) upon termination of all Commitments and payment in full of all Obligations (other than Remaining Obligations) and the expiration, termination or Cash Collateralization of all Letters of Credit, (w) 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 under the Credit Documents to any Person other than a Credit Party (provided that if requested by the Administrative Agent, the Borrowers shall provide a certification that such disposition is permitted by this Agreement), (x) subject to Section 10.5, if approved, authorized or ratified in writing by the requisite lenders under this Agreement, (y) if the property subject to such Lien is owned by a Guarantor, upon release of such Guarantor from its obligations under its Guaranty pursuant to clause (iii) below or (z) to the extent the property subject to such Lien becomes an Excluded Asset; (ii) to subordinate any Lien on any property granted to or held by the Collateral Agent under any Credit Document to the holder of any Lien on such property that is permitted by Section 6.2(f) or 6.2(g); and (iii) to release any Guarantor from its obligations under the Guaranty if such Person ceases to be a Restricted Subsidiary as a result of a transaction permitted under the Credit Documents. Upon request by the Collateral Agent at any time, the Lenders will confirm in writing the Collateral Agent’s authority to release or subordinate its interest in particular types or items of property, or to release any Guarantor from its obligations under the Guaranty pursuant to this Section 9.10(a). If any Collateral is disposed of as permitted by Section 6.9 to any Person other than a Credit Party, such Collateral shall be sold free and clear of the Liens created by the Credit Documents and the Administrative Agent or the Collateral Agent, as applicable, shall, at the expense of the Borrowers, take any and all actions reasonably requested by the Borrowers to effect the foregoing (provided that if requested by the Administrative Agent, the Borrowers shall provide a certification that such disposition is permitted by this Agreement). (b) Anything contained in any of the Credit Documents to the contrary notwithstanding, each Credit Party, the Administrative Agent, the Collateral Agent and each Secured Party hereby agree that (i) no Secured Party shall have any right individually to realize upon any of the Collateral or to enforce the Guaranty, it being understood and agreed that all powers, rights and remedies hereunder and under any of the Credit 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 all powers, rights and remedies under the Collateral Documents may be exercised solely by the Collateral Agent for the benefit of the Secured Parties in accordance with the terms 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), the Collateral Agent (or any Lender, except with respect to a “credit bid” pursuant to Section 363(k), Section 1129(b)(2)(a)(ii) or otherwise of the Bankruptcy Code) may be the purchaser or licensor of any or all of such Collateral at any such sale or other disposition and the Collateral Agent, as agent for and representative of Secured Parties (but not any Lender or Lenders in its or their respective individual capacities) shall be entitled, upon instructions from Required Lenders, for the purpose of bidding and making settlement or payment of the purchase price for all or any portion of the Collateral sold at any such sale or disposition, to use and apply any of the Obligations as a credit on account of the purchase price for any Collateral payable by the Collateral Agent at such sale or other disposition. (c) Neither the Administrative Agent nor the Collateral Agent shall be responsible for or have a duty to ascertain or inquire into (including any representation or warranty regarding) the existence, value or collectability of the Collateral, the existence, priority or perfection of the Collateral Agent’s Lien thereon, or any certificate prepared by any Credit Party in connection therewith, and neither the Administrative Agent nor the Collateral Agent shall be responsible or liable to the Lenders for any failure to monitor or maintain any portion of the Collateral. (d) No Secured Swap Contract or Cash Management Obligation will create (or be deemed to create) in favor of any Eligible Counterparty or Cash Management Bank, as applicable, that is a party thereto any rights in connection with the management or release of any Collateral or of the obligations of any Guarantor under the Credit Documents except as expressly provided in Section 8.3 and Section 10.5(d)(iv). By accepting the benefits of the Collateral, each Eligible Counterparty and each Cash Management Bank shall be deemed to have appointed the Collateral Agent as its agent and agreed to be bound by the Credit Documents as a Secured Party, subject to the limitations set forth in this clause (d). Notwithstanding any other provision of this Section 9 to the contrary, the Administrative Agent shall not be required to verify the payment of, or that other satisfactory arrangements have been made with respect to, Cash Management Obligations or Obligations arising under Secured Swap Contracts unless the Administrative Agent has received written notice of such Obligations, together with such supporting documentation as the Administrative Agent may reasonably request, from the applicable Cash Management Bank or Eligible Counterparty, as the case may be.
Appears in 4 contracts
Samples: First Lien Credit and Guaranty Agreement (Corsair Gaming, Inc.), First Lien Credit and Guaranty Agreement (Corsair Gaming, Inc.), First Lien Credit and Guaranty Agreement (Corsair Gaming, Inc.)
Collateral Documents and Guaranty. (a) The Secured Parties irrevocably authorize the Collateral Agent, at its option and in its discretion,
(i) to release any Lien on any property granted to or held by the Collateral Agent under any Credit Document (v) upon termination of all Commitments and payment in full of all Obligations (other than Remaining Obligations) and the expiration, termination or Cash Collateralization of all Letters of Credit), (w) 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 under the Credit Documents to any Person other than a Credit Party (provided that if requested by the Administrative Agent, the Borrowers shall provide a certification that such disposition is permitted by this Agreement), (x) subject to Section 10.5, if approved, authorized or ratified in writing by the requisite lenders under this Agreement, (y) if the property subject to such Lien is owned by a Guarantor, upon release of such Guarantor from its obligations under its Guaranty pursuant to clause (iii) below or (z) to the extent the property subject to such Lien becomes an Excluded Asset;
(ii) to subordinate any Lien on any property granted to or held by the Collateral Agent under any Credit Document to the holder of any Lien on such property that is permitted by Section 6.2(f) or 6.2(g); and
(iii) to release any Guarantor from its obligations under the Guaranty if such Person ceases to be a Restricted Subsidiary as a result of a transaction permitted under the Credit Documents. Upon request by the Collateral Agent at any time, the Lenders will confirm in writing the Collateral Agent’s authority to release or subordinate its interest in particular types or items of property, or to release any Guarantor from its obligations under the Guaranty pursuant to this Section 9.10(a). If any Collateral is disposed of as permitted by Section 6.9 to any Person other than a Credit Party, such Collateral shall be sold free and clear of the Liens created by the Credit Documents and the Administrative Agent or the Collateral Agent, as applicable, shall, at the expense of the Borrowers, take any and all actions reasonably requested by the Borrowers to effect the foregoing (provided that if requested by the Administrative Agent, the Borrowers shall provide a certification that such disposition is permitted by this Agreement).
(b) Anything contained in any of the Credit Documents to the contrary notwithstanding, each Credit Party, the Administrative Agent, the Collateral Agent and each Secured Party hereby agree that (i) no Secured Party shall have any right individually to realize upon any of the Collateral or to enforce the Guaranty, it being understood and agreed that all powers, rights and remedies hereunder and under any of the Credit 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 all powers, rights and remedies under the Collateral Documents may be exercised solely by the Collateral Agent for the benefit of the Secured Parties in accordance with the terms 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), the Collateral Agent (or any Lender, except with respect to a “credit bid” pursuant to Section 363(k), Section 1129(b)(2)(a)(ii) or otherwise of the Bankruptcy Code) may be the purchaser or licensor of any or all of such Collateral at any such sale or other disposition and the Collateral Agent, as agent for and representative of Secured Parties (but not any Lender or Lenders in its or their respective individual capacities) shall be entitled, upon instructions from Required Lenders, for the purpose of bidding and making settlement or payment of the purchase price for all or any portion of the Collateral sold at any such sale or disposition, to use and apply any of the Obligations as a credit on account of the purchase price for any Collateral payable by the Collateral Agent at such sale or other disposition.
(c) Neither the Administrative Agent nor the Collateral Agent shall be responsible for or have a duty to ascertain or inquire into (including any representation or warranty regarding) the existence, value or collectability of the Collateral, the existence, priority or perfection of the Collateral Agent’s Lien thereon, or any certificate prepared by any Credit Party in connection therewith, and neither the Administrative Agent nor the Collateral Agent shall be responsible or liable to the Lenders for any failure to monitor or maintain any portion of the Collateral.
(d) No Secured Swap Contract or Cash Management Obligation will create (or be deemed to create) in favor of any Eligible Counterparty or Cash Management Bank, as applicable, that is a party thereto any rights in connection with the management or release of any Collateral or of the obligations of any Guarantor under the Credit Documents except as expressly provided in Section 8.3 and Section 10.5(d)(iv). By accepting the benefits of the Collateral, each Eligible Counterparty and each Cash Management Bank shall be deemed to have appointed the Collateral Agent as its agent and agreed to be bound by the Credit Documents as a Secured Party, subject to the limitations set forth in this clause (d). Notwithstanding any other provision of this Section 9 to the contrary, the Administrative Agent shall not be required to verify the payment of, or that other satisfactory arrangements have been made with respect to, Cash Management Obligations or Obligations arising under Secured Swap Contracts unless the Administrative Agent has received written notice of such Obligations, together with such supporting documentation as the Administrative Agent may reasonably request, from the applicable Cash Management Bank or Eligible Counterparty, as the case may be.
Appears in 4 contracts
Samples: Second Lien Credit and Guaranty Agreement (Corsair Gaming, Inc.), Second Lien Credit and Guaranty Agreement (Corsair Gaming, Inc.), Second Lien Credit and Guaranty Agreement (Corsair Gaming, Inc.)
Collateral Documents and Guaranty. (a) The Secured Parties irrevocably authorize the Collateral Agent, at its option and in its discretion,
(i) to release any Lien on any property granted to or held by the Collateral Agent under any Credit Document (vx) upon termination of all Commitments and payment in full of all Obligations (other than Remaining Obligations) and the expiration, termination or Cash Collateralization of all Letters of Credit), (wy) that is sold or otherwise disposed of or to be sold or otherwise disposed of to a Person that is not a Credit Party as part of or in connection with any sale or other disposition permitted under the Credit Documents to any Person other than a Credit Party Documents, or (provided that if requested by the Administrative Agent, the Borrowers shall provide a certification that such disposition is permitted by this Agreement), (xz) subject to Section 10.5, if approved, authorized or ratified in writing by the requisite lenders under this Agreement, (y) if the property subject to such Lien is owned by a Guarantor, upon release of such Guarantor from its obligations under its Guaranty pursuant to clause (iii) below or (z) to the extent the property subject to such Lien becomes an Excluded AssetRequired Lenders;
(ii) to subordinate any Lien on any property granted to or held by the Collateral Agent under any Credit Document to the holder of any Lien on such property that is permitted by Section 6.2(f) or 6.2(g6.2(d); and
(iii) to release any Guarantor from its obligations under Guaranty upon consummation of any transaction not prohibited hereunder resulting in such Guarantor ceasing to constitute a Guarantor or otherwise becoming an Excluded Subsidiary (and the Guaranty if such Person ceases Collateral Agent may rely conclusively on a certificate to be that effect provided to it by any Credit Party upon its reasonable request without further inquiry); provided that in no event shall any Guarantor cease to constitute a Restricted Subsidiary Guarantor solely as a result of (i) such Guarantor ceasing to constitute a transaction permitted under wholly owned Subsidiary of the Credit DocumentsBorrower after the Closing Date (unless such Person otherwise constitutes an Excluded Subsidiary (other than solely on account or constituting a non-wholly owned Subsidiary of the Borrower)). Upon request by the Collateral Agent at any time, the Required Lenders will confirm in writing the Collateral Agent’s authority to release or subordinate its interest in particular types or items of property, or to release any Guarantor from its obligations under the Guaranty pursuant to this Section 9.10(a9.9(a). If Notwithstanding anything contained herein or in any Collateral is disposed other Credit Document to the contrary, in no event shall any Agent be obligated to execute or deliver any document evidencing or authorizing any release, subordination or re-conveyance without receipt of as permitted a certificate executed by Section 6.9 to any Person other than a Credit Party, such Collateral shall be sold free and clear an Authorized Officer of the Liens created by the Credit Documents and the Administrative Agent Borrower certifying that such release, subordination or the Collateral Agentre-conveyance, as applicable, shallcomplies with this Agreement and the other Credit Documents, at the expense of the Borrowersand that all conditions precedent to such release, take any and all actions reasonably requested by the Borrowers to effect the foregoing (provided that if requested by the Administrative Agent, the Borrowers shall provide a certification that such disposition is permitted by this Agreement)subordination or re-conveyance have been complied with.
(b) Anything contained in any of the Credit Documents to the contrary notwithstanding, each Credit Party, the Administrative Agent, the Collateral Agent and each Secured Party hereby agree that (i) no Secured Party shall have any right individually to realize upon any of the Collateral or to enforce the Guaranty, it being understood and agreed that all powers, rights and remedies hereunder and under any of the Credit 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 all powers, rights and remedies under the Collateral Documents may be exercised solely by the Collateral Agent for the benefit of the Secured Parties in accordance with the terms 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 section 363(k), Section section 1129(b)(2)(a)(ii) or otherwise of the Bankruptcy Code), the Collateral Agent (or any Lender, except with respect to a “credit bid” pursuant to Section section 363(k), Section section 1129(b)(2)(a)(ii) or otherwise of the Bankruptcy Code,) may may, directly or through one or more acquisition vehicles, be the purchaser or licensor of any or all of such Collateral at any such sale or other disposition and the Collateral Agent, as agent for and representative of Secured Parties (but not any Lender or Lenders in its or their respective individual capacities) shall be entitled, upon instructions from the direction of Required Lenders, for the purpose of bidding and making settlement or payment of the purchase price for all or any portion of the Collateral sold at any such sale or disposition, to use and apply any or all of the Obligations as a credit on account of the purchase price for any Collateral collateral payable by the Collateral Agent at such sale or other disposition.
(c) Neither the Administrative Agent nor the Collateral Agent shall be responsible for or have a duty to ascertain or inquire into (including any representation or warranty regarding) regarding the existence, value or collectability of the Collateral, the existence, priority or perfection of the Collateral Agent’s Lien thereon, or any certificate prepared by any Credit Party in connection therewith, and neither the Administrative Agent nor the Collateral Agent shall be responsible or liable to the Lenders for any failure to monitor or maintain any portion of the Collateral.
(d) No Secured Swap Contract or Cash Management Obligation will create (or be deemed to create) in favor of any Eligible Counterparty or Cash Management Bank, as applicable, that is a party thereto any rights in connection with the management or release of any Collateral or of the obligations of any Guarantor under the Credit Documents except as expressly provided in Section 8.3 and Section 10.5(d)(iv). By accepting the benefits of the Collateral, each Eligible Counterparty and each Cash Management Bank shall be deemed to have appointed the Collateral Agent as its agent and agreed to be bound by the Credit Documents as a Secured Party, subject to the limitations set forth in this clause (d). Notwithstanding any other provision of this Section 9 to the contrary, the Administrative Agent shall not be required to verify the payment of, or that other satisfactory arrangements have been made with respect to, Cash Management Obligations or Obligations arising under Secured Swap Contracts unless the Administrative Agent has received written notice of such Obligations, together with such supporting documentation as the Administrative Agent may reasonably request, from the applicable Cash Management Bank or Eligible Counterparty, as the case may be.
Appears in 2 contracts
Samples: Restructuring Support Agreement (2U, Inc.), Debt and Guaranty Agreement (2U, Inc.)
Collateral Documents and Guaranty. (a) Each Lender authorizes the Agent to enter into and remain subject to each of the Collateral Documents to which it is a party and to take all action contemplated by such documents. Each Lender agrees that no Holder of Secured Obligations (other than the Agent) shall have the right individually to seek to realize upon the security granted by any Collateral Document, it being understood and agreed that such rights and remedies may be exercised solely by the Agent for the benefit of the Holders of Secured Obligations upon the terms of the Collateral Documents.
(b) In the event that any Collateral is hereafter pledged by any Person as collateral security for the Secured Obligations, the Agent is hereby authorized to execute and deliver on behalf of the Holders of Secured Obligations any Loan Documents necessary or appropriate to grant and perfect a Lien on such Collateral in favor of the Agent on behalf of the Holders of Secured Obligations.
(c) The Secured Parties irrevocably Lenders hereby authorize the Collateral Agent, at its option and in its discretion,, to:
(i) to release any Lien on any property granted to or held by the Agent upon any Collateral Agent under any Credit Document (vA) upon termination of all the Commitments and payment in full and satisfaction of all of the Obligations (other than Remaining contingent indemnity obligations and Rate Management Obligations) and the expiration, termination or Cash Collateralization of all Letters of Credit, (w) that is sold or otherwise disposed of or to be sold or otherwise disposed of as part of at any time arising under or in connection with any sale respect of this Agreement or other disposition the Loan Documents or the transactions contemplated hereby or thereby; (B) as permitted under the Credit Documents to any Person other than a Credit Party (provided that if requested by the Administrative Agentby, but only in accordance with, the Borrowers shall provide a certification that such disposition is permitted by this Agreement), terms of the applicable Loan Document; or (xC) subject to Section 10.5, if approved, authorized or ratified in writing by the requisite lenders under this AgreementRequired Lenders, (y) if unless such release is required to be approved by all of the property subject to such Lien is owned by a Guarantor, upon release of such Guarantor from its obligations under its Guaranty pursuant to clause (iii) below or (z) to the extent the property subject to such Lien becomes an Excluded AssetLenders hereunder;
(ii) to subordinate any Lien on any property granted to or held by the Collateral Agent under any Credit Loan Document to the holder of any Lien on such property that is permitted by Section 6.2(f) 6.15.16 or 6.2(g)6.15.17; and
(iii) to release any Guarantor from its obligations under the Guaranty if such Person ceases to be a Restricted Subsidiary as a result of a transaction permitted under the Credit Loan Documents. Upon request by the Collateral Agent at any time, the Lenders will confirm in writing the Collateral Agent’s authority to release or subordinate its interest in particular types or items of property, or to release any Guarantor from its obligations under the Guaranty Collateral pursuant to this Section 9.10(a). If 10.15.
(d) Upon any sale or transfer of assets constituting Collateral which is disposed permitted pursuant to the terms of as permitted any Loan Document, or consented to in writing by Section 6.9 to any Person other than a Credit Party, such Collateral shall be sold free and clear the Required Lenders or all of the Liens created by the Credit Documents and the Administrative Agent or the Collateral AgentLenders, as applicable, shall, and upon at the expense of the Borrowers, take any and all actions reasonably requested least three (3) Business Days’ prior written request by the Borrowers Borrower to effect the foregoing (provided that if requested by the Administrative Agent, the Borrowers Agent shall provide a certification that (and is hereby irrevocably authorized by the Lenders to) execute such disposition is permitted by this Agreement).
(b) Anything contained in any documents as may be necessary to evidence the release of the Credit Documents Liens granted to the contrary notwithstanding, each Credit Party, the Administrative Agent, the Collateral Agent and each Secured Party hereby agree that (i) no Secured Party shall have any right individually to realize upon any of the Collateral or to enforce the Guaranty, it being understood and agreed that all powers, rights and remedies hereunder and under any of the Credit 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 all powers, rights and remedies under the Collateral Documents may be exercised solely by the Collateral Agent for the benefit of the Holders of Secured Parties in accordance with the terms thereof, and (ii) in the event of a foreclosure Obligations herein or similar enforcement action by pursuant hereto upon the Collateral Agent on any of the Collateral pursuant to a public that was sold or private sale or other disposition transferred; provided, however, that (including pursuant to Section 363(k), Section 1129(b)(2)(a)(ii) or otherwise of the Bankruptcy Code), the Collateral Agent (or any Lender, except with respect to a “credit bid” pursuant to Section 363(k), Section 1129(b)(2)(a)(ii) or otherwise of the Bankruptcy Code) may be the purchaser or licensor of any or all of such Collateral at any such sale or other disposition and the Collateral Agent, as agent for and representative of Secured Parties (but not any Lender or Lenders in its or their respective individual capacities) shall be entitled, upon instructions from Required Lenders, for the purpose of bidding and making settlement or payment of the purchase price for all or any portion of the Collateral sold at any such sale or disposition, to use and apply any of the Obligations as a credit on account of the purchase price for any Collateral payable by the Collateral Agent at such sale or other disposition.
(c) Neither the Administrative Agent nor the Collateral Agent shall be responsible for or have a duty to ascertain or inquire into (including any representation or warranty regardingi) the existence, value or collectability of the Collateral, the existence, priority or perfection of the Collateral Agent’s Lien thereon, or any certificate prepared by any Credit Party in connection therewith, and neither the Administrative Agent nor the Collateral Agent shall be responsible or liable to the Lenders for any failure to monitor or maintain any portion of the Collateral.
(d) No Secured Swap Contract or Cash Management Obligation will create (or be deemed to create) in favor of any Eligible Counterparty or Cash Management Bank, as applicable, that is a party thereto any rights in connection with the management or release of any Collateral or of the obligations of any Guarantor under the Credit Documents except as expressly provided in Section 8.3 and Section 10.5(d)(iv). By accepting the benefits of the Collateral, each Eligible Counterparty and each Cash Management Bank shall be deemed to have appointed the Collateral Agent as its agent and agreed to be bound by the Credit Documents as a Secured Party, subject to the limitations set forth in this clause (d). Notwithstanding any other provision of this Section 9 to the contrary, the Administrative Agent shall not be required to verify execute any such document on terms which, in the payment ofAgent’s opinion, would expose the Agent to liability or that create any obligation or entail any consequence other satisfactory arrangements have been made with respect tothan the release of such Liens without recourse or warranty, Cash Management and (ii) such release shall not in any manner discharge, affect or impair the Secured Obligations or Obligations arising under Secured Swap Contracts unless any Liens upon (or obligations of the Administrative Agent has received written notice Borrower or any Loan Party) all interests retained by the Borrower or any Loan Party, including (without limitation) the proceeds of such Obligationsthe sale, together with such supporting documentation as all of which shall continue to constitute part of the Administrative Agent may reasonably request, from the applicable Cash Management Bank or Eligible Counterparty, as the case may beCollateral.
Appears in 2 contracts
Samples: Five Year Revolving Credit Agreement, Five Year Revolving Credit Agreement (United Stationers Inc)
Collateral Documents and Guaranty. (a) The Secured Parties irrevocably authorize the Collateral Agent, at its option and in its discretion,
(i) to release any Lien on any property granted to or held by the Collateral Agent under any Credit Document (vx) upon termination of all Commitments and payment in full of all Obligations (other than Remaining Obligations) and the expiration, termination or Cash Collateralization of all Letters of Credit), (wy) that is sold or otherwise disposed of or to be sold or otherwise disposed of to a Person that is not a Credit Party as part of or in connection with any sale or other disposition permitted under the Credit Documents to any Person other than a Credit Party Documents, or (provided that if requested by the Administrative Agent, the Borrowers shall provide a certification that such disposition is permitted by this Agreement), (xz) subject to Section 10.5, if approved, authorized or ratified in writing by the requisite lenders under this Agreement, (y) if the property subject to such Lien is owned by a Guarantor, upon release of such Guarantor from its obligations under its Guaranty pursuant to clause (iii) below or (z) to the extent the property subject to such Lien becomes an Excluded Asset;Required Lenders; and
(ii) to subordinate any Lien on any property granted to or held by the Collateral Agent under any Credit Document to the holder of any Lien on such property that is permitted by Section 6.2(f) or 6.2(g6.2(d); and
(iii) to release any Guarantor from its obligations under the Guaranty if such Person ceases to be a Restricted Subsidiary as a result of a transaction permitted under the Credit Documents. Upon request by the Collateral Agent at any time, the Required Lenders will confirm in writing the Collateral Agent’s authority to release or subordinate its interest in particular types or items of property, or to release any Guarantor from its obligations under the Guaranty pursuant to this Section 9.10(a). If any Collateral is disposed of as permitted by Section 6.9 to any Person other than a Credit Party, such Collateral shall be sold free and clear of the Liens created by the Credit Documents and the Administrative Agent or the Collateral Agent, as applicable, shall, at the expense of the Borrowers, take any and all actions reasonably requested by the Borrowers to effect the foregoing (provided that if requested by the Administrative Agent, the Borrowers shall provide a certification that such disposition is permitted by this Agreement9.9(a).
(b) Anything contained in any of the Credit Documents to the contrary notwithstanding, each Credit Party, the Administrative Agent, the Collateral Agent and each Secured Party hereby agree that (i) no Secured Party shall have any right individually to realize upon any of the Collateral or to enforce the Guaranty, it being understood and agreed that all powers, rights and remedies hereunder and under any of the Credit 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 all powers, rights and remedies under the Collateral Documents may be exercised solely by the Collateral Agent for the benefit of the Secured Parties in accordance with the terms 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 section 363(k), Section section 1129(b)(2)(a)(ii) or otherwise of the Bankruptcy Code), the Collateral Agent (or any Lender, except with respect to a “credit bid” pursuant to Section section 363(k), Section section 1129(b)(2)(a)(ii) or otherwise of the Bankruptcy Code,) may be the purchaser or licensor of any or all of such Collateral at any such sale or other disposition and the Collateral Agent, as agent for and representative of Secured Parties (but not any Lender or Lenders in its or their respective individual capacities) shall be entitled, upon instructions from Required Lenders, for the purpose of bidding and making settlement or payment of the purchase price for all or any portion of the Collateral sold at any such sale or disposition, to use and apply any of the Obligations as a credit on account of the purchase price for any Collateral collateral payable by the Collateral Agent at such sale or other disposition.
(c) Neither the Administrative Agent nor the Collateral Agent shall be responsible for or have a duty to ascertain or inquire into (including any representation or warranty regarding) regarding the existence, value or collectability of the Collateral, the existence, priority or perfection of the Collateral Agent’s Lien thereon, or any certificate prepared by any Credit Party in connection therewith, and neither the Administrative Agent nor the Collateral Agent shall be responsible or liable to the Lenders for any failure to monitor or maintain any portion of the Collateral.
(d) No Secured Swap Contract or Cash Management Obligation will create (or be deemed to create) in favor of any Eligible Counterparty or Cash Management Bank, as applicable, that is a party thereto any rights in connection with the management or release of any Collateral or of the obligations of any Guarantor under the Credit Documents except as expressly provided in Section 8.3 and Section 10.5(d)(iv). By accepting the benefits of the Collateral, each Eligible Counterparty and each Cash Management Bank shall be deemed to have appointed the Collateral Agent as its agent and agreed to be bound by the Credit Documents as a Secured Party, subject to the limitations set forth in this clause (d). Notwithstanding any other provision of this Section 9 to the contrary, the Administrative Agent shall not be required to verify the payment of, or that other satisfactory arrangements have been made with respect to, Cash Management Obligations or Obligations arising under Secured Swap Contracts unless the Administrative Agent has received written notice of such Obligations, together with such supporting documentation as the Administrative Agent may reasonably request, from the applicable Cash Management Bank or Eligible Counterparty, as the case may be.
Appears in 2 contracts
Samples: First Lien Credit and Guaranty Agreement (Airbnb, Inc.), First Lien Credit and Guaranty Agreement (Airbnb, Inc.)
Collateral Documents and Guaranty. (a) The Secured Parties irrevocably authorize the Collateral Agent, at its option and in its discretion,
(i) to release any Lien on any property granted to or held by the Collateral Agent under any Credit Document (vx) upon termination of all Commitments and payment in full of all Obligations (other than Remaining Obligations) and the expiration, termination or Cash Collateralization of all Letters of Credit), (wy) that is sold or otherwise disposed of or to be sold or otherwise disposed of to a Person that is not a Credit Party as part of or in connection with any sale or other disposition permitted under the Credit Documents to any Person other than a Credit Party Documents, or (provided that if requested by the Administrative Agent, the Borrowers shall provide a certification that such disposition is permitted by this Agreement), (xz) subject to Section 10.5, if approved, authorized or ratified in writing by the requisite lenders under this Agreement, (y) if the property subject to such Lien is owned by a Guarantor, upon release of such Guarantor from its obligations under its Guaranty pursuant to clause (iii) below or (z) to the extent the property subject to such Lien becomes an Excluded Asset;Required Lenders; and
(ii) to subordinate any Lien on any property granted to or held by the Collateral Agent under any Credit Document to the holder of any Lien on such property that is permitted by Section 6.2(f6.2(d) or 6.2(g); and
(iii) to release any Guarantor from its obligations under the Guaranty if such Person ceases to be a Restricted Subsidiary as a result of a transaction permitted under the Credit DocumentsPermitted COVID Senior Lien Indebtedness. Upon request by the Collateral Agent at any time, the Required Lenders will confirm in writing the Collateral Agent’s authority to release or subordinate its interest in particular types or items of property, or to release any Guarantor from its obligations under the Guaranty pursuant to this Section 9.10(a). If any Collateral is disposed of as permitted by Section 6.9 to any Person other than a Credit Party, such Collateral shall be sold free and clear of the Liens created by the Credit Documents and the Administrative Agent or the Collateral Agent, as applicable, shall, at the expense of the Borrowers, take any and all actions reasonably requested by the Borrowers to effect the foregoing (provided that if requested by the Administrative Agent, the Borrowers shall provide a certification that such disposition is permitted by this Agreement9.9(a).
(b) Anything contained in any of the Credit Documents to the contrary notwithstanding, each Credit Party, the Administrative Agent, the Collateral Agent and each Secured Party hereby agree that (i) no Secured Party shall have any right individually to realize upon any of the Collateral or to enforce the Guaranty, it being understood and agreed that all powers, rights and remedies hereunder and under any of the Credit 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 all powers, rights and remedies under the Collateral Documents may be exercised solely by the Collateral Agent for the benefit of the Secured Parties in accordance with the terms 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 section 363(k), Section section 1129(b)(2)(a)(ii) or otherwise of the Bankruptcy Code), the Collateral Agent (or any Lender, except with respect to a “credit bid” pursuant to Section section 363(k), Section section 1129(b)(2)(a)(ii) or otherwise of the Bankruptcy Code,) may be the purchaser or licensor of any or all of such Collateral at any such sale or other disposition and the Collateral Agent, as agent for and representative of Secured Parties (but not any Lender or Lenders in its or their respective individual capacities) shall be entitled, upon instructions from Required Lenders, for the purpose of bidding and making settlement or payment of the purchase price for all or any portion of the Collateral sold at any such sale or disposition, to use and apply any of the Obligations as a credit on account of the purchase price for any Collateral collateral payable by the Collateral Agent at such sale or other disposition.
(c) Neither the Administrative Agent nor the Collateral Agent shall be responsible for or have a duty to ascertain or inquire into (including any representation or warranty regarding) regarding the existence, value or collectability of the Collateral, the existence, priority or perfection of the Collateral Agent’s Lien thereon, or any certificate prepared by any Credit Party in connection therewith, and neither the Administrative Agent nor the Collateral Agent shall be responsible or liable to the Lenders for any failure to monitor or maintain any portion of the Collateral.
(d) No Secured Swap Contract or Cash Management Obligation will create (or be deemed to create) in favor of any Eligible Counterparty or Cash Management Bank, as applicable, that is a party thereto any rights in connection with the management or release of any Collateral or of the obligations of any Guarantor under the Credit Documents except as expressly provided in Section 8.3 and Section 10.5(d)(iv). By accepting the benefits of the Collateral, each Eligible Counterparty and each Cash Management Bank shall be deemed to have appointed the Collateral Agent as its agent and agreed to be bound by the Credit Documents as a Secured Party, subject to the limitations set forth in this clause (d). Notwithstanding any other provision of this Section 9 to the contrary, the Administrative Agent shall not be required to verify the payment of, or that other satisfactory arrangements have been made with respect to, Cash Management Obligations or Obligations arising under Secured Swap Contracts unless the Administrative Agent has received written notice of such Obligations, together with such supporting documentation as the Administrative Agent may reasonably request, from the applicable Cash Management Bank or Eligible Counterparty, as the case may be.
Appears in 2 contracts
Samples: Second Lien Credit and Guaranty Agreement (Airbnb, Inc.), Second Lien Credit and Guaranty Agreement (Airbnb, Inc.)
Collateral Documents and Guaranty. The Lenders irrevocably agree:
(a) The Secured Parties irrevocably authorize the Collateral Agent, at its option and in its discretion,
(i) to release that any Lien on any property Property granted to or held by the Administrative Agent or Collateral Agent Agent, as applicable, under any Credit Document shall be automatically released (vA) upon termination of all the Commitments and payment in full of all Obligations (other than Remaining Obligations(x) obligations under any Hedge Agreement, (y) Cash Management Obligations and (z) contingent reimbursement and indemnification obligations not yet accrued and payable) and the expiration, expiration or termination or Cash Collateralization of all Letters of Credit, (wB) that at the time the Property subject to such Lien is sold or otherwise disposed of transferred or to be sold or otherwise disposed of transferred as part of or in connection with any sale transfer permitted hereunder or under any other disposition permitted under the Credit Documents Document to any Person (other than in the case of a transfer by a Credit Party (provided that if requested by the Administrative AgentParty, the Borrowers shall provide a certification that such disposition is permitted by this Agreementany transfer to another Credit Party), (xC) subject to Section 10.5, if the release of such Lien is approved, authorized or ratified in writing by the requisite lenders under this AgreementRequired Lenders (or such greater number of Lenders as may be required pursuant to Section 10.5), or (yD) if the property Property subject to such Lien is owned by a Guarantor, upon release of such Guarantor from its obligations under its Guaranty under Section 7 hereunder pursuant to clause (iiic) below or (z) to the extent the property subject to such Lien becomes an Excluded Assetbelow;
(iiA) to release or subordinate any Lien on any property Property granted to or held by the Administrative Agent or the Collateral Agent Agent, as applicable, under any Credit Document to the holder of any Lien on such property that is permitted by Section 6.2(f6.2(m) and (B) that the Administrative Agent or 6.2(g); and
the Collateral Agent, as applicable, is authorized (iiibut not required) to release or subordinate any Lien on any Property granted to or held by the Administrative Agent or Collateral Agent, as applicable, under any Credit Document to the holder of any Lien on such Property that is permitted by any other clause of Section 6.2;
(c) that any Guarantor (other than Holdings) shall be automatically released from its obligations under the applicable Guaranty if such Person ceases to be a Restricted Subsidiary as a result of a transaction permitted under hereunder; and
(d) the Credit DocumentsAdministrative Agent or the Collateral Agent, as applicable, may enter into the First Lien Intercreditor Agreement and the Second Lien Intercreditor Agreement, without any further consent from any Secured Party, in connection with any incurrence by the Borrower of Permitted Debt Securities and bind the Secured Parties thereby. Upon request by the Administrative Agent or the Collateral Agent Agent, as applicable, at any time, the Required Lenders (or such greater number of Lenders as may be required pursuant to Section 10.5) will confirm in writing the authority of the Administrative Agent or the Collateral Agent’s authority , as applicable, to release or subordinate its interest in particular types or items of propertyProperty, or to release any Guarantor from its obligations under the Guaranty applicable Credit Documents pursuant to this Section 9.10(a)9.9. If any Collateral is disposed of In each case as permitted by specified in this Section 6.9 to any Person other than a Credit Party9.9, such Collateral shall be sold free and clear of the Liens created by the Credit Documents and the Administrative Agent or will (and each Lender irrevocably authorizes the Collateral Agent, as applicable, shallAdministrative Agent to), at the expense of the BorrowersBorrower’s expense, take any execute and all actions reasonably requested by the Borrowers to effect the foregoing (provided that if requested by the Administrative Agent, the Borrowers shall provide a certification that such disposition is permitted by this Agreement).
(b) Anything contained in any of the Credit Documents deliver to the contrary notwithstanding, each applicable Credit Party, Party such documents as such Credit Party may reasonably request to evidence the Administrative Agent, release or subordination of such item of Collateral from the assignment and security interest granted under the Collateral Agent and each Secured Party hereby agree that (i) no Secured Party shall have any right individually to realize upon any of the Collateral Documents, or to enforce evidence the Guarantyrelease of such Guarantor from its obligations under Section 7 hereof, it being understood and agreed that all powers, rights and remedies hereunder and under any of the Credit Documents may be exercised solely by the Administrative Agent or the Collateral Agent, as applicable, for the benefit of the Secured Parties in each case in accordance with the terms hereof and thereof and all powers, rights and remedies under the Collateral Documents may be exercised solely by the Collateral Agent for the benefit of the Secured Parties in accordance with the terms 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), the Collateral Agent (or any Lender, except with respect to a “credit bid” pursuant to Section 363(k), Section 1129(b)(2)(a)(ii) or otherwise of the Bankruptcy Code) may be the purchaser or licensor of any or all of such Collateral at any such sale or other disposition and the Collateral Agent, as agent for and representative of Secured Parties (but not any Lender or Lenders in its or their respective individual capacities) shall be entitled, upon instructions from Required Lenders, for the purpose of bidding and making settlement or payment of the purchase price for all or any portion of the Collateral sold at any such sale or disposition, to use and apply any of the Obligations as a credit on account of the purchase price for any Collateral payable by the Collateral Agent at such sale or other disposition.
(c) Neither the Administrative Agent nor the Collateral Agent shall be responsible for or have a duty to ascertain or inquire into (including any representation or warranty regarding) the existence, value or collectability of the Collateral, the existence, priority or perfection of the Collateral Agent’s Lien thereon, or any certificate prepared by any Credit Party in connection therewith, and neither the Administrative Agent nor the Collateral Agent shall be responsible or liable to the Lenders for any failure to monitor or maintain any portion of the Collateral.
(d) No Secured Swap Contract or Cash Management Obligation will create (or be deemed to create) in favor of any Eligible Counterparty or Cash Management Bank, as applicable, that is a party thereto any rights in connection with the management or release of any Collateral or of the obligations of any Guarantor under the Credit Documents except as expressly provided in Section 8.3 and Section 10.5(d)(iv). By accepting the benefits of the Collateral, each Eligible Counterparty and each Cash Management Bank shall be deemed to have appointed the Collateral Agent as its agent and agreed to be bound by the Credit Documents as a Secured Party, subject to the limitations set forth in this clause (d). Notwithstanding any other provision of this Section 9 to the contrary, the Administrative Agent shall not be required to verify the payment of, or that other satisfactory arrangements have been made with respect to, Cash Management Obligations or Obligations arising under Secured Swap Contracts unless the Administrative Agent has received written notice of such Obligations, together with such supporting documentation as the Administrative Agent may reasonably request, from the applicable Cash Management Bank or Eligible Counterparty, as the case may be9.9.
Appears in 2 contracts
Samples: Credit and Guaranty Agreement (Aeroflex Holding Corp.), Credit and Guaranty Agreement (Aeroflex Holding Corp.)
Collateral Documents and Guaranty. Each Lender hereby further authorizes Administrative Agent, on behalf of and for the benefit of Lenders, to enter into the Intercreditor Agreement, and each Lender agrees to be bound by the terms of the Intercreditor Agreement; provided that Administrative Agent shall not enter into or consent to any -------- material amendment, modification, termination or waiver of the Intercreditor Agreement without the prior consent of Requisite Lenders (or such other Lenders as may be required to give such instructions under subsection 10.6). Each Lender hereby further authorizes Collateral Agent (and under the terms of the Intercreditor Agreement Collateral Agent is authorized), on behalf of and for the benefit of Lenders, to enter into each Collateral Document as secured party and to be the agent for and representative of the Lenders under the Guaranties, and each Lender agrees to be bound by the terms of each Collateral Document and each Guaranty; provided that Collateral Agent shall not enter into or consent to -------- any material amendment, modification, termination or waiver of the Intercreditor Agreement without the prior consent of Requisite Lenders (or such other Lenders as may be required to give such instructions under subsection 10.6); provided -------- further, however, that, without further written consent or authorization from ------- ------- Lenders, Collateral Agent may execute any documents or instruments necessary to (a) The Secured Parties irrevocably authorize the Collateral Agent, at its option and in its discretion,
(i) to release any Lien on encumbering any property granted to item of Collateral that is the subject of a sale or held other disposition of assets permitted by this Agreement or as permitted or required under the Intercreditor Agreement or the Collateral Agent Documents or to which Requisite Lenders (or such other Lenders as may be required to give such consent under subsection 10.6) have otherwise consented or (b) release any Credit Document (v) upon termination Subsidiary Guarantor from the Subsidiary Guaranty if all of all Commitments and payment in full the capital stock of all Obligations (other than Remaining Obligations) and the expiration, termination or Cash Collateralization of all Letters of Credit, (w) that such Subsidiary Guarantor is sold or otherwise disposed of or to be sold or otherwise disposed of as part of or in connection with any Person pursuant to a sale or other disposition permitted under the Credit Documents to any Person other than a Credit Party (provided that if requested by the Administrative Agent, the Borrowers shall provide a certification that such disposition is permitted by this Agreement), (x) subject to Section 10.5, if approved, authorized hereunder or ratified in writing by the requisite lenders under this Agreement, (y) if the property subject to such Lien is owned by a Guarantor, upon release of such Guarantor from its obligations under its Guaranty pursuant to clause (iii) below or (z) to the extent the property subject to such Lien becomes an Excluded Asset;
(ii) to subordinate any Lien on any property granted to or held by the Collateral Agent under any Credit Document to the holder of any Lien on such property that is permitted by Section 6.2(f) or 6.2(g); and
(iii) to release any Guarantor from its obligations under the Guaranty if such Person ceases to be a Restricted Subsidiary as a result of a transaction permitted under the Credit Documents. Upon request by the Collateral Agent at any time, the Lenders will confirm in writing the Collateral Agent’s authority to release or subordinate its interest in particular types or items of property, Intercreditor Agreement or to which Requisite Lenders (or such other Lenders as may be required to give such consent under subsection 10.6) have otherwise consented; provided, however, that nothing in this subsection shall require consent to -------- ------- release any Guarantor from its obligations under the Subsidiary Guaranty pursuant to this Section 9.10(a). If any Collateral is disposed of as permitted by Section 6.9 to any Person other than a Credit Partywhich, immediately after such Collateral sale, shall be sold free a Subsidiary of Holdings which is obligated to and clear of will enter into the Liens created by the Credit Documents and the Administrative Agent or the Collateral Agent, as applicable, shall, at the expense of the Borrowers, take any and all actions reasonably requested by the Borrowers to effect the foregoing (provided that if requested by the Administrative Agent, the Borrowers shall provide a certification that such disposition is permitted by this Agreement).
(b) Subsidiary Guaranty. Anything contained in any of the Credit Loan Documents to the contrary notwithstanding, each Credit PartyCompany, the Administrative Agent, the Collateral Agent and each Secured Party Lender hereby agree that (iX) no Secured Party Lender shall have any right individually to realize upon any of the Collateral under any Collateral Document or to enforce the Subsidiary Guaranty, it being understood and 155 agreed that all powers, rights and remedies hereunder and under any of the Credit 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 all powers, rights and remedies under the Collateral Documents and the Guaranties may be exercised solely by the Collateral Agent for the benefit of the Secured Parties in accordance with the terms thereof, and (iiY) 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)sale, Section 1129(b)(2)(a)(ii) or otherwise of the Bankruptcy Code), 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) Secured Party may be the purchaser or licensor of any or all of such Collateral at any such sale or other disposition and the Collateral Agent, as agent for and representative of Secured Parties (but not any Lender Secured Party or Lenders Secured Parties in its or their respective individual capacitiescapacities unless Requisite Lenders shall otherwise agree in writing) shall be entitled, upon instructions from Required Lenders, for the purpose of bidding and making settlement or payment of the purchase price for all or any portion of the Collateral sold at any such sale or dispositionpublic sale, to use and apply any of the Obligations as a credit on account of the purchase price for any Collateral collateral payable by the Collateral Agent at such sale or other dispositionsale.
(c) Neither the Administrative Agent nor the Collateral Agent shall be responsible for or have a duty to ascertain or inquire into (including any representation or warranty regarding) the existence, value or collectability of the Collateral, the existence, priority or perfection of the Collateral Agent’s Lien thereon, or any certificate prepared by any Credit Party in connection therewith, and neither the Administrative Agent nor the Collateral Agent shall be responsible or liable to the Lenders for any failure to monitor or maintain any portion of the Collateral.
(d) No Secured Swap Contract or Cash Management Obligation will create (or be deemed to create) in favor of any Eligible Counterparty or Cash Management Bank, as applicable, that is a party thereto any rights in connection with the management or release of any Collateral or of the obligations of any Guarantor under the Credit Documents except as expressly provided in Section 8.3 and Section 10.5(d)(iv). By accepting the benefits of the Collateral, each Eligible Counterparty and each Cash Management Bank shall be deemed to have appointed the Collateral Agent as its agent and agreed to be bound by the Credit Documents as a Secured Party, subject to the limitations set forth in this clause (d). Notwithstanding any other provision of this Section 9 to the contrary, the Administrative Agent shall not be required to verify the payment of, or that other satisfactory arrangements have been made with respect to, Cash Management Obligations or Obligations arising under Secured Swap Contracts unless the Administrative Agent has received written notice of such Obligations, together with such supporting documentation as the Administrative Agent may reasonably request, from the applicable Cash Management Bank or Eligible Counterparty, as the case may be.
Appears in 1 contract
Collateral Documents and Guaranty. (a) The Each Secured Parties irrevocably authorize the Party hereby authorizes Administrative Agent or Collateral Agent, at its option as applicable, on behalf of and in its discretion,
for the benefit of Secured Parties, to be the agent for and representative of Secured Parties with respect to the Guaranty, the Collateral and the Collateral Documents. Each Secured Party hereby further authorizes Administrative Agent and/or Collateral Agent, as applicable, on behalf of and for the benefit of Secured Parties, to enter into the Intercreditor Agreement and any amendment, modification or waiver thereto to the extent reasonably necessary to (i) to reflect a Refinancing, in whole or in part, of the First Lien Obligations and/or the Second Lien Obligations (as defined in the Intercreditor Agreement) that is permitted by the Credit Documents (other than the Intercreditor Agreement) or (ii) permit any other action that is not prohibited by the Credit Documents (other than the Intercreditor Agreement).
(b) Administrative Agent or Collateral Agent shall release any Lien on any property granted to or held by the Administrative Agent or Collateral Agent under any Credit Document (v) upon termination of all the Commitments and payment in full of all Obligations (other than Remaining Obligationscontingent reimbursement and indemnification obligations not yet accrued and payable).
(c) Subject to Sections 10.5 and 10.19(k), without further written consent or authorization from any Secured Party, Administrative Agent or Collateral Agent, as applicable, may execute any documents or instruments necessary to release any Guarantor from the expirationGuaranty pursuant to Section 7.12 or with respect to which Requisite Lenders (or such other Lenders as may be required to give such consent under Section 10.5) have otherwise consented (and in connection therewith release any Lien encumbering Collateral to the extent owned by such Guarantor).
(i) Upon the consummation of any sale, disposition or other transfer (including, without limitation, the granting of any Lien or any disposition (including the termination of a lease or Cash Collateralization sublease in the Ordinary Course of all Letters of Credit, (wBusiness) that is sold or otherwise disposed of or intended to be sold or otherwise disposed a true sale but is re-characterized as the incurrence of as part a Lien) by any Grantor of or in connection with any sale or other disposition permitted under the Credit Documents Collateral to any Person that is not a Grantor that is not prohibited under this Agreement or any other than a Credit Party Document, or (provided that ii) if requested by the Administrative Agent, the Borrowers shall provide a certification that release of such disposition Lien or any other Credit Document is permitted by this Agreement), (x) subject to Section 10.5, if approved, authorized or ratified in writing by the requisite lenders under this Agreement, Requisite Lenders (yor such greater number of Lenders as may be required) if the property subject pursuant to such Lien is owned by a GuarantorSection 10.5, upon release the satisfaction (in the case of such Guarantor from its obligations under its Guaranty pursuant to this clause (iiiii)) below of any conditions contained in such approval, authorization or (z) to ratification, then in either case, any Lien in such Collateral granted under the extent the property subject to such Lien becomes an Excluded Asset;Collateral Agreement or any other Collateral Document shall be automatically released, without further action of Collateral Agent or any other Person.
(iie) to subordinate any Lien on any property granted to or held by the Collateral Agent under any Credit Document to the holder of any Lien on such property that is permitted by Section 6.2(fA Grantor (other than a Foreign Grantor) or 6.2(g); and
(iii) to release any Guarantor shall automatically be released from its obligations under the Guaranty if such Person ceases to be a Restricted Subsidiary as a result of a transaction permitted under the Credit Documents. Upon request by Collateral Agreement and any other Collateral Document and any Lien in the Collateral of such Grantor shall be automatically released, in each case without further action of Collateral Agent at or any timeother Person, upon the Lenders will confirm in writing the Collateral Agent’s authority to release or subordinate its interest in particular types or items of property, or to release any Guarantor such Grantor from its obligations under the Guaranty pursuant to this Section 9.10(a10.19(c). If .
(f) In the event that (i) any Collateral is disposed trade accounts receivable and the proceeds thereof (collectively, “Factored Accounts”) of as permitted by Section 6.9 The CIT Group/Commercial Services, Inc. or any other Grantor that conducts trade finance in the Ordinary Course of Business (collectively, “Trade Finance Grantors”) shall become subject to any Person defense (unrelated to the financial condition of the related obligor thereon), dispute, offset or counterclaim of any kind, (ii) a Trade Finance Grantor desires to accommodate a client’s request to re-assign to such client any Factored Account with respect to which such Trade Finance Grantor does not bear the credit risk, (iii) a Trade Finance Grantor desires or is required to re-assign to a client some or all of the Factored Accounts previously conveyed by such client to such Trade Finance Grantor in connection with (x) the termination of such client’s agreement with such Trade Finance Grantor or (y) the settlement of a dispute between such client and such Trade Finance Grantor, (iv) the exercise by a Trade Finance Grantor of its right to re-assign any Factored Account to a client pursuant to such client’s agreement with such Trade Finance Grantor or (v) a Trade Finance Grantor desires to make a claim under an insurance policy or other than a Credit Party, credit protection device and must convey the applicable Factored Accounts to the insurance company which issued such Collateral shall be sold policy or to the grantor of such credit protection device free and clear of any Liens, then any Lien in the Liens created applicable Factored Accounts granted under the Collateral Agreement or any other Collateral Document shall be automatically released upon the consummation of such transaction, without further action of Collateral Agent or any other Person.
(g) Reasonably identifiable proceeds or remittances from a securitization, conduit or other similar facility (whether cash or other assets and whether constituting proceeds of assets owned by a Grantor or the purchase price of assets owed to a Grantor) shall be automatically released from Collateral Agent’s Lien without further action of Collateral Agent or any other Person, solely to the extent that a Grantor is contractually required by the Credit Documents terms of such securitization, conduit or other similar facility to remit such proceeds to a third party that is not Borrower or any Grantor.
(h) Subject to Section 10.19(k), upon the request of any Grantor, Collateral Agent shall enter into an agreement to subordinate the Lien of Collateral Agent in specific Collateral to the holder of a Lien permitted by clause (4), (5), (6), (7), (10), (11), (12)(c), (15), (17) or (to the extent it relates to any of the foregoing) (18) of Section 6.1(b) in such Collateral if the holder of such consensual Permitted Collateral Lien requires such a subordination agreement, which agreement shall be reasonably satisfactory to Collateral Agent.
(i) Permitted Release Collateral shall be automatically released from the Lien of Collateral Agent without further action of Collateral Agent or any other Person upon the attachment of the applicable Lien described in the definition of “Permitted Release Collateral.” Subject to Sections 10.5 and the 10.19(k), without further written consent or authorization from any Secured Party, Administrative Agent or the Collateral Agent, as applicable, shallmay execute any documents or instruments necessary to release, at upon the expense request of the Borrowersapplicable Grantor, take Collateral comprised of pledges of Capital Stock of Foreign Subsidiaries (other than (i) 65% of the Capital Stock of each of CIT Leasing de Argentina S.A., The Capita Corp Do Brasil LTDA, CIT Financial Ltd., Emerald Holdings CV, CIT Global Vendor Services S.A., The Capita Corp De Mexico SA, CIT Aerospace International and CIT Vendor Finance (UK) Limited, (ii) 55% of the Capital Stock of CIT Leasing Chile Ltda., (iii) 49% of the Capital Stock of CIT Group Finance (Ireland) and (iv) 44% of the Capital Stock of Arrendadora Capita Corp SA); provided that (A) after giving effect to such release the Collateral Coverage Ratio is at least 2.25 to 1.0 and (B) that any such Collateral so released shall concurrently be released from any Junior Liens thereon. No Guarantor shall withdraw any Cash or Cash Equivalents held in Controlled Accounts to the extent such Cash or Cash Equivalents were included in the calculation of the numerator of the Collateral Coverage Ratio, unless (A) after giving effect to such withdrawal the Collateral Coverage Ratio is at least 2.25 to 1.0 and all actions (B) such Cash or Cash Equivalents so withdrawn shall concurrently be released from any Junior Liens thereon.
(j) Upon a merger of CIT Funding into CIT Group Inc., to the extent permitted by Section 6.4, the interest of CIT Leasing in the equity of CIT Funding shall be automatically released from Collateral Agent’s Lien without further action of Collateral Agent or any other Person.
(k) Notwithstanding anything to the contrary in any Credit Document, each Secured Party hereby (A) confirms the authority of Collateral Agent and/or Administrative Agent to evidence (i) (x) the release of its Lien with respect to any Collateral released pursuant to Section 10.19(b), (c), (d), (e), (f), (g), (i) or (j) hereof, (y) the release and termination of any Aircraft Mortgage upon such aircraft or aircraft engine becoming subject to a subsequent Aircraft Mortgage, or (z) the release and termination of any registration of any Aircraft Mortgage on an aircraft registry upon the aircraft or aircraft engine subject to such Aircraft Mortgage being re- registered in the Ordinary Course of Business in another jurisdiction and, to the extent applicable in such jurisdiction, such Aircraft Mortgage being registered on the aircraft registry applicable in such jurisdiction; (ii) the subordination of its Lien with respect to any Collateral pursuant to Section 10.19(h) hereof or (iii) the release of any guarantee obligations of any Guarantor to the extent permitted by Section 10.19(c), including the authority to execute, authorize or file such documentation as may be reasonably requested by any Grantor (the Borrowers “Requesting Grantor”) and that is reasonably satisfactory to effect Collateral Agent; and (B) directs Collateral Agent to execute, authorize or file such documentation as may be reasonably requested by any Requesting Grantor to evidence such release or subordination upon receipt from the foregoing Requesting Grantor of a certificate of an Authorized Officer substantially in the form of Annex 4 of the Collateral Agreement (for release of Collateral) or Annex 5 of the Collateral Agreement (for subordination of Collateral) hereto (or, in each case, such other comparable document as may be reasonably acceptable to the Collateral Agent) and all supporting documentation reasonably requested by Collateral Agent; provided that Collateral Agent shall have no obligation to execute or file any such documentation evidencing such release or subordination if requested by the Administrative Collateral Agent, the Borrowers shall provide a certification acting in its sole and reasonable discretion, determines that such disposition release or subordination is not permitted by this Section 10.19; it being understood that Collateral Agent shall be entitled to rely conclusively upon any certificate delivered pursuant to this Section 10.19(k) regardless of any information it may otherwise have and shall have no obligation (1) to ascertain if any requested release or subordination is permitted by this Agreement)Section 10.19, (2) to verify the accuracy of the statements in such certificate or any other documents provided pursuant to this Section 10.19, (3) to request supporting documentation, (4) to take into account any information it may otherwise have or (5) to seek consent of any of the Lenders to any such release or subordination.
(bl) Any release of guarantee obligations pursuant to this Section 10.19 shall be deemed subject to the provision that such guarantee obligations shall be reinstated if after such release any portion of any payment in respect of the Obligations guaranteed thereby shall be rescinded or must otherwise be restored or returned upon the insolvency, bankruptcy, dissolution, liquidation or reorganization of Borrower or any of its Subsidiaries, or upon or as a result of the appointment of a receiver, intervenor or conservator of, or trustee or similar officer for, Borrower or any of its Subsidiaries or any substantial part of its property, or otherwise, all as though such payment had not been made.
(m) Anything contained in any of the Credit Documents to the contrary notwithstanding, each Credit PartyBorrower, the Administrative Agent, the Collateral Agent and each Secured Party hereby agree that (i) no Secured Party shall have any right individually to realize upon any of the Collateral or to enforce the Guaranty, it being understood and agreed that all powers, rights and remedies hereunder and under any of the Credit Documents may be exercised solely by the Administrative Agent or the Collateral Agent, as applicable, for the benefit on behalf of the Secured Parties in accordance with the terms hereof and thereof and all powers, rights and remedies under the Collateral Documents may be exercised solely by the Collateral Agent for the benefit of the Secured Parties in accordance with the terms thereofhereof, and (ii) in the event of a foreclosure or similar enforcement action by the Collateral Agent (at the direction of the Requisite Lenders) on any of the Collateral pursuant to a public or private sale or other disposition (including pursuant to Section 363(k)disposition, Section 1129(b)(2)(a)(ii) or otherwise of the Bankruptcy Code), 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) Lender may be the purchaser or licensor of any or all of such Collateral at any such sale or other disposition disposition, and the Collateral Agent, as agent for and representative of Secured Parties (but not any Lender or Lenders in its or their respective individual capacitiescapacities unless Requisite Lenders shall otherwise agree in writing) shall be entitled, upon instructions from Required Lenders, for the purpose of bidding and making settlement or payment of the purchase price for all or any portion of the Collateral sold at any such sale or dispositionpublic sale, to use and apply any of the Obligations as a credit on account of the purchase price for any Collateral payable by the Collateral Agent at such sale or other disposition.
disposition and (ciii) Neither the Administrative Agent nor the Collateral Agent shall be responsible for if in connection with any amendment, modification or have a duty to ascertain or inquire into (including any representation or warranty regarding) the existence, value or collectability waiver of the CollateralSecond Amended and Restated Pledge Agreement dated as of March 4, the existence, priority or perfection of the Collateral Agent’s Lien thereon, or any certificate prepared 2010 made by any Credit Party in connection therewith, and neither the Administrative Agent nor the Collateral Agent shall be responsible or liable to the Lenders for any failure to monitor or maintain any portion of the Collateral.
CIT Financial (dBarbados) No Secured Swap Contract or Cash Management Obligation will create (or be deemed to create) SRL in favor of any Eligible Counterparty or Cash Management BankBank of America, as applicableAgent, that is a party thereto any rights in connection with the management or release of any Collateral or of the obligations of any Guarantor under the Credit Documents except as expressly provided in Section 8.3 and Section 10.5(d)(iv). By accepting the benefits of the Collateral, each Eligible Counterparty and each Cash Management Bank shall be deemed to have appointed the Collateral Agent as its agent and agreed to be bound permitted by the Credit Documents as a Secured Party, subject to the limitations set forth in this clause (d). Notwithstanding any other provision of this Section 9 to the contraryDocuments, the Administrative Agent registration of such amendment, modification or waiver with the Barbados Registrar of Corporate Affairs and Intellectual Property would require payment of any stamp or similar duty in excess of $1,000, (A) such registration shall not be required to verify be effected and (B) no opinion in respect of the payment ofenforceability thereof shall be required to be delivered, in each case except to the extent required by the terms of the Series A Indenture, Series A Collateral Agreement, the Series C Indenture or the Series C Collateral Agreement; provided that any Collateral released pursuant to any such amendment, modification or waiver shall concurrently be released from any Junior Liens thereon.
(n) Notwithstanding anything to the contrary in any Credit Document, on the Collateral Release Date, the security interests on all of the assets comprising the Collateral shall be automatically released, and Borrower shall be permitted to cause the Intercreditor Agreement to terminate. The Collateral Agent shall have no obligations after the Collateral Release Date other satisfactory arrangements have been made with respect to, Cash Management Obligations or Obligations arising under Secured Swap Contracts unless than to cooperate in the Administrative Agent has received written notice release of such Obligations, together with such supporting documentation as Collateral at the Administrative Agent may reasonably request, from the applicable Cash Management Bank or Eligible Counterparty, as the case may berequest and expense of Borrower.
Appears in 1 contract
Samples: Revolving Credit and Guaranty Agreement (Cit Group Inc)
Collateral Documents and Guaranty. (a) The Each Secured Parties Party irrevocably authorize the authorizes Administrative Agent and Collateral Agent, as applicable, at its option and in its discretion,
(i) to release any Lien on any property granted to or held by the Administrative Agent or Collateral Agent under any Credit Loan Document (vx) upon termination of all Commitments and payment in full of all Obligations (other than Remaining Obligationscontingent indemnification obligations) and the expiration, expiration or termination or Cash Collateralization of all Letters of CreditCredit (other than Letters of Credit as to which other arrangements satisfactory to Administrative Agent and the applicable Issuing Bank shall have been made), (wy) 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 under the Credit Documents to any Person other than a Credit Party Loan Documents, or (provided that if requested by the Administrative Agent, the Borrowers shall provide a certification that such disposition is permitted by this Agreement), (xz) subject to Section 10.510.04, if approved, authorized or ratified in writing by the requisite lenders under this Agreement, (y) if the property subject to such Lien is owned by a Guarantor, upon release of such Guarantor from its obligations under its Guaranty pursuant to clause (iii) below or (z) to the extent the property subject to such Lien becomes an Excluded AssetRequisite Lenders;
(ii) to subordinate any Lien on any property granted to or held by the Administrative Agent or Collateral Agent under any Credit Loan Document to the holder of any Lien on such property that is permitted by Section 6.2(f) or 6.2(g6.01(h); and
(iii) to release any Guarantor from its obligations under the Guaranty if such Person ceases to be a Restricted Subsidiary as a result of a transaction permitted under the Credit Loan Documents. Upon request by the Administrative Agent or Collateral Agent at any time, the Requisite Lenders will confirm in writing the Collateral Administrative Agent’s authority to release or subordinate its interest in particular types or items of property, or to release any Guarantor from its obligations under the Guaranty pursuant to this Section 9.10(a). If any Collateral is disposed of as permitted by Section 6.9 to any Person other than a Credit Party, such Collateral shall be sold free and clear of the Liens created by the Credit Documents and the Administrative Agent or the Collateral Agent, as applicable, shall, at the expense of the Borrowers, take any and all actions reasonably requested by the Borrowers to effect the foregoing (provided that if requested by the Administrative Agent, the Borrowers shall provide a certification that such disposition is permitted by this Agreement)9.09.
(b) Neither Administrative Agent nor Collateral Agent shall be responsible for or have a duty to ascertain or inquire into any representation or warranty regarding the existence, value or collectability of the Collateral, the existence, priority or perfection of Administrative Agent’s or Collateral Agent’s Lien thereon, or any certificate prepared by any Loan Party in connection therewith, nor shall Administrative Agent nor Collateral Agent be responsible or liable to the Lenders for any failure to monitor or maintain any portion of the Collateral.
(c) Anything contained in any of the Credit Loan Documents to the contrary notwithstanding, each Credit Loan Party, the Administrative Agent, the Collateral Agent and each Secured Party hereby agree that (i) no Secured Party shall have any right individually to realize upon any of the Collateral or to enforce the Guaranty, it being understood and agreed that all powers, rights and remedies hereunder and under any of the Credit Documents may be exercised solely by the Administrative Agent or the Collateral Agent, as applicable, for the benefit on behalf of the Secured Parties in accordance with the terms hereof and thereof and all powers, rights and remedies under the Collateral Documents may be exercised solely by the Collateral Agent for the benefit of the Secured Parties in accordance with the terms 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)disposition, Section 1129(b)(2)(a)(ii) or otherwise of the Bankruptcy Code)Collateral Agent, the Collateral Administrative 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) Lender may be the purchaser or licensor of any or all of such Collateral at any such sale or other disposition and the Collateral Agent, as agent for and representative of Secured Parties (but not any Lender or Lenders in its or their respective individual capacities) shall be entitled, upon instructions from Required Lenders, for the purpose of bidding and making settlement or payment of the purchase price for all or any portion of the Collateral sold at any such sale or disposition, to use and apply any of the Obligations as a credit on account of the purchase price for any Collateral payable by the Collateral Agent at such sale or other disposition.
(c) Neither the Administrative Agent nor the Collateral Agent shall be responsible for or have a duty to ascertain or inquire into (including any representation or warranty regarding) the existence, value or collectability of the Collateral, the existence, priority or perfection of the Collateral Agent’s Lien thereon, or any certificate prepared by any Credit Party in connection therewith, and neither the Administrative Agent nor the Collateral Agent shall be responsible or liable to the Lenders for any failure to monitor or maintain any portion of the Collateral.
(d) No Secured Swap Contract or Cash Management Obligation will create (or be deemed to create) in favor of any Eligible Counterparty or Cash Management Bank, as applicable, that is a party thereto any rights in connection with the management or release of any Collateral or of the obligations of any Guarantor under the Credit Documents except as expressly provided in Section 8.3 and Section 10.5(d)(iv). By accepting the benefits of the Collateral, each Eligible Counterparty and each Cash Management Bank shall be deemed to have appointed the Collateral Agent as its agent and agreed to be bound by the Credit Documents as a Secured Party, subject to the limitations set forth in this clause (d). Notwithstanding any other provision of this Section 9 to the contrary, the Administrative Agent shall not be required to verify the payment of, or that other satisfactory arrangements have been made with respect to, Cash Management Obligations or Obligations arising under Secured Swap Contracts unless the Administrative Agent has received written notice of such Obligations, together with such supporting documentation as the Administrative Agent may reasonably request, from the applicable Cash Management Bank or Eligible Counterparty, as the case may be.
Appears in 1 contract
Collateral Documents and Guaranty. (a) The Secured Parties irrevocably authorize the Collateral Agent, at its option and in its discretion,
(i) to release any Lien on any property granted to or held by the Collateral Agent under any Credit Document (v) upon termination of all Commitments and payment in full of all Obligations (other than Remaining Obligations) and the expiration, termination or Cash Collateralization of all Letters of Credit, (w) 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 under the Credit Documents to any Person other than a Credit Party (provided that if requested by the Administrative Agent, the Borrowers BorrowersBorrower shall provide a certification that such disposition is permitted by this Agreement), (x) subject to Section 10.5, if approved, authorized or ratified in writing by the requisite lenders under this Agreement, (y) if the property subject to such Lien is owned by a Guarantor, upon release of such Guarantor from its obligations under its Guaranty pursuant to clause (iii) below or (z) to the extent the property subject to such Lien becomes an Excluded Asset;
(ii) to subordinate any Lien on any property granted to or held by the Collateral Agent under any Credit Document to the holder of any Lien on such property that is permitted by Section 6.2(f) or 6.2(g); and
(iii) to release any Guarantor from its obligations under the Guaranty if such Person ceases to be a Restricted Subsidiary as a result of a transaction permitted under the Credit Documents. Upon request by the Collateral Agent at any time, the Lenders will confirm in writing the Collateral Agent’s authority to release or subordinate its interest in particular types or items of property, or to release any Guarantor from its obligations under the Guaranty pursuant to this Section 9.10(a). If any Collateral is disposed of as permitted by Section 6.9 to any Person other than a Credit Party, such Collateral shall be sold free and clear of the Liens created by the Credit Documents and the Administrative Agent or the Collateral Agent, as applicable, shall, at the expense of the BorrowersBorrowersBorrower , take any and all actions reasonably requested by the Borrowers BorrowersBorrower to effect the foregoing (provided that if requested by the Administrative Agent, the Borrowers BorrowersBorrower shall provide a certification that such disposition is permitted by this Agreement).
(b) Anything contained in any of the Credit Documents to the contrary notwithstanding, each Credit Party, the Administrative Agent, the Collateral Agent and each Secured Party hereby agree that (i) no Secured Party shall have any right individually to realize upon any of the Collateral or to enforce the Guaranty, it being understood and agreed that all powers, rights and remedies hereunder and under any of the Credit 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 all powers, rights and remedies under the Collateral Documents may be exercised solely by the Collateral Agent for the benefit of the Secured Parties in accordance with the terms 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), the Collateral Agent (or any Lender, except with respect to a “credit bid” pursuant to Section 363(k), Section 1129(b)(2)(a)(ii) or otherwise of the Bankruptcy Code) may be the purchaser or licensor of any or all of such Collateral at any such sale or other disposition and the Collateral Agent, as agent for and representative of Secured Parties (but not any Lender or Lenders in its or their respective individual capacities) shall be entitled, upon instructions from Required Lenders, for the purpose of bidding and making settlement or payment of the purchase price for all or any portion of the Collateral sold at any such sale or disposition, to use and apply any of the Obligations as a credit on account of the purchase price for any Collateral payable by the Collateral Agent at such sale or other disposition.
(c) Neither the Administrative Agent nor the Collateral Agent shall be responsible for or have a duty to ascertain or inquire into (including any representation or warranty regarding) the existence, value or collectability of the Collateral, the existence, priority or perfection of the Collateral Agent’s Lien thereon, or any certificate prepared by any Credit Party in connection therewith, and neither the Administrative Agent nor the Collateral Agent shall be responsible or liable to the Lenders for any failure to monitor or maintain any portion of the Collateral.
(d) No Secured Swap Contract or Cash Management Obligation will create (or be deemed to create) in favor of any Eligible Counterparty or Cash Management Bank, as applicable, that is a party thereto any rights in connection with the management or release of any Collateral or of the obligations of any Guarantor under the Credit Documents except as expressly provided in Section 8.3 and Section 10.5(d)(iv). By accepting the benefits of the Collateral, each Eligible Counterparty and each Cash Management Bank shall be deemed to have appointed the Collateral Agent as its agent and agreed to be bound by the Credit Documents as a Secured Party, subject to the limitations set forth in this clause (d). Notwithstanding any other provision of this Section 9 to the contrary, the Administrative Agent shall not be required to verify the payment of, or that other satisfactory arrangements have been made with respect to, Cash Management Obligations or Obligations arising under Secured Swap Contracts unless the Administrative Agent has received written notice of such Obligations, together with such supporting documentation as the Administrative Agent may reasonably request, from the applicable Cash Management Bank or Eligible Counterparty, as the case may be.
Appears in 1 contract
Samples: First Lien Credit and Guaranty Agreement (Corsair Gaming, Inc.)
Collateral Documents and Guaranty. (a) The Secured Parties irrevocably authorize Each Lender hereby further authorizes Administrative Agent to enter into each Collateral Document as secured party on behalf of and for the benefit of Lenders and agrees to be bound by the terms of each Collateral AgentDocument; provided that, at its option and subject to any provision of subsection 10.6 requiring the consent -------- of any additional Lenders, Administrative Agent shall not enter into or consent to any amendment, modification, termination or waiver of any provision contained in its discretion,
any Collateral Document or the Guaranty without the prior consent of Requisite Lenders, but Administrative Agent may (i) to release any Lien on covering any property granted items of Collateral that are the subject of a sale or other disposition of assets permitted by this Agreement or to or held by which Requisite Lenders have consented and (ii) release any Subsidiary Guarantor from the Collateral Agent under any Credit Document (v) upon termination Subsidiary Guaranty if all of all Commitments and payment in full the capital stock of all Obligations (other than Remaining Obligations) and the expiration, termination or Cash Collateralization of all Letters of Credit, (w) such Subsidiary Guarantor is sold to a Person that is sold or otherwise disposed not any Affiliate of or Company pursuant to be sold or otherwise disposed of as part of or in connection with any a sale or other disposition permitted under the Credit Documents to any Person other than a Credit Party (provided that if requested by the Administrative Agent, the Borrowers shall provide a certification that such disposition is permitted by this Agreement), (x) subject to Section 10.5, if approved, authorized or ratified in writing by the requisite lenders under this Agreement, (y) if the property subject to such Lien is owned by a Guarantor, upon release of such Guarantor from its obligations under its Guaranty pursuant to clause (iii) below or (z) to the extent the property subject to such Lien becomes an Excluded Asset;
(ii) to subordinate any Lien on any property granted to or held by the Collateral Agent under any Credit Document to the holder of any Lien on such property that is permitted by Section 6.2(f) or 6.2(g); and
(iii) to release any Guarantor from its obligations under the Guaranty if such Person ceases to be a Restricted Subsidiary as a result of a transaction permitted under the Credit Documents. Upon request by the Collateral Agent at any time, the Lenders will confirm in writing the Collateral Agent’s authority to release or subordinate its interest in particular types or items of property, hereunder or to release any Guarantor from its obligations under the Guaranty pursuant to this Section 9.10(a)which Requisite Lenders have consented. If any Collateral is disposed of as permitted by Section 6.9 to any Person other than a Credit Party, such Collateral shall be sold free and clear of the Liens created by the Credit Documents and the Administrative Agent or the Collateral Agent, as applicable, shall, at the expense of the Borrowers, take any and all actions reasonably requested by the Borrowers to effect the foregoing (provided that if requested by the Administrative Agent, the Borrowers shall provide a certification that such disposition is permitted by this Agreement).
(b) Anything contained in any of the Credit Loan Documents to the contrary notwithstanding, each Credit Party, the Administrative Agent, the Collateral Agent and each Secured Party hereby agree Lender agrees that (i) no Secured Party Lender shall have any right individually to realize upon any of the Collateral under any Collateral Document or to enforce the Guaranty, it being understood and agreed that all powers, rights and remedies hereunder and under any of the Credit 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 all powers, rights and remedies under the Collateral Documents and the Guaranty may be exercised solely by the Collateral Administrative Agent for the benefit of the Secured Parties Lenders in accordance with the terms 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), the Collateral Agent (or any Lender, except with respect to a “credit bid” pursuant to Section 363(k), Section 1129(b)(2)(a)(ii) or otherwise of the Bankruptcy Code) may be the purchaser or licensor of any or all of such Collateral at any such sale or other disposition and the Collateral Agent, as agent for and representative of Secured Parties (but not any Lender or Lenders in its or their respective individual capacities) shall be entitled, upon instructions from Required Lenders, for the purpose of bidding and making settlement or payment of the purchase price for all or any portion of the Collateral sold at any such sale or disposition, to use and apply any of the Obligations as a credit on account of the purchase price for any Collateral payable by the Collateral Agent at such sale or other disposition.
(c) Neither the Administrative Agent nor the Collateral Agent shall be responsible for or have a duty to ascertain or inquire into (including any representation or warranty regarding) the existence, value or collectability of the Collateral, the existence, priority or perfection of the Collateral Agent’s Lien thereon, or any certificate prepared by any Credit Party in connection therewith, and neither the Administrative Agent nor the Collateral Agent shall be responsible or liable to the Lenders for any failure to monitor or maintain any portion of the Collateral.
(d) No Secured Swap Contract or Cash Management Obligation will create (or be deemed to create) in favor of any Eligible Counterparty or Cash Management Bank, as applicable, that is a party thereto any rights in connection with the management or release of any Collateral or of the obligations of any Guarantor under the Credit Documents except as expressly provided in Section 8.3 and Section 10.5(d)(iv). By accepting the benefits of the Collateral, each Eligible Counterparty and each Cash Management Bank shall be deemed to have appointed the Collateral Agent as its agent and agreed to be bound by the Credit Documents as a Secured Party, subject to the limitations set forth in this clause (d). Notwithstanding any other provision of this Section 9 to the contrary, the Administrative Agent shall not be required to verify the payment of, or that other satisfactory arrangements have been made with respect to, Cash Management Obligations or Obligations arising under Secured Swap Contracts unless the Administrative Agent has received written notice of such Obligations, together with such supporting documentation as the Administrative Agent may reasonably request, from the applicable Cash Management Bank or Eligible Counterparty, as the case may be.
Appears in 1 contract
Samples: Credit Agreement (LTM Holdings Inc)
Collateral Documents and Guaranty. Each Lender (which term shall include, for purposes of this subsection 9.6, any Lender in its capacity as a counterparty to a Hedge Agreement with Company or one of its Subsidiaries) hereby further authorizes Administrative Agent, on behalf of and for the benefit of Lenders, to enter into each Collateral Document as secured party and to be the agent for and representative of Lenders under the Guaranty, and each Lender agrees to be bound by the terms of each Collateral Document and the Guaranty; provided that Administrative Agent shall not (i) enter into or consent to any amendment, modification, termination or waiver of any provision contained in any Collateral Document or the Guaranty or (ii) release any Collateral (except as otherwise expressly permitted or required pursuant to the terms of this Agreement or the applicable Collateral Document), in each case without the prior consent of Requisite Lenders (or, if required pursuant to subsection 10.6, all Lenders); provided, further, that, without further written consent or authorization from Lenders, Administrative Agent may execute any documents or instruments necessary to (a) The Secured Parties irrevocably authorize the Collateral Agent, at its option and in its discretion,
(i) to release any Lien on encumbering any property granted to or held by the item of Collateral Agent under any Credit Document (v) upon termination of all Commitments and payment in full of all Obligations (other than Remaining Obligations) and the expiration, termination or Cash Collateralization of all Letters of Credit, (wI) that is sold or otherwise disposed the subject of or to be sold or otherwise disposed of as part of or in connection with any a sale or other disposition permitted under the Credit Documents to any Person of assets (other than to an Affiliate of a Credit Party (provided that if requested by the Administrative Agent, the Borrowers shall provide a certification that such disposition is Loan Party) permitted by this Agreement), (xII) subject to Section 10.5, if approved, authorized or ratified in writing by the requisite lenders under this Agreement, (y) if the property subject to such Lien is owned by a Guarantor, upon release of such Guarantor from its obligations under its Guaranty pursuant to clause (iii) below or (z) to the extent the property subject to such Lien becomes an Excluded Asset;
(ii) to subordinate any Lien on any property granted to or held by the Collateral Agent under any Credit Document to the holder of any Lien on such property that is permitted by Section 6.2(fto secure other Indebtedness pursuant to the terms hereof in connection with the incurrence of such Indebtedness, (III) that is otherwise expressly contemplated by, and permitted by, the Loan Documents or 6.2(g); and
(iiiIV) to which Requisite Lenders (or such other Lenders as may be required to give such consent under subsection 10.6) have otherwise consented or (b) release any Guarantor from its obligations under the Guaranty if such Person ceases to be a Restricted Subsidiary as a result of a transaction permitted under the Credit Documents. Upon request expressly contemplated by the Collateral Agent at any time, the other Loan Documents or with respect to which Requisite Lenders will confirm in writing the Collateral Agent’s authority (or such other Lenders as may be required to release or subordinate its interest in particular types or items of property, or to release any Guarantor from its obligations give such consent under the Guaranty pursuant to this Section 9.10(a)subsection 10.6) have otherwise consented. If any Collateral is disposed of as permitted by Section 6.9 to any Person other than a Credit Party, such Collateral shall be sold free and clear of the Liens created by the Credit Documents and the Administrative Agent or the Collateral Agent, as applicable, shall, at the expense of the Borrowers, take any and all actions reasonably requested by the Borrowers to effect the foregoing (provided that if requested by the Administrative Agent, the Borrowers shall provide a certification that such disposition is permitted by this Agreement).
(b) Anything contained in any of the Credit Loan Documents to the contrary notwithstanding, each Credit PartyCompany, the Administrative Agent, the Collateral Agent and each Secured Party Lender hereby agree that (i1) no Secured Party Lender shall have any right individually to realize upon any of the Collateral under any Collateral Document or to enforce the Guaranty, it being understood and agreed that all powers, rights and remedies hereunder under the Collateral Documents and under any of the Credit Documents Guaranty may be exercised solely by the Administrative Agent or the Collateral Agent, as applicable, for the benefit of the Secured Parties Lenders in accordance with the terms hereof and thereof and all powers, rights and remedies under of the Collateral Documents may be exercised solely by and the Collateral Agent for the benefit of the Secured Parties in accordance with the terms thereofGuaranty, and (ii2) in the event of a foreclosure or similar enforcement action by the Collateral Administrative Agent on any of the Collateral pursuant to a public or private sale or other disposition (including pursuant to Section 363(k)sale, Section 1129(b)(2)(a)(ii) or otherwise of the Bankruptcy Code), the Collateral Administrative 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) Lender may be the purchaser or licensor of any or all of such Collateral at any such sale or other disposition and the Collateral Administrative Agent, as agent for and representative of Secured Parties Lenders (but not any Lender or Lenders in its or their respective individual capacitiescapacities unless Requisite Lenders shall otherwise agree in writing) shall be entitled, upon instructions from Required Lenders, for the purpose of bidding and making settlement or payment of the purchase price for all or any portion of the Collateral sold at any such sale or dispositionpublic sale, to use and apply any of the Obligations as a credit on account of the purchase price for any Collateral payable by the Collateral Administrative Agent at such sale or sale. Without derogating from any other disposition.
(c) Neither the authority granted to Administrative Agent nor herein or in the Collateral Documents or any other document relating thereto, each Lender hereby specifically (x) authorizes Administrative Agent shall to enter into pledge agreements pursuant to this subsection 9.6 with respect to the Capital Stock of all existing and future first-tier Foreign Subsidiaries, which pledge agreements may be responsible for or have a duty to ascertain or inquire into (including any representation or warranty regarding) governed by the existence, value or collectability laws of each of the Collateraljurisdictions of formation of such Foreign Subsidiaries, including but not limited to Mexican, British Virgin Islands, English, and Jamaican law, respectively, as agent on behalf of each of Lenders, with the existenceeffect that Lenders each become a secured party thereunder or, priority or perfection where relevant as agent and trustee with the effect that the Lenders each become beneficiaries of the Collateral Agent’s Lien thereon, or any certificate prepared by any Credit Party in connection therewith, trust and neither the Administrative Agent nor has all the Collateral Agent shall be responsible or liable to rights, powers, discretions, protections and exemptions from liability set out in the Lenders for any failure to monitor or maintain any portion of the Collateral.
pledge agreements and (dy) No Secured Swap Contract or Cash Management Obligation will create (or be deemed to create) in favor of any Eligible Counterparty or Cash Management Bank, as applicable, that is a party thereto any rights except in connection with any such pledge agreement where Administrative Agent holds the management or release of any Collateral or of security as agent and trustee for the obligations of any Guarantor under the Credit Documents except as expressly provided in Section 8.3 and Section 10.5(d)(iv). By accepting the benefits of the CollateralLenders, each Eligible Counterparty and each Cash Management Bank shall be deemed to have appointed the Collateral appoints Administrative Agent as its agent attorney-in-fact granting it the powers to execute each such pledge agreement and agreed any registrations of the security interest thereby created, in each case in its name and on its behalf, with the effect that each Lender becomes a secured party thereunder. With respect to be bound by the Credit Documents as a Secured Partyeach such pledge agreement, subject to the limitations set forth in this clause (d). Notwithstanding any other provision of this Section 9 to the contrary, the Administrative Agent shall not be required to verify the payment of, or that other satisfactory arrangements have been made with respect to, Cash Management Obligations or Obligations arising under Secured Swap Contracts unless the Administrative Agent has received written notice the power to sub-delegate to third parties its powers as attorney-in-fact of such Obligations, together with such supporting documentation as the Administrative Agent may reasonably request, from the applicable Cash Management Bank or Eligible Counterparty, as the case may beeach Lender.
Appears in 1 contract
Collateral Documents and Guaranty. (a) The Secured Parties irrevocably authorize Administrative Agent as Agent under Collateral Documents and Guaranty. --------------------------------------------------------------------- Each Lender hereby further authorizes Administrative Agent, on behalf of and for the benefit of Lenders, to be the agent for and representative of Lenders with respect to the Guaranty, the Collateral Agentand the Collateral Documents. Subject to Section 10.5, at its option and in its discretion,
without further written consent or authorization from Lenders, Administrative Agent may execute any documents or instruments necessary to (i) to release any Lien on encumbering any property granted to or held by the item of Collateral Agent under any Credit Document (v) upon termination of all Commitments and payment in full of all Obligations (other than Remaining Obligations) and the expiration, termination or Cash Collateralization of all Letters of Credit, (w) that is sold or otherwise disposed the subject of or to be sold or otherwise disposed of as part of or in connection with any a sale or other disposition of assets permitted hereby or to which Requisite Lenders (or such other Lenders as may be required to give such consent under the Credit Documents to any Person other than a Credit Party (provided that if requested by the Administrative Agent, the Borrowers shall provide a certification that such disposition is permitted by this Agreement), (x) subject to Section 10.5, if approved, authorized ) have otherwise consented or ratified in writing by the requisite lenders under this Agreement, (y) if the property subject to such Lien is owned by a Guarantor, upon release of such Guarantor from its obligations under its Guaranty pursuant to clause (iii) below or (z) to the extent the property subject to such Lien becomes an Excluded Asset;
(ii) to subordinate any Lien on any property granted to or held by the Collateral Agent under any Credit Document to the holder of any Lien on such property that is permitted by Section 6.2(f) or 6.2(g); and
(iii) to release any Guarantor from its obligations under the Guaranty if such Person ceases to be a Restricted Subsidiary as a result of a transaction permitted under the Credit Documents. Upon request by the Collateral Agent at any time, the Lenders will confirm in writing the Collateral Agent’s authority to release or subordinate its interest in particular types or items of property, or to release any Guarantor from its obligations under the Guaranty pursuant to this Section 9.10(a)7.13 or with respect to which Requisite Lenders (or such other Lenders as may be required to give such consent under Section 10.5) have otherwise consented. If any Collateral is disposed of as permitted by Section 6.9 to any Person other than a Credit Party, such Collateral shall be sold free and clear of the Liens created by the Credit Documents and the Administrative Agent or the Collateral Agent, as applicable, shall, at the expense of the Borrowers, take any and all actions reasonably requested by the Borrowers to effect the foregoing (provided that if requested by the Administrative Agent, the Borrowers shall provide a certification that such disposition is permitted by this Agreement).
(b) 's Right to Realize on Collateral and Enforce ----------------------------------------------------------------- Guaranty. Anything contained in any of the Credit Documents to the contrary -------- notwithstanding, each Credit PartyCompany, the Administrative Agent, the Collateral Agent and each Secured Party Lender hereby agree that (i) no Secured Party Lender shall have any right individually to realize upon any of the Collateral or to enforce the Guaranty, it being understood and agreed that all powers, rights and remedies hereunder and under any of the Credit Documents may be exercised solely by the Administrative Agent or the Collateral Agent, as applicable, for the benefit on behalf of the Secured Parties Lenders in accordance with the terms hereof and thereof and all powers, rights and remedies under the Collateral Documents may be exercised solely by the Collateral Agent for the benefit of the Secured Parties in accordance with the terms thereofhereof, and (ii) in the event of a foreclosure or similar enforcement action by the Collateral Administrative Agent on any of the Collateral pursuant to a public or private sale or other disposition (including pursuant to Section 363(k)sale, Section 1129(b)(2)(a)(ii) or otherwise of the Bankruptcy Code), the Collateral Administrative 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) Lender may be the purchaser or licensor of any or all of such Collateral at any such sale or other disposition and the Collateral Administrative Agent, as agent for and representative of Secured Parties Lenders (but not any Lender or Lenders in its or their respective individual capacitiescapacities unless Requisite Lenders shall otherwise agree in writing) shall be entitled, upon instructions from Required Lenders, for the purpose of bidding and making settlement or payment of the purchase price for all or any portion of the Collateral sold at any such sale or dispositionpublic sale, to use and apply any of the Obligations as a credit on account of the purchase price for any Collateral collateral payable by the Collateral Administrative Agent at such sale or other dispositionsale.
(c) Neither the Administrative Agent nor the Collateral Agent shall be responsible for or have a duty to ascertain or inquire into (including any representation or warranty regarding) the existence, value or collectability of the Collateral, the existence, priority or perfection of the Collateral Agent’s Lien thereon, or any certificate prepared by any Credit Party in connection therewith, and neither the Administrative Agent nor the Collateral Agent shall be responsible or liable to the Lenders for any failure to monitor or maintain any portion of the Collateral.
(d) No Secured Swap Contract or Cash Management Obligation will create (or be deemed to create) in favor of any Eligible Counterparty or Cash Management Bank, as applicable, that is a party thereto any rights in connection with the management or release of any Collateral or of the obligations of any Guarantor under the Credit Documents except as expressly provided in Section 8.3 and Section 10.5(d)(iv). By accepting the benefits of the Collateral, each Eligible Counterparty and each Cash Management Bank shall be deemed to have appointed the Collateral Agent as its agent and agreed to be bound by the Credit Documents as a Secured Party, subject to the limitations set forth in this clause (d). Notwithstanding any other provision of this Section 9 to the contrary, the Administrative Agent shall not be required to verify the payment of, or that other satisfactory arrangements have been made with respect to, Cash Management Obligations or Obligations arising under Secured Swap Contracts unless the Administrative Agent has received written notice of such Obligations, together with such supporting documentation as the Administrative Agent may reasonably request, from the applicable Cash Management Bank or Eligible Counterparty, as the case may be.
Appears in 1 contract
Samples: Credit and Guaranty Agreement (Northpoint Communications Group Inc)
Collateral Documents and Guaranty. (a) The Secured Parties irrevocably authorize Each Lender hereby further authorizes the Collateral Agent, at its option on behalf of and in its discretion,
for the benefit of Lenders, to enter into each Collateral Document, the Assignment of Reinsurances and each Guaranty as secured party or beneficiary (as applicable), and each Lender agrees to be bound by the terms of each Collateral Document and Guaranty; provided that the Administrative Agent and the Collateral Agent shall not (i) enter into or consent to any material amendment, modification, termination or waiver of any provision contained in any Collateral Document or Guaranty or the Assignment of Reinsurances, or (ii) release any Lien on any property granted Collateral (except as otherwise expressly permitted or required pursuant to the terms of this Agreement or held by the applicable Collateral Document), in each case without the prior consent of Requisite Lenders (or, if required pursuant to subsection 10.6, all Lenders); provided further, however, that, without further written consent or authorization from Lenders, the Administrative Agent and the Collateral Agent under may (and at the request of a Loan Party shall) execute any Credit Document documents or instruments necessary to (vi) upon termination release any Subsidiary from the Guaranty to the extent the stock of all Commitments and payment in full of all Obligations (other than Remaining Obligations) and the expirationsuch Restricted Subsidiary is sold, termination or Cash Collateralization of all Letters of Credit, (w) that is sold transferred or otherwise disposed of or to be sold in a transaction permitted under this Agreement or otherwise disposed consented to by the Lenders in accordance with subsection 10.6 and (ii) release any Lien encumbering any item of as part Collateral that is the subject of or in connection with any a sale or other disposition of assets permitted under the Credit Documents by this Agreement or any other Indebtedness secured by a Permitted Lien or pursuant to any Person other than a Credit Party (provided that if requested intercreditor arrangement entered into by the Administrative AgentAgent and an agent or lender under a FF&E Facility pursuant to the terms hereof or to which the Lenders have otherwise consented in accordance with subsection 10.6. In addition, in connection with the entering into of any such intercreditor arrangement between the Administrative Agent and an agent or lender under a FF&E Facility, the Borrowers shall provide a certification that Administrative Agent may, without the consent of the Lenders (other than such disposition is permitted by this Agreement), (x) subject to Section 10.5consent, if approvedany, authorized as may otherwise be required to enter into such FF&E Facility or ratified intercreditor agreement) enter into such modifications to the Collateral Documents as are necessary to grant Liens on Specified FF&E in writing by favor of the requisite lenders under this Agreement, (y) if the property subject to such Lien is owned by a Guarantor, upon release of such Guarantor from its obligations under its Guaranty pursuant to clause (iii) below or (z) relevant FF&E Facility to the extent such Liens are permitted hereunder, and to otherwise carry out the property subject intent of this Agreement in relation to such Lien becomes an Excluded Asset;
(ii) Liens. In connection with any disposition or release of any Collateral pursuant to subordinate the terms of any Lien on any property granted to or held by Loan Document, at the Company’s request and expense, the Collateral Agent under shall (without recourse and without any Credit Document representation or warranty) execute and deliver to the holder of any Lien on Company such property that is permitted by Section 6.2(fdocuments (including UCC-3 termination statements) as the Company may reasonably request to evidence or 6.2(g); and
(iii) to release any Guarantor from its obligations under the Guaranty if such Person ceases to be a Restricted Subsidiary as a result of a transaction permitted under the Credit Documents. Upon request by the Collateral Agent at any time, the Lenders will confirm in writing the Collateral Agent’s authority to release or subordinate its interest in particular types or items of property, or to release any Guarantor from its obligations under the Guaranty pursuant to this Section 9.10(a). If any Collateral is disposed of as permitted by Section 6.9 to any Person other than a Credit Party, such Collateral shall be sold free and clear of the Liens created by the Credit Documents and the Administrative Agent or the Collateral Agent, as applicable, shall, at the expense of the Borrowers, take any and all actions reasonably requested by the Borrowers to effect the foregoing (provided that if requested by the Administrative Agent, the Borrowers shall provide a certification that such disposition is permitted by this Agreement).
(b) or release. Anything contained in any of the Credit Loan Documents to the contrary notwithstanding, each Credit Party, the Administrative AgentCompany, the Collateral Agent and each Secured Party Lender hereby agree that (iX) no Secured Party Lender shall have any right individually to realize upon any of the Collateral or to enforce the Guarantyunder any Collateral Document, it being understood and agreed that all powers, rights and remedies hereunder and under any of the Credit 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 all powers, rights and remedies under the Collateral Documents Documents, the Assignment of Reinsurances and each Guaranty may be exercised solely by the Collateral Agent for the benefit of the Secured Parties Lenders in accordance with the terms thereof, and (iiY) 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)sale, 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) Lender may be the purchaser or licensor of any or all of such Collateral at any such sale or other disposition and the Collateral Agent, as agent for and representative of Secured Parties Lenders (but not any Lender or Lenders in its or their respective individual capacitiescapacities unless Requisite Lenders shall otherwise agree in writing) shall be entitled, upon instructions from Required Lenders, for the purpose of bidding and making settlement or payment of the purchase price for all or any portion of the Collateral sold at any such sale or dispositionpublic sale, to use and apply any of the Obligations as a credit on account of the purchase price for any Collateral collateral payable by the Collateral Agent at such sale or other dispositionsale.
(c) Neither the Administrative Agent nor the Collateral Agent shall be responsible for or have a duty to ascertain or inquire into (including any representation or warranty regarding) the existence, value or collectability of the Collateral, the existence, priority or perfection of the Collateral Agent’s Lien thereon, or any certificate prepared by any Credit Party in connection therewith, and neither the Administrative Agent nor the Collateral Agent shall be responsible or liable to the Lenders for any failure to monitor or maintain any portion of the Collateral.
(d) No Secured Swap Contract or Cash Management Obligation will create (or be deemed to create) in favor of any Eligible Counterparty or Cash Management Bank, as applicable, that is a party thereto any rights in connection with the management or release of any Collateral or of the obligations of any Guarantor under the Credit Documents except as expressly provided in Section 8.3 and Section 10.5(d)(iv). By accepting the benefits of the Collateral, each Eligible Counterparty and each Cash Management Bank shall be deemed to have appointed the Collateral Agent as its agent and agreed to be bound by the Credit Documents as a Secured Party, subject to the limitations set forth in this clause (d). Notwithstanding any other provision of this Section 9 to the contrary, the Administrative Agent shall not be required to verify the payment of, or that other satisfactory arrangements have been made with respect to, Cash Management Obligations or Obligations arising under Secured Swap Contracts unless the Administrative Agent has received written notice of such Obligations, together with such supporting documentation as the Administrative Agent may reasonably request, from the applicable Cash Management Bank or Eligible Counterparty, as the case may be.
Appears in 1 contract
Collateral Documents and Guaranty. (a) The Secured Parties irrevocably authorize the Collateral Agent, at its option and in its discretion,
(i) to release any Lien on any property granted to or held by the Collateral Agent under any Credit Document (vx) upon termination of all Commitments and payment in full of all Obligations (other than Remaining Obligations) and the expiration, termination or Cash Collateralization of all Letters of CreditCredit (other than Letters of Credit as to which other arrangements satisfactory to the Administrative Agent and the Issuing Bank shall have been made), (wy) 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 under the Credit Documents to any Person other than a Credit Party Documents, or (provided that if requested by the Administrative Agent, the Borrowers shall provide a certification that such disposition is permitted by this Agreement), (xz) subject to Section 10.5, if approved, authorized or ratified in writing by the requisite lenders under this Agreement, (y) if the property subject to such Lien is owned by a Guarantor, upon release of such Guarantor from its obligations under its Guaranty pursuant to clause (iii) below or (z) to the extent the property subject to such Lien becomes an Excluded AssetRequired Lenders;
(ii) to subordinate any Lien on any property granted to or held by the Collateral Agent under any Credit Document to the holder of any Lien on such property that is permitted by Section 6.2(f) or 6.2(g); and
(iii) to release any Guarantor from its obligations under the Guaranty if such Person ceases to be a Restricted Subsidiary as a result of a transaction permitted under the Credit Documents. Upon request by the Collateral Agent at any time, the Required Lenders will confirm in writing the Collateral Agent’s authority to release or subordinate its interest in particular types or items of property, or to release any Guarantor from its obligations under the Guaranty pursuant to this Section 9.10(a). If any Collateral is disposed of as permitted by Section 6.9 to any Person other than a Credit Party, such Collateral shall be sold free and clear of the Liens created by the Credit Documents and the Administrative Agent or the Collateral Agent, as applicable, shall, at the expense of the Borrowers, take any and all actions reasonably requested by the Borrowers Borrower Representative to effect the foregoing (provided that if requested by the Administrative Agent, Agent the Borrowers Borrower Representative shall provide a certification that such disposition is permitted by this Agreement).
(b) Anything contained in any of the Credit Documents to the contrary notwithstanding, each Credit Party, the Administrative Agent, the Collateral Agent and each Secured Party hereby agree that (i) no Secured Party shall have any right individually to realize upon any of the Collateral or to enforce the Guaranty, it being understood and agreed that all powers, rights and remedies hereunder and under any of the Credit 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 all powers, rights and remedies under the Collateral Documents may be exercised solely by the Collateral Agent for the benefit of the Secured Parties in accordance with the terms thereof, and (ii) in the event of if 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 occurs (including pursuant to Section section 363(k), Section section 1129(b)(2)(a)(ii) or otherwise of the Bankruptcy Code), the Collateral Agent (or any Lender, except with respect to a “credit bid” pursuant to Section section 363(k), Section section 1129(b)(2)(a)(ii) or otherwise of the Bankruptcy Code) may be the purchaser or licensor of any or all of such Collateral at any such sale or other disposition and the Collateral Agent, as agent for and representative of Secured Parties (but not any Lender or Lenders in its or their respective individual capacities) shall be entitled, upon instructions from Required Lenders, for the purpose of bidding and making settlement or payment of the purchase price for all or any portion of the Collateral sold at any such sale or disposition, to use and apply any of the Obligations as a credit on account of the purchase price for any Collateral collateral payable by the Collateral Agent at such sale or other disposition.
(c) Neither None of the Administrative Agent nor or the Collateral Agent shall be responsible for or have a duty to ascertain or inquire into (including any representation or warranty regarding) regarding the existence, value or collectability of the Collateral, the existence, priority or perfection of the Collateral Agent’s Lien thereonthereon granted under the Credit Documents, or any certificate prepared by any Credit Party in connection therewith, and neither none of the Administrative Agent nor or the Collateral Agent shall be responsible or liable to the Lenders any Secured Party for any failure to monitor or maintain any portion of the Collateral.
(d) No Secured Swap Contract or Cash Management Obligation will create (or be deemed to create) in favor of any Eligible Counterparty that is a party thereto any rights in connection with the management or release of any Collateral or of the obligations of any Guarantor under the Credit Documents except as expressly provided in Section 8.3 and Section 10.5(d)(iv). By accepting the benefits of the Collateral, such Eligible Counterparty shall be deemed to have appointed the Collateral Agent as its agent and agreed to be bound by the Credit Documents as a Secured Party, subject to the limitations set forth in this clause (d).
(e) No Cash Management Bank, as applicable, Agreement will create (or be deemed to create) in favor of any Cash Management Bank that is a party thereto any rights in connection with the management or release of any Collateral or of the obligations of any Guarantor under the Credit Documents except as expressly provided in Section 8.3 and Section 10.5(d)(iv). By accepting the benefits of the Collateral, each Eligible Counterparty and each Cash Management Bank shall be deemed to have appointed the Collateral Agent as its agent and agreed to be bound by the Credit Documents as a Secured Party, subject to the limitations set forth in this clause (de). Notwithstanding any other provision of this Section 9 to the contrary, the Administrative Agent shall not be required to verify the payment of, or that other satisfactory arrangements have been made with respect to, Cash Management Obligations or Obligations arising under Secured Swap Contracts unless the Administrative Agent has received written notice of such Obligations, together with such supporting documentation as the Administrative Agent may reasonably request, from the applicable Cash Management Bank or Eligible Counterparty, as the case may be.
Appears in 1 contract
Samples: Credit and Guaranty Agreement (NRC Group Holdings Corp.)
Collateral Documents and Guaranty. Each Lender hereby further authorizes Administrative Agent, on behalf of and for the benefit of Lenders, to enter into the Intercreditor Agreement, and each Lender agrees to be bound by the terms of the Intercreditor Agreement; provided that Administrative Agent shall not enter into or consent to any material amendment, modification, termination or waiver of the Intercreditor Agreement without the prior consent of Requisite Lenders (or such other Lenders as may be required to give such instructions under subsection 10.6). Each Lender hereby further authorizes Collateral Agent (and under the terms of the Intercreditor Agreement Collateral Agent is authorized), on behalf of and for the benefit of Lenders, to enter into each Collateral Document as secured party and to be the agent for and representative of the Lenders under the Guaranties, and each Lender agrees to be bound by the terms of each Collateral Document and each 141 Guaranty; provided that Collateral Agent shall not enter into or consent to any material amendment, modification, termination or waiver of the Intercreditor Agreement without the prior consent of Requisite Lenders (or such other Lenders as may be required to give such instructions under subsection 10.6); provided further, however, that, without further written consent or authorization from Lenders, Collateral Agent may execute any documents or instruments necessary to (a) The Secured Parties irrevocably authorize the Collateral Agent, at its option and in its discretion,
(i) to release any Lien on encumbering any property granted to item of Collateral that is the subject of a sale or held other disposition of assets permitted by this Agreement or as permitted or required under the Intercreditor Agreement or the Collateral Agent Documents or to which Requisite Lenders (or such other Lenders as may be required to give such consent under subsection 10.6) have otherwise consented or (b) release any Credit Document (v) upon termination Subsidiary Guarantor from the Subsidiary Guaranty if all of all Commitments and payment in full the capital stock of all Obligations (other than Remaining Obligations) and the expiration, termination or Cash Collateralization of all Letters of Credit, (w) that such Subsidiary Guarantor is sold or otherwise disposed of or to be sold or otherwise disposed of as part of or in connection with any Person pursuant to a sale or other disposition permitted under the Credit Documents to any Person other than a Credit Party (provided that if requested by the Administrative Agent, the Borrowers shall provide a certification that such disposition is permitted by this Agreement), (x) subject to Section 10.5, if approved, authorized hereunder or ratified in writing by the requisite lenders under this Agreement, (y) if the property subject to such Lien is owned by a Guarantor, upon release of such Guarantor from its obligations under its Guaranty pursuant to clause (iii) below or (z) to the extent the property subject to such Lien becomes an Excluded Asset;
(ii) to subordinate any Lien on any property granted to or held by the Collateral Agent under any Credit Document to the holder of any Lien on such property that is permitted by Section 6.2(f) or 6.2(g); and
(iii) to release any Guarantor from its obligations under the Guaranty if such Person ceases to be a Restricted Subsidiary as a result of a transaction permitted under the Credit Documents. Upon request by the Collateral Agent at any timeIntercreditor Agreement or to which Requisite Lenders (or such other Lenders as may be required to give such consent under subsection 10.6) have otherwise consented; provided, the Lenders will confirm however, that nothing in writing the Collateral Agent’s authority this subsection shall require consent to release or subordinate its interest in particular types or items of property, or to release any Guarantor from its obligations under the Subsidiary Guaranty pursuant to this Section 9.10(a). If any Collateral is disposed of as permitted by Section 6.9 to any Person other than a Credit Partywhich, immediately after such Collateral sale, shall be sold free a Subsidiary of Holdings which is obligated to and clear of will enter into the Liens created by the Credit Documents and the Administrative Agent or the Collateral Agent, as applicable, shall, at the expense of the Borrowers, take any and all actions reasonably requested by the Borrowers to effect the foregoing (provided that if requested by the Administrative Agent, the Borrowers shall provide a certification that such disposition is permitted by this Agreement).
(b) Subsidiary Guaranty. Anything contained in any of the Credit Loan Documents to the contrary notwithstanding, each Credit PartyCompany, the Administrative Agent, the Collateral Agent and each Secured Party Lender hereby agree that (iX) no Secured Party Lender shall have any right individually to realize upon any of the Collateral under any Collateral Document or to enforce the Subsidiary Guaranty, it being understood and agreed that all powers, rights and remedies hereunder under the Collateral Documents and under any of the Credit Documents Guaranties 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 all powers, rights and remedies under the Collateral Documents may be exercised solely by the Collateral Agent for the benefit of the Secured Parties in accordance with the terms thereof, and (iiY) 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)sale, Section 1129(b)(2)(a)(ii) or otherwise of the Bankruptcy Code), 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) Secured Party may be the purchaser or licensor of any or all of such Collateral at any such sale or other disposition and the Collateral Agent, as agent for and representative of Secured Parties (but not any Lender Secured Party or Lenders Secured Parties in its or their respective individual capacitiescapacities unless Requisite Lenders shall otherwise agree in writing) shall be entitled, upon instructions from Required Lenders, for the purpose of bidding and making settlement or payment of the purchase price for all or any portion of the Collateral sold at any such sale or dispositionpublic sale, to use and apply any of the Obligations as a credit on account of the purchase price for any Collateral collateral payable by the Collateral Agent at such sale or other dispositionsale.
(c) Neither the Administrative Agent nor the Collateral Agent shall be responsible for or have a duty to ascertain or inquire into (including any representation or warranty regarding) the existence, value or collectability of the Collateral, the existence, priority or perfection of the Collateral Agent’s Lien thereon, or any certificate prepared by any Credit Party in connection therewith, and neither the Administrative Agent nor the Collateral Agent shall be responsible or liable to the Lenders for any failure to monitor or maintain any portion of the Collateral.
(d) No Secured Swap Contract or Cash Management Obligation will create (or be deemed to create) in favor of any Eligible Counterparty or Cash Management Bank, as applicable, that is a party thereto any rights in connection with the management or release of any Collateral or of the obligations of any Guarantor under the Credit Documents except as expressly provided in Section 8.3 and Section 10.5(d)(iv). By accepting the benefits of the Collateral, each Eligible Counterparty and each Cash Management Bank shall be deemed to have appointed the Collateral Agent as its agent and agreed to be bound by the Credit Documents as a Secured Party, subject to the limitations set forth in this clause (d). Notwithstanding any other provision of this Section 9 to the contrary, the Administrative Agent shall not be required to verify the payment of, or that other satisfactory arrangements have been made with respect to, Cash Management Obligations or Obligations arising under Secured Swap Contracts unless the Administrative Agent has received written notice of such Obligations, together with such supporting documentation as the Administrative Agent may reasonably request, from the applicable Cash Management Bank or Eligible Counterparty, as the case may be.
Appears in 1 contract
Samples: Credit Agreement (Anthony Crane Rental Holdings Lp)
Collateral Documents and Guaranty. (a) The Each Secured Parties irrevocably authorize the Collateral Agent, at its option and in its discretion,
(i) to release any Lien on any property granted to or held by the Collateral Agent under any Credit Document (v) upon termination of all Commitments and payment in full of all Obligations (other than Remaining Obligations) and the expiration, termination or Cash Collateralization of all Letters of Credit, (w) 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 under the Credit Documents to any Person other than a Credit Party (provided that if requested by the Administrative Agent, the Borrowers shall provide a certification that such disposition is permitted by this Agreement), (x) subject to Section 10.5, if approved, authorized or ratified in writing by the requisite lenders under this Agreement, (y) if the property subject to such Lien is owned by a Guarantor, upon release of such Guarantor from its obligations under its Guaranty pursuant to clause (iii) below or (z) to the extent the property subject to such Lien becomes an Excluded Asset;
(ii) to subordinate any Lien on any property granted to or held by the Collateral Agent under any Credit Document to the holder of any Lien on such property that is permitted by Section 6.2(f) or 6.2(g); and
(iii) to release any Guarantor from its obligations under the Guaranty if such Person ceases to be a Restricted Subsidiary as a result of a transaction permitted under the Credit Documents. Upon request by the Collateral Agent at any time, the Lenders will confirm in writing the Collateral Agent’s authority to release or subordinate its interest in particular types or items of property, or to release any Guarantor from its obligations under the Guaranty pursuant to this Section 9.10(a). If any Collateral is disposed of as permitted by Section 6.9 to any Person other than a Credit Party, such Collateral shall be sold free and clear of the Liens created by the Credit Documents and the hereby further authorizes Administrative Agent or the Collateral Agent, as applicable, shallon behalf of and for the benefit of Secured Parties, at to be the expense agent for and representative of Secured Parties with respect to the BorrowersGuaranty Agreement, take the Collateral and the Collateral Documents. Subject to Section 9.02, without further written consent or authorization from any and all actions reasonably requested by the Borrowers to effect the foregoing (provided that if requested by the Secured Party, Administrative Agent or Collateral Agent, the Borrowers shall provide as applicable may execute any documents or instruments necessary to (i) in connection with a certification that such disposition is Disposition of assets permitted by this Agreement)Agreement or any other Loan Document, release any Lien encumbering any item of Collateral that is the subject of such Disposition of assets or to which Required Lenders (or such other Lenders as may be required to give such consent under Section 9.02) have otherwise consented or (ii) release any Guarantor from the Guaranty Agreement in connection with a Disposition with respect to which Required Lenders (or such other Lenders as may be required to give such consent under Section 9.02) have consented.
(b) Anything contained in any of the Credit Loan Documents to the contrary notwithstanding, each Credit PartyBorrower, the Administrative Agent, the Collateral Agent and each Secured Party hereby agree that (i) no Secured Party shall have any right individually to realize upon any of the Collateral or to enforce the GuarantyGuaranty Agreement, it being understood and agreed that all powers, rights and remedies hereunder and under any of the Credit 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 all powers, rights and remedies under the Collateral Documents may be exercised solely by the Collateral Agent for the benefit of the Secured Parties in accordance with the terms 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)Disposition, Section 1129(b)(2)(a)(ii) or otherwise of the Bankruptcy Code), the Collateral Agent (or any Lender, except with respect to a “credit bid” pursuant to Section 363(k), Section 1129(b)(2)(a)(ii) or otherwise of the Bankruptcy Code) may be the purchaser or licensor of any or all of such Collateral at any such sale or other disposition Disposition and the Collateral Agent, as agent for and representative of Secured Parties (but not any Lender or Lenders in its or their respective individual capacities) shall be entitled, upon instructions from Required Lenders, for the purpose of bidding and making settlement or payment of the purchase price for all or any portion of the Collateral sold at any such sale or dispositionDisposition, to use and apply any of the Obligations as a credit on account of the purchase price for any Collateral collateral payable by the Collateral Agent at such sale or other dispositionDisposition.
(c) Neither Notwithstanding anything to the contrary contained herein or any other Loan Document, when all Obligations (other than contingent indemnification and expense reimbursement obligations as to which no claim shall have been asserted) have been paid in full, and all Commitments have terminated or expired, upon request of Borrower, Collateral Agent shall, upon instruction from the Administrative Agent nor Agent, take such actions as shall be required to release its security interest in all Collateral, and to release all guarantee obligations provided for in any Loan Document. Any such release of guarantee obligations shall be deemed subject to the provision that such guarantee obligations shall be reinstated if after such release any portion of any payment in respect of the Obligations guaranteed thereby shall be rescinded or must otherwise be restored or returned upon the insolvency, bankruptcy, dissolution, liquidation or reorganization of Borrower or any Guarantor, or upon or as a result of the appointment of a receiver, intervenor or conservator of, or trustee or similar officer for, Borrower or any Guarantor or any substantial part of its property, or otherwise, all as though such payment had not been made.
(d) The Collateral Agent shall not be responsible for or have a duty to ascertain or inquire into (including any representation or warranty regarding) regarding the existence, value or collectability of the Collateral, the existence, priority or perfection of the Collateral Agent’s Lien thereon, or any certificate prepared by any Credit Party in connection therewith, and neither the Administrative Agent nor shall the Collateral Agent shall be responsible or liable to the Lenders for any failure to monitor or maintain any portion of the Collateral.
(d) No Secured Swap Contract or Cash Management Obligation will create (or be deemed to create) in favor of any Eligible Counterparty or Cash Management Bank, as applicable, that is a party thereto any rights in connection with the management or release of any Collateral or of the obligations of any Guarantor under the Credit Documents except as expressly provided in Section 8.3 and Section 10.5(d)(iv). By accepting the benefits of the Collateral, each Eligible Counterparty and each Cash Management Bank shall be deemed to have appointed the Collateral Agent as its agent and agreed to be bound by the Credit Documents as a Secured Party, subject to the limitations set forth in this clause (d). Notwithstanding any other provision of this Section 9 to the contrary, the Administrative Agent shall not be required to verify the payment of, or that other satisfactory arrangements have been made with respect to, Cash Management Obligations or Obligations arising under Secured Swap Contracts unless the Administrative Agent has received written notice of such Obligations, together with such supporting documentation as the Administrative Agent may reasonably request, from the applicable Cash Management Bank or Eligible Counterparty, as the case may be.
Appears in 1 contract
Samples: Credit Agreement (Cencosud S.A.)
Collateral Documents and Guaranty. Each Lender (which term shall include, for purposes of this subsection 9.6, any Lender in its capacity as a counterparty to a Hedge Agreement with Company or one of its Subsidiaries) hereby further authorizes Administrative Agent, on behalf of and for the benefit of Lenders, to enter into each Collateral Document as secured party and to be the agent for and representative of Lenders under the Guaranty, and each Lender agrees to be bound by the terms of each Collateral Document and the Guaranty; provided that Administrative Agent shall not (i) enter into or consent to any material amendment, modification, termination or waiver of any provision contained in any Collateral Document or the Guaranty or (ii) release any Collateral (except as otherwise expressly permitted or required pursuant to the terms of this Agreement or the applicable Collateral Document), in each case without the prior consent of Requisite Lenders (or, if required pursuant to subsection 10.6, all Lenders); provided further, however, that, without further written consent or authorization from Lenders, Administrative Agent may execute any documents or instruments necessary to (a) The Secured Parties irrevocably authorize the Collateral Agent, at its option and in its discretion,
(i) to release any Lien on encumbering any property granted to or held by the item of Collateral Agent under any Credit Document (v) upon termination of all Commitments and payment in full of all Obligations (other than Remaining Obligations) and the expiration, termination or Cash Collateralization of all Letters of Credit, (w1) that is sold or otherwise disposed the subject of or to be sold or otherwise disposed of as part of or in connection with any a sale or other disposition permitted under the Credit Documents to any Person of assets (other than to an Affiliate of a Credit Party (provided that if requested by the Administrative Agent, the Borrowers shall provide a certification that such disposition is Loan Party) permitted by this Agreement), (x2) subject to Section 10.5, if approved, authorized or ratified in writing by the requisite lenders under this Agreement, (y) if the property subject to such Lien is owned by a Guarantor, upon release of such Guarantor from its obligations under its Guaranty pursuant to clause (iii) below or (z) to the extent the property subject to such Lien becomes an Excluded Asset;
(ii) to subordinate any Lien on any property granted to or held by the Collateral Agent under any Credit Document to the holder of any Lien on such property that is permitted to secure other Indebtedness pursuant to the terms hereof in connection with the incurrence of such Indebtedness, (3) that is otherwise expressly contemplated by Section 6.2(f) the Loan Documents or 6.2(g); and
(iii4) to which Requisite Lenders (or such other Lenders as may be required to give such consent under subsection 10.6) have otherwise consented or (b) release any Guarantor from its obligations under the Guaranty if such Person ceases to be a Restricted Subsidiary as a result of a transaction permitted under the Credit Documents. Upon request expressly contemplated by the Collateral Agent at any time, the other Loan Documents or with respect to which Requisite Lenders will confirm in writing the Collateral Agent’s authority (or such other Lenders as may be required to release or subordinate its interest in particular types or items of property, or to release any Guarantor from its obligations give such consent under the Guaranty pursuant to this Section 9.10(a)subsection 10.6) have otherwise consented. If any Collateral is disposed of as permitted by Section 6.9 to any Person other than a Credit Party, such Collateral shall be sold free and clear of the Liens created by the Credit Documents and the Administrative Agent or the Collateral Agent, as applicable, shall, at the expense of the Borrowers, take any and all actions reasonably requested by the Borrowers to effect the foregoing (provided that if requested by the Administrative Agent, the Borrowers shall provide a certification that such disposition is permitted by this Agreement).
(b) Anything contained in any of the Credit Loan Documents to the contrary notwithstanding, each Credit PartyCompany, the Administrative Agent, the Collateral Agent and each Secured Party Lender hereby agree that (i1) no Secured Party Lender shall have any right individually to realize upon any of the Collateral under any Collateral Document or to enforce the Guaranty, it being understood and agreed that all powers, rights and remedies hereunder under the Collateral Documents and under any of the Credit Documents Guaranty may be exercised solely by the Administrative Agent or the Collateral Agent, as applicable, for the benefit of the Secured Parties Lenders in accordance with the terms hereof and thereof and all powers, rights and remedies under of the Collateral Documents may be exercised solely by and the Collateral Agent for the benefit of the Secured Parties in accordance with the terms thereofGuaranty, and (ii2) in the event of a foreclosure or similar enforcement action by the Collateral Administrative Agent on any of the Collateral pursuant to a public or private sale or other disposition (including pursuant to Section 363(k)sale, Section 1129(b)(2)(a)(ii) or otherwise of the Bankruptcy Code), the Collateral Administrative 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) Lender may be the purchaser or licensor of any or all of such Collateral at any such sale or other disposition and the Collateral Administrative Agent, as agent for and representative of Secured Parties Lenders (but not any Lender or Lenders in its or their respective individual capacitiescapacities unless Requisite Lenders shall otherwise agree in writing) shall be entitled, upon instructions from Required Lenders, for the purpose of bidding and making settlement or payment of the purchase price for all or any portion of the Collateral sold at any such sale or dispositionpublic sale, to use and apply any of the Obligations as a credit on account of the purchase price for any Collateral payable by the Collateral Administrative Agent at such sale or sale. Without derogating from any other disposition.
(c) Neither the authority granted to Administrative Agent nor herein or in the Collateral Documents or any other document relating thereto, each Lender hereby specifically (i) authorizes Administrative Agent shall to enter into pledge agreements pursuant to this subsection 9.6 with respect to the Capital Stock of all existing and future first-tier Foreign Subsidiaries, which pledge agreements may be responsible for or have a duty to ascertain or inquire into (including any representation or warranty regarding) governed by the existence, value or collectability laws of each of the Collateraljurisdictions of formation of such Foreign Subsidiaries, including but not limited to Mexican, British Virgin Islands, English, and Jamaican law, respectively, as agent on behalf of each of Lenders, with the existenceeffect that Lenders each become a secured party thereunder or, priority or perfection where relevant as agent and trustee with the effect that the Lenders each become beneficiaries of the Collateral Agent’s Lien thereon, or any certificate prepared by any Credit Party in connection therewith, trust and neither the Administrative Agent nor has all the Collateral Agent shall be responsible or liable to rights, powers, discretions, protections and exemptions from liability set out in the Lenders for any failure to monitor or maintain any portion of the Collateral.
pledge agreements and (dii) No Secured Swap Contract or Cash Management Obligation will create (or be deemed to create) in favor of any Eligible Counterparty or Cash Management Bank, as applicable, that is a party thereto any rights except in connection with any such pledge agreement where Administrative Agent holds the management or release of any Collateral or of security as agent and trustee for the obligations of any Guarantor under the Credit Documents except as expressly provided in Section 8.3 and Section 10.5(d)(iv). By accepting the benefits of the CollateralLenders, each Eligible Counterparty and each Cash Management Bank shall be deemed to have appointed the Collateral appoints Administrative Agent as its agent attorney-in-fact granting it the powers to execute each such pledge agreement and agreed any registrations of the security interest thereby created, in each case in its name and on its behalf, with the effect that each Lender becomes a secured party thereunder. With respect to be bound by the Credit Documents as a Secured Partyeach such pledge agreement, subject to the limitations set forth in this clause (d). Notwithstanding any other provision of this Section 9 to the contrary, the Administrative Agent shall not be required to verify the payment of, or that other satisfactory arrangements have been made with respect to, Cash Management Obligations or Obligations arising under Secured Swap Contracts unless the Administrative Agent has received written notice the power to sub-delegate to third parties its powers as attorney-in-fact of such Obligations, together with such supporting documentation as the Administrative Agent may reasonably request, from the applicable Cash Management Bank or Eligible Counterparty, as the case may beeach Lender.
Appears in 1 contract
Collateral Documents and Guaranty. Each Lender hereby further authorizes Collateral Agent, on behalf of and for the benefit of Lenders, to enter into each Collateral Document as secured party and to be the agent for and representative of the Lenders under the Guaranties, and each Lender agrees to be bound by the terms of each Collateral Document and each Guaranty; provided that Collateral Agent shall not -------- enter into or consent to any material amendment, modification, termination or waiver of any provision contained in any Collateral Document or Guaranty without the prior consent of Requisite Lenders (or such other Lenders as may be required to give such instructions under subsection 10.6); provided further, however, -------- ------- ------- that, without further written consent or authorization from Lenders, Collateral Agent may execute any documents or instruments necessary to (a) The Secured Parties irrevocably authorize the Collateral Agent, at its option and in its discretion,
(i) to release any Lien on encumbering any property granted to item of Collateral that is the subject of a sale or held other disposition of assets permitted by this Agreement or as permitted or required under the Collateral Agent Documents or to which Requisite Lenders (or such other Lenders as may be required to give such consent under subsection 10.6) have otherwise consented or (b) release any Credit Document (v) upon termination Subsidiary Guarantor from the Subsidiary Guaranty if all of all Commitments and payment in full the capital stock of all Obligations (other than Remaining Obligations) and the expiration, termination or Cash Collateralization of all Letters of Credit, (w) that such Subsidiary Guarantor is sold or otherwise disposed of or to be sold or otherwise disposed of as part of or in connection with any Person pursuant to a sale or other disposition permitted hereunder or to which Requisite Lenders (or such other Lenders as may be required to give such consent under subsection 10.6) have otherwise consented; provided, however, that nothing -------- ------- in this subsection shall require consent to release from the Credit Documents to Subsidiary Guaranty any Person other than a Credit Party (provided that if requested by the Administrative Agentwhich, the Borrowers immediately after such sale, shall provide a certification that such disposition is permitted by this Agreement), (x) subject to Section 10.5, if approved, authorized or ratified in writing by the requisite lenders under this Agreement, (y) if the property subject to such Lien is owned by a Guarantor, upon release of such Guarantor from its obligations under its Guaranty pursuant to clause (iii) below or (z) to the extent the property subject to such Lien becomes an Excluded Asset;
(ii) to subordinate any Lien on any property granted to or held by the Collateral Agent under any Credit Document to the holder of any Lien on such property that is permitted by Section 6.2(f) or 6.2(g); and
(iii) to release any Guarantor from its obligations under the Guaranty if such Person ceases to be a Restricted Domestic Subsidiary as a result of a transaction permitted under Holdings which is obligated to and will enter into the Credit DocumentsSubsidiary Guaranty. Upon request by the Collateral Agent at any time, the Lenders will confirm in writing the Collateral Agent’s authority to release or subordinate its interest in particular types or items of property, or to release any Guarantor from its obligations under the Guaranty pursuant to this Section 9.10(a). If any Collateral is disposed of as permitted by Section 6.9 to any Person other than a Credit Party, such Collateral shall be sold free and clear of the Liens created by the Credit Documents and the Administrative Agent or the Collateral Agent, as applicable, shall, at the expense of the Borrowers, take any and all actions reasonably requested by the Borrowers to effect the foregoing (provided that if requested by the Administrative Agent, the Borrowers shall provide a certification that such disposition is permitted by this Agreement).
(b) Anything contained in any of the Credit Loan Documents to the contrary notwithstanding, each Credit PartyAgreement Parties, the Administrative Agent, the Collateral Agent and each Secured Party Lender hereby agree that (iX) no Secured Party Lender shall have any right individually to realize upon any of the Collateral under any Collateral Document or to enforce the Subsidiary Guaranty, it being understood and agreed that all powers, rights and remedies hereunder under the Collateral Documents and under any of the Credit Documents Guaranties 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 all powers, rights and remedies under the Collateral Documents may be exercised solely by the Collateral Agent for the benefit of the Secured Parties in accordance with the terms thereof, and (iiY) 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)sale, Section 1129(b)(2)(a)(ii) or otherwise of the Bankruptcy Code), 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) Secured Party may be the purchaser or licensor of any or all of such Collateral at any such sale or other disposition and the Collateral Agent, as agent for and representative of Secured Parties (but not any Lender Secured Party or Lenders Secured Parties in its or their respective individual capacitiescapacities unless Requisite Lenders shall otherwise agree in writing) shall be entitled, upon instructions from Required Lenders, for the purpose of bidding and making settlement or payment of the purchase price for all or any portion of the Collateral sold at any such sale or dispositionpublic sale, to use and apply any of the Obligations as a credit on account of the purchase price for any Collateral collateral payable by the Collateral Agent at such sale or other dispositionsale.
(c) Neither the Administrative Agent nor the Collateral Agent shall be responsible for or have a duty to ascertain or inquire into (including any representation or warranty regarding) the existence, value or collectability of the Collateral, the existence, priority or perfection of the Collateral Agent’s Lien thereon, or any certificate prepared by any Credit Party in connection therewith, and neither the Administrative Agent nor the Collateral Agent shall be responsible or liable to the Lenders for any failure to monitor or maintain any portion of the Collateral.
(d) No Secured Swap Contract or Cash Management Obligation will create (or be deemed to create) in favor of any Eligible Counterparty or Cash Management Bank, as applicable, that is a party thereto any rights in connection with the management or release of any Collateral or of the obligations of any Guarantor under the Credit Documents except as expressly provided in Section 8.3 and Section 10.5(d)(iv). By accepting the benefits of the Collateral, each Eligible Counterparty and each Cash Management Bank shall be deemed to have appointed the Collateral Agent as its agent and agreed to be bound by the Credit Documents as a Secured Party, subject to the limitations set forth in this clause (d). Notwithstanding any other provision of this Section 9 to the contrary, the Administrative Agent shall not be required to verify the payment of, or that other satisfactory arrangements have been made with respect to, Cash Management Obligations or Obligations arising under Secured Swap Contracts unless the Administrative Agent has received written notice of such Obligations, together with such supporting documentation as the Administrative Agent may reasonably request, from the applicable Cash Management Bank or Eligible Counterparty, as the case may be.
Appears in 1 contract
Samples: Credit Agreement (Dominos Pizza Government Services Division Inc)
Collateral Documents and Guaranty. Each Lender hereby further authorizes Administrative Agent, on behalf of and for the benefit of Lenders, to enter into the Intercreditor Agreement, and each Lender agrees to be bound by the terms of the Intercreditor Agreement; provided that Administrative Agent shall not enter into or consent to any material amendment, modification, termination or waiver of the Intercreditor Agreement without the prior consent of Requisite Lenders (or such other Lenders as may be required to give such instructions under subsection 10.6). Each Lender hereby further authorizes Collateral Agent (and under the terms of the Intercreditor Agreement Collateral Agent is authorized), on behalf of and for the benefit of Lenders, to enter into each Collateral Document as secured party and to be the agent for and representative of the Lenders under the Guaranties, and each Lender agrees to be bound by the terms of each Collateral Document and each Guaranty; provided that Collateral Agent shall not enter into or consent to any material amendment, modification, termination or waiver of the Intercreditor Agreement without the prior consent of Requisite Lenders (or such other Lenders as may be required to give such instructions under subsection 10.6) ; provided further, however, that, without further written consent or authorization from Lenders, Collateral Agent may execute any documents or instruments necessary to (a) The Secured Parties irrevocably authorize the Collateral Agent, at its option and in its discretion,
(i) to release any Lien on encumbering any property granted to item of Collateral that is the subject of a sale or held other disposition of assets permitted by this Agreement or as permitted or required under the Intercreditor Agreement or the Collateral Agent Documents or to which Requisite Lenders (or such other Lenders as may be required to give such consent under subsection 10.6) have otherwise consented or (b) release any Credit Document (v) upon termination Subsidiary Guarantor from the Subsidiary Guaranty if all of all Commitments and payment in full the capital stock of all Obligations (other than Remaining Obligations) and the expiration, termination or Cash Collateralization of all Letters of Credit, (w) that such Subsidiary Guarantor is sold or otherwise disposed of or to be sold or otherwise disposed of as part of or in connection with any Person pursuant to a sale or other disposition permitted under the Credit Documents to any Person other than a Credit Party (provided that if requested by the Administrative Agent, the Borrowers shall provide a certification that such disposition is permitted by this Agreement), (x) subject to Section 10.5, if approved, authorized hereunder or ratified in writing by the requisite lenders under this Agreement, (y) if the property subject to such Lien is owned by a Guarantor, upon release of such Guarantor from its obligations under its Guaranty pursuant to clause (iii) below or (z) to the extent the property subject to such Lien becomes an Excluded Asset;
(ii) to subordinate any Lien on any property granted to or held by the Collateral Agent under any Credit Document to the holder of any Lien on such property that is permitted by Section 6.2(f) or 6.2(g); and
(iii) to release any Guarantor from its obligations under the Guaranty if such Person ceases to be a Restricted Subsidiary as a result of a transaction permitted under the Credit Documents. Upon request by the Collateral Agent at any timeIntercreditor Agreement or to which Requisite Lenders (or such other Lenders as may be required to give such consent under subsection 10.6) have otherwise consented; provided, the Lenders will confirm however, that nothing in writing the Collateral Agent’s authority this subsection shall require consent to release or subordinate its interest in particular types or items of property, or to release any Guarantor from its obligations under the Subsidiary Guaranty pursuant to this Section 9.10(a). If any Collateral is disposed of as permitted by Section 6.9 to any Person other than a Credit Partywhich, immediately after such Collateral sale, shall be sold free a Domestic Subsidiary of Holdings which is obligated to and clear of will enter into the Liens created by the Credit Documents and the Administrative Agent or the Collateral Agent, as applicable, shall, at the expense of the Borrowers, take any and all actions reasonably requested by the Borrowers to effect the foregoing (provided that if requested by the Administrative Agent, the Borrowers shall provide a certification that such disposition is permitted by this Agreement).
(b) Subsidiary Guaranty. Anything contained in any of the Credit Loan Documents to the contrary notwithstanding, each Credit PartyCompany, the Administrative Agent, the Collateral Agent and each Secured Party Lender hereby agree that (iX) no Secured Party Lender shall have any right individually to realize upon any of the Collateral under any Collateral Document or to enforce the Subsidiary Guaranty, it being understood and agreed that all powers, rights and remedies hereunder under the Collateral Documents and under any of the Credit Documents Guaranties 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 all powers, rights and remedies under the Collateral Documents may be exercised solely by the Collateral Agent for the benefit of the Secured Parties in accordance with the terms thereof, and (iiY) 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)sale, Section 1129(b)(2)(a)(ii) or otherwise of the Bankruptcy Code), 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) Secured Party may be the purchaser or licensor of any or all of such Collateral at any such sale or other disposition and the Collateral Agent, as agent for and representative of Secured Parties (but not any Lender Secured Party or Lenders Secured Parties in its or their respective individual capacitiescapacities unless Requisite Lenders shall otherwise agree in writing) shall be entitled, upon instructions from Required Lenders, for the purpose of bidding and making settlement or payment of the purchase price for all or any portion of the Collateral sold at any such sale or dispositionpublic sale, to use and apply any of the Obligations as a credit on account of the purchase price for any Collateral collateral payable by the Collateral Agent at such sale or other dispositionsale.
(c) Neither the Administrative Agent nor the Collateral Agent shall be responsible for or have a duty to ascertain or inquire into (including any representation or warranty regarding) the existence, value or collectability of the Collateral, the existence, priority or perfection of the Collateral Agent’s Lien thereon, or any certificate prepared by any Credit Party in connection therewith, and neither the Administrative Agent nor the Collateral Agent shall be responsible or liable to the Lenders for any failure to monitor or maintain any portion of the Collateral.
(d) No Secured Swap Contract or Cash Management Obligation will create (or be deemed to create) in favor of any Eligible Counterparty or Cash Management Bank, as applicable, that is a party thereto any rights in connection with the management or release of any Collateral or of the obligations of any Guarantor under the Credit Documents except as expressly provided in Section 8.3 and Section 10.5(d)(iv). By accepting the benefits of the Collateral, each Eligible Counterparty and each Cash Management Bank shall be deemed to have appointed the Collateral Agent as its agent and agreed to be bound by the Credit Documents as a Secured Party, subject to the limitations set forth in this clause (d). Notwithstanding any other provision of this Section 9 to the contrary, the Administrative Agent shall not be required to verify the payment of, or that other satisfactory arrangements have been made with respect to, Cash Management Obligations or Obligations arising under Secured Swap Contracts unless the Administrative Agent has received written notice of such Obligations, together with such supporting documentation as the Administrative Agent may reasonably request, from the applicable Cash Management Bank or Eligible Counterparty, as the case may be.
Appears in 1 contract
Samples: Credit Agreement (Sealy Corp)
Collateral Documents and Guaranty. Each Lender hereby further authorizes Collateral Agent, on behalf of and for the benefit of Lenders, to enter into each Collateral Document as secured party and to be the agent for and representative of the Lenders under the Guaranties, and each Lender agrees to be bound by the terms of each Collateral Document and each Guaranty; provided that Collateral Agent shall not enter into or consent to any material amendment, modification, termination or waiver of any provision contained in any Collateral Document or Guaranty without the prior consent of Requisite Lenders (or such other Lenders as may be required to give such instructions under subsection 10.6); provided, further, however, that, without further written consent or authorization from Lenders, Collateral Agent may execute any documents or instruments necessary to (a) The Secured Parties irrevocably authorize the Collateral Agent, at its option and in its discretion,
(i) to release any Lien on encumbering any property granted to item of Collateral that is the subject of a sale or held other disposition of assets permitted by this Agreement or as permitted or required under the Collateral Agent under any Credit Document (v) upon termination of all Commitments and payment in full of all Obligations (other than Remaining Obligations) and the expiration, termination or Cash Collateralization of all Letters of Credit, (w) that is sold or otherwise disposed of Documents or to which Requisite Lenders (or such other Lenders as may be required to give such consent under subsection 10.6) have otherwise consented or (b) release any Subsidiary Guarantor from the Subsidiaries Guaranty if all of the capital stock or other equity interests of such Subsidiary Guarantor is or are sold or otherwise disposed of as part of or in connection with to any Person pursuant to a sale or other disposition permitted hereunder or to which Requisite Lenders (or such other Lenders as may be required to give such consent under subsection 10.6) have otherwise consented; provided, however, that nothing in this subsection shall require consent to release from the Credit Documents to Subsidiaries Guaranty any Person other than a Credit Party (provided that if requested by the Administrative Agentwhich, the Borrowers immediately after such sale, shall provide a certification that such disposition is permitted by this Agreement), (x) subject to Section 10.5, if approved, authorized or ratified in writing by the requisite lenders under this Agreement, (y) if the property subject to such Lien is owned by a Guarantor, upon release of such Guarantor from its obligations under its Guaranty pursuant to clause (iii) below or (z) to the extent the property subject to such Lien becomes an Excluded Asset;
(ii) to subordinate any Lien on any property granted to or held by the Collateral Agent under any Credit Document to the holder of any Lien on such property that is permitted by Section 6.2(f) or 6.2(g); and
(iii) to release any Guarantor from its obligations under the Guaranty if such Person ceases to be a Restricted Domestic Subsidiary as a result of a transaction permitted under Holdings which is obligated to and will enter into the Credit DocumentsSubsidiaries Guaranty. Upon request by the Collateral Agent at any time, the Lenders will confirm in writing the Collateral Agent’s authority to release or subordinate its interest in particular types or items of property, or to release any Guarantor from its obligations under the Guaranty pursuant to this Section 9.10(a). If any Collateral is disposed of as permitted by Section 6.9 to any Person other than a Credit Party, such Collateral shall be sold free and clear of the Liens created by the Credit Documents and the Administrative Agent or the Collateral Agent, as applicable, shall, at the expense of the Borrowers, take any and all actions reasonably requested by the Borrowers to effect the foregoing (provided that if requested by the Administrative Agent, the Borrowers shall provide a certification that such disposition is permitted by this Agreement).
(b) Anything contained in any of the Credit Loan Documents to the contrary notwithstanding, each Credit PartyAgreement Parties, the Administrative Agent, the Collateral Agent and each Secured Party Lender hereby agree that (iX) no Secured Party Lender shall have any right individually to realize upon any of the Collateral under any Collateral Document or to enforce the any Guaranty, it being understood and agreed that all powers, rights and remedies hereunder under the Collateral Documents and under any of the Credit Documents Guaranties 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 all powers, rights and remedies under the Collateral Documents may be exercised solely by the and/or Collateral Agent for the benefit of the Secured Parties Creditors in accordance with the terms thereof, and (iiY) 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)sale, Section 1129(b)(2)(a)(ii) or otherwise of the Bankruptcy Code), 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) Secured Creditor may be the purchaser or licensor of any or all of such Collateral at any such sale or other disposition and the Collateral Agent, as agent for and representative of Secured Parties Creditors (but not any Lender Secured Creditor or Lenders Secured Creditors in its or their respective individual capacitiescapacities unless Requisite Lenders shall otherwise agree in writing) shall be entitled, upon instructions from Required Lenders, for the purpose of bidding and making settlement or payment of the purchase price for all or any portion of the Collateral sold at any such sale or dispositionpublic sale, to use and apply any of the Obligations as a credit on account of the purchase price for any Collateral collateral payable by the Collateral Agent at such sale or other dispositionsale.
(c) Neither the Administrative Agent nor the Collateral Agent shall be responsible for or have a duty to ascertain or inquire into (including any representation or warranty regarding) the existence, value or collectability of the Collateral, the existence, priority or perfection of the Collateral Agent’s Lien thereon, or any certificate prepared by any Credit Party in connection therewith, and neither the Administrative Agent nor the Collateral Agent shall be responsible or liable to the Lenders for any failure to monitor or maintain any portion of the Collateral.
(d) No Secured Swap Contract or Cash Management Obligation will create (or be deemed to create) in favor of any Eligible Counterparty or Cash Management Bank, as applicable, that is a party thereto any rights in connection with the management or release of any Collateral or of the obligations of any Guarantor under the Credit Documents except as expressly provided in Section 8.3 and Section 10.5(d)(iv). By accepting the benefits of the Collateral, each Eligible Counterparty and each Cash Management Bank shall be deemed to have appointed the Collateral Agent as its agent and agreed to be bound by the Credit Documents as a Secured Party, subject to the limitations set forth in this clause (d). Notwithstanding any other provision of this Section 9 to the contrary, the Administrative Agent shall not be required to verify the payment of, or that other satisfactory arrangements have been made with respect to, Cash Management Obligations or Obligations arising under Secured Swap Contracts unless the Administrative Agent has received written notice of such Obligations, together with such supporting documentation as the Administrative Agent may reasonably request, from the applicable Cash Management Bank or Eligible Counterparty, as the case may be.
Appears in 1 contract
Samples: Credit Agreement (Dominos Inc)
Collateral Documents and Guaranty. Each Lender hereby further authorizes Administrative Agent, on behalf of and for the benefit of Lenders, to enter into the Intercreditor Agreement, and each Lender agrees to be bound by the terms of the Intercreditor Agreement; provided that Administrative Agent shall not enter into or consent to any -------- material amendment, modification, termination or waiver of the Intercreditor Agreement without the prior consent of Requisite Lenders (or such other Lenders as may be required to give such instructions under subsection 10.6). Each Lender hereby further authorizes Collateral Agent (and under the terms of the Intercreditor Agreement Collateral Agent is authorized), on behalf of and for the benefit of Lenders, to enter into each Collateral Document as secured party and to be the agent for and representative of the Lenders under the Guaranties, and each Lender agrees to be bound by the terms of each Collateral Document and each Guaranty; provided that Collateral Agent shall not enter into or consent to -------- any material amendment, modification, termination or waiver of the Intercreditor Agreement without the prior consent of Requisite Lenders (or such other Lenders as may be required to give such instructions under subsection 10.6) ; provided -------- further, however, that, without further written consent or authorization from ------- ------- Lenders, Collateral Agent may execute any documents or instruments necessary to (a) The Secured Parties irrevocably authorize the Collateral Agent, at its option and in its discretion,
(i) to release any Lien on encumbering any property granted to item of Collateral that is the subject of a sale or held other disposition of assets permitted by this Agreement or as permitted or required under the Intercreditor Agreement or the Collateral Agent Documents or to which Requisite Lenders (or such other Lenders as may be required to give such consent under subsection 10.6) have otherwise consented or (b) release any Credit Document (v) upon termination Subsidiary Guarantor from the Subsidiary Guaranty if all of all Commitments and payment in full the capital stock of all Obligations (other than Remaining Obligations) and the expiration, termination or Cash Collateralization of all Letters of Credit, (w) that such Subsidiary Guarantor is sold or otherwise disposed of or to be sold or otherwise disposed of as part of or in connection with any Person pursuant to a sale or other disposition permitted under the Credit Documents to any Person other than a Credit Party (provided that if requested by the Administrative Agent, the Borrowers shall provide a certification that such disposition is permitted by this Agreement), (x) subject to Section 10.5, if approved, authorized hereunder or ratified in writing by the requisite lenders under this Agreement, (y) if the property subject to such Lien is owned by a Guarantor, upon release of such Guarantor from its obligations under its Guaranty pursuant to clause (iii) below or (z) to the extent the property subject to such Lien becomes an Excluded Asset;
(ii) to subordinate any Lien on any property granted to or held by the Collateral Agent under any Credit Document to the holder of any Lien on such property that is permitted by Section 6.2(f) or 6.2(g); and
(iii) to release any Guarantor from its obligations under the Guaranty if such Person ceases to be a Restricted Subsidiary as a result of a transaction permitted under the Credit Documents. Upon request by the Collateral Agent at any timeIntercreditor Agreement or to which Requisite Lenders (or such other Lenders as may be required to give such consent under subsection 10.6) have otherwise consented; provided, the Lenders will confirm however, that nothing in writing the Collateral Agent’s authority this subsection shall require -------- ------- 138 consent to release or subordinate its interest in particular types or items of property, or to release any Guarantor from its obligations under the Subsidiary Guaranty pursuant to this Section 9.10(a). If any Collateral is disposed of as permitted by Section 6.9 to any Person other than a Credit Partywhich, immediately after such Collateral sale, shall be sold free a Subsidiary of Holdings which is obligated to and clear of will enter into the Liens created by the Credit Documents and the Administrative Agent or the Collateral Agent, as applicable, shall, at the expense of the Borrowers, take any and all actions reasonably requested by the Borrowers to effect the foregoing (provided that if requested by the Administrative Agent, the Borrowers shall provide a certification that such disposition is permitted by this Agreement).
(b) Subsidiary Guaranty. Anything contained in any of the Credit Loan Documents to the contrary notwithstanding, each Credit PartyCompany, the Administrative Agent, the Collateral Agent and each Secured Party Lender hereby agree that (iX) no Secured Party Lender shall have any right individually to realize upon any of the Collateral under any Collateral Document or to enforce the Subsidiary Guaranty, it being understood and agreed that all powers, rights and remedies hereunder under the Collateral Documents and under any of the Credit Documents Guaranties 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 all powers, rights and remedies under the Collateral Documents may be exercised solely by the Collateral Agent for the benefit of the Secured Parties in accordance with the terms thereof, and (iiY) 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)sale, Section 1129(b)(2)(a)(ii) or otherwise of the Bankruptcy Code), 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) Secured Party may be the purchaser or licensor of any or all of such Collateral at any such sale or other disposition and the Collateral Agent, as agent for and representative of Secured Parties (but not any Lender Secured Party or Lenders Secured Parties in its or their respective individual capacitiescapacities unless Requisite Lenders shall otherwise agree in writing) shall be entitled, upon instructions from Required Lenders, for the purpose of bidding and making settlement or payment of the purchase price for all or any portion of the Collateral sold at any such sale or dispositionpublic sale, to use and apply any of the Obligations as a credit on account of the purchase price for any Collateral collateral payable by the Collateral Agent at such sale or other dispositionsale.
(c) Neither the Administrative Agent nor the Collateral Agent shall be responsible for or have a duty to ascertain or inquire into (including any representation or warranty regarding) the existence, value or collectability of the Collateral, the existence, priority or perfection of the Collateral Agent’s Lien thereon, or any certificate prepared by any Credit Party in connection therewith, and neither the Administrative Agent nor the Collateral Agent shall be responsible or liable to the Lenders for any failure to monitor or maintain any portion of the Collateral.
(d) No Secured Swap Contract or Cash Management Obligation will create (or be deemed to create) in favor of any Eligible Counterparty or Cash Management Bank, as applicable, that is a party thereto any rights in connection with the management or release of any Collateral or of the obligations of any Guarantor under the Credit Documents except as expressly provided in Section 8.3 and Section 10.5(d)(iv). By accepting the benefits of the Collateral, each Eligible Counterparty and each Cash Management Bank shall be deemed to have appointed the Collateral Agent as its agent and agreed to be bound by the Credit Documents as a Secured Party, subject to the limitations set forth in this clause (d). Notwithstanding any other provision of this Section 9 to the contrary, the Administrative Agent shall not be required to verify the payment of, or that other satisfactory arrangements have been made with respect to, Cash Management Obligations or Obligations arising under Secured Swap Contracts unless the Administrative Agent has received written notice of such Obligations, together with such supporting documentation as the Administrative Agent may reasonably request, from the applicable Cash Management Bank or Eligible Counterparty, as the case may be.
Appears in 1 contract
Samples: Revolving Credit Agreement (Anthony Crane Holdings Capital Corp)
Collateral Documents and Guaranty. Agents under Collateral Documents and Guaranty. Each Lender and Issuing Bank (aincluding in their capacities as potential Lender Counterparties party to a Secured Interest Rate Agreement and potential Cash Management Banks party to a Cash Management Agreement) The Secured Parties irrevocably authorize the hereby further authorizes Administrative Agent or Collateral Agent, at its option as applicable, on behalf of and in its discretion,
for the benefit of Lenders, to be the agent for and representative of Lenders with respect to the Guaranty, the Collateral and the Collateral Documents. Without further written consent or authorization from Lenders, Administrative Agent or Collateral Agent, as applicable, (i) may enter into and sign for and on behalf of the Lenders as Secured Parties, the Collateral Documents for the benefit of the Lenders and the other Secured Parties, (ii) upon the request of the Borrower Representative, will promptly execute any documents or instruments necessary to release any Lien Liens on any property granted to or held by the Collateral Agent under any Credit Document and to terminate the perfection of such Liens (v1) upon termination of all Commitments and payment Payment in full Full of all Obligations (other than Remaining Obligations) and the expirationCredit Parties agree to enter into a customary payoff letter, termination or Cash Collateralization of all Letters of Creditcustomary release and/or other similar agreement in respect thereto with Administrative Agent, (w2) that to the extent such property is sold or otherwise disposed the subject of or to be sold or otherwise disposed of as part of or in connection with any a sale or other disposition permitted under the Credit Documents to any Person other than a Credit Party (provided that if requested by the Administrative Agent, the Borrowers shall provide a certification that such disposition is of assets permitted by this Agreement)Agreement or under any other Credit Document, (x3) subject to which Requisite Lenders (or such other Lenders as may be required to give such consent under Section 10.510.05) have otherwise consented, if approved, authorized or ratified in writing by the requisite lenders under this Agreementwriting, (y4) if to the extent such property subject to such Lien is owned by a Guarantor, upon release of such Subsidiary Guarantor that is released from its obligations under its Guaranty pursuant to clause Section 7.12 and (5) upon such property constituting Excluded Assets and (iii) below upon the request of the Borrower Representative, will promptly release or (z) if acceptable to the extent the property subject to such Lien becomes an Excluded Asset;
(iiapplicable secured creditor) to subordinate any Lien on any a property granted to or held by the Collateral Agent under any Credit Document to the holder of any Lien on such property that is permitted by Section 6.2(f6.02(l), (m) or 6.2(g(u); and
(iii) to release any Guarantor from its obligations under the Guaranty if such Person ceases to be a Restricted Subsidiary as a result of a transaction permitted under the Credit Documents. Upon request by the Administrative Agent or Collateral Agent at any time, the Requisite Lenders (or, if necessary, all Lenders) will promptly confirm in writing the Collateral Agent’s authority of the Agents to release or subordinate its interest in particular types or items of property, or to release any Guarantor from its obligations under the applicable Guaranty pursuant to this Section 9.10(a)9.08. If any Collateral is disposed of In each case, as permitted by specified in this Section 6.9 to any Person other than a Credit Party9.08, such Collateral shall be sold free and clear of the Liens created by the Credit Documents and the Administrative Agent or the and Collateral Agent, as applicable, shallAgent will, at the expense of the Borrowers’ expense, take any execute and all actions reasonably requested by the Borrowers to effect the foregoing (provided that if requested by the Administrative Agent, the Borrowers shall provide a certification that such disposition is permitted by this Agreement).
(b) Anything contained in any of the Credit Documents deliver to the contrary notwithstanding, each applicable Credit Party, Party such documents as such Credit Party may reasonably request to evidence the Administrative Agent, release of such item of Collateral from the Collateral Agent assignment and each Secured Party hereby agree that (i) no Secured Party shall have any right individually to realize upon any of the Collateral or to enforce the Guaranty, it being understood and agreed that all powers, rights and remedies hereunder and under any of the Credit 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 all powers, rights and remedies security interest granted under the Collateral Documents may be exercised solely by the Collateral Agent for the benefit of the Secured Parties in accordance with the terms 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), the Collateral Agent (or any Lender, except with respect to a “credit bid” pursuant to Section 363(k), Section 1129(b)(2)(a)(ii) or otherwise of the Bankruptcy Code) may be the purchaser or licensor of any or all of such Collateral at any such sale or other disposition and the Collateral Agent, as agent for and representative of Secured Parties (but not any Lender or Lenders in its or their respective individual capacities) shall be entitled, upon instructions from Required Lenders, for the purpose of bidding and making settlement or payment of the purchase price for all or any portion of the Collateral sold at any such sale or disposition, to use and apply any of the Obligations as a credit on account of the purchase price for any Collateral payable by the Collateral Agent at such sale or other disposition.
(c) Neither the Administrative Agent nor the Collateral Agent shall be responsible for or have a duty to ascertain or inquire into (including any representation or warranty regarding) the existence, value or collectability of the Collateral, the existence, priority or perfection of the Collateral Agent’s Lien thereonDocuments, or any certificate prepared by any Credit Party in connection therewith, and neither the Administrative Agent nor the Collateral Agent shall be responsible or liable to the Lenders for any failure to monitor or maintain any portion of the Collateral.
(d) No Secured Swap Contract or Cash Management Obligation will create (or be deemed to create) in favor of any Eligible Counterparty or Cash Management Bank, as applicable, that is a party thereto any rights in connection with the management or release of any Collateral or of the obligations of any Guarantor under the Credit Documents except as expressly provided in Section 8.3 and Section 10.5(d)(iv). By accepting the benefits of the Collateral, each Eligible Counterparty and each Cash Management Bank shall be deemed to have appointed the Collateral Agent as its agent and agreed to be bound by the Credit Documents as a Secured Party, subject to the limitations set forth in this clause (d). Notwithstanding any other provision of this Section 9 to the contrary, the Administrative Agent shall not be required to verify the payment of, or that other satisfactory arrangements have been made with respect to, Cash Management Obligations or Obligations arising under Secured Swap Contracts unless the Administrative Agent has received written notice of such Obligations, together with such supporting documentation as the Administrative Agent may reasonably request, from the applicable Cash Management Bank or Eligible Counterparty, as the case may be.release
Appears in 1 contract
Samples: Credit and Guaranty Agreement (Priority Technology Holdings, Inc.)
Collateral Documents and Guaranty. (a) The Secured Parties irrevocably authorize Each Lender hereby further authorizes the Collateral Agent, at its option on behalf of and in its discretion,
for the benefit of Lenders, to enter into each Collateral Document, the Assignment of Reinsurances and each Guaranty as secured party or beneficiary (as applicable), and each Lender agrees to be bound by the terms of each Collateral Document and Guaranty; provided that the Administrative Agent and the Collateral Agent shall not (i) enter into or consent to any material amendment, modification, termination or waiver of any provision contained in any Collateral Document or Guaranty or the Assignment of Reinsurances, or (ii) release any Lien on any property granted Collateral (except as otherwise expressly permitted or required pursuant to the terms of this Agreement or held by the applicable Collateral Document), in each case without the prior consent of Requisite Lenders (or, if required pursuant to subsection 10.6, all Lenders); provided further, however, that, without further written consent or authorization from Lenders, the Administrative Agent and the Collateral Agent under may (and at the request of a Loan Party shall) execute any Credit Document documents or instruments necessary to (vi) upon termination release any Subsidiary from the Guaranty to the extent the stock of all Commitments and payment in full of all Obligations (other than Remaining Obligations) and the expirationsuch Restricted Subsidiary is sold, termination or Cash Collateralization of all Letters of Credit, (w) that is sold transferred or otherwise disposed of or to be sold in a transaction permitted under this Agreement or otherwise disposed consented to by the Lenders in accordance with subsection 10.6 and (ii) release any Lien encumbering any item of as part Collateral that is the subject of or in connection with any a sale or other disposition of assets permitted under the Credit Documents by this Agreement or any other Indebtedness secured by a Permitted Lien or pursuant to any Person other than a Credit Party (provided that if requested intercreditor arrangement entered into by the Administrative AgentAgent and an agent or lender under a FF&E Facility pursuant to the terms hereof or to which the Lenders have otherwise consented in accordance with subsection 10.6. In addition, in connection with the entering into of any such intercreditor arrangement between the Administrative Agent and an agent or lender under a FF&E Facility, the Borrowers shall provide a certification that Administrative Agent and the Collateral Agent may, without the consent of the Lenders (other than such disposition is permitted by this Agreement), (x) subject to Section 10.5consent, if approvedany, authorized as may otherwise be required to enter into such FF&E Facility or ratified intercreditor agreement) enter into such modifications to the Collateral Documents as are necessary to grant Liens on Specified FF&E in writing by favor of the requisite lenders under this Agreement, (y) if the property subject to such Lien is owned by a Guarantor, upon release of such Guarantor from its obligations under its Guaranty pursuant to clause (iii) below or (z) relevant FF&E Facility to the extent such Liens are permitted hereunder, and to otherwise carry out the property subject intent of this Agreement in relation to such Lien becomes an Excluded Asset;
(ii) Liens. In connection with any disposition or release of any Collateral pursuant to subordinate the terms of any Lien on any property granted to or held by Loan Document, at the Borrower’s request and expense, the Collateral Agent under shall (without recourse and without any Credit Document representation or warranty) execute and deliver to the holder of any Lien on Borrower such property that is permitted by Section 6.2(fdocuments (including UCC-3 termination statements) as the Borrower may reasonably request to evidence or 6.2(g); and
(iii) to release any Guarantor from its obligations under the Guaranty if such Person ceases to be a Restricted Subsidiary as a result of a transaction permitted under the Credit Documents. Upon request by the Collateral Agent at any time, the Lenders will confirm in writing the Collateral Agent’s authority to release or subordinate its interest in particular types or items of property, or to release any Guarantor from its obligations under the Guaranty pursuant to this Section 9.10(a). If any Collateral is disposed of as permitted by Section 6.9 to any Person other than a Credit Party, such Collateral shall be sold free and clear of the Liens created by the Credit Documents and the Administrative Agent or the Collateral Agent, as applicable, shall, at the expense of the Borrowers, take any and all actions reasonably requested by the Borrowers to effect the foregoing (provided that if requested by the Administrative Agent, the Borrowers shall provide a certification that such disposition is permitted by this Agreement).
(b) or release. Anything contained in any of the Credit Loan Documents to the contrary notwithstanding, each Credit Party, the Administrative AgentBorrower, the Collateral Agent and each Secured Party Lender hereby agree that (iX) no Secured Party Lender shall have any right individually to realize upon any of the Collateral or to enforce the Guarantyunder any Collateral Document, it being understood and agreed that all powers, rights and remedies hereunder and under any of the Credit 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 all powers, rights and remedies under the Collateral Documents Documents, the Assignment of Reinsurances and each Guaranty may be exercised solely by the Collateral Agent for the benefit of the Secured Parties Lenders in accordance with the terms thereof, and (iiY) 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)sale, 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) Lender may be the purchaser or licensor of any or all of such Collateral at any such sale or other disposition and the Collateral Agent, as agent for and representative of Secured Parties Lenders (but not any Lender or Lenders in its or their respective individual capacitiescapacities unless Requisite Lenders shall otherwise agree in writing) shall be entitled, upon instructions from Required Lenders, for the purpose of bidding and making settlement or payment of the purchase price for all or any portion of the Collateral sold at any such sale or dispositionpublic sale, to use and apply any of the Obligations as a credit on account of the purchase price for any Collateral collateral payable by the Collateral Agent at such sale or other dispositionsale.
(c) Neither the Administrative Agent nor the Collateral Agent shall be responsible for or have a duty to ascertain or inquire into (including any representation or warranty regarding) the existence, value or collectability of the Collateral, the existence, priority or perfection of the Collateral Agent’s Lien thereon, or any certificate prepared by any Credit Party in connection therewith, and neither the Administrative Agent nor the Collateral Agent shall be responsible or liable to the Lenders for any failure to monitor or maintain any portion of the Collateral.
(d) No Secured Swap Contract or Cash Management Obligation will create (or be deemed to create) in favor of any Eligible Counterparty or Cash Management Bank, as applicable, that is a party thereto any rights in connection with the management or release of any Collateral or of the obligations of any Guarantor under the Credit Documents except as expressly provided in Section 8.3 and Section 10.5(d)(iv). By accepting the benefits of the Collateral, each Eligible Counterparty and each Cash Management Bank shall be deemed to have appointed the Collateral Agent as its agent and agreed to be bound by the Credit Documents as a Secured Party, subject to the limitations set forth in this clause (d). Notwithstanding any other provision of this Section 9 to the contrary, the Administrative Agent shall not be required to verify the payment of, or that other satisfactory arrangements have been made with respect to, Cash Management Obligations or Obligations arising under Secured Swap Contracts unless the Administrative Agent has received written notice of such Obligations, together with such supporting documentation as the Administrative Agent may reasonably request, from the applicable Cash Management Bank or Eligible Counterparty, as the case may be.
Appears in 1 contract
Collateral Documents and Guaranty. (a) The Secured Parties irrevocably authorize the Collateral Agent, at its option and in its discretion,
(i) to release any Lien on any property granted to or held by the Collateral Agent under any Credit Document (vx) upon termination of all Commitments and payment in full of all Obligations (other than Remaining Obligations) and the expiration, termination or Cash Collateralization of all Letters of Credit), (wy) that is sold or otherwise disposed of or to be sold or otherwise disposed of to a Person that is not a Credit Party as part of or in connection with any sale or other disposition permitted under the Credit Documents to any Person other than a Credit Party Documents, or (provided that if requested by the Administrative Agent, the Borrowers shall provide a certification that such disposition is permitted by this Agreement), (xz) subject to Section 10.5, if approved, authorized or ratified in writing by the requisite lenders under this Agreement, (y) if the property subject to such Lien is owned by a Guarantor, upon release of such Guarantor from its obligations under its Guaranty pursuant to clause (iii) below or (z) to the extent the property subject to such Lien becomes an Excluded AssetRequired Lenders;
(ii) to subordinate any Lien on any property granted to or held by the Collateral Agent under any Credit Document to the holder of any Lien on such property that is permitted by Section 6.2(f) or 6.2(g6.2(d); and
(iii) to release any Guarantor from its obligations under Guaranty upon consummation of any transaction not prohibited hereunder resulting in such Guarantor ceasing to constitute a Guarantor or otherwise becoming an Excluded Subsidiary (and the Guaranty if such Person ceases Collateral Agent may rely conclusively on a certificate to be that effect provided to it by any Credit Party upon its reasonable request without further inquiry); provided that in no event shall any Guarantor cease to constitute a Restricted Subsidiary Guarantor solely as a result of (i) such Guarantor ceasing to constitute a transaction permitted under wholly owned Subsidiary of the Credit DocumentsBorrower after the Closing Date (unless such Person otherwise constitutes an Excluded Subsidiary (other than solely on account or constituting a non-wholly owned Subsidiary of the Borrower)). Upon request by the Collateral Agent at any time, the Required Lenders will confirm in writing the Collateral Agent’s authority to release or subordinate its interest in particular types or items of property, or to release any Guarantor from its obligations under the Guaranty pursuant to this Section 9.10(a). If any Collateral is disposed of as permitted by Section 6.9 to any Person other than a Credit Party, such Collateral shall be sold free and clear of the Liens created by the Credit Documents and the Administrative Agent or the Collateral Agent, as applicable, shall, at the expense of the Borrowers, take any and all actions reasonably requested by the Borrowers to effect the foregoing (provided that if requested by the Administrative Agent, the Borrowers shall provide a certification that such disposition is permitted by this Agreement9.9(a).
(b) Anything contained in any of the Credit Documents to the contrary notwithstanding, each Credit Party, the Administrative Agent, the Collateral Agent and each Secured Party hereby agree that (i) no Secured Party shall have any right individually to realize upon any of the Collateral or to enforce the Guaranty, it being understood and agreed that all powers, rights and remedies hereunder and under any of the Credit 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 all powers, rights and remedies under the Collateral Documents may be exercised solely by the Collateral Agent for the benefit of the Secured Parties in accordance with the terms 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 section 363(k), Section section 1129(b)(2)(a)(ii) or otherwise of the Bankruptcy Code), the Collateral Agent (or any Lender, except with respect to a “credit bid” pursuant to Section section 363(k), Section section 1129(b)(2)(a)(ii) or otherwise of the Bankruptcy Code,) may be the purchaser or licensor of any or all of such Collateral at any such sale or other disposition and the Collateral Agent, as agent for and representative of Secured Parties (but not any Lender or Lenders in its or their respective individual capacities) shall be entitled, upon instructions from Required Lenders, for the purpose of bidding and making settlement or payment of the purchase price for all or any portion of the Collateral sold at any such sale or disposition, to use and apply any of the Obligations as a credit on account of the purchase price for any Collateral collateral payable by the Collateral Agent at such sale or other disposition.
(c) Neither the Administrative Agent nor the Collateral Agent shall be responsible for or have a duty to ascertain or inquire into (including any representation or warranty regarding) regarding the existence, value or collectability of the Collateral, the existence, priority or perfection of the Collateral Agent’s Lien thereon, or any certificate prepared by any Credit Party in connection therewith, and neither the Administrative Agent nor the Collateral Agent shall be responsible or liable to the Lenders for any failure to monitor or maintain any portion of the Collateral.
(d) No Secured Swap Contract or Cash Management Obligation will create (or be deemed to create) in favor of any Eligible Counterparty or Cash Management Bank, as applicable, that is a party thereto any rights in connection with the management or release of any Collateral or of the obligations of any Guarantor under the Credit Documents except as expressly provided in Section 8.3 and Section 10.5(d)(iv). By accepting the benefits of the Collateral, each Eligible Counterparty and each Cash Management Bank shall be deemed to have appointed the Collateral Agent as its agent and agreed to be bound by the Credit Documents as a Secured Party, subject to the limitations set forth in this clause (d). Notwithstanding any other provision of this Section 9 to the contrary, the Administrative Agent shall not be required to verify the payment of, or that other satisfactory arrangements have been made with respect to, Cash Management Obligations or Obligations arising under Secured Swap Contracts unless the Administrative Agent has received written notice of such Obligations, together with such supporting documentation as the Administrative Agent may reasonably request, from the applicable Cash Management Bank or Eligible Counterparty, as the case may be.
Appears in 1 contract
Collateral Documents and Guaranty. Each Lender hereby further authorizes Administrative Agent, on behalf of and for the benefit of Lenders, to enter into the Intercreditor Agreement, and each Lender agrees to be bound by the terms of the Intercreditor Agreement; provided that Administrative Agent shall not enter into or consent to any -------- material amendment, modification, termination or waiver of the Intercreditor 135 Agreement without the prior consent of Requisite Lenders (or such other Lenders as may be required to give such instructions under subsection 10.6). Each Lender hereby further authorizes Administrative Agent (and under the terms of the Intercreditor Agreement Administrative Agent is authorized), on behalf of and for the benefit of Lenders, to enter into each Collateral Document as secured party and to be the agent for and representative of the Lenders under the Guaranties, and each Lender agrees to be bound by the terms of each Collateral Document and each Guaranty; provided that Collateral Agent shall not -------- enter into or consent to any material amendment, modification, termination or waiver of the Intercreditor Agreement without the prior consent of Requisite Lenders (or such other Lenders as may be required to give such instructions under subsection 10.6) ; provided further, however, that, without further -------- ------- ------- written consent or authorization from Lenders, Collateral Agent may execute any documents or instruments necessary to (a) The Secured Parties irrevocably authorize the Collateral Agent, at its option and in its discretion,
(i) to release any Lien on encumbering any property granted to item of Collateral that is the subject of a sale or held other disposition of assets permitted by this Agreement or as permitted or required under the Intercreditor Agreement or the Collateral Agent Documents or to which Requisite Lenders (or such other Lenders as may be required to give such consent under subsection 10.6) have otherwise consented or (b) release any Credit Document (v) upon termination Subsidiary Guarantor from the Subsidiary Guaranty if all of all Commitments and payment in full the capital stock of all Obligations (other than Remaining Obligations) and the expiration, termination or Cash Collateralization of all Letters of Credit, (w) that such Subsidiary Guarantor is sold or otherwise disposed of or to be sold or otherwise disposed of as part of or in connection with any Person pursuant to a sale or other disposition permitted under the Credit Documents to any Person other than a Credit Party (provided that if requested by the Administrative Agent, the Borrowers shall provide a certification that such disposition is permitted by this Agreement), (x) subject to Section 10.5, if approved, authorized hereunder or ratified in writing by the requisite lenders under this Agreement, (y) if the property subject to such Lien is owned by a Guarantor, upon release of such Guarantor from its obligations under its Guaranty pursuant to clause (iii) below or (z) to the extent the property subject to such Lien becomes an Excluded Asset;
(ii) to subordinate any Lien on any property granted to or held by the Collateral Agent under any Credit Document to the holder of any Lien on such property that is permitted by Section 6.2(f) or 6.2(g); and
(iii) to release any Guarantor from its obligations under the Guaranty if such Person ceases to be a Restricted Subsidiary as a result of a transaction permitted under the Credit Documents. Upon request by the Collateral Agent at any timeIntercreditor Agreement or to which Requisite Lenders (or such other Lenders as may be required to give such consent under subsection 10.6) have otherwise consented; provided, the Lenders will confirm however, that nothing in writing the Collateral Agent’s authority this -------- ------- subsection shall require consent to release or subordinate its interest in particular types or items of property, or to release any Guarantor from its obligations under the Subsidiary Guaranty pursuant to this Section 9.10(a). If any Collateral is disposed of as permitted by Section 6.9 to any Person other than a Credit Partywhich, immediately after such Collateral sale, shall be sold free a Subsidiary of Holdings which is obligated to and clear of will enter into the Liens created by the Credit Documents and the Administrative Agent or the Collateral Agent, as applicable, shall, at the expense of the Borrowers, take any and all actions reasonably requested by the Borrowers to effect the foregoing (provided that if requested by the Administrative Agent, the Borrowers shall provide a certification that such disposition is permitted by this Agreement).
(b) Subsidiary Guaranty. Anything contained in any of the Credit Loan Documents to the contrary notwithstanding, each Credit PartyCompany, the Administrative Agent, the Collateral Agent and each Secured Party Lender hereby agree that (iX) no Secured Party Lender shall have any right individually to realize upon any of the Collateral under any Collateral Document or to enforce the Subsidiary Guaranty, it being understood and agreed that all powers, rights and remedies hereunder under the Collateral Documents and under any of the Credit Documents Guaranties 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 all powers, rights and remedies under the Collateral Documents may be exercised solely by the Collateral Agent for the benefit of the Secured Parties in accordance with the terms thereof, and (iiY) 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)sale, Section 1129(b)(2)(a)(ii) or otherwise of the Bankruptcy Code), 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) Secured Party may be the purchaser or licensor of any or all of such Collateral at any such sale or other disposition and the Collateral Agent, as agent for and representative of Secured Parties (but not any Lender Secured Party or Lenders Secured Parties in its or their respective individual capacitiescapacities unless Requisite Lenders shall otherwise agree in writing) shall be entitled, upon instructions from Required Lenders, for the purpose of bidding and making settlement or payment of the purchase price for all or any portion of the Collateral sold at any such sale or dispositionpublic sale, to use and apply any of the Obligations as a credit on account of the purchase price for any Collateral collateral payable by the Collateral Agent at such sale or other dispositionsale.
(c) Neither the Administrative Agent nor the Collateral Agent shall be responsible for or have a duty to ascertain or inquire into (including any representation or warranty regarding) the existence, value or collectability of the Collateral, the existence, priority or perfection of the Collateral Agent’s Lien thereon, or any certificate prepared by any Credit Party in connection therewith, and neither the Administrative Agent nor the Collateral Agent shall be responsible or liable to the Lenders for any failure to monitor or maintain any portion of the Collateral.
(d) No Secured Swap Contract or Cash Management Obligation will create (or be deemed to create) in favor of any Eligible Counterparty or Cash Management Bank, as applicable, that is a party thereto any rights in connection with the management or release of any Collateral or of the obligations of any Guarantor under the Credit Documents except as expressly provided in Section 8.3 and Section 10.5(d)(iv). By accepting the benefits of the Collateral, each Eligible Counterparty and each Cash Management Bank shall be deemed to have appointed the Collateral Agent as its agent and agreed to be bound by the Credit Documents as a Secured Party, subject to the limitations set forth in this clause (d). Notwithstanding any other provision of this Section 9 to the contrary, the Administrative Agent shall not be required to verify the payment of, or that other satisfactory arrangements have been made with respect to, Cash Management Obligations or Obligations arising under Secured Swap Contracts unless the Administrative Agent has received written notice of such Obligations, together with such supporting documentation as the Administrative Agent may reasonably request, from the applicable Cash Management Bank or Eligible Counterparty, as the case may be.
Appears in 1 contract
Samples: Credit Agreement (Anthony Crane Holdings Capital Corp)
Collateral Documents and Guaranty. (a) The Each Secured Parties irrevocably authorize the Party hereby authorizes Administrative Agent or Collateral Agent, at its option as applicable, on behalf of and in its discretion,
for the benefit of Secured Parties, to be the agent for and representative of Secured Parties with respect to the Guaranty, the Collateral and the Collateral Documents. Each Secured Party hereby further authorizes Administrative Agent and/or Collateral Agent, as applicable, on behalf of and for the benefit of Secured Parties, to enter into the Intercreditor Agreement and any amendment, modification or waiver thereto to the extent reasonably necessary to (i) to reflect a Refinancing, in whole or in part, of the First Lien Obligations and/or the Second Lien Obligations (as defined in the Intercreditor Agreement) that is permitted by the Credit Documents (other than the Intercreditor Agreement) or (ii) permit any other action that is not prohibited by the Credit Documents (other than the Intercreditor Agreement).
(b) Administrative Agent or Collateral Agent shall release any Lien on any property granted to or held by the Administrative Agent or Collateral Agent under any Credit Document (v) upon termination of all the Commitments and payment in full of all Obligations (other than Remaining Obligationscontingent reimbursement and indemnification obligations not yet accrued and payable).
(c) Subject to Sections 10.5 and 10.19(k), without further written consent or authorization from any Secured Party, Administrative Agent or Collateral Agent, as applicable, may execute any documents or instruments necessary to (i) release any Guarantor from the Guaranty pursuant to Section 7.12 or with respect to which Requisite Lenders (or such other Lenders as may be required to give such consent under Section 10.5) have otherwise consented (and in connection therewith release any Lien encumbering Collateral to the extent owned by such Guarantor) and (ii) release any Subsidiary Borrower from its Obligations in accordance with Section 5.13 (and in connection therewith release any Lien encumbering Collateral to the expirationextent of the interest of such Subsidiary Borrower).
(i) Upon the consummation of any sale, termination disposition or Cash Collateralization other transfer (including, without limitation, the granting of all Letters of Credit, (w) any Lien or any disposition that is sold or otherwise disposed of or intended to be sold or otherwise disposed a true sale but is re-characterized as the incurrence of as part a Lien) by any Grantor of or in connection with any sale or other disposition permitted under the Credit Documents Collateral to any Person other than that is not a Credit Party (provided Grantor that if requested by the Administrative Agent, the Borrowers shall provide a certification that such disposition is permitted by under this Agreement), or (xii) subject to Section 10.5, if the release of such Lien is approved, authorized or ratified in writing by the requisite lenders under this Agreement, Requisite Lenders (yor such greater number of Lenders as may be required) if the property subject pursuant to such Lien is owned by a GuarantorSection 10.5, upon release the satisfaction (in the case of such Guarantor from its obligations under its Guaranty pursuant to this clause (iiiii)) below of any conditions contained in such approval, authorization or (z) to ratification, then in either case, any Lien in such Collateral granted under the extent the property subject to such Lien becomes an Excluded Asset;Collateral Agreement or any other Collateral Document shall be automatically released, without further action of Collateral Agent or any other Person.
(iie) to subordinate any Lien on any property granted to or held by the Collateral Agent under any Credit Document to the holder of any Lien on such property that is permitted by Section 6.2(fA Grantor (other than a Foreign Grantor) or 6.2(g); and
(iii) to release any Guarantor shall automatically be released from its obligations under the Guaranty if such Person ceases to be a Restricted Subsidiary as a result of a transaction permitted under the Credit Documents. Upon request by Collateral Agreement and any other Collateral Document and any Lien in the Collateral of such Grantor shall be automatically released, in each case without further action of Collateral Agent at or any timeother Person, upon the Lenders will confirm in writing the Collateral Agent’s authority to release or subordinate its interest in particular types or items of property, or to release any Guarantor such Grantor from its obligations under the Guaranty pursuant to this Section 9.10(a10.19(c). If .
(f) In the event that (i) any Collateral is disposed trade accounts receivable and the proceeds thereof (collectively, “Factored Accounts”) of as permitted by Section 6.9 The CIT Group/Commercial Services, Inc. or any other Grantor that conducts trade finance in the Ordinary Course of Business (collectively, “Trade Finance Grantors”) shall become subject to any Person defense (unrelated to the financial condition of the related obligor thereon), dispute, offset or counterclaim of any kind, (ii) a Trade Finance Grantor desires to accommodate a client’s request to re-assign to such client any Factored Account with respect to which such Trade Finance Grantor does not bear the credit risk, (iii) a Trade Finance Grantor desires or is required to re-assign to a client some or all of the Factored Accounts previously conveyed by such client to such Trade Finance Grantor in connection with (x) the termination of such client’s agreement with such Trade Finance Grantor or (y) the settlement of a dispute between such client and such Trade Finance Grantor, or (iv) a Trade Finance Grantor desires to make a claim under an insurance policy or other than a Credit Party, credit protection device and must convey the applicable Factored Accounts to the insurance company which issued such Collateral shall be sold policy or to the grantor of such credit protection device free and clear of any Liens, then any Lien in the Liens created applicable Factored Accounts granted under the Collateral Agreement or any other Collateral Document shall be automatically released upon the consummation of such transaction, without further action of Collateral Agent or any other Person.
(g) Reasonably identifiable proceeds or remittances from a securitization, conduit or other similar facility (whether cash or other assets and whether constituting proceeds of assets owned by a Grantor or the purchase price of assets owed to a Grantor) shall be automatically released from Collateral Agent’s Lien without further action of Collateral Agent or any other Person, solely to the extent that a Grantor is contractually required by the Credit Documents terms of such securitization, conduit or other similar facility to remit such proceeds to a third party that is not Company or any Grantor.
(h) Subject to Section 10.19(k), upon the request of any Grantor, Collateral Agent shall enter into an agreement to subordinate the Lien of Collateral Agent in specific Collateral to the holder of a Lien permitted by clause (4), (5), (6), (7), (10), (11), (12)(c), (15), (17) or (to the extent it relates to any of the foregoing) (18) of Section 6.1(b) in such Collateral if the holder of such consensual Permitted Priority Lien requires such a subordination agreement, which agreement shall be reasonably satisfactory to Collateral Agent.
(i) Permitted Release Collateral shall be automatically released from the Lien of Collateral Agent without further action of Collateral Agent or any other Person upon the attachment of the applicable Lien described in the definition of “Permitted Release Collateral.” Subject to Sections 10.5 and the 10.19(k), without further written consent or authorization from any Secured Party, Administrative Agent or the Collateral Agent, as applicable, shallmay execute any documents or instruments necessary to release, at upon the expense request of the Borrowersapplicable Grantor, take Collateral comprised of pledges of Capital Stock of Foreign Subsidiaries (other than (i) 65% of the Capital Stock of each of CIT Leasing de Argentina S.A., The Capita Corp Do Brasil LTDA, CIT Financial Ltd., Emerald Holdings CV, CIT Global Vendor Services S.A., The Capita Corp De Mexico SA, CIT Aerospace International and CIT Vendor Finance (UK) Limited, (ii) 55% of the Capital Stock of CIT Leasing Chile Ltda., (iii) 49% of the Capital Stock of CIT Group Finance (Ireland) and (iv) 44% of the Capital Stock of Arrendadora Capita Corp SA); provided that (A) after giving effect to such release the Collateral Coverage Ratio is at least 2.75 to 1.0 and (B) that any such Collateral so released shall concurrently be released from any Junior Liens thereon. No Subsidiary Guarantor shall withdraw any Cash or Cash Equivalents held in Controlled Accounts to the extent such Cash or Cash Equivalents were included in the calculation of the numerator of the Collateral Coverage Ratio, unless (A) after giving effect to such withdrawal the Collateral Coverage Ratio is at least 2.75 to 1.0 and all actions (B) such Cash or Cash Equivalents so withdrawn shall concurrently be released from any Junior Liens thereon.
(j) Upon a merger of CIT Funding into CIT Group Inc., to the extent permitted by Section 6.4, the interest of C.I.T. Leasing Corporation in the equity of CIT Funding shall be automatically released from Collateral Agent’s Lien without further action of Collateral Agent or any other Person.
(k) Notwithstanding anything to the contrary in any Credit Document, each Secured Party hereby (A) confirms the authority of Collateral Agent and/or Administrative Agent to evidence (i) the release of its Lien with respect to any Collateral released pursuant to Section 10.19(b), (c), (d), (e), (f), (g), (i) or (j) hereof, (ii) the subordination of its Lien with respect to any Collateral pursuant to Section 10.19(h) hereof or (iii) the release of any guarantee obligations of any Guarantor to the extent permitted by Section 10.19(c), including the authority to execute, authorize or file such documentation as may be reasonably requested by any Grantor (the Borrowers “Requesting Grantor”) and that is reasonably satisfactory to effect Collateral Agent; and (B) directs Collateral Agent to execute, authorize or file such documentation as may be reasonably requested by any Requesting Grantor to evidence such release or subordination upon receipt from the foregoing Requesting Grantor of a certificate of an Authorized Officer substantially in the form of Annex 4 of the Collateral Agreement (for release of Collateral) or Annex 5 of the Collateral Agreement (for subordination of Collateral) hereto (or, in each case, such other comparable document as may be reasonably acceptable to the Collateral Agent) and all supporting documentation reasonably requested by Collateral Agent; provided that Collateral Agent shall have no obligation to execute or file any such documentation evidencing such release or subordination if requested by the Administrative Collateral Agent, the Borrowers shall provide a certification acting in its sole and reasonable discretion, determines that such disposition release or subordination is not permitted by this Section 10.19; it being understood that Collateral Agent shall be entitled to rely conclusively upon any certificate delivered pursuant to this Section 10.19(k) regardless of any information it may otherwise have and shall have no obligation (1) to ascertain if any requested release or subordination is permitted by this Agreement)Section 10.19, (2) to verify the accuracy of the statements in such certificate or any other documents provided pursuant to this Section 10.19, (3) to request supporting documentation, (4) to take into account any information it may otherwise have or (5) to seek consent of any of the Lenders to any such release or subordination.
(bl) Any release of guarantee obligations pursuant to this Section 10.19 shall be deemed subject to the provision that such guarantee obligations shall be reinstated if after such release any portion of any payment in respect of the Obligations guaranteed thereby shall be rescinded or must otherwise be restored or returned upon the insolvency, bankruptcy, dissolution, liquidation or reorganization of Company or any of its Subsidiaries, or upon or as a result of the appointment of a receiver, intervenor or conservator of, or trustee or similar officer for, Company or any of its Subsidiaries or any substantial part of its property, or otherwise, all as though such payment had not been made.
(m) Anything contained in any of the Credit Documents to the contrary notwithstanding, each Credit Partythe Borrowers, the Administrative Agent, the Collateral Agent and each Secured Party hereby agree that (i) no Secured Party shall have any right individually to realize upon any of the Collateral or to enforce the Guaranty, it being understood and agreed that all powers, rights and remedies hereunder and under any of the Credit Documents may be exercised solely by the Administrative Agent or the Collateral Agent, as applicable, for the benefit on behalf of the Secured Parties in accordance with the terms hereof and thereof and all powers, rights and remedies under the Collateral Documents may be exercised solely by the Collateral Agent for the benefit of the Secured Parties in accordance with the terms thereofhereof, and (ii) in the event of a foreclosure or similar enforcement action by the Collateral Agent (at the direction of the Requisite Lenders) on any of the Collateral pursuant to a public or private sale or other disposition (including pursuant to Section 363(k)disposition, Section 1129(b)(2)(a)(ii) or otherwise of the Bankruptcy Code), 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) Lender may be the purchaser or licensor of any or all of such Collateral at any such sale or other disposition and the Collateral Agent, as agent for and representative of Secured Parties (but not any Lender or Lenders in its or their respective individual capacitiescapacities unless Requisite Lenders shall otherwise agree in writing) shall be entitled, upon instructions from Required Lenders, for the purpose of bidding and making settlement or payment of the purchase price for all or any portion of the Collateral sold at any such sale or dispositionpublic sale, to use and apply any of the Obligations as a credit on account of the purchase price for any Collateral payable by the Collateral Agent at such sale or other disposition.
disposition and (ciii) Neither the Administrative Agent nor the Collateral Agent shall be responsible for if in connection with any amendment, modification or have a duty to ascertain or inquire into (including any representation or warranty regarding) the existence, value or collectability waiver of the CollateralSecond Amended and Restated Pledge Agreement dated as of March 4, the existence, priority or perfection of the Collateral Agent’s Lien thereon, or any certificate prepared 2010 made by any Credit Party in connection therewith, and neither the Administrative Agent nor the Collateral Agent shall be responsible or liable to the Lenders for any failure to monitor or maintain any portion of the Collateral.
CIT Financial (dBarbados) No Secured Swap Contract or Cash Management Obligation will create (or be deemed to create) SRL in favor of any Eligible Counterparty or Cash Management BankBank of America, N.A., as applicableAgent, that is a party thereto any rights in connection with the management or release of any Collateral or of the obligations of any Guarantor under the Credit Documents except as expressly provided in Section 8.3 and Section 10.5(d)(iv). By accepting the benefits of the Collateral, each Eligible Counterparty and each Cash Management Bank shall be deemed to have appointed the Collateral Agent as its agent and agreed to be bound permitted by the Credit Documents as a Secured Party, subject to the limitations set forth in this clause (d). Notwithstanding any other provision of this Section 9 to the contraryDocuments, the Administrative Agent registration of such amendment, modification or waiver with the Barbados Registrar of Corporate Affairs and Intellectual Property would require payment of any stamp or similar duty in excess of $1,000, (A) such registration shall not be required to verify be effected and (B) no opinion in respect of the payment ofenforceability thereof shall be required to be delivered, in each case except to the extent required by the terms of the Series A Indenture, Series A Collateral Agreement, the Series B Indenture or the Series B Collateral Agreement; provided that other satisfactory arrangements have been made with respect toany Collateral released pursuant to any such amendment, Cash Management Obligations modification or Obligations arising under Secured Swap Contracts unless the Administrative Agent has received written notice of such Obligations, together with such supporting documentation as the Administrative Agent may reasonably request, waiver shall concurrently be released from the applicable Cash Management Bank or Eligible Counterparty, as the case may beany Junior Liens thereon.
Appears in 1 contract
Collateral Documents and Guaranty. Each Lender hereby further authorizes Administrative Agent, on behalf of and for the benefit of Lenders, to enter into the Intercreditor Agreement, and each Lender agrees to be bound by the terms of the Intercreditor Agreement; provided that Administrative Agent shall not enter into or consent to any -------- material amendment, modification, termination or waiver of the Intercreditor Agreement without the prior consent of Requisite Lenders (or such other Lenders as may be required to give such instructions under subsection 10.6). Each Lender hereby further authorizes Collateral Agent (and under the terms of the Intercreditor Agreement Collateral Agent is authorized), on behalf of and for the benefit of Lenders, to enter into each Collateral Document as secured party and to be the agent for and representative of the Lenders under the Guaranties, and each Lender agrees to be bound by the terms of each Collateral Document and each Guaranty; provided that Collateral Agent shall not enter into or consent to -------- any material amendment, modification, termination or waiver of the Intercreditor Agreement without the prior consent of Requisite Lenders (or such other Lenders as may be required to give such instructions under subsection 10.6) ; provided -------- further, however, that, without further written consent or authorization from ------- ------- Lenders, Collateral Agent may execute any documents or instruments necessary to (a) The Secured Parties irrevocably authorize the Collateral Agent, at its option and in its discretion,
(i) to release any Lien on encumbering any property granted to item of Collateral that is the subject of a sale or held other disposition of assets permitted by this Agreement or as permitted or required under the Intercreditor Agreement or the Collateral Agent Documents or to which Requisite Lenders (or such other Lenders as may be required to give such consent under subsection 10.6) have otherwise consented or (b) release any Credit Document (v) upon termination Subsidiary Guarantor from the Subsidiary Guaranty if all of all Commitments and payment in full the capital stock of all Obligations (other than Remaining Obligations) and the expiration, termination or Cash Collateralization of all Letters of Credit, (w) that such Subsidiary Guarantor is sold or otherwise disposed of or to be sold or otherwise disposed of as part of or in connection with any Person pursuant to a sale or other disposition permitted under the Credit Documents to any Person other than a Credit Party (provided that if requested by the Administrative Agent, the Borrowers shall provide a certification that such disposition is permitted by this Agreement), (x) subject to Section 10.5, if approved, authorized hereunder or ratified in writing by the requisite lenders under this Agreement, (y) if the property subject to such Lien is owned by a Guarantor, upon release of such Guarantor from its obligations under its Guaranty pursuant to clause (iii) below or (z) to the extent the property subject to such Lien becomes an Excluded Asset;
(ii) to subordinate any Lien on any property granted to or held by the Collateral Agent under any Credit Document to the holder of any Lien on such property that is permitted by Section 6.2(f) or 6.2(g); and
(iii) to release any Guarantor from its obligations under the Guaranty if such Person ceases to be a Restricted Subsidiary as a result of a transaction permitted under the Credit Documents. Upon request by the Collateral Agent at any time, the Lenders will confirm in writing the Collateral Agent’s authority to release or subordinate its interest in particular types or items of property, Intercreditor Agreement or to which Requisite Lenders (or such other Lenders as may be required to give such consent under subsection 10.6) have otherwise consented; provided, however, that nothing in this subsection shall require consent to -------- ------- release any Guarantor from its obligations under the Subsidiary Guaranty pursuant to this Section 9.10(a). If any Collateral is disposed of as permitted by Section 6.9 to any Person other than a Credit Partywhich, immediately after such Collateral sale, shall be sold free a Domestic Subsidiary of Holdings which is obligated to and clear of will enter into the Liens created by the Credit Documents and the Administrative Agent or the Collateral Agent, as applicable, shall, at the expense of the Borrowers, take any and all actions reasonably requested by the Borrowers to effect the foregoing (provided that if requested by the Administrative Agent, the Borrowers shall provide a certification that such disposition is permitted by this Agreement).
(b) Subsidiary Guaranty. Anything contained in any of the Credit Loan Documents to the contrary notwithstanding, each Credit PartyCompany, the Administrative Agent, the Collateral Agent and each Secured Party Lender hereby agree that (iX) no Secured Party Lender shall have any right individually to realize upon any of the Collateral under any Collateral Document or to enforce the Subsidiary Guaranty, it being understood and agreed that all powers, rights and remedies hereunder under the Collateral Documents and under any of the Credit Documents Guaranties 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 all powers, rights and remedies under the Collateral Documents may be exercised solely by the Collateral Agent for the benefit of the Secured Parties in accordance with the terms thereof, and (iiY) 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)sale, Section 1129(b)(2)(a)(ii) or otherwise of the Bankruptcy Code), 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) Secured Party may be 152 the purchaser or licensor of any or all of such Collateral at any such sale or other disposition and the Collateral Agent, as agent for and representative of Secured Parties (but not any Lender Secured Party or Lenders Secured Parties in its or their respective individual capacitiescapacities unless Requisite Lenders shall otherwise agree in writing) shall be entitled, upon instructions from Required Lenders, for the purpose of bidding and making settlement or payment of the purchase price for all or any portion of the Collateral sold at any such sale or dispositionpublic sale, to use and apply any of the Obligations as a credit on account of the purchase price for any Collateral collateral payable by the Collateral Agent at such sale or other dispositionsale.
(c) Neither the Administrative Agent nor the Collateral Agent shall be responsible for or have a duty to ascertain or inquire into (including any representation or warranty regarding) the existence, value or collectability of the Collateral, the existence, priority or perfection of the Collateral Agent’s Lien thereon, or any certificate prepared by any Credit Party in connection therewith, and neither the Administrative Agent nor the Collateral Agent shall be responsible or liable to the Lenders for any failure to monitor or maintain any portion of the Collateral.
(d) No Secured Swap Contract or Cash Management Obligation will create (or be deemed to create) in favor of any Eligible Counterparty or Cash Management Bank, as applicable, that is a party thereto any rights in connection with the management or release of any Collateral or of the obligations of any Guarantor under the Credit Documents except as expressly provided in Section 8.3 and Section 10.5(d)(iv). By accepting the benefits of the Collateral, each Eligible Counterparty and each Cash Management Bank shall be deemed to have appointed the Collateral Agent as its agent and agreed to be bound by the Credit Documents as a Secured Party, subject to the limitations set forth in this clause (d). Notwithstanding any other provision of this Section 9 to the contrary, the Administrative Agent shall not be required to verify the payment of, or that other satisfactory arrangements have been made with respect to, Cash Management Obligations or Obligations arising under Secured Swap Contracts unless the Administrative Agent has received written notice of such Obligations, together with such supporting documentation as the Administrative Agent may reasonably request, from the applicable Cash Management Bank or Eligible Counterparty, as the case may be.
Appears in 1 contract
Samples: Credit Agreement (Sealy Corp)
Collateral Documents and Guaranty. (a) The Secured Parties irrevocably authorize the Collateral Administrative Agent, at its option and in its discretion,
(i) to release any Lien on any property granted to or held by the Collateral Administrative Agent under any Credit Loan Document (vx) upon termination of all Commitments and payment in full in cash of all Obligations (other than Remaining Obligations(A) contingent indemnification obligations and (B) obligations and liabilities under Bank Product Documents and Hedging Obligations that are, in each case, not due and payable at such time) and the expiration, expiration or termination or Cash Collateralization of all Letters of CreditCredit (other than Letters of Credit as to which other arrangements satisfactory to the Administrative Agent and the applicable Issuing Banks shall have been made), (wy) that is sold or otherwise disposed of or to be sold or otherwise disposed of of, other than to any Loan Party, as part of or in connection with any sale or other disposition permitted under the Credit Documents to any Person other than a Credit Party Loan Documents, or (provided that if requested by the Administrative Agent, the Borrowers shall provide a certification that such disposition is permitted by this Agreement), (xz) subject to Section 10.59.02, if approved, authorized or ratified in writing by the requisite lenders under this Agreement, (y) if the property subject to such Lien is owned by a Guarantor, upon release of such Guarantor from its obligations under its Guaranty pursuant to clause (iii) below or (z) to the extent the property subject to such Lien becomes an Excluded AssetRequired Lenders;
(ii) to subordinate any Lien on any property granted to or held by the Collateral Administrative Agent under any Credit Loan Document to the holder of any Lien on such property that is permitted by Section 6.2(fclause (b) or 6.2(g); of the definition of “Permitted Liens;” and
(iii) to release any Guarantor from its obligations under the its Guaranty if such Person ceases to be a Restricted Subsidiary as a result of a transaction permitted under the Credit DocumentsLoan Documents or as otherwise set forth in Section 10.12. Upon request by the Collateral Administrative Agent at any time, the Required Lenders will confirm in writing the Collateral Administrative Agent’s authority to release or subordinate its interest in particular types or items of property, or to release any Guarantor from its obligations under the its Guaranty pursuant to this Section 9.10(a). If any Collateral is disposed and that the Administrative Agent may request a certificate of as permitted by Section 6.9 to any Person other than a Credit Party, such Collateral shall be sold free and clear Responsible Officer of the Liens created by the Credit Documents applicable Loan Party confirming such authority and the Administrative Agent and Required Lenders may rely conclusively thereon.
(b) Solely for the purpose of German law,
(i) the Administrative Agent shall: (x) hold and administer any German Security Agreements which is security assigned (Sicherungseigentum/Sicherungsabtretung) or otherwise transferred under a non-accessory security right (nicht-akzessorische Sicherheit) to it as trustee (treuhänderisch) for the Collateral Agent, as applicable, shall, at the expense benefit of the BorrowersSecured Parties; and (y) administer any German Security Agreements which is pledged (Verpfändung) or otherwise transferred to any Secured Parties under an accessory security right (akzessorische Sicherheit) as agent.
(ii) Each Secured Party (other than the Administrative Agent) hereby authorises the Administrative Agent (whether or not by or through employees or agents): (x) to exercise such rights, remedies, powers and discretions as are specifically delegated to or conferred upon the Administrative Agent under the German Security Agreement together with such powers and discretions as are reasonably incidental thereto; (y) to take such action on its behalf as may from time to time be authorised under or in accordance with the German Security Agreement; and (z) to accept and enter into as its attorney (Stellvertreter) any pledge or other creation of any accessory security right granted in favour of such Secured Party under German law and to agree to and execute on its behalf as its attorney (Stellvertreter) any amendments, confirmations and/or alterations to any German Security Agreement governed by German law which creates a pledge or any other accessory security right (akzessorische Sicherheit) including the release or confirmation of release of such German Security Agreement.
(iii) Each of the Secured Parties (other than the Administrative Agent) hereby relieves the Administrative Agent from the restrictions pursuant to section 181 of the German Civil Code (Bürgerliches Gesetzbuch) and similar restrictions applicable to it pursuant to any other applicable law, in each case to the extent legally possible to such Secured Party. A Secured Party which is barred by its constitutional documents or by-laws from granting such exemption shall notify the Administrative Agent accordingly.
(iv) Each Secured Party (other than the Administrative Agent) hereby ratifies and approves all actions reasonably requested by the Borrowers to effect the foregoing (provided that if requested acts and declarations previously done by the Administrative Agent, Agent on such Secured Party’s behalf (including for the Borrowers shall provide a certification that such disposition is permitted avoidance of doubt any declarations made by this Agreementthe Administrative Agent as representative without power of attorney (Vertreter ohne Vertretungsmacht) in relation to the creation of any pledge (Pfandrecht) on behalf and for the benefit of any Secured Parties as future pledgee or otherwise).
(bc) Anything contained in any of the Credit Loan Documents to the contrary notwithstanding, each Credit Loan Party, the Administrative Agent, the Collateral Agent and each Secured Party hereby agree that (i) no Secured Party shall have any right individually to realize upon any of the Collateral or to enforce the any Guaranty, it being understood and agreed that all powers, rights and remedies hereunder and under any of the Credit 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 all powers, rights and remedies under the Collateral Loan Documents may be exercised solely by the Collateral Administrative Agent for the benefit of the Secured Parties in accordance with the terms thereof, and (ii) in the event of a foreclosure or similar enforcement action by the Collateral Administrative Agent on any of the Collateral pursuant to a public or private sale or other disposition (including pursuant to Section section 363(k), Section section 1129(b)(2)(a)(ii) or otherwise of the Bankruptcy CodeCode (or any similar provision in any other Debtor Relief Laws)), the Collateral Administrative Agent (or any Lender, except with respect to a “credit bid” pursuant to Section section 363(k), Section section 1129(b)(2)(a)(ii) or otherwise of the Bankruptcy CodeCode (or any similar provision in any other Debtor Relief Laws)) may be the purchaser or licensor of any or all of such Collateral at any such sale or other disposition and the Collateral Administrative Agent, as agent for and representative of Secured Parties (but not any Lender or Lenders in its or their respective individual capacities) shall be entitled, upon instructions from Required Lenders, for the purpose of bidding and making settlement or payment of the purchase price for all or any portion of the Collateral sold at any such sale or disposition, to use and apply any of the Obligations as a credit on account of the purchase price for any Collateral collateral payable by the Collateral Administrative Agent at such sale or other disposition.
(cd) Neither the The Administrative Agent nor the Collateral Agent shall not be responsible for or have a duty to ascertain or inquire into (including any representation or warranty regarding) regarding the existence, value or collectability of the Collateral, the existence, priority or perfection of the Collateral Administrative Agent’s Lien thereon, or any certificate prepared by any Credit Loan Party in connection therewith, and neither the Administrative Agent nor the Collateral Agent shall not be responsible or liable to the Lenders for any failure to monitor or maintain any portion of the Collateral.
(de) No Secured Swap Contract or Cash Management Obligation Hedge Agreement will create (or be deemed to create) in favor of any Eligible Counterparty or Cash Management Bank, as applicable, Hedge Bank that is a party thereto any rights in connection with the management or release of any Collateral or of the obligations of any Guarantor under the Credit Loan Documents except as expressly provided in Section 8.3 7.02 and Section 10.5(d)(iv9.02(b)(xi). By accepting the benefits of the Collateral, each Eligible Counterparty and each Cash Management such Hedge Bank shall be deemed to have appointed the Collateral Administrative Agent as its agent and agreed to be bound by the Credit Loan Documents as a Secured Party, subject to the limitations set forth in this clause (de).
(f) No Bank Product Document will create (or be deemed to create) in favor of any Cash Management Bank that is a party thereto any rights in connection with the management or release of any Collateral or of the obligations of any Guarantor under the Loan Documents except as expressly provided in Section 7.02 and Section 9.02(b)(xi). Notwithstanding any other provision By accepting the benefits of this Section 9 the Collateral, each Cash Management Bank shall be deemed to the contrary, have appointed the Administrative Agent shall not as its agent and agreed to be required bound by the Loan Documents as a Secured Party, subject to verify the payment of, or that other satisfactory arrangements have been made with respect to, Cash Management Obligations or Obligations arising under Secured Swap Contracts unless the Administrative Agent has received written notice of such Obligations, together with such supporting documentation as the Administrative Agent may reasonably request, from the applicable Cash Management Bank or Eligible Counterparty, as the case may belimitations set forth in this clause (f).
Appears in 1 contract
Samples: Revolving Credit and Guaranty Agreement (Varex Imaging Corp)
Collateral Documents and Guaranty. Each Lender hereby further authorizes Administrative Agent, on behalf of and for the benefit of Lenders, to enter into each Collateral Document as secured party and to be the agent for and representative of Lenders under the Collateral Documents, and each Lender agrees to be bound by the terms of each Collateral Document; provided that Administrative Agent shall not (i) enter into or consent to any material amendment, modification, termination or waiver of any provision contained in any Collateral Document or (ii) release any Collateral (except, in either case, as otherwise expressly permitted or required pursuant to the terms of this Agreement or the applicable Collateral Document), in each case without the prior consent of Requisite Lenders (or, if required pursuant to subsection 10.6, all Lenders); provided further, however, that, without further written consent or authorization from Lenders, Administrative Agent may execute any documents or instruments necessary to (a) The Secured Parties irrevocably authorize the Collateral Agent, at its option and in its discretion,
(i) to release any Lien on encumbering any property granted item of Collateral that is the subject of a sale or other sale or disposition of assets permitted by this Agreement or to which Requisite Lenders have otherwise consented in accordance with the provisions of this subsection 9.6 or held by (b) release any Subsidiary Guarantor from the Collateral Agent under Guaranty if all of the capital stock of such Subsidiary Guarantor is sold to any Credit Document (v) upon termination of all Commitments and payment in full of all Obligations Person (other than Remaining Obligationsan Affiliate of Borrower) and pursuant to a sale or other disposition to which Requisite Lenders have otherwise consented. In the expirationevent Collateral is sold in such a sale or other disposition, termination Administrative Agent may, without further consent or Cash Collateralization of all Letters of Creditauthorization from Lenders, (w) release the Liens granted under the Collateral Documents on the Collateral that is sold the subject of such sale or otherwise disposed of or to be sold or otherwise disposed of as part of or other disposition concurrently with the consummation thereof; provided that, in connection with any sale or disposition of assets or related sale or dispositions of assets with a value of $100,000 or greater, Administrative Agent shall have received ten Business Days' prior written notice of such Asset Sale or such other disposition permitted under transaction from Borrower; and an Officers' Certificate (1) certifying that no Event of Default or Potential Event of Default shall have occurred and be continuing as of the Credit Documents to any Person other than a Credit Party (provided that if requested by the Administrative Agent, the Borrowers shall provide a certification that date of such disposition is permitted by this Agreement)release of Collateral, (x2) subject to Section 10.5, if approved, authorized or ratified in writing by setting forth a detailed description of the requisite lenders under this Agreement, (y) if the property Collateral subject to such Lien transaction, and (3) certifying such transaction is owned by a Guarantorpermitted under this Agreement and that all conditions precedent to such sale or disposition under this Agreement have been met. Upon payment in full of all of the Obligations and termination of the Commitments, upon Administrative Agent shall release of the Liens on such Guarantor from its obligations under its Guaranty Collateral granted pursuant to clause (iii) below or (z) to the extent the property subject to such Lien becomes an Excluded Asset;
(ii) to subordinate any Lien on any property granted to or held by the Collateral Agent under any Credit Document to the holder of any Lien on such property that is permitted by Section 6.2(f) or 6.2(g); and
(iii) to release any Guarantor from its obligations under the Guaranty if such Person ceases to be a Restricted Subsidiary as a result of a transaction permitted under the Credit Documents. Upon request by the any release of Collateral Agent at any time, the Lenders will confirm in writing the Collateral Agent’s authority to release or subordinate its interest in particular types or items of property, or to release any Guarantor from its obligations under the Guaranty pursuant to this Section 9.10(a). If any Collateral is disposed of as permitted by Section 6.9 to any Person other than a Credit Partythe foregoing, such Collateral shall be sold free and clear of the Liens created by the Credit Documents and the Administrative Agent or the Collateral Agent, as applicable, shall, at the expense of the BorrowersBorrower's expense, take any execute and all actions deliver such documents (without recourse or representation or warranty) as reasonably requested by the Borrowers to effect the foregoing (provided that if requested by the Administrative Agent, the Borrowers shall provide a certification that evidence such disposition is permitted by this Agreement).
(b) release. Anything contained in any of the Credit Loan Documents to the contrary notwithstanding, each Credit PartyBorrower, the Administrative Agent, the Collateral Agent and each Secured Party Lender hereby agree that (i1) no Secured Party Lender shall have any right individually to realize upon any of the Collateral under any Collateral Document or to enforce the Guaranty, it being understood and agreed that all powers, rights and remedies hereunder under the Collateral Documents and under any of the Credit Documents such guaranty 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 all powers, rights and remedies under the Collateral Documents may be exercised solely by the Collateral Agent for the benefit of the Secured Parties Lenders in accordance with the terms thereof, and (ii2) in the event of a foreclosure or similar enforcement action by the Collateral Administrative Agent on any of the Collateral pursuant to a public or private sale or other disposition (including pursuant to Section 363(k)sale, Section 1129(b)(2)(a)(ii) or otherwise of the Bankruptcy Code), the Collateral Administrative 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) Lender may be the purchaser or licensor of any or all of such Collateral at any such sale or other disposition and the Collateral Administrative Agent, as agent for and representative of Secured Parties Lenders (but not any Lender or Lenders in its or their respective individual capacitiescapacities unless Requisite Lenders shall otherwise agree in writing) shall be entitled, upon instructions from Required Lenders, for the purpose of bidding and making settlement or payment of the purchase price for all or any portion of the Collateral sold at any such sale or dispositionpublic sale, to use and apply any of the Obligations as a credit on account of the purchase price for any Collateral collateral payable by the Collateral Administrative Agent at such sale or other dispositionsale.
(c) Neither the Administrative Agent nor the Collateral Agent shall be responsible for or have a duty to ascertain or inquire into (including any representation or warranty regarding) the existence, value or collectability of the Collateral, the existence, priority or perfection of the Collateral Agent’s Lien thereon, or any certificate prepared by any Credit Party in connection therewith, and neither the Administrative Agent nor the Collateral Agent shall be responsible or liable to the Lenders for any failure to monitor or maintain any portion of the Collateral.
(d) No Secured Swap Contract or Cash Management Obligation will create (or be deemed to create) in favor of any Eligible Counterparty or Cash Management Bank, as applicable, that is a party thereto any rights in connection with the management or release of any Collateral or of the obligations of any Guarantor under the Credit Documents except as expressly provided in Section 8.3 and Section 10.5(d)(iv). By accepting the benefits of the Collateral, each Eligible Counterparty and each Cash Management Bank shall be deemed to have appointed the Collateral Agent as its agent and agreed to be bound by the Credit Documents as a Secured Party, subject to the limitations set forth in this clause (d). Notwithstanding any other provision of this Section 9 to the contrary, the Administrative Agent shall not be required to verify the payment of, or that other satisfactory arrangements have been made with respect to, Cash Management Obligations or Obligations arising under Secured Swap Contracts unless the Administrative Agent has received written notice of such Obligations, together with such supporting documentation as the Administrative Agent may reasonably request, from the applicable Cash Management Bank or Eligible Counterparty, as the case may be.
Appears in 1 contract
Samples: Credit and Guaranty Agreement (Prime Succession Inc)
Collateral Documents and Guaranty. (a) Each Lender authorizes the Agent to enter into and remain subject to each of the Collateral Documents to which it is a party and to take all action contemplated by such documents. Each Lender agrees that no Holder of Secured Obligations (other than the Agent) shall have the right individually to seek to realize upon the security granted by any Collateral Document, it being understood and agreed that such rights and remedies may be exercised solely by the Agent for the benefit of the Holders of Secured Obligations upon the terms of the Collateral Documents.
(b) In the event that any Collateral is hereafter pledged by any Person as collateral security for the Secured Obligations, the Agent is hereby authorized to execute and deliver on behalf of the Holders of Secured Obligations any Loan Documents necessary or appropriate to grant and perfect a Lien on such Collateral in favor of the Agent on behalf of the Holders of Secured Obligations.
(c) The Secured Parties irrevocably Lenders hereby authorize the Collateral Agent, at its option and in its discretion,, to:
(i) to release any Lien on any property granted to or held by the Agent upon any Collateral Agent under any Credit Document (vA) upon termination of all the Commitments and payment in full and satisfaction of all of the Obligations (other than Remaining contingent indemnity obligations and Rate Management Obligations) and the expiration, termination or Cash Collateralization of all Letters of Credit, (w) that is sold or otherwise disposed of or to be sold or otherwise disposed of as part of at any time arising under or in connection with any sale respect of this Agreement or other disposition the Loan Documents or the transactions contemplated hereby or thereby; (B) as permitted under the Credit Documents to any Person other than a Credit Party (provided that if requested by the Administrative Agentby, but only in accordance with, the Borrowers shall provide a certification that such disposition is permitted by this Agreement), terms of the applicable Loan Document; or (xC) subject to Section 10.5, if approved, authorized or ratified in writing by the requisite lenders under this AgreementRequired Lenders, (y) if unless such release is required to be approved by all of the property subject to such Lien is owned by a Guarantor, upon release of such Guarantor from its obligations under its Guaranty pursuant to clause (iii) below or (z) to the extent the property subject to such Lien becomes an Excluded AssetLenders hereunder;
(ii) to subordinate any Lien on any property granted to or held by the Collateral Agent under any Credit Loan Document to the holder of any Lien on such property that is permitted by Section 6.2(f) 6.15.16 or 6.2(g)6.15.17; and
(iii) to release any Guarantor from its obligations under the Guaranty if such Person ceases to be a Restricted Subsidiary as a result of a transaction permitted under the Credit Loan Documents. Upon request by the Collateral Agent at any time, the Lenders will confirm in writing the Collateral Agent’s authority to release or subordinate its interest in particular types or items of property, or to release any Guarantor from its obligations under the Guaranty Collateral pursuant to this Section 9.10(a). If 10.16.
(d) Upon any sale or transfer of assets constituting Collateral which is disposed permitted pursuant to the terms of as permitted any Loan Document, or consented to in writing by Section 6.9 to any Person other than a Credit Party, such Collateral shall be sold free and clear the Required Lenders or all of the Liens created by the Credit Documents and the Administrative Agent or the Collateral AgentLenders, as applicable, shall, and upon at the expense of the Borrowers, take any and all actions reasonably requested least three (3) Business Days’ prior written request by the Borrowers Borrower to effect the foregoing (provided that if requested by the Administrative Agent, the Borrowers Agent shall provide a certification that (and is hereby irrevocably authorized by the Lenders to) execute such disposition is permitted by this Agreement).
(b) Anything contained in any documents as may be necessary to evidence the release of the Credit Documents Liens granted to the contrary notwithstanding, each Credit Party, the Administrative Agent, the Collateral Agent and each Secured Party hereby agree that (i) no Secured Party shall have any right individually to realize upon any of the Collateral or to enforce the Guaranty, it being understood and agreed that all powers, rights and remedies hereunder and under any of the Credit 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 all powers, rights and remedies under the Collateral Documents may be exercised solely by the Collateral Agent for the benefit of the Holders of Secured Parties in accordance with the terms thereof, and (ii) in the event of a foreclosure Obligations herein or similar enforcement action by pursuant hereto upon the Collateral Agent on any of the Collateral pursuant to a public that was sold or private sale or other disposition transferred; provided, however, that (including pursuant to Section 363(k), Section 1129(b)(2)(a)(ii) or otherwise of the Bankruptcy Code), the Collateral Agent (or any Lender, except with respect to a “credit bid” pursuant to Section 363(k), Section 1129(b)(2)(a)(ii) or otherwise of the Bankruptcy Code) may be the purchaser or licensor of any or all of such Collateral at any such sale or other disposition and the Collateral Agent, as agent for and representative of Secured Parties (but not any Lender or Lenders in its or their respective individual capacities) shall be entitled, upon instructions from Required Lenders, for the purpose of bidding and making settlement or payment of the purchase price for all or any portion of the Collateral sold at any such sale or disposition, to use and apply any of the Obligations as a credit on account of the purchase price for any Collateral payable by the Collateral Agent at such sale or other disposition.
(c) Neither the Administrative Agent nor the Collateral Agent shall be responsible for or have a duty to ascertain or inquire into (including any representation or warranty regardingi) the existence, value or collectability of the Collateral, the existence, priority or perfection of the Collateral Agent’s Lien thereon, or any certificate prepared by any Credit Party in connection therewith, and neither the Administrative Agent nor the Collateral Agent shall be responsible or liable to the Lenders for any failure to monitor or maintain any portion of the Collateral.
(d) No Secured Swap Contract or Cash Management Obligation will create (or be deemed to create) in favor of any Eligible Counterparty or Cash Management Bank, as applicable, that is a party thereto any rights in connection with the management or release of any Collateral or of the obligations of any Guarantor under the Credit Documents except as expressly provided in Section 8.3 and Section 10.5(d)(iv). By accepting the benefits of the Collateral, each Eligible Counterparty and each Cash Management Bank shall be deemed to have appointed the Collateral Agent as its agent and agreed to be bound by the Credit Documents as a Secured Party, subject to the limitations set forth in this clause (d). Notwithstanding any other provision of this Section 9 to the contrary, the Administrative Agent shall not be required to verify execute any such document on terms which, in the payment ofAgent’s opinion, would expose the Agent to liability or that create any obligation or entail any consequence other satisfactory arrangements have been made with respect tothan the release of such Liens without recourse or warranty, Cash Management and (ii) such release shall not in any manner discharge, affect or impair the Secured Obligations or Obligations arising under Secured Swap Contracts unless any Liens upon (or obligations of the Administrative Agent has received written notice Borrower or any Loan Party) all interests retained by the Borrower or any Loan Party, including (without limitation) the proceeds of such Obligationsthe sale, together with such supporting documentation as all of which shall continue to constitute part of the Administrative Agent may reasonably request, from the applicable Cash Management Bank or Eligible Counterparty, as the case may beCollateral.
Appears in 1 contract
Samples: Five Year Revolving Credit Agreement (United Stationers Inc)
Collateral Documents and Guaranty. Each Lender hereby further authorizes Collateral Agent, on behalf of and for the benefit of Lenders, to enter into each Collateral Document as secured party and to be the agent for and representative of the Lenders under the Guaranties, and each Lender agrees to be bound by the terms of each Collateral Document and each Guaranty; provided that Collateral Agent shall not enter into or consent to any material amendment, modification, termination or waiver of any provision contained in any Collateral Document or Guaranty without the prior consent of Requisite Lenders (or such other Lenders as may be required to give such instructions under subsection 10.6); provided further, however, that, without further written consent or authorization from Lenders, Collateral Agent may execute any documents or instruments necessary to (a) The Secured Parties irrevocably authorize the Collateral Agent, at its option and in its discretion,
(i) to release any Lien on encumbering any property granted to item of Collateral that is the subject of a sale or held other disposition of assets permitted by this Agreement or as permitted or required under the Collateral Agent under any Credit Document (v) upon termination of all Commitments and payment in full of all Obligations (other than Remaining Obligations) and the expiration, termination or Cash Collateralization of all Letters of Credit, (w) that is sold or otherwise disposed of Documents or to which Requisite Lenders (or such other Lenders as may be required to give such consent under subsection 10.6) have otherwise consented or (b) release any Subsidiary Guarantor from the Subsidiaries Guaranty if all of the capital stock or other equity interests of such Subsidiary Guarantor is or are sold or otherwise disposed of as part of or in connection with to any Person pursuant to a sale or other disposition permitted hereunder or to which Requisite Lenders (or such other Lenders as may be required to give such consent under subsection 10.6) have otherwise consented; provided, however, that nothing in this subsection shall require consent to release from the Credit Documents to Subsidiaries Guaranty any Person other than a Credit Party (provided that if requested by the Administrative Agentwhich, the Borrowers immediately after such sale, shall provide a certification that such disposition is permitted by this Agreement), (x) subject to Section 10.5, if approved, authorized or ratified in writing by the requisite lenders under this Agreement, (y) if the property subject to such Lien is owned by a Guarantor, upon release of such Guarantor from its obligations under its Guaranty pursuant to clause (iii) below or (z) to the extent the property subject to such Lien becomes an Excluded Asset;
(ii) to subordinate any Lien on any property granted to or held by the Collateral Agent under any Credit Document to the holder of any Lien on such property that is permitted by Section 6.2(f) or 6.2(g); and
(iii) to release any Guarantor from its obligations under the Guaranty if such Person ceases to be a Restricted Domestic Subsidiary as a result of a transaction permitted under Holdings which is obligated to and will enter into the Credit DocumentsSubsidiaries Guaranty. Upon request by the Collateral Agent at any time, the Lenders will confirm in writing the Collateral Agent’s authority to release or subordinate its interest in particular types or items of property, or to release any Guarantor from its obligations under the Guaranty pursuant to this Section 9.10(a). If any Collateral is disposed of as permitted by Section 6.9 to any Person other than a Credit Party, such Collateral shall be sold free and clear of the Liens created by the Credit Documents and the Administrative Agent or the Collateral Agent, as applicable, shall, at the expense of the Borrowers, take any and all actions reasonably requested by the Borrowers to effect the foregoing (provided that if requested by the Administrative Agent, the Borrowers shall provide a certification that such disposition is permitted by this Agreement).
(b) Anything contained in any of the Credit Loan Documents to the contrary notwithstanding, each Credit PartyAgreement Parties, the Administrative Agent, the Collateral Agent and each Secured Party Lender hereby agree that (iX) no Secured Party Lender shall have any right individually to realize upon any of the Collateral under any Collateral Document or to enforce the any Guaranty, it being understood and agreed that all powers, rights and remedies hereunder under the Collateral Documents and under any of the Credit Documents Guaranties 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 all powers, rights and remedies under the Collateral Documents may be exercised solely by the and/or Collateral Agent for the benefit of the Secured Parties Creditors in accordance with the terms thereof, and (iiY) 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)sale, Section 1129(b)(2)(a)(ii) or otherwise of the Bankruptcy Code), 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) Secured Creditor may be the purchaser or licensor of any or all of such Collateral at any such sale or other disposition and the Collateral Agent, as agent for and representative of Secured Parties Creditors (but not any Lender Secured Creditor or Lenders Secured Creditors in its or their respective individual capacitiescapacities unless Requisite Lenders shall otherwise agree in writing) shall be entitled, upon instructions from Required Lenders, for the purpose of bidding and making settlement or payment of the purchase price for all or any portion of the Collateral sold at any such sale or dispositionpublic sale, to use and apply any of the Obligations as a credit on account of the purchase price for any Collateral collateral payable by the Collateral Agent at such sale or other dispositionsale.
(c) Neither the Administrative Agent nor the Collateral Agent shall be responsible for or have a duty to ascertain or inquire into (including any representation or warranty regarding) the existence, value or collectability of the Collateral, the existence, priority or perfection of the Collateral Agent’s Lien thereon, or any certificate prepared by any Credit Party in connection therewith, and neither the Administrative Agent nor the Collateral Agent shall be responsible or liable to the Lenders for any failure to monitor or maintain any portion of the Collateral.
(d) No Secured Swap Contract or Cash Management Obligation will create (or be deemed to create) in favor of any Eligible Counterparty or Cash Management Bank, as applicable, that is a party thereto any rights in connection with the management or release of any Collateral or of the obligations of any Guarantor under the Credit Documents except as expressly provided in Section 8.3 and Section 10.5(d)(iv). By accepting the benefits of the Collateral, each Eligible Counterparty and each Cash Management Bank shall be deemed to have appointed the Collateral Agent as its agent and agreed to be bound by the Credit Documents as a Secured Party, subject to the limitations set forth in this clause (d). Notwithstanding any other provision of this Section 9 to the contrary, the Administrative Agent shall not be required to verify the payment of, or that other satisfactory arrangements have been made with respect to, Cash Management Obligations or Obligations arising under Secured Swap Contracts unless the Administrative Agent has received written notice of such Obligations, together with such supporting documentation as the Administrative Agent may reasonably request, from the applicable Cash Management Bank or Eligible Counterparty, as the case may be.
Appears in 1 contract
Samples: Credit Agreement (Dominos Inc)
Collateral Documents and Guaranty. (a) The Secured Parties irrevocably authorize Administrative Agent as Agent under Collateral Documents and Guaranty. Each Lender hereby further authorizes Administrative Agent, on behalf of and for the benefit of Lenders, to be the agent for and representative of Lenders with respect to the Guaranty, the Collateral Agentand the Collateral Documents. Without further consent or authorization from Lenders, Administrative Agent may, and at its option and in its discretion,
the direction of the Requisite Lenders shall, execute any documents or instruments necessary to (i) to release or otherwise subordinate any Lien on encumbering any property granted to or held by the all item(s) of Collateral Agent under any Credit Document (v) upon termination of all Commitments and payment in full of all Obligations (other than Remaining Obligations) and the expiration, termination or Cash Collateralization of all Letters of Credit, (wA) that is sold or otherwise disposed the subject of or to be sold or otherwise disposed of as part of or in connection with any a sale or other disposition of assets permitted under the Credit Documents to any Person other than a Credit Party (provided that if requested by the Administrative Agent, the Borrowers shall provide a certification that such disposition is permitted by this Agreement), (x) subject to Section 10.5, if approved, authorized or ratified in writing by the requisite lenders under this Agreement, (y) if the property subject to such Lien is owned by a Guarantor, upon release of such Guarantor from its obligations under its Guaranty pursuant to clause (iii) below hereby or (zB) to the extent the property subject to such Lien becomes an Excluded Asset;
which Requisite Lenders have otherwise consented and (ii) to subordinate any Lien on any property granted to or held by the Collateral Agent under any Credit Document to the holder of any Lien on such property that is permitted by Section 6.2(f) or 6.2(g); and
(iii) to release any Guarantor from its obligations under the Guaranty if such Person ceases to be a Restricted Subsidiary as a result of a transaction permitted under and the Credit Documents. Upon request by the Collateral Agent at any time, the Lenders will confirm in writing the Collateral Agent’s authority to release or subordinate its interest in particular types or items of property, or to release any Guarantor from its obligations under the Guaranty Pledge and Security Agreement (A) pursuant to this Section 9.10(a). If any Collateral is disposed of as permitted by Section 6.9 7.13 or (B) with respect to any Person other than a Credit Party, such Collateral shall be sold free and clear of the Liens created by the Credit Documents and the Administrative Agent or the Collateral Agent, as applicable, shall, at the expense of the Borrowers, take any and all actions reasonably requested by the Borrowers to effect the foregoing (provided that if requested by the Administrative Agent, the Borrowers shall provide a certification that such disposition is permitted by this Agreement)which Requisite Lenders have otherwise consented.
(b) Administrative Agent’s Right to Realize on Collateral and Enforce Guaranty. Anything contained in any of the Credit Documents to the contrary notwithstanding, each Credit PartyCompany, the Administrative Agent, the Collateral Agent and each Secured Party Lender hereby agree that (i) no Secured Party Lender shall have any right individually to realize upon any of the Collateral or to enforce the Guaranty, it being understood and agreed that all powers, rights and remedies hereunder and under any of the Credit Documents may be exercised solely by the Administrative Agent or the Collateral Agent, as applicable, for the benefit on behalf of the Secured Parties Lenders in accordance with the terms hereof and thereof and all powers, rights and remedies under the Collateral Documents may be exercised solely by the Collateral Agent for the benefit of the Secured Parties in accordance with the terms thereofhereof, and (ii) in the event of a foreclosure or similar enforcement action by the Collateral Administrative Agent on any of the Collateral pursuant to a public or private sale or other disposition (including pursuant to Section 363(k)sale, Section 1129(b)(2)(a)(ii) or otherwise of the Bankruptcy Code), the Collateral Administrative 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) Lender may be the purchaser or licensor of any or all of such Collateral at any such sale or other disposition and the Collateral Administrative Agent, as agent for and representative of Secured Parties Lenders (but not any Lender or Lenders in its or their respective individual capacitiescapacities unless Requisite Lenders shall otherwise agree in writing) shall be entitled, upon instructions from Required Lenders, for the purpose of bidding and making settlement or payment of the purchase price for all or any portion of the Collateral sold at any such sale or dispositionpublic sale, to use and apply any of the Obligations as a credit on account of the purchase price for any Collateral collateral payable by the Collateral Administrative Agent at such sale or other dispositionsale.
(c) Neither the Administrative Agent nor the Collateral Agent shall be responsible for or have a duty to ascertain or inquire into (including any representation or warranty regarding) the existence, value or collectability of the Collateral, the existence, priority or perfection of the Collateral Agent’s Lien thereon, or any certificate prepared by any Credit Party in connection therewith, and neither the Administrative Agent nor the Collateral Agent shall be responsible or liable to the Lenders for any failure to monitor or maintain any portion of the Collateral.
(d) No Secured Swap Contract or Cash Management Obligation will create (or be deemed to create) in favor of any Eligible Counterparty or Cash Management Bank, as applicable, that is a party thereto any rights in connection with the management or release of any Collateral or of the obligations of any Guarantor under the Credit Documents except as expressly provided in Section 8.3 and Section 10.5(d)(iv). By accepting the benefits of the Collateral, each Eligible Counterparty and each Cash Management Bank shall be deemed to have appointed the Collateral Agent as its agent and agreed to be bound by the Credit Documents as a Secured Party, subject to the limitations set forth in this clause (d). Notwithstanding any other provision of this Section 9 to the contrary, the Administrative Agent shall not be required to verify the payment of, or that other satisfactory arrangements have been made with respect to, Cash Management Obligations or Obligations arising under Secured Swap Contracts unless the Administrative Agent has received written notice of such Obligations, together with such supporting documentation as the Administrative Agent may reasonably request, from the applicable Cash Management Bank or Eligible Counterparty, as the case may be.
Appears in 1 contract
Samples: Credit and Guaranty Agreement (Xo Communications Inc)
Collateral Documents and Guaranty. Each Lender hereby further authorizes the Administrative Agent, on behalf of and for the benefit of the Lenders, to enter into each Collateral Document as secured party and to be the agent for and representative of the Lenders under the Guaranty, and each Lender agrees to be bound by the terms of each Collateral Document and the Guaranty; provided that the Administrative Agent shall not (i) enter into or consent to any written amendment, modification, termination or waiver of any provision contained in any Collateral Document or the Guaranty, or (ii) release any Collateral (except as otherwise expressly permitted or required pursuant to the terms of this Agreement or the applicable Collateral Document), in each case without the prior consent of the Requisite Lenders (or, if required pursuant to Section 10.6, all Lenders); provided further, however, that, without further written consent or authorization from the Lenders, the Administrative Agent may execute any documents or instruments necessary to (a) The Secured Parties irrevocably authorize the Collateral Agent, at its option and in its discretion,
(i) to release any Lien on encumbering any property granted item of Collateral that is the subject of a sale or other disposition of assets permitted by this Agreement or that is otherwise required to be released pursuant to this Agreement or held by to which the Collateral Agent under Requisite Lenders have otherwise consented or (b) release any Credit Document (v) upon termination Subsidiary of BHR from the Guaranty if all Commitments and payment in full of all Obligations the capital stock of such Subsidiary is sold to any Person (other than Remaining Obligationsan Affiliate of BHR) and the expiration, termination or Cash Collateralization of all Letters of Credit, (w) that is sold or otherwise disposed of or pursuant to be sold or otherwise disposed of as part of or in connection with any a sale or other disposition permitted under the Credit Documents to any Person other than a Credit Party (provided that if requested by the Administrative Agent, the Borrowers shall provide a certification that such disposition is permitted by this Agreement), (x) subject to Section 10.5, if approved, authorized or ratified in writing by the requisite lenders under this Agreement, (y) if the property subject to such Lien is owned by a Guarantor, upon release of such Guarantor from its obligations under its Guaranty pursuant to clause (iii) below or (z) to the extent the property subject to such Lien becomes an Excluded Asset;
(ii) to subordinate any Lien on any property granted to or held by the Collateral Agent under any Credit Document to the holder of any Lien on such property that is permitted by Section 6.2(f) or 6.2(g); and
(iii) to release any Guarantor from its obligations under the Guaranty if such Person ceases to be a Restricted Subsidiary as a result of a transaction permitted under the Credit Documents. Upon request by the Collateral Agent at any time, the Lenders will confirm in writing the Collateral Agent’s authority to release or subordinate its interest in particular types or items of property, hereunder or to release any Guarantor from its obligations under which the Guaranty pursuant to this Section 9.10(a)Requisite Lenders have otherwise consented. If any Collateral is disposed of as permitted by Section 6.9 to any Person other than a Credit Party, such Collateral shall be sold free and clear of the Liens created by the Credit Documents and the Administrative Agent or the Collateral Agent, as applicable, shall, at the expense of the Borrowers, take any and all actions reasonably requested by the Borrowers to effect the foregoing (provided that if requested by the Administrative Agent, the Borrowers shall provide a certification that such disposition is permitted by this Agreement).
(b) Anything contained in any of the Credit Loan Documents to the contrary notwithstanding, each Credit Party, the Administrative Agent, the Collateral Agent and each Secured Party Lender hereby agree that (i1) no Secured Party Lender shall have any right individually to realize upon any of the Collateral under any Collateral Document or to enforce the Guaranty, it being understood and agreed that all powers, rights and remedies hereunder under the Collateral Documents and under any of the Credit Documents Guaranty 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 all powers, rights and remedies under the Collateral Documents may be exercised solely by the Collateral Agent for the benefit of the Secured Parties Lenders in accordance with the terms thereof, and (ii2) in the event of a foreclosure or similar enforcement action by the Collateral Administrative 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)sale, the Collateral Administrative 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) Lender may be the purchaser or licensor of any or all of such Collateral at any such sale or other disposition and the Collateral Administrative Agent, as agent for and representative of Secured Parties the Lenders (but not any Lender or the Lenders in its or their respective 114 122 individual capacitiescapacities unless the Requisite Lenders shall otherwise agree in writing) shall be entitled, upon instructions from Required Lenders, for the purpose of bidding and making settlement or payment of the purchase price for all or any portion of the Collateral sold at any such sale or dispositionpublic sale, to use and apply any of the Obligations as a credit on account of the purchase price for any Collateral collateral payable by the Collateral Administrative Agent at such sale or other dispositionsale.
(c) Neither the Administrative Agent nor the Collateral Agent shall be responsible for or have a duty to ascertain or inquire into (including any representation or warranty regarding) the existence, value or collectability of the Collateral, the existence, priority or perfection of the Collateral Agent’s Lien thereon, or any certificate prepared by any Credit Party in connection therewith, and neither the Administrative Agent nor the Collateral Agent shall be responsible or liable to the Lenders for any failure to monitor or maintain any portion of the Collateral.
(d) No Secured Swap Contract or Cash Management Obligation will create (or be deemed to create) in favor of any Eligible Counterparty or Cash Management Bank, as applicable, that is a party thereto any rights in connection with the management or release of any Collateral or of the obligations of any Guarantor under the Credit Documents except as expressly provided in Section 8.3 and Section 10.5(d)(iv). By accepting the benefits of the Collateral, each Eligible Counterparty and each Cash Management Bank shall be deemed to have appointed the Collateral Agent as its agent and agreed to be bound by the Credit Documents as a Secured Party, subject to the limitations set forth in this clause (d). Notwithstanding any other provision of this Section 9 to the contrary, the Administrative Agent shall not be required to verify the payment of, or that other satisfactory arrangements have been made with respect to, Cash Management Obligations or Obligations arising under Secured Swap Contracts unless the Administrative Agent has received written notice of such Obligations, together with such supporting documentation as the Administrative Agent may reasonably request, from the applicable Cash Management Bank or Eligible Counterparty, as the case may be.
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