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

Appears in 7 contracts

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

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

Appears in 4 contracts

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

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

Appears in 3 contracts

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

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

Appears in 3 contracts

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

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

Appears in 3 contracts

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

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

Appears in 3 contracts

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

Collateral Matters. (a) Each Agent may from time to time make such disbursements and advances (“Agent Advances”) which such Agent, in its sole discretion, deems necessary or desirable to preserve, protect, prepare for sale or lease or dispose of the Collateral or any portion thereof, to enhance the likelihood or maximize the amount of repayment by the Borrowers of the Loans, Reimbursement Obligations, Letter of Credit Obligations and other Obligations or to pay any other amount chargeable to the Borrowers pursuant to the terms of this Agreement, including, without limitation, costs, fees and expenses as described in Section 12.04. The Agent Advances shall be repayable on demand and be secured by the Collateral and shall bear interest at a rate per annum equal to the rate then applicable to Revolving Credit Loans that are ~~Reference~~ Base Rate Loans. The Agent making any Agent Advances shall notify the other Agent, each Lender and the Administrative Borrower in writing of each such Agent Advance, which notice shall include a description of the purpose of such Agent Advance. Without limitation to its obligations pursuant to Section ~~10.05~~10.05 [Indemnification], each Lender agrees that it shall make available to the Agent making any Agent Advances, upon such Agent’s demand, in the currency in which the respective Agent Advance was made in immediately available funds, the amount equal to such Lender’s ~~Pro Rata~~ Ratable Share of each such Agent ~~Advance subject to the terms of, the Agreement Among Lenders~~Advance, provided that any such amount advanced by a Lender shall be deemed a Loan hereunder. If such funds are not made available to such Agent by such Lender, such Agent shall be entitled to recover such funds on demand from such Lender, together with interest thereon for each day from the date such payment was due until the date such amount is paid to such Agent, at the Federal Funds Effective Rate for three Business Days and thereafter at the ~~Reference~~ Base Rate. (b) The Lenders hereby irrevocably authorize the Collateral Agent, at its option and in its discretion, to release any Lien granted to or held by the Collateral Agent upon any Collateral upon termination of the Total Commitment and Payment in Full of the Obligations; or constituting property being sold or disposed of in the ordinary course of any Loan Party’s business or otherwise in compliance with the terms of this Agreement and the other Loan Documents; or constituting property in which the Loan Parties owned no interest at the time the Lien was granted or at any time thereafter; or if approved, authorized or ratified in writing by the applicable Lenders required pursuant to Section ~~12.02~~12.02 [ Amendments, Etc.]. Upon request by the Collateral Agent at any time, the Lenders will confirm in writing the Collateral Agent’s authority to release particular types or items of Collateral pursuant to this Section 10.08(b). (c) Without in any manner limiting the Collateral Agent’s authority to act without any specific or further authorization or consent by the Lenders (as set forth in Section 10.08(b)), each Lender agrees to confirm in writing, upon request by the Collateral Agent, the authority to release Collateral conferred upon the Collateral Agent under Section 10.08(b). Upon the prior written request by any Loan Party, the Collateral Agent shall (and is hereby irrevocably authorized by the Lenders to) execute such documents as may be necessary or reasonably requested by any Loan Party to evidence the release of the Liens granted to the Collateral Agent for the benefit of the Agents and the Lenders upon such Collateral; provided, however, that (i) the Collateral Agent shall not be required to execute any such document on terms which, in the Collateral Agent’s opinion, would expose the Collateral Agent to liability or create any obligations or entail any consequence other than the release of such Liens without recourse or warranty, and (ii) such release shall not in any manner discharge, affect or impair the Obligations or any Lien upon (or obligations of any Loan Party in respect of) all interests in the Collateral retained by any Loan Party. (d) Anything contained in any of the Loan Documents to the contrary ~~notwithstanding but subject to the Agreement Among Lenders~~notwithstanding, the Loan Parties, each Agent and each Lender hereby agree that (i) no Lender shall have any right individually to realize upon any of the Collateral under any Loan Document or to enforce any Guaranty, it being understood and agreed that all powers, rights and remedies under the Loan Documents may be exercised solely by the Collateral Agent for the benefit of the Lenders in accordance with the terms thereof, (ii) in the event of a foreclosure by the Collateral Agent on any of the Collateral pursuant to a public or private sale, the Administrative Agent, the Collateral Agent or any Lender may be the purchaser of any or all of such Collateral at any such sale and (iii) the Collateral Agent, as agent for and representative of the Agents and the Lenders (but not any other Agent or any Lender or Lenders in its or their respective individual capacities unless the Required Lenders shall otherwise agree in writing) shall be entitled (either directly or through one or more acquisition vehicles) for the purpose of bidding and making settlement or payment of the purchase price for all or any portion of the Collateral to be sold (A) at any public or private sale, (B) at any sale conducted by the Collateral Agent under the provisions of the Uniform Commercial Code (including pursuant to Sections 9-610 or 9-620 of the Uniform Commercial Code), (C) at any sale or foreclosure conducted by the Collateral Agent (whether by judicial action or otherwise) in accordance with applicable law or (D) any sale conducted pursuant to the provisions of any Debtor Relief Law (including Section 363 of the Bankruptcy Code), to use and apply all or any of the Obligations as a credit on account of the purchase price for any Collateral payable by the Collateral Agent at such sale. Except as expressly provided herein, nothing contained herein shall be deemed to authorize any Agent to authorize or consent to or accept or adopt on behalf of any Lender or L/C Issuer any plan of reorganization, arrangement, adjustment or composition affecting the Obligations or the rights of any Lender or L/C Issuer or to authorize any Agent to vote in respect of the claim of any Lender or L/C Issuer in any such proceeding. (e) The Collateral Agent shall have no obligation whatsoever to any Lender to assure that the Collateral exists or is owned by the Loan Parties or is cared for, protected or insured or has been encumbered or that the Lien granted to the Collateral Agent pursuant to this Agreement or any other Loan Document has been properly or sufficiently or lawfully created, perfected, protected or enforced or is entitled to any particular priority, or to exercise at all or in any particular manner or under any duty of care, disclosure or fidelity, or to continue exercising, any of the rights, authorities and powers granted or available to the Collateral Agent in this Section 10.08 or in any other Loan Document, it being understood and agreed that in respect of the Collateral, or any act, omission or event related thereto, the Collateral Agent may act in any manner it may deem appropriate, in its sole discretion, given the Collateral Agent’s own interest in the Collateral as one of the Lenders and that the Collateral Agent shall have no duty or liability whatsoever to any other Lender~~, except as otherwise provided herein and in the Agreement Among Lenders~~.

Appears in 3 contracts

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

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

Appears in 3 contracts

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

Appears in 2 contracts

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

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

Appears in 2 contracts

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

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

Appears in 2 contracts

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

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

Appears in 2 contracts

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

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

Appears in 2 contracts

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

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

Appears in 2 contracts

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

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

Appears in 2 contracts

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

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

Appears in 2 contracts

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

Appears in 2 contracts

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

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

Appears in 2 contracts

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

Appears in 2 contracts

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

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

Appears in 2 contracts

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

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

Appears in 2 contracts

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

Appears in 2 contracts

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

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

Appears in 2 contracts

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

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

Appears in 2 contracts

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

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

Appears in 2 contracts

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

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

Appears in 2 contracts

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

Appears in 2 contracts

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

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

Appears in 1 contract

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

Collateral Matters. (a) ~~Each~~ Agent ~~may~~ may, at its option, from time to time, at any time on or after an Event of Default and for so long as the same is continuing or upon any other failure of a condition precedent to the Loan hereunder, make such disbursements and advances (“"Special Agent Advances”") which ~~such~~ Agent, in its sole discretion, (i) deems necessary or desirable either to ~~preserve, protect, prepare for sale~~ preserve or ~~lease or dispose of~~ protect the Collateral or any portion ~~thereof,~~ thereof or (ii) to enhance the likelihood or maximize the amount of repayment by ~~the~~ Borrowers and Guarantors of the ~~Loans, Reimbursement~~ Loan and other Obligations, ~~Letter of Credit Obligations and other Obligations~~ or (iii) to pay any other amount chargeable to ~~the Borrowers~~ any Borrower or Guarantor pursuant to the terms of this ~~Agreement, including, without limitation,~~ Agreement or any of the other Financing Agreements consisting of costs, fees and expenses ~~as described~~ payable in ~~Section 12.04~~accordance with this Agreement. ~~The~~ Special Agent Advances shall be repayable on demand and be together with all interest thereon shall constitute Obligations secured by the ~~Collateral and~~ Collateral. Special Agent Advances shall ~~bear interest~~ not constitute a portion of the Loan but shall otherwise constitute Obligations hereunder. Interest on Special Agent Advances shall be payable at ~~a rate per annum equal to~~ the ~~rate~~ Interest Rate then applicable to ~~Revolving~~ Prime Rate Loans ~~that are Reference Rate Loans~~and shall be payable on demand. The Agent making any Agent Advances shall notify the other Agent, each Lender and the Administrative Borrower in writing of each such Agent Advance, which notice shall include a description of the purpose of such Agent Advance. Without limitation to its obligations pursuant to Section 10.05, each Each Lender agrees that it shall make available to ~~the Agent making any Agent Advances~~Agent, upon ~~such~~ Agent’s 's demand, ~~in the currency in which the respective Agent Advance was made~~ in immediately available funds, the amount equal to such Lender’s 's Pro Rata Share of each such Special Agent ~~Advance subject to the terms of, the Agreement Among Lenders, provided that any such amount advanced by a Lender shall be deemed a Loan hereunder~~Advance. If such funds are not made available to ~~such~~ Agent by such Lender, such Lender shall be deemed a Defaulting Lender and Agent shall be entitled to recover such ~~funds~~ funds, on demand from such ~~Lender,~~ Lender together with interest thereon for each day from the date such payment was due until the date such amount is paid to ~~such Agent,~~ Agent at the Federal Funds ~~Effective~~ Rate for each day during such period (as published by the Federal Reserve Bank of New York or at Agent's option based on the arithmetic mean determined by Agent of the rates for the last transaction in overnight Federal funds arranged prior to 9:00 a.m. (New York City time) on that day by each of the three ~~Business Days~~ leading brokers of Federal funds transactions in New York City selected by Agent) and ~~thereafter~~ if such amounts are not paid within three (3) days of Agent's demand, at the ~~Reference Rate~~highest Interest Rate provided for in Section 3.1 hereof applicable to Prime Rate Loans. (b) ~~The~~ Lenders hereby irrevocably authorize ~~the Collateral~~ Agent, at its option and in its ~~discretion,~~ discretion to release any ~~Lien granted to~~ security interest in, mortgage or ~~held by~~ lien upon, any of the Collateral ~~Agent~~ (i) upon ~~any Collateral upon termination~~ payment and satisfaction of all of the ~~Total Commitment~~ Obligations and ~~Payment in Full~~ delivery of cash collateral to the ~~Obligations;~~ extent required under Section 13.1 below, or (ii) constituting property being sold or disposed of in if Administrative Borrower Representative or any Borrower or Guarantor certifies to Agent that the ~~ordinary course of any Loan Party’s business~~ sale or ~~otherwise~~ disposition is made in compliance with ~~the terms of this Agreement~~ Section 9.7 hereof (and ~~the other Loan Documents;~~ Agent may rely conclusively on any such certificate, without further inquiry), or (iii) constituting property in which ~~the Loan Parties owned no~~ any Borrower or Guarantor did not own an interest at the time the ~~Lien~~ security interest, mortgage or lien was granted or at any time thereafter; , or (iv) having a value in the aggregate in any twelve (12) month period of less than $1,500,000, and to the extent Agent may release its security interest in and lien upon any such Collateral pursuant to the sale or other disposition thereof, such sale or other disposition shall be deemed consented to by Lenders, or (v) if required or permitted under the terms of any of the other Financing Agreements, including any intercreditor agreement, or (vi) approved, authorized or ratified in writing by all of Lenders. Except as provided above, Agent will not release any security interest in, mortgage or lien upon, any of the ~~applicable Lenders required pursuant to Section 12.02~~Collateral without the prior written authorization of all of Lenders. Upon request by ~~the Collateral~~ Agent at any time, ~~the~~ Lenders will promptly confirm in writing ~~the Collateral~~ Agent’s 's authority to release particular types or items of Collateral pursuant to this ~~Section 10.08(b)~~Section. (c) Without in any manner limiting ~~the Collateral~~ Agent’s 's authority to act without any specific or further authorization or consent by the ~~Lenders (as set forth in Section 10.08(b))~~Required Lenders, each Lender agrees to confirm in writing, upon request by ~~the Collateral~~ Agent, the authority to release Collateral conferred upon ~~the Collateral~~ Agent under ~~Section 10.08(b)~~this Section. ~~Upon the prior written request by any Loan Party, the Collateral~~ Agent shall (and is hereby irrevocably authorized by ~~the~~ Lenders to) execute such documents as may be necessary ~~or reasonably requested by any Loan Party~~ to evidence the release of the ~~Liens~~ security interest, mortgage or liens granted to Agent upon any Collateral to the ~~Collateral Agent for the benefit of the Agents and the Lenders upon such Collateral~~extent set forth above; provided, ~~however~~that, ~~that~~ (i) ~~the Collateral~~ Agent shall not be required to execute any such document on terms which, in ~~the Collateral~~ Agent’s 's opinion, would expose ~~the Collateral~~ Agent to liability or create any obligations or entail any consequence other than the release of such ~~Liens~~ security interest, mortgage or liens without recourse or ~~warranty,~~ warranty and (ii) such release shall not in any manner discharge, affect or impair the Obligations or any ~~Lien~~ security interest, mortgage or lien upon (or obligations of any ~~Loan Party~~ Borrower or Guarantor in respect of) ~~all interests in~~ the Collateral retained by ~~any Loan Party~~such Borrower or Guarantor. (d) Anything contained in any of the Loan Documents to the contrary notwithstanding but subject to the Agreement Among Lenders, the Loan Parties, each Agent and each Lender hereby agree that (i) no Lender shall have any right individually to realize upon any of the Collateral under any Loan Document or to enforce any Guaranty, it being understood and agreed that all powers, rights and remedies under the Loan Documents may be exercised solely by the Collateral Agent for the benefit of the Lenders in accordance with the terms thereof, (ii) in the event of a foreclosure by the Collateral Agent on any of the Collateral pursuant to a public or private sale, the Administrative Agent, the Collateral Agent or any Lender may be the purchaser of any or all of such Collateral at any such sale and (iii) the Collateral Agent, as agent for and representative of the Agents and the Lenders (but not any other Agent or any Lender or Lenders in its or their respective individual capacities unless the Required Lenders shall otherwise agree in writing) shall be entitled (either directly or through one or more acquisition vehicles) for the purpose of bidding and making settlement or payment of the purchase price for all or any portion of the Collateral to be sold (A) at any public or private sale, (B) at any sale conducted by the Collateral Agent under the provisions of the Uniform Commercial Code (including pursuant to Sections 9-610 or 9-620 of the Uniform Commercial Code), (C) at any sale or foreclosure conducted by the Collateral Agent (whether by judicial action or otherwise) in accordance with applicable law or (D) any sale conducted pursuant to the provisions of any Debtor Relief Law (including Section 363 of the Bankruptcy Code), to use and apply all or any of the Obligations as a credit on account of the purchase price for any Collateral payable by the Collateral Agent at such sale. (e) The Collateral Agent shall have no obligation whatsoever to any Lender or any other Person to investigate, confirm or assure that the Collateral exists or is owned by ~~the Loan Parties~~ any Borrower or Guarantor or is cared for, protected or insured or has been ~~encumbered~~ encumbered, or that the ~~Lien~~ liens and security interests granted to ~~the Collateral~~ Agent pursuant ~~to this Agreement~~ hereto or any ~~other Loan Document has~~ of the Financing Agreements or otherwise have been properly or sufficiently or lawfully created, perfected, protected or enforced or is are entitled to any particular priority, or to exercise at all or in any particular manner or under any duty of care, disclosure or fidelity, or to continue exercising, any of the rights, authorities and powers granted or available to ~~the Collateral~~ Agent in this ~~Section 10.08~~ Agreement or in any of the other ~~Loan Document~~Financing Agreements, it being understood and agreed that in respect of the Collateral, or any act, omission or event related thereto, subject to the ~~Collateral~~ other terms and conditions contained herein, Agent may act in any manner it may deem appropriate, in its ~~sole~~ discretion, given ~~the Collateral~~ Agent’s 's own interest in the Collateral as ~~one of the Lenders~~ a Lender and that ~~the Collateral~~ Agent shall have no duty or liability whatsoever to any other Lender~~, except as otherwise provided herein and in the Agreement Among Lenders~~.

Appears in 1 contract

Samples: Loan and Security Agreement (International Wire Group Inc)

Collateral Matters. (a) ~~Each~~ Agent ~~may~~ may, at its option, from time to time, at any time on or after an Event of Default and for so long as the same is continuing or upon any other failure of a condition precedent to the making of Loans and issuance of Letters of Credit hereunder, make such disbursements and advances (“"Special Agent Advances”") which ~~such~~ Agent, in its sole discretion, deems necessary or desirable either (i) to ~~preserve, protect, prepare for sale~~ preserve or ~~lease or dispose of~~ protect the Collateral or any portion ~~thereof,~~ thereof or (ii) to enhance the likelihood or maximize the amount of repayment by ~~the~~ Borrowers of the ~~Loans, Reimbursement~~ Loans and other Obligations, ~~Letter~~ provided, that, the aggregate principal amount of the Special Agent Advances pursuant to this clause (ii), plus the then outstanding principal amount of the additional Loans and Letters of Credit ~~Obligations and other Obligations~~ which Agent may make or provide as set forth in Section 12.8 hereof, shall not exceed the aggregate amount of ten (10%) percent of the Maximum Credit or (iii) to pay any other amount chargeable to ~~the~~ Borrowers pursuant to the terms of this ~~Agreement, including, without limitation,~~ Agreement or any of the other Financing Agreements consisting of costs, fees and expenses ~~as described in Section 12.04~~and payments to Issuing Bank on account of Letter of Credit Obligations. ~~The~~ Special Agent Advances shall be repayable on demand and be secured by the ~~Collateral and~~ Collateral. Special Agent Advances shall ~~bear interest~~ not constitute Loans but shall otherwise constitute Obligations hereunder. Interest on Special Advances shall be payable at ~~a rate per annum equal to~~ the ~~rate~~ Interest Rate then applicable to ~~Revolving Loans that are Reference~~ Prime Rate Loans. ~~The~~ Agent ~~making any Agent Advances~~ shall notify ~~the other Agent,~~ each Lender and ~~the Administrative Borrower~~ Borrowers in writing of each such Special Agent Advance, which notice shall include a description of the purpose of such Special Agent Advance. Without limitation to of its obligations pursuant to Section ~~10.05~~6.9, each Lender agrees that it shall make available to ~~the Agent making any Agent Advances~~Agent, upon ~~such~~ Agent’s 's demand, ~~in the currency in which the respective Agent Advance was made~~ in immediately available funds, the amount equal to such Lender’s 's Pro Rata Share of each such Special Agent ~~Advance subject to the terms of, the Agreement Among Lenders, provided that any such amount advanced by a Lender shall be deemed a Loan hereunder~~Advance. If such funds are not made available to ~~such~~ Agent by such Lender, such Lender shall be deemed a Defaulting Lender and Agent shall be entitled to recover such ~~funds~~ funds, on demand from such ~~Lender,~~ Lender together with interest thereon for each day from the date such payment was due until the date such amount is paid to ~~such Agent,~~ Agent at the Federal Funds ~~Effective~~ Rate for each day during such period (as published by the Federal Reserve Bank of Atlanta or at Agent's option based on the arithmetic mean determined by Agent of the rates for the last transaction in overnight Federal funds arranged prior to 9:00 a.m. (Atlanta, Georgia time) on that day by each of the three ~~Business Days~~ leading brokers of Federal funds transactions in New York City selected by Agent) and ~~thereafter~~ if such amounts are not paid within three (3) days of Agent's demand, at the ~~Reference Rate~~highest Interest Rate provided for in Section 3.1 hereof applicable to Prime Rate Loans. (b) ~~The~~ Lenders hereby irrevocably authorize ~~the Collateral~~ Agent, at its option and in its ~~discretion,~~ discretion to release any ~~Lien granted to~~ security interest in, mortgage or ~~held by~~ lien upon, any of the Collateral ~~Agent upon any Collateral~~ (i) upon termination of the ~~Total Commitment~~ Commitments and ~~Payment in Full~~ payment and satisfaction of all of the ~~Obligations;~~ Obligations and delivery of cash collateral to the extent required under Section 13.1 below, or (ii) constituting property being sold or disposed of in if Administrative Borrower or any Borrower certifies to Agent that the ~~ordinary course of any Loan Party’s business~~ sale or ~~otherwise~~ disposition is made in compliance with ~~the terms of this Agreement~~ Section 9.7 hereof (and ~~the other Loan Documents;~~ Agent may rely conclusively on any such certificate, without further inquiry), or (iii) constituting property in which ~~the Loan Parties owned no~~ any Borrower or Obligor did not own an interest at the time the ~~Lien~~ security interest, mortgage or lien was granted or at any time thereafter; , or (iv) having a value in the aggregate in any fiscal quarter period of less than $500,000, and to the extent Agent may release its security interest in and lien upon any such Collateral pursuant to the sale or other disposition thereof, such sale or other disposition shall be deemed consented to by Lenders, or (v) if required or permitted under the terms of any of the other Financing Agreements, including any intercreditor agreement, or (vi) constituting trademarks securing Permitted Trademark Financing Debt if concurrently with such release (A) Administrative Borrower or any Borrower certifies to Agent that the Indebtedness constituting the Permitted Trademark Financing Debt is incurred, and Liens securing the same are granted, in compliance with Sections 9.8 and 9.9 hereof (and Agent may rely conclusively on any such certificate, without further inquiry), and (B) Borrowers deliver to Agent a report detailing the calculation of the Borrowing Base which excludes therefrom any trademarks securing the Permitted Trademark Financing Debt, or (vii) approved, authorized or ratified in writing by all of Lenders. Except as provided above, Agent will not release any security interest in, mortgage or lien upon, any of the ~~applicable Lenders required pursuant to Section 12.02~~Collateral without the prior written authorization of all of Lenders. Upon request by ~~the Collateral~~ Agent at any time, ~~the~~ Lenders will promptly confirm in writing ~~the Collateral~~ Agent’s 's authority to release particular types or items of Collateral pursuant to this ~~Section 10.08(b)~~Section. In no event shall the consent or approval of Issuing Bank be required to any release of Collateral. (c) Without in any manner limiting ~~the Collateral~~ Agent’s 's authority to act without any specific or further authorization or consent by the ~~Lenders (as set forth in Section 10.08(b))~~Required Lenders, each Lender agrees to confirm in writing, upon request by ~~the Collateral~~ Agent, the authority to release Collateral conferred upon ~~the Collateral~~ Agent under ~~Section 10.08(b)~~this Section. ~~Upon the prior written request by any Loan Party, the Collateral~~ Agent shall (and is hereby irrevocably authorized by ~~the~~ Lenders to) execute such documents as may be necessary ~~or reasonably requested by any Loan Party~~ to evidence the release of the ~~Liens~~ security interest, mortgage or liens granted to Agent upon any Collateral to the ~~Collateral Agent for the benefit of the Agents and the Lenders upon such Collateral~~extent set forth above; provided, ~~however~~that, ~~that~~ (i) ~~the Collateral~~ Agent shall not be required to execute any such document on terms which, in ~~the Collateral~~ Agent’s 's opinion, would expose ~~the Collateral~~ Agent to liability or create any obligations or entail any consequence other than the release of such ~~Liens~~ security interest, mortgage or liens without recourse or ~~warranty,~~ warranty and (ii) such release shall not in any manner discharge, affect or impair the Obligations or any ~~Lien~~ security interest, mortgage or lien upon (or obligations of any ~~Loan Party~~ Borrower or any Obligor in respect of) ~~all interests in~~ the Collateral retained by any ~~Loan Party~~Borrower or any Obligor. (d) Anything contained in any of the Loan Documents to the contrary notwithstanding but subject to the Agreement Among Lenders, the Loan Parties, each Agent and each Lender hereby agree that (i) no Lender shall have any right individually to realize upon any of the Collateral under any Loan Document or to enforce any Guaranty, it being understood and agreed that all powers, rights and remedies under the Loan Documents may be exercised solely by the Collateral Agent for the benefit of the Lenders in accordance with the terms thereof, (ii) in the event of a foreclosure by the Collateral Agent on any of the Collateral pursuant to a public or private sale, the Administrative Agent, the Collateral Agent or any Lender may be the purchaser of any or all of such Collateral at any such sale and (iii) the Collateral Agent, as agent for and representative of the Agents and the Lenders (but not any other Agent or any Lender or Lenders in its or their respective individual capacities unless the Required Lenders shall otherwise agree in writing) shall be entitled (either directly or through one or more acquisition vehicles) for the purpose of bidding and making settlement or payment of the purchase price for all or any portion of the Collateral to be sold (A) at any public or private sale, (B) at any sale conducted by the Collateral Agent under the provisions of the Uniform Commercial Code (including pursuant to Sections 9-610 or 9-620 of the Uniform Commercial Code), (C) at any sale or foreclosure conducted by the Collateral Agent (whether by judicial action or otherwise) in accordance with applicable law or (D) any sale conducted pursuant to the provisions of any Debtor Relief Law (including Section 363 of the Bankruptcy Code), to use and apply all or any of the Obligations as a credit on account of the purchase price for any Collateral payable by the Collateral Agent at such sale. (e) The Collateral Agent shall have no obligation whatsoever to any ~~Lender~~ Lender, Issuing Bank or any other Person to investigate, confirm or assure that the Collateral exists or is owned by ~~the Loan Parties~~ any Borrower or Obligor or is cared for, protected or insured or has been ~~encumbered~~ encumbered, or that any particular items of Collateral meet the eligibility criteria applicable in respect of the Loans or Letters of Credit hereunder, or whether any particular reserves are appropriate, or that the ~~Lien~~ liens and security interests granted to ~~the Collateral~~ Agent pursuant ~~to this Agreement~~ hereto or any ~~other Loan Document has~~ of the Financing Agreements or otherwise have been properly or sufficiently or lawfully created, perfected, protected or enforced or is are entitled to any particular priority, or to exercise at all or in any particular manner or under any duty of care, disclosure or fidelity, or to continue exercising, any of the rights, authorities and powers granted or available to ~~the Collateral~~ Agent in this ~~Section 10.08~~ Agreement or in any of the other ~~Loan Document~~Financing Agreements, it being understood and agreed that in respect of the Collateral, or any act, omission or event related thereto, ~~the Collateral~~ Agent may act in any manner it may deem appropriate, in its ~~sole~~ discretion, given ~~the Collateral~~ Agent’s 's own interest in the Collateral as ~~one of the Lenders~~ a Lender and that ~~the Collateral~~ Agent shall have no duty or liability whatsoever to any other ~~Lender, except as otherwise provided herein and in the Agreement Among Lenders~~Lender or Issuing Bank.

Appears in 1 contract

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

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

Appears in 1 contract

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

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

Appears in 1 contract

Samples: Financing Agreement (Vivint Solar, Inc.)

Collateral Matters. (a) ~~Each~~ The Agent may from time to ~~time~~ time, during the occurrence and continuance of a Default or Event of Default, make such disbursements and advances (“Agent Advances”) which ~~such~~ the Agent, in its sole discretion, deems necessary or desirable to ~~preserve, protect, prepare for sale~~ preserve or ~~lease or dispose of~~ protect the Collateral or any portion thereof, to make preparations for Collateral liquidation to enhance the likelihood or maximize the amount of repayment by the Borrowers of the ~~Loans, Reimbursement Obligations, Letter of Credit Obligations~~ Tranche A Revolving Loans and other Obligations or to pay any other amount chargeable to the Borrowers pursuant to the terms of this Agreement, including, without limitation, costs, fees and expenses as described in Section ~~12.04~~10.04. The Agent Advances shall be repayable on demand and be secured by the ~~Collateral and shall bear interest at a rate per annum equal to the rate then applicable to Revolving Loans that are Reference Rate Loans~~Collateral. The Agent ~~making any Agent~~ Advances shall not constitute Tranche A Revolving Loans but shall otherwise constitute Obligations hereunder. The Agent shall notify ~~the other Agent,~~ each Tranche A Lender and the Administrative Borrower in writing of each ~~such~~ Agent Advance, which notice shall include a description of the purpose of such Agent Advance. Without limitation to its obligations pursuant to Section ~~10.05~~9.05, each Tranche A Lender agrees that it shall make available to the ~~Agent making any Agent Advances~~Agent, upon ~~such~~ the Agent’s demand, in ~~the currency in which the respective Agent Advance was made~~ Dollars in immediately available funds, the amount equal to such Tranche A Lender’s Pro Rata Share of ~~each~~ such Agent ~~Advance subject to the terms of, the Agreement Among Lenders, provided that any such amount advanced by a Lender shall be deemed a Loan hereunder~~Advance. If such funds are not made available to ~~such~~ the Agent by such Tranche A Lender, ~~such~~ the Agent shall be entitled to recover such funds on demand from such Tranche A Lender, together with interest ~~thereon~~ thereon, for each day from the date such payment was due until the date such amount is paid to ~~such~~ the Agent, at the Federal Funds ~~Effective~~ Rate for three Business Days and thereafter at the Reference Rate. (b) The Tranche A Lenders hereby irrevocably authorize the ~~Collateral~~ Agent, at its option and in its discretion, to release any Lien granted to or held by the ~~Collateral~~ Agent upon any Collateral upon termination of the Tranche A Total Commitment and ~~Payment~~ payment and satisfaction of all Tranche A Revolving Loans and all other Obligations which have matured and which the Agent has been notified in ~~Full of the Obligations~~writing are then due and payable; or constituting ~~property~~ Property being sold or disposed of in the ordinary course of any ~~Loan Party~~Borrower’s business ~~or otherwise~~ and in compliance with the terms of this Agreement and the other Tranche A Revolving Loan Documents; or constituting ~~property~~ Property in which the ~~Loan Parties~~ Borrowers owned no interest at the time the Lien was granted or at any time thereafter; or if approved, authorized or ratified in writing by the applicable Lenders required pursuant to Section 12.02. Upon request by the Collateral Agent at any time, the Lenders will confirm in writing the Collateral Agent’s authority to release particular types or items of Collateral pursuant to this Section 10.08(b)Tranche A Lenders. (c) Without in any manner limiting the ~~Collateral~~ Agent’s authority to act without any specific or further authorization or consent by the Tranche A Lenders (as set forth in Section ~~10.08(b~~9.08(b)), each Tranche A Lender agrees to confirm in writing, upon request by the ~~Collateral~~ Agent, the authority to release Collateral conferred upon the ~~Collateral~~ Agent under Section ~~10.08(b~~9.08(b). Upon receipt by the Agent of confirmation from the Tranche A Lenders of its authority to release any particular item or types of Collateral, and upon prior written request by any ~~Loan Party~~Borrower, the ~~Collateral~~ Agent shall (and is hereby irrevocably authorized by the Tranche A Lenders to) execute such documents as may be necessary ~~or reasonably requested by any Loan Party~~ to evidence the release of the Liens granted to the ~~Collateral~~ Agent for the benefit of the ~~Agents and the~~ Tranche A Lenders upon such Collateral; provided, however, that (i) the ~~Collateral~~ Agent shall not be required to execute any such document on terms which, in the ~~Collateral~~ Agent’s opinion, would expose the ~~Collateral~~ Agent to liability or create any obligations or entail any consequence other than the release of such Liens without recourse or warranty, and (ii) such release shall not in any manner discharge, affect or impair the Obligations or any Lien upon (or obligations of any ~~Loan Party~~ Borrower in respect of) all interests in the Collateral retained by any ~~Loan Party~~Borrower. (d) Anything contained in any of the Loan Documents to the contrary notwithstanding but subject to the Agreement Among Lenders, the Loan Parties, each Agent and each Lender hereby agree that (i) no Lender shall have any right individually to realize upon any of the Collateral under any Loan Document or to enforce any Guaranty, it being understood and agreed that all powers, rights and remedies under the Loan Documents may be exercised solely by the Collateral Agent for the benefit of the Lenders in accordance with the terms thereof, (ii) in the event of a foreclosure by the Collateral Agent on any of the Collateral pursuant to a public or private sale, the Administrative Agent, the Collateral Agent or any Lender may be the purchaser of any or all of such Collateral at any such sale and (iii) the Collateral Agent, as agent for and representative of the Agents and the Lenders (but not any other Agent or any Lender or Lenders in its or their respective individual capacities unless the Required Lenders shall otherwise agree in writing) shall be entitled (either directly or through one or more acquisition vehicles) for the purpose of bidding and making settlement or payment of the purchase price for all or any portion of the Collateral to be sold (A) at any public or private sale, (B) at any sale conducted by the Collateral Agent under the provisions of the Uniform Commercial Code (including pursuant to Sections 9-610 or 9-620 of the Uniform Commercial Code), (C) at any sale or foreclosure conducted by the Collateral Agent (whether by judicial action or otherwise) in accordance with applicable law or (D) any sale conducted pursuant to the provisions of any Debtor Relief Law (including Section 363 of the Bankruptcy Code), to use and apply all or any of the Obligations as a credit on account of the purchase price for any Collateral payable by the Collateral Agent at such sale. (e) The ~~Collateral~~ Agent shall have no obligation whatsoever to any ~~Lender~~ Tranche A Lenders to assure that the Collateral exists or is owned by the ~~Loan Parties~~ Borrowers or is cared for, protected or insured or has been encumbered or that the Lien granted to the ~~Collateral~~ Agent pursuant to this Agreement ~~or any other Loan Document~~ has been properly or sufficiently or lawfully created, perfected, protected or enforced or is entitled to any particular priority, or to exercise at all or in any particular manner or under any duty of care, disclosure or fidelity, or to continue exercising, any of the rights, authorities and powers granted or available to the ~~Collateral~~ Agent in this Section ~~10.08~~ 9.08 or in any ~~other~~ of the Tranche A Revolving Loan ~~Document~~Documents, it being understood and agreed that in respect of the Collateral, or any act, omission or event related thereto, the ~~Collateral~~ Agent may act in any manner it may deem appropriate, in its sole discretion, given the ~~Collateral~~ Agent’s own interest in the Collateral as one of the Tranche A Lenders and that the ~~Collateral~~ Agent shall have no duty or liability whatsoever to any other Tranche A Lender~~, except as otherwise provided herein~~ . The Agent may use the Verification Agent to monitor the recovery and in reimbursement of Servicing Advance Receivables and perform any other responsibilities granted to the ~~Agreement Among Lenders~~Verification Agent under the Tranche B Agreements.

Appears in 1 contract

Samples: Debt Financing Agreement (Oakwood Homes Corp)

Collateral Matters. (a) ~~Each~~ The Agent may from time to ~~time~~ time, during the occurrence and continuance of an Event of Default, make such disbursements and advances (“"Agent Advances”") which ~~such~~ the Agent, in its sole discretion, deems necessary or desirable to ~~preserve, protect, prepare for sale~~ preserve or ~~lease or dispose of~~ protect the Collateral or any portion thereof, to enhance the likelihood or maximize the amount of repayment by the ~~Borrowers~~ Issuer of the ~~Loans, Reimbursement Obligations, Letter of Credit Obligations~~ Notes and other Issuer Obligations or to pay any other amount chargeable to the ~~Borrowers~~ Issuer pursuant to the terms of this ~~Agreement~~Indenture, including, without limitation, costs, fees and expenses as described in Section ~~12.04~~10.04. The Agent Advances shall be repayable on demand and be secured by the ~~Collateral and shall bear interest at a rate per annum equal to the rate then applicable to Revolving Loans that are Reference Rate Loans~~Collateral. The Agent ~~making any Agent~~ Advances shall not constitute advances on the Notes but shall otherwise constitute Issuer Obligations hereunder. The Agent shall notify ~~the other Agent,~~ each ~~Lender~~ Noteholder and the ~~Administrative Borrower~~ Issuer in writing of each ~~such~~ Agent Advance, which notice shall include a description of the purpose of such Agent Advance. Without limitation to its obligations pursuant to Section 10.05, each ~~Lender~~ Noteholder agrees that it shall make available to the ~~Agent making any Agent Advances~~Agent, upon ~~such~~ the Agent’s 's demand, in ~~the currency in which the respective Agent Advance was made~~ U.S. dollars in immediately available funds, the amount equal to such ~~Lender’s Pro Rata Share~~ Noteholder's Percentage Interest of ~~each~~ such Agent ~~Advance subject to the terms of, the Agreement Among Lenders, provided that any such amount advanced by a Lender shall be deemed a Loan hereunder~~Advance. If such funds are not made available to ~~such~~ the Agent by such ~~Lender~~Noteholder, ~~such~~ the Agent shall be entitled to recover such funds on demand from such ~~Lender~~Noteholder, together with interest ~~thereon~~ thereon, for each day from the date such payment was due until the date such amount is paid to ~~such~~ the Agent, at the Federal Funds ~~Effective~~ Rate for three Business Days and thereafter at the Reference Rate. (b) The Lenders hereby irrevocably authorize the Collateral Agent, at its option and in its discretion, to release any Lien granted to or held by the Collateral Agent upon any Collateral upon termination of the Total Commitment and Payment in Full of the Obligations; or constituting property being sold or disposed of in the ordinary course of any Loan Party’s business or otherwise in compliance with the terms of this Agreement and the other Loan Documents; or constituting property in which the Loan Parties owned no interest at the time the Lien was granted or at any time thereafter; or if approved, authorized or ratified in writing by the applicable Lenders required pursuant to Section 12.02. Upon request by the Collateral Agent at any time, the Lenders will confirm in writing the Collateral Agent’s authority to release particular types or items of Collateral pursuant to this Section 10.08(b). (c) Without in any manner limiting the Collateral Agent’s authority to act without any specific or further authorization or consent by the Lenders (as set forth in Section 10.08(b)), each Lender agrees to confirm in writing, upon request by the Collateral Agent, the authority to release Collateral conferred upon the Collateral Agent under Section 10.08(b). Upon the prior written request by any Loan Party, the Collateral Agent shall (and is hereby irrevocably authorized by the Lenders to) execute such documents as may be necessary or reasonably requested by any Loan Party to evidence the release of the Liens granted to the Collateral Agent for the benefit of the Agents and the Lenders upon such Collateral; provided, however, that (i) the Collateral Agent shall not be required to execute any such document on terms which, in the Collateral Agent’s opinion, would expose the Collateral Agent to liability or create any obligations or entail any consequence other than the release of such Liens without recourse or warranty, and (ii) such release shall not in any manner discharge, affect or impair the Obligations or any Lien upon (or obligations of any Loan Party in respect of) all interests in the Collateral retained by any Loan Party. (d) Anything contained in any of the Loan Documents to the contrary notwithstanding but subject to the Agreement Among Lenders, the Loan Parties, each Agent and each Lender hereby agree that (i) no Lender shall have any right individually to realize upon any of the Collateral under any Loan Document or to enforce any Guaranty, it being understood and agreed that all powers, rights and remedies under the Loan Documents may be exercised solely by the Collateral Agent for the benefit of the Lenders in accordance with the terms thereof, (ii) in the event of a foreclosure by the Collateral Agent on any of the Collateral pursuant to a public or private sale, the Administrative Agent, the Collateral Agent or any Lender may be the purchaser of any or all of such Collateral at any such sale and (iii) the Collateral Agent, as agent for and representative of the Agents and the Lenders (but not any other Agent or any Lender or Lenders in its or their respective individual capacities unless the Required Lenders shall otherwise agree in writing) shall be entitled (either directly or through one or more acquisition vehicles) for the purpose of bidding and making settlement or payment of the purchase price for all or any portion of the Collateral to be sold (A) at any public or private sale, (B) at any sale conducted by the Collateral Agent under the provisions of the Uniform Commercial Code (including pursuant to Sections 9-610 or 9-620 of the Uniform Commercial Code), (C) at any sale or foreclosure conducted by the Collateral Agent (whether by judicial action or otherwise) in accordance with applicable law or (D) any sale conducted pursuant to the provisions of any Debtor Relief Law (including Section 363 of the Bankruptcy Code), to use and apply all or any of the Obligations as a credit on account of the purchase price for any Collateral payable by the Collateral Agent at such sale. (e) The Collateral Agent shall have no obligation whatsoever to any ~~Lender~~ Noteholders to assure that the Collateral exists or is owned by the ~~Loan Parties~~ Issuer or is cared for, protected or insured or has been encumbered or that the Lien granted to the ~~Collateral Agent~~ Indenture Trustee pursuant to this ~~Agreement or any other Loan Document~~ Indenture has been properly or sufficiently or lawfully created, perfected, protected or enforced or is entitled to any particular priority, or to exercise at all or in any particular manner or under any duty of care, disclosure or fidelity, or to continue exercising, any of the rights, authorities and powers granted or available to the ~~Collateral~~ Agent in this Section 10.08 or in any of the other ~~Loan Document~~Transaction Documents, it being understood and agreed that in respect of the Collateral, or any act, omission or event related thereto, the ~~Collateral~~ Agent may act in any manner it may deem appropriate, in its sole discretion, given the ~~Collateral~~ Agent’s 's own interest in the Collateral as one of the ~~Lenders~~ Noteholders and that the ~~Collateral~~ Agent shall have no duty or liability whatsoever to any other ~~Lender, except as otherwise provided herein and in the Agreement Among Lenders~~Noteholder.

Appears in 1 contract

Samples: Indenture (Oakwood Homes Corp)

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

Appears in 1 contract

Samples: Term Loan Agreement (Scottish Re Group LTD)

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

Appears in 1 contract

Samples: Financing Agreement (Loud Technologies Inc)

Collateral Matters. ~~(a) Each~~ Agent ~~may~~ may, at its option, from time to time, at any time on or after an Event of Default and for so long as the same is continuing or upon any other failure of a condition precedent to the Loans hereunder, make such disbursements and advances (“Special Agent Advances”) which ~~such~~ Agent, in its sole discretion, deems necessary or desirable either (i) to ~~preserve, protect, prepare for sale~~ preserve or ~~lease or dispose of~~ protect the Collateral or any portion ~~thereof,~~ thereof or (ii) to enhance the likelihood or maximize the amount of repayment by ~~the Borrowers~~ Borrower of the ~~Loans, Reimbursement~~ Loans and other Obligations, ~~Letter~~ provided, that, the aggregate principal amount of ~~Credit Obligations and other Obligations~~ the Special Agent Advances pursuant to this clause (ii) shall not exceed the aggregate amount equal to ten (10%) percent of the aggregate Commitments as of the Closing Date or (iii) to pay any other amount chargeable to ~~the Borrowers~~ Borrower pursuant to the terms of this ~~Agreement, including, without limitation,~~ Agreement or any of the other Financing Agreements consisting of costs, fees and ~~expenses as described in Section 12.04~~expenses. ~~The~~ Special Agent Advances shall be repayable on demand and be together with all interest thereon shall constitute Obligations secured by the ~~Collateral and~~ Collateral. Special Agent Advances shall ~~bear interest~~ not constitute Loans but shall otherwise constitute Obligations hereunder. Interest on Special Agent Advances shall be payable at ~~a rate per annum equal to~~ the ~~rate~~ Interest Rate then applicable to ~~Revolving~~ Loans ~~that are Reference Rate Loans~~and shall be payable on demand. ~~The~~ Agent ~~making any Agent Advances~~ shall notify ~~the other Agent,~~ each Lender and ~~the Administrative~~ Borrower in writing of each such Special Agent Advance, which notice shall include a description of the purpose of such Special Agent Advance. Without limitation to of its obligations pursuant to Section ~~10.05~~6.8, each Lender agrees that it shall make available to ~~the Agent making any Agent Advances~~Agent, upon ~~such~~ Agent’s demand, ~~in the currency in which the respective Agent Advance was made~~ in immediately available funds, the amount equal to such Lender’s Pro Rata Share of each such Special Agent ~~Advance subject to the terms of, the Agreement Among Lenders, provided that any such amount advanced by a Lender shall be deemed a Loan hereunder~~Advance. If such funds are not made available to ~~such~~ Agent by such Lender, then such Lender shall be deemed a Defaulting Lender and Agent shall be entitled to recover such ~~funds~~ funds, on demand from such ~~Lender,~~ Lender together with interest thereon for each day from the date such payment was due until the date such amount is paid to ~~such Agent,~~ Agent at the Federal Funds ~~Effective~~ Rate for each day during such period (as published by the Federal Reserve Bank of New York or at Agent’s option based on the arithmetic mean determined by Agent of the rates for the last transaction in overnight Federal funds arranged prior to 9:00 a.m. New York City time on that day by each of the three ~~Business Days~~ leading brokers of Federal funds transactions in New York City selected by Agent) and ~~thereafter~~ if such amounts are not paid within three (3) days of Agent’s demand, at the Reference Rate. (b) The Lenders hereby irrevocably authorize the Collateral Agent, at its option and in its discretion, to release any Lien granted to or held by the Collateral Agent upon any Collateral upon termination of the Total Commitment and Payment in Full of the Obligations; or constituting property being sold or disposed of in the ordinary course of any Loan Party’s business or otherwise in compliance with the terms of this Agreement and the other Loan Documents; or constituting property in which the Loan Parties owned no interest at the time the Lien was granted or at any time thereafter; or if approved, authorized or ratified in writing by the applicable Lenders required pursuant to Section 12.02. Upon request by the Collateral Agent at any time, the Lenders will confirm in writing the Collateral Agent’s authority to release particular types or items of Collateral pursuant to this Section 10.08(b). (c) Without in any manner limiting the Collateral Agent’s authority to act without any specific or further authorization or consent by the Lenders (as set forth highest Interest Rate provided for in Section ~~10.08(b)), each Lender agrees~~ 3.1 hereof applicable to confirm in writing, upon request by the Collateral Agent, the authority to release Collateral conferred upon the Collateral Agent under Section 10.08(b). Upon the prior written request by any Loan Party, the Collateral Agent shall (and is hereby irrevocably authorized by the Lenders to) execute such documents as may be necessary or reasonably requested by any Loan Party to evidence the release of the Liens granted to the Collateral Agent for the benefit of the Agents and the Lenders upon such Collateral; provided, however, that (i) the Collateral Agent shall not be required to execute any such document on terms which, in the Collateral Agent’s opinion, would expose the Collateral Agent to liability or create any obligations or entail any consequence other than the release of such Liens without recourse or warranty, and (ii) such release shall not in any manner discharge, affect or impair the Obligations or any Lien upon (or obligations of any Loan Party in respect of) all interests in the Collateral retained by any Loan PartyLoans. (d) Anything contained in any of the Loan Documents to the contrary notwithstanding but subject to the Agreement Among Lenders, the Loan Parties, each Agent and each Lender hereby agree that (i) no Lender shall have any right individually to realize upon any of the Collateral under any Loan Document or to enforce any Guaranty, it being understood and agreed that all powers, rights and remedies under the Loan Documents may be exercised solely by the Collateral Agent for the benefit of the Lenders in accordance with the terms thereof, (ii) in the event of a foreclosure by the Collateral Agent on any of the Collateral pursuant to a public or private sale, the Administrative Agent, the Collateral Agent or any Lender may be the purchaser of any or all of such Collateral at any such sale and (iii) the Collateral Agent, as agent for and representative of the Agents and the Lenders (but not any other Agent or any Lender or Lenders in its or their respective individual capacities unless the Required Lenders shall otherwise agree in writing) shall be entitled (either directly or through one or more acquisition vehicles) for the purpose of bidding and making settlement or payment of the purchase price for all or any portion of the Collateral to be sold (A) at any public or private sale, (B) at any sale conducted by the Collateral Agent under the provisions of the Uniform Commercial Code (including pursuant to Sections 9-610 or 9-620 of the Uniform Commercial Code), (C) at any sale or foreclosure conducted by the Collateral Agent (whether by judicial action or otherwise) in accordance with applicable law or (D) any sale conducted pursuant to the provisions of any Debtor Relief Law (including Section 363 of the Bankruptcy Code), to use and apply all or any of the Obligations as a credit on account of the purchase price for any Collateral payable by the Collateral Agent at such sale. (e) The Collateral Agent shall have no obligation whatsoever to any Lender to assure that the Collateral exists or is owned by the Loan Parties or is cared for, protected or insured or has been encumbered or that the Lien granted to the Collateral Agent pursuant to this Agreement or any other Loan Document has been properly or sufficiently or lawfully created, perfected, protected or enforced or is entitled to any particular priority, or to exercise at all or in any particular manner or under any duty of care, disclosure or fidelity, or to continue exercising, any of the rights, authorities and powers granted or available to the Collateral Agent in this Section 10.08 or in any other Loan Document, it being understood and agreed that in respect of the Collateral, or any act, omission or event related thereto, the Collateral Agent may act in any manner it may deem appropriate, in its sole discretion, given the Collateral Agent’s own interest in the Collateral as one of the Lenders and that the Collateral Agent shall have no duty or liability whatsoever to any other Lender, except as otherwise provided herein and in the Agreement Among Lenders.

Appears in 1 contract

Samples: Term Loan and Security Agreement (Trailer Bridge Inc)

Collateral Matters. (a) ~~Each~~ Agent ~~may~~ may, at its option, from time to time, at any time on or after an Event of Default and for so long as the same is continuing or upon any other failure of a condition precedent to the Loans and Letter of Credit Accommodations hereunder, make such disbursements and advances (“"Special Agent Advances”") which ~~such~~ Agent, in its sole discretion, deems necessary or desirable either (i) to ~~preserve, protect, prepare for sale~~ preserve or ~~lease or dispose of~~ protect the Collateral or any portion ~~thereof,~~ thereof or (ii) to enhance the likelihood or maximize the amount of repayment by ~~the~~ Borrowers and Guarantors of the ~~Loans, Reimbursement Obligations, Letter of Credit Obligations~~ Loans and other Obligations or (iii) to pay any other amount chargeable to ~~the Borrowers~~ any Borrower or Guarantor pursuant to the terms of this ~~Agreement, including, without limitation,~~ Agreement or any of the other Financing Agreements consisting of costs, fees and expenses ~~as described in Section 12.04~~and payments to any issuer of Letter of Credit Accommodations. ~~The~~ Special Agent Advances shall be repayable on demand and be secured by the ~~Collateral and shall bear interest at a rate per annum equal to the rate then applicable to Revolving Loans that are Reference Rate Loans~~Collateral. ~~The Agent making any~~ Special Agent Advances shall not constitute Loans but shall otherwise constitute Obligations hereunder. Agent shall notify ~~the other Agent,~~ each Lender and ~~the Administrative Borrower~~ Parent in writing of each such Special Agent Advance, which notice shall include a description of the purpose of such Special Agent Advance. Without limitation to of its obligations pursuant to Section ~~10.05~~6.9, each Lender agrees that it shall make available to ~~the Agent making any Agent Advances~~Agent, upon ~~such~~ Agent’s 's demand, ~~in the currency in which the respective Agent Advance was made~~ in immediately available funds, the amount equal to such Lender’s 's Pro Rata Share of each such Special Agent ~~Advance subject to the terms of, the Agreement Among Lenders, provided that any such amount advanced by a Lender shall be deemed a Loan hereunder~~Advance. If such funds are not made available to ~~such~~ Agent by such Lender, ~~such~~ Agent shall be entitled to recover such ~~funds~~ funds, on demand from such ~~Lender,~~ Lender together with interest thereon for each day from the date such payment was due until the date such amount is paid to ~~such Agent,~~ Agent at the Federal Funds ~~Effective~~ Rate for each day during such period (as published by the Federal Reserve Bank of New York or at Agent's option based on the arithmetic mean determined by Agent of the rates for the last transaction in overnight Federal funds arranged prior to 9:00 a.m. (New York City time) on that day by each of the three ~~Business Days~~ leading brokers of Federal funds transactions in New York City selected by Agent) and ~~thereafter~~ if such amounts are not paid within three (3) days of Agent's demand, at the ~~Reference Rate~~highest Interest Rate provided for in Section 3.1 hereof applicable to Prime Rate Loans. (b) ~~The~~ Lenders hereby irrevocably authorize ~~the Collateral~~ Agent, at its option and in its ~~discretion,~~ discretion to release any ~~Lien granted to~~ security interest in, mortgage or ~~held by~~ lien upon, any of the Collateral ~~Agent upon any Collateral~~ (i) upon termination of the ~~Total Commitment~~ Commitments and ~~Payment in Full~~ payment and satisfaction of all of the ~~Obligations;~~ Obligations and delivery of cash collateral to the extent required under Section 13.1 below, or (ii) constituting property being sold or disposed ~~of in~~ of, if Parent or any Borrower certifies to Agent that the ~~ordinary course of any Loan Party’s business~~ sale or ~~otherwise~~ disposition is made in compliance with ~~the terms of this Agreement~~ Section 9.7 hereof (and ~~the other Loan Documents;~~ Agent may rely conclusively on any such certificate, without further inquiry), or (iii) constituting property in which ~~the Loan Parties owned no~~ any Borrower or Guarantor did not own an interest at the time the ~~Lien~~ security interest, mortgage or lien was granted or at any time thereafter; , or (iv) having a value in the aggregate in any twelve (12) month period of less than $5,000,000 or (v) if approved, authorized or ratified in writing by all of Lenders. Except as provided above, Agent will not release any security interest in, mortgage or lien upon, any of the ~~applicable~~ Collateral without the prior written authorization of all of Lenders ~~required pursuant~~ (and any Lender may require that the proceeds from any sale or other disposition of the Collateral to ~~Section 12.02~~be so released be applied to the Obligations in a manner satisfactory to such Lender). Upon request by ~~the Collateral~~ Agent at any time, ~~the~~ Lenders will promptly confirm in writing ~~the Collateral~~ Agent’s 's authority to release particular types or items of Collateral pursuant to this ~~Section 10.08(b)~~Section. (c) Without in any manner limiting ~~the Collateral~~ Agent’s 's authority to act without any specific or further authorization or consent by the ~~Lenders (as set forth in Section 10.08(b))~~Required Lenders, each Lender agrees to confirm in writing, upon request by ~~the Collateral~~ Agent, the authority to release Collateral conferred upon ~~the Collateral~~ Agent under ~~Section 10.08(b)~~this Section. ~~Upon the prior written request by any Loan Party, the Collateral~~ Agent shall (and is hereby irrevocably authorized by ~~the~~ Lenders to) execute such documents as may be necessary ~~or reasonably requested by any Loan Party~~ to evidence the release of the ~~Liens~~ security interest, mortgage or liens granted to Agent upon any Collateral to the ~~Collateral Agent for the benefit of the Agents and the Lenders upon such Collateral~~extent set forth above; provided, ~~however~~that, ~~that~~ (i) ~~the Collateral~~ Agent shall not be required to execute any such document on terms which, in ~~the Collateral~~ Agent’s 's opinion, would expose ~~the Collateral~~ Agent to liability or create any obligations or entail any consequence other than the release of such ~~Liens~~ security interest, mortgage or liens without recourse or ~~warranty,~~ warranty and (ii) such release shall not in any manner discharge, affect or impair the Obligations or any ~~Lien~~ security interest, mortgage or lien upon (or obligations of any ~~Loan Party~~ Borrower or Guarantor in respect of) ~~all interests in~~ the Collateral retained by ~~any Loan Party~~such Borrower or Guarantor. (d) Anything contained in any of the Loan Documents to the contrary notwithstanding but subject to the Agreement Among Lenders, the Loan Parties, each Agent and each Lender hereby agree that (i) no Lender shall have any right individually to realize upon any of the Collateral under any Loan Document or to enforce any Guaranty, it being understood and agreed that all powers, rights and remedies under the Loan Documents may be exercised solely by the Collateral Agent for the benefit of the Lenders in accordance with the terms thereof, (ii) in the event of a foreclosure by the Collateral Agent on any of the Collateral pursuant to a public or private sale, the Administrative Agent, the Collateral Agent or any Lender may be the purchaser of any or all of such Collateral at any such sale and (iii) the Collateral Agent, as agent for and representative of the Agents and the Lenders (but not any other Agent or any Lender or Lenders in its or their respective individual capacities unless the Required Lenders shall otherwise agree in writing) shall be entitled (either directly or through one or more acquisition vehicles) for the purpose of bidding and making settlement or payment of the purchase price for all or any portion of the Collateral to be sold (A) at any public or private sale, (B) at any sale conducted by the Collateral Agent under the provisions of the Uniform Commercial Code (including pursuant to Sections 9-610 or 9-620 of the Uniform Commercial Code), (C) at any sale or foreclosure conducted by the Collateral Agent (whether by judicial action or otherwise) in accordance with applicable law or (D) any sale conducted pursuant to the provisions of any Debtor Relief Law (including Section 363 of the Bankruptcy Code), to use and apply all or any of the Obligations as a credit on account of the purchase price for any Collateral payable by the Collateral Agent at such sale. (e) The Collateral Agent shall have no obligation whatsoever to any Lender or any other Person to investigate, confirm or assure that the Collateral exists or is owned by ~~the Loan Parties~~ such Borrower or Guarantor or is cared for, protected or insured or has been ~~encumbered~~ encumbered, or that any particular items of Collateral meet the eligibility criteria applicable in respect of the Loans or Letter of Credit Accommodations hereunder, or whether any particular reserves are appropriate, or that the ~~Lien~~ liens and security interests granted to ~~the Collateral~~ Agent pursuant ~~to this Agreement~~ hereto or any ~~other Loan Document has~~ of the Financing Agreements or otherwise have been properly or sufficiently or lawfully created, perfected, protected or enforced or is are entitled to any particular priority, or to exercise at all or in any particular manner or under any duty of care, disclosure or fidelity, or to continue exercising, any of the rights, authorities and powers granted or available to ~~the Collateral~~ Agent in this ~~Section 10.08~~ Agreement or in any of the other ~~Loan Document~~Financing Agreements, it being understood and agreed that in respect of the Collateral, or any act, omission or event related thereto, ~~the Collateral~~ Agent may act in any manner it may deem appropriate, in its ~~sole~~ discretion, given ~~the Collateral~~ Agent’s 's own interest in the Collateral as ~~one of the Lenders~~ a Lender and that ~~the Collateral~~ Agent shall have no duty or liability whatsoever to any other Lender~~, except as otherwise provided herein and in the Agreement Among Lenders~~.

Appears in 1 contract

Samples: Loan and Security Agreement (Allou Health & Beauty Care Inc)

Collateral Matters. (a) ~~Each~~ The Collateral Agent may from time to time make such disbursements and advances (“Collateral Agent Advances”) which ~~such~~ the Collateral Agent, in its sole discretion, deems necessary or desirable to preserve, protect, prepare for sale or lease or dispose of the Collateral or any portion thereof, to enhance the likelihood or maximize the amount of repayment by the ~~Borrowers~~ Borrower of the Loans, ~~Reimbursement Obligations~~contingent reimbursement obligations with respect to outstanding Letters of Credit, ~~Letter of Credit Obligations~~ and other Obligations or to pay any other amount chargeable to the ~~Borrowers~~ Borrower pursuant to the terms of this Agreement, including, without limitation, costs, fees and expenses as described in Section ~~12.04~~10.5. The Collateral Agent Advances shall be repayable on demand and be secured by the ~~Collateral and shall bear interest at a rate per annum equal to the rate then applicable to Revolving Loans that are Reference Rate Loans~~Collateral. The ~~Agent making any~~ Collateral Agent Advances shall constitute Obligations hereunder which may be charged to the Loan Account. The Collateral Agent shall notify ~~the other Agent,~~ each Lender and the ~~Administrative~~ Borrower in writing of each such Collateral Agent Advance, which notice shall include a description of the purpose of such Collateral Agent Advance. Without limitation to its obligations pursuant to Section ~~10.05~~9.7, each Lender agrees that it shall make available to the ~~Agent making any Agent Advances~~Collateral Agent, upon ~~such~~ the Collateral Agent’s demand, in ~~the currency in which the respective Agent Advance was made~~ Dollars in immediately available funds, the amount equal to such Lender’s Pro Rata Share of each such Collateral Agent ~~Advance subject to the terms of, the Agreement Among Lenders, provided that any such amount advanced by a Lender shall be deemed a Loan hereunder~~Advance. If such funds are not made available to ~~such~~ the Collateral Agent by such Lender, ~~such~~ the Collateral Agent shall be entitled to recover such funds on demand from such Lender, together with interest thereon for each day from the date such payment was due until the date such amount is paid to ~~such~~ the Collateral Agent, at the Federal Funds Effective Rate for three Business Days and thereafter at the ~~Reference Rate~~rate in effect for Term Loans that are Base Rate Loans. (b) The Lenders hereby irrevocably authorize the Collateral Agent, at its option and in its ~~discretion~~sole discretion (without notice to, or vote or consent of any other Agent, any Lender or any affiliate of any Lender that is a party to any Bank Product Agreement), to release any Lien ~~granted to or held by the Collateral Agent upon~~ on any Collateral and to release any guarantee obligations of any Person (i) upon the termination of the ~~Total Commitment~~ Commitments and ~~Payment~~ payment and satisfaction in ~~Full~~ full by Borrower of ~~the~~ all Obligations~~; or~~ , (ii) constituting property being sold or disposed of if a release is required or desirable in connection therewith and if the ~~ordinary course of any Loan Party’s business~~ Borrower certifies to the Collateral Agent that the sale or ~~otherwise in compliance with the terms of~~ disposition is permitted under this Agreement ~~and~~ or the other Loan ~~Documents;~~ Documents and that the proceeds thereof will be applied as required under this Agreement (and the Collateral Agent may rely conclusively on any such certificate, without further inquiry), or (iii) constituting property ~~in which the Loan Parties owned no interest at the time the Lien was granted~~ not then or at any time ~~thereafter;~~ previously owned by a Loan Party or ~~if approved, authorized~~ leased by a Loan Party under a lease that has expired or ~~ratified~~ is terminated in ~~writing by the applicable Lenders required pursuant to Section 12.02~~a transaction permitted under this Agreement. Upon request by the Collateral Agent at any time, the Lenders will confirm in writing the Collateral Agent’s authority to release particular types or items of Collateral pursuant to this Section ~~10.08(b~~9.12(b). (c) Without in any manner limiting the Collateral Agent’s authority to act without any specific or further authorization or consent by the Lenders (as set forth in Section ~~10.08(b~~9.12(b)), each Lender agrees to confirm in writing, upon request by the Collateral Agent, the authority to release Collateral conferred upon the Collateral Agent under Section ~~10.08(b~~9.12(b). ~~Upon~~ If so requested, upon receipt by the Collateral Agent of confirmation from the Lenders of its authority to release any particular item or types of Collateral, and upon prior written request by any Loan Party, the Collateral Agent shall (and is hereby irrevocably authorized by the Lenders to) execute such documents as may be necessary ~~or reasonably requested by any Loan Party~~ to evidence the release of the Liens granted to the Collateral Agent for the benefit of ~~the Agents and~~ the Lenders upon such Collateral; provided, however, that (i) the Collateral Agent shall not be required to execute any such document on terms which, in the Collateral Agent’s opinion, would expose the Collateral Agent to liability or create any obligations or entail any consequence other than the release of such Liens without recourse or warranty, and (ii) such release shall not in any manner discharge, affect or impair the Obligations or any Lien upon (or obligations of any Loan Party in respect of) all interests in the Collateral retained by any Loan Party. (d) ~~Anything contained in any of the Loan Documents~~ Notwithstanding anything to the contrary ~~notwithstanding but subject to the Agreement Among Lenders, the~~ contained herein or any other Loan ~~Parties, each Agent and each Lender hereby agree that~~ Document (i) when all Obligations (other than obligations in respect of any Bank Product Agreement) have been paid in full, all Commitments have terminated or expired and no ~~Lender~~ Letter of Credit shall ~~have~~ be outstanding (other than any ~~right individually to realize upon any~~ Letter of ~~the Collateral under any Loan Document or to enforce any Guaranty, it being understood and agreed~~ Credit that ~~all powers, rights and remedies under the Loan Documents may be exercised solely by the Collateral Agent for the benefit of the Lenders~~ has been cash collateralized in accordance with the terms ~~thereof~~of this Agreement), ~~(ii) in the event of a foreclosure by the Collateral Agent on any~~ upon request of the ~~Collateral pursuant to a public or private sale, the Administrative Agent~~Borrower, the Collateral Agent shall (without notice to, or vote or consent of, any Lender, or any affiliate of any Lender that is a party to any Bank Product Agreements) 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, whether or not on the date of such release there may be ~~the purchaser~~ outstanding Obligations in respect of Bank Product Agreements, and (ii) if any Loan Party Disposes of any Collateral in a transaction not prohibited by this Agreement or the other Loan Documents, upon request of the Borrower, the Collateral Agent shall (without notice to, or vote or consent of, any Lender, or any affiliate of any Lender that is a party to any Bank Product Agreements) take such actions as shall be required to release its security interest in the Collateral being Disposed of (including all proceeds thereof other than Net Cash Proceeds required to be applied to prepay the Obligations pursuant to Section 2.13) and release any guarantee obligations of ~~such Collateral at~~ any Person being Disposed of to the extent that any such ~~sale and (iii)~~ Disposition of Collateral results in the Disposition of a Guarantor, in each case if the Borrower certifies to the Collateral ~~Agent,~~ Agent that the Disposition is permitted under this Agreement or the other Loan Documents and that the Net Cash Proceeds thereof will be applied as ~~agent for and representative of the Agents~~ required under this Agreement (and the ~~Lenders (but not~~ Collateral Agent may rely conclusively on any ~~other Agent or any Lender or Lenders in its or their respective individual capacities unless the Required Lenders shall otherwise agree in writing)~~ such certificate, without further inquiry). Any such release of guarantee obligations shall be ~~entitled (either directly or through one or more acquisition vehicles) for~~ deemed subject to the ~~purpose of bidding and making settlement or payment of the purchase price for all or~~ provision that such guarantee obligations shall be reinstated if after such release any portion of ~~the Collateral to be sold (A) at~~ any public or private sale, (B) at any sale conducted by the Collateral Agent under the provisions of the Uniform Commercial Code (including pursuant to Sections 9-610 or 9-620 of the Uniform Commercial Code), (C) at any sale or foreclosure conducted by the Collateral Agent (whether by judicial action or otherwise) payment in ~~accordance with applicable law or (D) any sale conducted pursuant to the provisions of any Debtor Relief Law (including Section 363 of the Bankruptcy Code), to use and apply all or any~~ 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 the Borrower or any Guarantor, or upon or as a ~~credit on account~~ result of the ~~purchase price for~~ appointment of a receiver, intervenor or conservator of, or trustee or similar officer for, the Borrower or any ~~Collateral payable by the Collateral Agent at~~ Guarantor or any substantial part of its property, or otherwise, all as though such ~~sale~~payment had not been made. (e) The Collateral Agent shall have no obligation whatsoever to any Lender to assure that the Collateral exists or is owned by the Loan Parties or is cared for, protected or insured or has been encumbered or that the Lien granted to the Collateral Agent pursuant to this Agreement or any other Loan Document has been properly or sufficiently or lawfully created, perfected, protected or enforced or is entitled to any particular priority, or to exercise at all or in any particular manner or under any duty of care, disclosure or fidelity, or to continue exercising, any of the rights, authorities and powers granted or available to the Collateral Agent in this Section ~~10.08~~ 9.12 or in any other Loan Document, it being understood and agreed that in respect of the Collateral, or any act, omission or event related thereto, the Collateral Agent may act in any manner it may deem appropriate, in its sole discretion, given the Collateral Agent’s own interest in the Collateral as one of the Lenders and that the Collateral Agent shall have no duty or liability whatsoever to any other Lender, except as otherwise provided ~~herein and in the Agreement Among Lenders~~herein.

Appears in 1 contract

Samples: Debt and Security Agreement (Pope & Talbot Inc /De/)

Collateral Matters. (a) ~~Each~~ The Agent may from time to ~~time~~ time, during the occurrence and continuance of an Event of Default, make such disbursements and advances (“"Agent Advances”") which ~~such~~ the Agent, in its sole discretion, deems necessary or desirable to ~~preserve, protect, prepare for sale~~ preserve or ~~lease or dispose of~~ protect the Collateral or any portion thereof, to enhance the likelihood or maximize the amount of repayment by the ~~Borrowers~~ Borrower of the ~~Loans, Reimbursement Obligations, Letter of Credit Obligations~~ Loans and other Obligations or to pay any other amount chargeable to the ~~Borrowers~~ Borrower pursuant to the terms of this Agreement, including, without limitation, costs, fees and expenses as described in Section ~~12.04~~11.06. The Agent Advances shall be repayable on demand and be secured by the ~~Collateral and shall bear interest at a rate per annum equal to the rate then applicable to Revolving Loans that are Reference Rate Loans~~Collateral. The Agent ~~making any Agent~~ Advances shall not constitute Loans but shall otherwise constitute Obligations hereunder. The Agent shall notify ~~the other Agent,~~ each Lender and the ~~Administrative~~ Borrower in writing of each such Agent Advance, which notice shall include a description of the purpose of such Agent Advance. Without limitation to its obligations pursuant to Section ~~10.05~~11.05, each Lender agrees that it shall make available to the ~~Agent making any Agent Advances~~Agent, upon ~~such Agent’s~~ the Agents' demand, in ~~the currency in which the respective Agent Advance was made~~ Dollars in immediately available funds, the amount equal to such Lender’s 's Pro Rata Share of each such Agent ~~Advance subject to the terms of, the Agreement Among Lenders, provided that any such amount advanced by a Lender shall be deemed a Loan hereunder~~Advance. If such funds are not made available to ~~such~~ the Agent by such ~~Lender, such~~ Lender the Agent shall be entitled to recover such ~~funds~~ funds, on demand from such ~~Lender,~~ Lender together with interest ~~thereon~~ thereon, for each day from the date such payment was due until the date such amount is paid to ~~such~~ the Agent, at the ~~Federal Funds Effective Rate~~ customary rate set by the Agent for the correction of errors among banks for three Business Days and thereafter at the ~~Reference~~ Regular Rate. (b) The Lenders hereby irrevocably authorize the ~~Collateral~~ Agent, at its option and in its discretion, to release any Lien granted to or held by the ~~Collateral~~ Agent upon any Collateral upon termination of the ~~Total Commitment~~ Revolving Credit Commitments and ~~Payment~~ payment and satisfaction of all Loans, Reimbursement Obligations, other Letter of Credit Exposure (whether or not due) and all other Obligations which have matured and which the Agent has been notified in ~~Full of the Obligations~~writing are then due and payable; or constituting property being sold or disposed of in if the ~~ordinary course of any Loan Party’s business~~ Borrower certifies to the Agent that the sale or ~~otherwise~~ disposition is made in compliance with ~~the terms of this Agreement~~ Section 8.04(b) hereof (and the ~~other Loan Documents~~Agent may rely conclusively on any such certificate, without further inquiry); or, in the case of the Mortgaged Properties, the Borrower grants to the Agent for the benefit of the Lenders a perfected Lien on a substitute Lease reasonably acceptable to the Agent; or constituting property in which the ~~Loan Parties~~ Borrower owned no interest at the time the Lien was granted or at any time thereafter; or if approved, authorized or ratified in writing by the ~~applicable Lenders required pursuant to Section 12.02~~Majority Lenders. Upon request by the ~~Collateral~~ Agent at any time, the Lenders will confirm in writing the ~~Collateral~~ Agent’s 's authority to release particular types or items of Collateral pursuant to this Section ~~10.08(b~~11.08(b). (c) Without in any manner limiting the ~~Collateral~~ Agent’s 's authority to act without any specific or further authorization or consent by the Majority Lenders (as set forth in Section ~~10.08(b~~11.08(b)), each Lender agrees to confirm in writing, upon request by the ~~Collateral~~ Agent, the authority to release Collateral conferred upon the ~~Collateral~~ Agent under Section ~~10.08(b~~11.08(b). ~~Upon~~ So long as no Event of Default is then continuing, upon receipt by the Agent of confirmation from the Majority Lenders of its authority to release any particular item or types of Collateral, and upon at least five (5) Business Days' prior written request by ~~any Loan Party~~the Borrower, the ~~Collateral~~ Agent shall (and is hereby irrevocably authorized by the Lenders to) execute such documents as may be necessary ~~or reasonably requested by any Loan Party~~ to evidence the release of the Liens granted to the ~~Collateral~~ Agent for the benefit of ~~the Agents and~~ the Lenders upon such Collateral; provided, however, that (i) the ~~Collateral~~ Agent shall not be required to execute any such document on terms which, in the ~~Collateral~~ Agent’s 's opinion, would expose the ~~Collateral~~ Agent to liability or create any obligations or entail any consequence other than the release of such Liens without recourse or warranty, and (ii) such release shall not in any manner discharge, affect or impair the Obligations or any Lien upon (or obligations of ~~any Loan Party~~ the Borrower in respect of) all interests in the Collateral retained by ~~any Loan Party~~the Borrower. (d) Anything contained in any of the Loan Documents to the contrary notwithstanding but subject to the Agreement Among Lenders, the Loan Parties, each Agent and each Lender hereby agree that (i) no Lender shall have any right individually to realize upon any of the Collateral under any Loan Document or to enforce any Guaranty, it being understood and agreed that all powers, rights and remedies under the Loan Documents may be exercised solely by the Collateral Agent for the benefit of the Lenders in accordance with the terms thereof, (ii) in the event of a foreclosure by the Collateral Agent on any of the Collateral pursuant to a public or private sale, the Administrative Agent, the Collateral Agent or any Lender may be the purchaser of any or all of such Collateral at any such sale and (iii) the Collateral Agent, as agent for and representative of the Agents and the Lenders (but not any other Agent or any Lender or Lenders in its or their respective individual capacities unless the Required Lenders shall otherwise agree in writing) shall be entitled (either directly or through one or more acquisition vehicles) for the purpose of bidding and making settlement or payment of the purchase price for all or any portion of the Collateral to be sold (A) at any public or private sale, (B) at any sale conducted by the Collateral Agent under the provisions of the Uniform Commercial Code (including pursuant to Sections 9-610 or 9-620 of the Uniform Commercial Code), (C) at any sale or foreclosure conducted by the Collateral Agent (whether by judicial action or otherwise) in accordance with applicable law or (D) any sale conducted pursuant to the provisions of any Debtor Relief Law (including Section 363 of the Bankruptcy Code), to use and apply all or any of the Obligations as a credit on account of the purchase price for any Collateral payable by the Collateral Agent at such sale. (e) The ~~Collateral~~ Agent shall have no obligation whatsoever to any ~~Lender~~ Lenders to assure that the Collateral exists or is owned by the ~~Loan Parties~~ Borrower or is cared for, protected or insured or has been encumbered or that the Lien granted to the ~~Collateral~~ Agent pursuant to ~~this Agreement or any other Loan Document~~ the Security Documents has been properly or sufficiently or lawfully created, ~~perfected, protected~~ perfected or enforced or is entitled to any particular priority, or to exercise at all or in any particular manner or under any duty of care, disclosure or fidelity, or to continue exercising, any of the rights, authorities and powers granted or available to the ~~Collateral~~ Agent in this Section ~~10.08~~ 11.08 or in any ~~other Loan Document~~of the Related Documents, it being understood and agreed that in respect of the Collateral, or any act, omission or event related thereto, the ~~Collateral~~ Agent may act in any manner it may deem appropriate, in its sole discretion, given the ~~Collateral~~ Agent’s 's own interest in the Collateral as one of the Lenders and that the ~~Collateral~~ Agent shall have no duty or liability whatsoever to any other Lender~~, except as otherwise provided herein and in the Agreement Among Lenders~~.

Appears in 1 contract

Samples: Revolving Credit Agreement (Weiners Stores Inc)

Appears in 1 contract

Samples: Financing Agreement (OptimizeRx Corp)

Appears in 1 contract

Samples: Credit Agreement (Bally Total Fitness Holding Corp)

Collateral Matters. (a) ~~Each~~ Any Agent may from time to time make such disbursements and advances (“Agent Advances”) which such Agent, in its sole discretion, deems necessary or desirable to preserve, protect, prepare for sale or lease or dispose of the Collateral or any portion thereof, to enhance the likelihood or maximize the amount of repayment by the Borrowers of the Loans, Reimbursement Obligations, Letter of Credit Obligations and other Obligations or to pay any other amount chargeable to the Borrowers pursuant to the terms of this Agreement, including, without limitation, costs, fees and expenses as described in Section 12.04. The Agent Advances shall be repayable on demand and be secured by the Collateral and shall bear interest at a rate per annum equal to the rate then applicable to ~~Revolving~~ Loans that are Reference Rate Loans. The Agent Advances shall constitute Obligations hereunder which may be charged to the Loan Account in accordance with Section 4.01. The Agent making ~~any~~ the Agent ~~Advances~~ Advance shall notify the other ~~Agent,~~ Agent and each Lender and the Administrative Borrower in writing of each such Agent Advance, which notice shall include a description of the purpose of such Agent Advance. Without limitation to its obligations pursuant to Section 10.05, each Lender agrees that it shall make available to the Agent making ~~any~~ the Agent ~~Advances~~Advance, upon such Agent’s demand, in ~~the currency in which the respective Agent Advance was made~~ Dollars in immediately available funds, the amount equal to such Lender’s Pro Rata Share of each such Agent ~~Advance subject to the terms of, the Agreement Among Lenders, provided that any such amount advanced by a Lender shall be deemed a Loan hereunder~~Advance. If such funds are not made available to the Agent making such Agent Advance by such Lender, such Agent shall be entitled to recover such funds on demand from such Lender, together with interest thereon for each day from the date such payment was due until the date such amount is paid to such Agent, at the Federal Funds Effective Rate for three Business Days and thereafter at the Reference Rate. (b) The Lenders hereby irrevocably authorize the Collateral Agent, at its option and in its discretion, to release any Lien granted to or held by the Collateral Agent upon any Collateral upon termination of the Total Commitment and ~~Payment~~ payment and satisfaction of all Loans, Reimbursement Obligations, Letter of Credit Obligations, and all other Obligations (other than Contingent Indemnification Obligations) in ~~Full of~~ accordance with the ~~Obligations~~terms hereof; or constituting property being sold or disposed of in the ordinary course of any Loan Party’s business or otherwise in compliance with the terms of this Agreement and the other Loan Documents; or constituting property in which the Loan Parties owned no interest at the time the Lien was granted or at any time thereafter; or if approved, authorized or ratified in writing by the ~~applicable~~ Lenders ~~required pursuant to~~ in accordance with Section 12.02. Upon request by the Collateral Agent at any time, the Lenders will confirm in writing the Collateral Agent’s authority to release particular types or items of Collateral pursuant 131 to this Section 10.08(b). (c) Without in any manner limiting the Collateral Agent’s authority to act without any specific or further authorization or consent by the Lenders (as set forth in Section 10.08(b)), each Lender agrees to confirm in writing, upon request by the Collateral Agent, the authority to release Collateral conferred upon the Collateral Agent under Section 10.08(b). Upon receipt by the Collateral Agent of confirmation from the Lenders of its authority to release any particular item or types of Collateral, and upon prior written request by any Loan Party, the Collateral Agent shall (and is hereby irrevocably authorized by the Lenders to) execute such documents as may be necessary ~~or reasonably requested by any Loan Party~~ to evidence the release of the Liens granted to the Collateral Agent for the benefit of the Agents and the Lenders upon such Collateral; provided, however, that (i) the Collateral Agent shall not be required to execute any such document on terms which, in the Collateral Agent’s opinion, would expose the Collateral Agent to liability or create any obligations or entail any consequence other than the release of such Liens without recourse or warranty, and (ii) such release shall not in any manner discharge, affect or impair the Obligations or any Lien upon (or obligations of any Loan Party in respect of) all interests in the Collateral retained by any Loan Party. (d) Anything contained in any of the Loan Documents to the contrary notwithstanding but subject to the Agreement Among Lenders, the Loan Parties, each Agent and each Lender hereby agree that (i) no Lender shall have any right individually to realize upon any of the Collateral under any Loan Document or to enforce any Guaranty, it being understood and agreed that all powers, rights and remedies under the Loan Documents may be exercised solely by the Collateral Agent for the benefit of the Lenders in accordance with the terms thereof, (ii) in the event of a foreclosure by the Collateral Agent on any of the Collateral pursuant to a public or private sale, the Administrative Agent, the Collateral Agent or any Lender may be the purchaser of any or all of such Collateral at any such sale and (iii) the Collateral Agent, as agent for and representative of the Agents and the Lenders (but not any other Agent or any Lender or Lenders in its or their respective individual capacities unless the Required Lenders shall otherwise agree in writing) shall be entitled (either directly or through one or more acquisition vehicles) for the purpose of bidding and making settlement or payment of the purchase price for all or any portion of the Collateral to be sold (A) at any public or private sale, (B) at any sale conducted by the Collateral Agent under the provisions of the Uniform Commercial Code (including pursuant to Sections 9-610 or 9-620 of the Uniform Commercial Code), (C) at any sale or foreclosure conducted by the Collateral Agent (whether by judicial action or otherwise) in accordance with applicable law or (D) any sale conducted pursuant to the provisions of any Debtor Relief Law (including Section 363 of the Bankruptcy Code), to use and apply all or any of the Obligations as a credit on account of the purchase price for any Collateral payable by the Collateral Agent at such sale. (e) The Collateral Agent shall have no obligation whatsoever to any Lender to assure that the Collateral exists or is owned by the Loan Parties or is cared for, protected or insured or has been encumbered or that the Lien granted to the Collateral Agent pursuant to this Agreement or any other Loan Document has been properly or sufficiently or lawfully created, perfected, protected or enforced or is entitled to any particular priority, or to exercise at all or in any particular manner or under any duty of care, disclosure or fidelity, or to continue exercising, any of the rights, authorities and powers granted or available to the Collateral Agent in this Section 10.08 or in any other Loan Document, it being understood and agreed that in respect of the Collateral, or any act, omission or event related thereto, the Collateral Agent may act in any manner it may deem appropriate, in its sole discretion, given the Collateral Agent’s own interest in the Collateral as one of the Lenders and that the Collateral Agent shall have no duty or liability whatsoever to any other Lender, except as otherwise provided herein and in the Agreement Among Lenders.and

Appears in 1 contract

Samples: Financing Agreement (Alj Regional Holdings Inc)

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

Appears in 1 contract

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

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

Appears in 1 contract

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

Collateral Matters. (a) ~~Each~~ Agent ~~may~~ may, at its option, from time to time, at any time on or after an Event of Default and for so long as the same is continuing or upon any other failure of a condition precedent to the Loans, Letter of Credit Accommodations and B/A Accommodations hereunder, make such disbursements and advances (“"Special Agent Advances”") which ~~such~~ Agent, in its sole discretion, deems necessary or desirable either (i) to ~~preserve, protect, prepare for sale~~ preserve or ~~lease or dispose of~~ protect the Collateral or any portion ~~thereof,~~ thereof or (ii) to enhance the likelihood or maximize the amount of repayment by ~~the Borrowers~~ Borrower or any Obligor of the ~~Loans, Reimbursement Obligations, Letter of Credit Obligations~~ Loans and other Obligations or (iii) to pay any other amount chargeable to ~~the Borrowers~~ Borrower or Obligor pursuant to the terms of this ~~Agreement, including, without limitation,~~ Agreement or any of the other Financing Agreements consisting of costs, fees and expenses ~~as described in Section 12.04~~and payments to any issuer of Letter of Credit Accommodations or B/A Accommodations. ~~The~~ Special Agent Advances shall be repayable on demand and be secured by the ~~Collateral and shall bear interest at a rate per annum equal to the rate then applicable to Revolving Loans that are Reference Rate Loans~~Collateral. ~~The Agent making any~~ Special Agent Advances shall not constitute Loans but shall otherwise constitute Obligations hereunder. Agent shall notify ~~the other Agent,~~ each Lender and ~~the Administrative~~ Borrower in writing of each such Special Agent Advance, which notice shall include a description of the purpose of such Special Agent Advance. Without limitation to of its obligations pursuant to Section ~~10.05~~6.9, each Lender agrees that it shall make available to ~~the Agent making any Agent Advances~~Agent, upon ~~such~~ Agent’s 's demand, ~~in the currency in which the respective Agent Advance was made~~ in immediately available funds, the amount equal to such Lender’s 's Pro Rata Share of each such Special Agent ~~Advance subject to the terms of, the Agreement Among Lenders, provided that any such amount advanced by a Lender shall be deemed a Loan hereunder~~Advance. If such funds are not made available to ~~such~~ Agent by such Lender, ~~such~~ Agent shall be entitled to recover such ~~funds~~ funds, on demand from such ~~Lender,~~ Lender together with interest thereon for each day from the date such payment was due until the date such amount is paid to ~~such Agent,~~ Agent at the Federal Funds ~~Effective~~ Rate for each day during such period (as published by the Federal Reserve Bank of New York or at Agent's option based on the arithmetic mean determined by Agent of the rates for the last transaction in overnight Federal funds arranged prior to 9:00 a.m. (New York City time) on that day by each of the three ~~Business Days~~ leading brokers of Federal funds transactions in New York City selected by Agent) and ~~thereafter~~ if such amounts are not paid within three (3) days of Agent's demand, at the ~~Reference Rate~~highest Interest Rate provided for in Section 3.1 hereof applicable to Prime Rate Loans. (b) ~~The~~ Lenders hereby irrevocably authorize ~~the Collateral~~ Agent, at its option and in its ~~discretion,~~ discretion to release any ~~Lien granted to~~ security interest in, mortgage or ~~held by~~ lien upon, any of the Collateral ~~Agent upon any Collateral~~ (i) upon termination of the ~~Total Commitment~~ Commitments and ~~Payment in Full~~ payment and satisfaction of all of the ~~Obligations;~~ Obligations and delivery of cash collateral to the extent required under Section 13.1 below, or (ii) constituting property being sold or disposed of in if Borrower certifies to Agent that the ~~ordinary course of any Loan Party’s business~~ sale or ~~otherwise~~ disposition is made in compliance with ~~the terms of this Agreement~~ Section 9.7 hereof (and ~~the other Loan Documents;~~ Agent may rely conclusively on any such certificate, without further inquiry), or (iii) constituting property in which ~~the Loan Parties owned no~~ Borrower or any Obligor did not own an interest at the time the ~~Lien~~ security interest, mortgage or lien was granted or at any time thereafter; , or (iv) having a value in the aggregate in any twelve (12) month period of less than $5,000,000 or (v) if approved, authorized or ratified in writing by all of Lenders. Except as provided above, Agent will not release any security interest in, mortgage or lien upon, any of the ~~applicable Lenders required pursuant to Section 12.02~~Collateral without the prior written authorization of all of Lenders. Upon request by ~~the Collateral~~ Agent at any time, ~~the~~ Lenders will promptly confirm in writing ~~the Collateral~~ Agent’s 's authority to release particular types or items of Collateral pursuant to this ~~Section 10.08(b)~~Section. (c) Without in any manner limiting ~~the Collateral~~ Agent’s 's authority to act without any specific or further authorization or consent by the ~~Lenders (as set forth in Section 10.08(b))~~Required Lenders, each Lender agrees to confirm in writing, upon request by ~~the Collateral~~ Agent, the authority to release Collateral conferred upon ~~the Collateral~~ Agent under ~~Section 10.08(b)~~this Section. ~~Upon the prior written request by any Loan Party, the Collateral~~ Agent shall (and is hereby irrevocably authorized by ~~the~~ Lenders to) execute such documents as may be necessary ~~or reasonably requested by any Loan Party~~ to evidence the release of the ~~Liens~~ security interest, mortgage or liens granted to Agent upon any Collateral to the ~~Collateral Agent for the benefit of the Agents and the Lenders upon such Collateral~~extent set forth above; provided, ~~however~~that, ~~that~~ (i) ~~the Collateral~~ Agent shall not be required to execute any such document on terms which, in ~~the Collateral~~ Agent’s 's opinion, would expose ~~the Collateral~~ Agent to liability or create any obligations or entail any consequence other than the release of such ~~Liens~~ security interest, mortgage or liens without recourse or ~~warranty,~~ warranty and (ii) such release shall not in any manner discharge, affect or impair the Obligations or any ~~Lien~~ security interest, mortgage or lien upon (or obligations of Borrower or any ~~Loan Party~~ Obligor in respect of) ~~all interests in~~ the Collateral retained by ~~any Loan Party~~Borrower or such Obligor. (d) Anything contained in any of the Loan Documents to the contrary notwithstanding but subject to the Agreement Among Lenders, the Loan Parties, each Agent and each Lender hereby agree that (i) no Lender shall have any right individually to realize upon any of the Collateral under any Loan Document or to enforce any Guaranty, it being understood and agreed that all powers, rights and remedies under the Loan Documents may be exercised solely by the Collateral Agent for the benefit of the Lenders in accordance with the terms thereof, (ii) in the event of a foreclosure by the Collateral Agent on any of the Collateral pursuant to a public or private sale, the Administrative Agent, the Collateral Agent or any Lender may be the purchaser of any or all of such Collateral at any such sale and (iii) the Collateral Agent, as agent for and representative of the Agents and the Lenders (but not any other Agent or any Lender or Lenders in its or their respective individual capacities unless the Required Lenders shall otherwise agree in writing) shall be entitled (either directly or through one or more acquisition vehicles) for the purpose of bidding and making settlement or payment of the purchase price for all or any portion of the Collateral to be sold (A) at any public or private sale, (B) at any sale conducted by the Collateral Agent under the provisions of the Uniform Commercial Code (including pursuant to Sections 9-610 or 9-620 of the Uniform Commercial Code), (C) at any sale or foreclosure conducted by the Collateral Agent (whether by judicial action or otherwise) in accordance with applicable law or (D) any sale conducted pursuant to the provisions of any Debtor Relief Law (including Section 363 of the Bankruptcy Code), to use and apply all or any of the Obligations as a credit on account of the purchase price for any Collateral payable by the Collateral Agent at such sale. (e) The Collateral Agent shall have no obligation whatsoever to any Lender or any other Person to investigate, confirm or assure that the Collateral exists or is owned by ~~the Loan Parties~~ Borrower or any Obligor or is cared for, protected or insured or has been ~~encumbered~~ encumbered, or that any particular items of Collateral meet the eligibility criteria applicable in respect of the Loans, Letter of Credit Accommodations or B/A Accommodations hereunder, or whether any particular reserves are appropriate, or that the ~~Lien~~ liens and security interests granted to ~~the Collateral~~ Agent pursuant ~~to this Agreement~~ hereto or any ~~other Loan Document has~~ of the Financing Agreements or otherwise have been properly or sufficiently or lawfully created, perfected, protected or enforced or is are entitled to any particular priority, or to exercise at all or in any particular manner or under any duty of care, disclosure or fidelity, or to continue exercising, any of the rights, authorities and powers granted or available to ~~the Collateral~~ Agent in this ~~Section 10.08~~ Agreement or in any of the other ~~Loan Document~~Financing Agreements, it being understood and agreed that in respect of the Collateral, or any act, omission or event related thereto, ~~the Collateral~~ Agent may act in any manner it may deem appropriate, in its ~~sole~~ discretion, given ~~the Collateral~~ Agent’s 's own interest in the Collateral as ~~one of the Lenders~~ a Lender and that ~~the Collateral~~ Agent shall have no duty or liability whatsoever to any other Lender~~, except as otherwise provided herein and in the Agreement Among Lenders~~.

Appears in 1 contract

Samples: Loan and Security Agreement (Franks Nursery & Crafts Inc)

Collateral Matters. ~~(a) Each~~ Agent ~~may~~ may, at its option, from time to time, at any time on or after an Event of Default and for so long as the same is continuing or upon any other failure of a condition precedent to the Revolving Loans and Letter of Credit Accommodations hereunder, make such disbursements and advances (“"Special Agent Advances”") which ~~such~~ Agent, in its sole discretion, deems necessary or desirable either (i) to ~~preserve, protect, prepare for sale~~ preserve or ~~lease or dispose of~~ protect the Collateral or any portion ~~thereof, to enhance the likelihood or maximize~~ thereof (provided that in no event shall Special Agent Advances for such purpose exceed the amount ~~of repayment by~~ equal to $11,000,000 in the ~~Borrowers of~~ aggregate outstanding at any time less the ~~Loans, Reimbursement Obligations, Letter of Credit Obligations and other Obligations~~ then outstanding Revolving Loans under Section 12.8 hereof) or (ii) to pay any other amount chargeable to ~~the Borrowers~~ Borrower pursuant to the terms of this ~~Agreement, including, without limitation,~~ Agreement or any of the other Financing Agreements consisting of costs, fees and expenses ~~as described in Section 12.04~~and payments to any issuer of Letter of Credit Accommodations. ~~The~~ Special Agent Advances shall be repayable on demand and be secured by the ~~Collateral and shall bear interest at a rate per annum equal to the rate then applicable to Revolving Loans that are Reference Rate Loans~~Collateral. ~~The Agent making any~~ Special Agent Advances shall not constitute Loans but shall otherwise constitute Obligations hereunder. Agent shall notify ~~the other Agent,~~ each Lender and ~~the Administrative~~ Borrower in writing of each such Special Agent Advance, which notice shall include a description of the purpose of such Special Agent Advance. Without limitation to of its obligations pursuant to Section ~~10.05~~6.9, each Lender agrees that it shall make available to ~~the Agent making any Agent Advances~~Agent, upon ~~such~~ Agent’s 's demand, ~~in the currency in which the respective Agent Advance was made~~ in immediately available funds, the amount equal to such Lender’s 's Pro Rata Share of each such Special Agent ~~Advance subject to the terms of, the Agreement Among Lenders, provided that any such amount advanced by a Lender shall be deemed a Loan hereunder~~Advance. If such funds are not made available to ~~such~~ Agent by such Lender, ~~such~~ Agent shall be entitled to recover such ~~funds~~ funds, on demand from such ~~Lender,~~ Lender together with interest thereon for each day from the date such payment was due until the date such amount is paid to ~~such Agent,~~ Agent at the Federal Funds ~~Effective~~ Rate for each day during such period (as published by the Federal Reserve Bank of New York or at Agent's option based on the arithmetic mean determined by Agent of the rates for the last transaction in overnight Federal funds arranged prior to 9:00 a.m. (New York City time) on that day by each of the three ~~Business Days~~ leading brokers of Federal funds transactions in New York City selected by Agent) and ~~thereafter~~ if such amounts are not paid within three (3) days of Agent's demand, at the Reference Rate. (b) The Lenders hereby irrevocably authorize the Collateral Agent, at its option and in its discretion, to release any Lien granted to or held by the Collateral Agent upon any Collateral upon termination of the Total Commitment and Payment in Full of the Obligations; or constituting property being sold or disposed of in the ordinary course of any Loan Party’s business or otherwise in compliance with the terms of this Agreement and the other Loan Documents; or constituting property in which the Loan Parties owned no interest at the time the Lien was granted or at any time thereafter; or if approved, authorized or ratified in writing by the applicable Lenders required pursuant to Section 12.02. Upon request by the Collateral Agent at any time, the Lenders will confirm in writing the Collateral Agent’s authority to release particular types or items of Collateral pursuant to this Section 10.08(b). (c) Without in any manner limiting the Collateral Agent’s authority to act without any specific or further authorization or consent by the Lenders (as set forth highest Interest Rate provided for in Section ~~10.08(b)), each Lender agrees~~ 3.1 hereof applicable to confirm in writing, upon request by the Collateral Agent, the authority to release Collateral conferred upon the Collateral Agent under Section 10.08(b). Upon the prior written request by any Loan Party, the Collateral Agent shall (and is hereby irrevocably authorized by the Lenders to) execute such documents as may be necessary or reasonably requested by any Loan Party to evidence the release of the Liens granted to the Collateral Agent for the benefit of the Agents and the Lenders upon such Collateral; provided, however, that (i) the Collateral Agent shall not be required to execute any such document on terms which, in the Collateral Agent’s opinion, would expose the Collateral Agent to liability or create any obligations or entail any consequence other than the release of such Liens without recourse or warranty, and (ii) such release shall not in any manner discharge, affect or impair the Obligations or any Lien upon (or obligations of any Loan Party in respect of) all interests in the Collateral retained by any Loan PartyPrime Rate Loans. (d) Anything contained in any of the Loan Documents to the contrary notwithstanding but subject to the Agreement Among Lenders, the Loan Parties, each Agent and each Lender hereby agree that (i) no Lender shall have any right individually to realize upon any of the Collateral under any Loan Document or to enforce any Guaranty, it being understood and agreed that all powers, rights and remedies under the Loan Documents may be exercised solely by the Collateral Agent for the benefit of the Lenders in accordance with the terms thereof, (ii) in the event of a foreclosure by the Collateral Agent on any of the Collateral pursuant to a public or private sale, the Administrative Agent, the Collateral Agent or any Lender may be the purchaser of any or all of such Collateral at any such sale and (iii) the Collateral Agent, as agent for and representative of the Agents and the Lenders (but not any other Agent or any Lender or Lenders in its or their respective individual capacities unless the Required Lenders shall otherwise agree in writing) shall be entitled (either directly or through one or more acquisition vehicles) for the purpose of bidding and making settlement or payment of the purchase price for all or any portion of the Collateral to be sold (A) at any public or private sale, (B) at any sale conducted by the Collateral Agent under the provisions of the Uniform Commercial Code (including pursuant to Sections 9-610 or 9-620 of the Uniform Commercial Code), (C) at any sale or foreclosure conducted by the Collateral Agent (whether by judicial action or otherwise) in accordance with applicable law or (D) any sale conducted pursuant to the provisions of any Debtor Relief Law (including Section 363 of the Bankruptcy Code), to use and apply all or any of the Obligations as a credit on account of the purchase price for any Collateral payable by the Collateral Agent at such sale. (e) The Collateral Agent shall have no obligation whatsoever to any Lender to assure that the Collateral exists or is owned by the Loan Parties or is cared for, protected or insured or has been encumbered or that the Lien granted to the Collateral Agent pursuant to this Agreement or any other Loan Document has been properly or sufficiently or lawfully created, perfected, protected or enforced or is entitled to any particular priority, or to exercise at all or in any particular manner or under any duty of care, disclosure or fidelity, or to continue exercising, any of the rights, authorities and powers granted or available to the Collateral Agent in this Section 10.08 or in any other Loan Document, it being understood and agreed that in respect of the Collateral, or any act, omission or event related thereto, the Collateral Agent may act in any manner it may deem appropriate, in its sole discretion, given the Collateral Agent’s own interest in the Collateral as one of the Lenders and that the Collateral Agent shall have no duty or liability whatsoever to any other Lender, except as otherwise provided herein and in the Agreement Among Lenders.

Appears in 1 contract

Samples: Loan and Security Agreement (Jordan Industries Inc)

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

Appears in 1 contract

Samples: Loan and Security Agreement (C&d Technologies Inc)

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

Appears in 1 contract

Samples: Financing Agreement (Alj Regional Holdings Inc)

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

Appears in 1 contract

Samples: Financing Agreement (Comscore, Inc.)

Collateral Matters. (a) ~~Each~~ Agent ~~may~~ may, at its option, from time to time, at any time on or after an Event of Default and for so long as the same is continuing or upon any other failure of a condition precedent to the Loans and Letter of Credit Accommodations hereunder, make such disbursements and advances (“"Special Agent Advances”") which ~~such~~ Agent, in its sole discretion, deems necessary or desirable either (i) to ~~preserve, protect, prepare for sale~~ preserve or ~~lease or dispose of~~ protect the Collateral or any portion ~~thereof, to enhance~~ thereof (provided that in no event shall Special Agent Advances for such purpose exceed $5,000,000 in the ~~likelihood~~ aggregate outstanding at any time) or ~~maximize the amount of repayment by the Borrowers of the Loans, Reimbursement Obligations, Letter of Credit Obligations and other Obligations or~~ (ii) to pay any other amount chargeable to ~~the Borrowers~~ any Borrower pursuant to the terms of this ~~Agreement, including, without limitation,~~ Agreement consisting of costs, fees and expenses ~~as described in Section 12.04~~and payments to any issuer of Letter of Credit Accommodations. ~~The~~ Special Agent Advances shall be repayable on demand and be secured by the ~~Collateral and shall bear interest at a rate per annum equal to the rate then applicable to Revolving Loans that are Reference Rate Loans~~Collateral. ~~The Agent making any~~ Special Agent Advances shall not constitute Loans but shall otherwise constitute Obligations hereunder. Agent shall notify ~~the other Agent,~~ each Lender and ~~the Administrative Borrower~~ Huffy in writing of each such Special Agent Advance, which notice shall include a description of the purpose of such Special Agent Advance. Without limitation to of its obligations pursuant to Section ~~10.05~~6.9, each Lender agrees that it shall make available to ~~the Agent making any Agent Advances~~Agent, upon ~~such~~ Agent’s 's demand, ~~in the currency in which the respective Agent Advance was made~~ in immediately available funds, the amount equal to such Lender’s 's Pro Rata Share of each such Special Agent ~~Advance subject to the terms of, the Agreement Among Lenders, provided that any such amount advanced by a Lender shall be deemed a Loan hereunder~~Advance. If such funds are not made available to ~~such~~ Agent by such Lender, ~~such~~ Agent shall be entitled to recover such ~~funds~~ funds, on demand from such ~~Lender,~~ Lender together with interest ~~thereon~~ thereon, for each day from the date such payment was due until the date such amount is paid to ~~such Agent,~~ Agent at the ~~Federal Funds Effective Rate for three Business Days and thereafter at~~ interest rate then payable by Borrowers in respect of the ~~Reference Rate~~Loans as set forth in Section 3.1(a) hereof. (b) ~~The~~ Lenders hereby irrevocably authorize ~~the Collateral~~ Agent, at its option and in its ~~discretion,~~ discretion to release any ~~Lien granted to~~ security interest in, mortgage or ~~held by~~ lien upon, any of the Collateral ~~Agent upon any Collateral~~ (i) upon termination of the ~~Total Commitment~~ Commitments and ~~Payment in Full~~ payment and satisfaction of all of the ~~Obligations;~~ Obligations and delivery of cash collateral to the extent required under Section 13.1 below, or (ii) constituting property being sold or disposed of in if Huffy certifies to Agent that the ~~ordinary course of any Loan Party’s business~~ sale or ~~otherwise~~ disposition is made in compliance with ~~the terms of this Agreement~~ Section 9.7 hereof (and ~~the other Loan Documents;~~ Agent may rely conclusively on any such certificate, without further inquiry), or (iii) constituting property in which ~~the Loan Parties owned no~~ any Borrower or Guarantor did not own an interest at the time the ~~Lien~~ security interest, mortgage or lien was granted or at any time thereafter; , or (iv) having a value of less than $2,000,000, or (v) if approved, authorized or ratified in writing by all of Lenders. Except as provided above, Agent will not release any security interest in, mortgage or lien upon, any of the ~~applicable~~ Collateral without the prior written authorization of all of Lenders ~~required pursuant~~ (and any Lender may require that the proceeds from any sale or other disposition of the Collateral to ~~Section 12.02~~be so released be applied to the Obligations in a manner satisfactory to such Lender). Upon request by ~~the Collateral~~ Agent at any time, ~~the~~ Lenders will promptly confirm in writing ~~the Collateral~~ Agent’s 's authority to release particular types or items of Collateral pursuant to this ~~Section 10.08(b)~~Section. (c) Without in any manner limiting ~~the Collateral~~ Agent’s 's authority to act without any specific or further authorization or consent by the ~~Lenders (as set forth in Section 10.08(b))~~Required Lenders, each Lender agrees to confirm in writing, upon request by ~~the Collateral~~ Agent, the authority to release Collateral conferred upon ~~the Collateral~~ Agent under ~~Section 10.08(b)~~this Section. ~~Upon the prior written request by any Loan Party, the Collateral~~ Agent shall (and is hereby irrevocably authorized by ~~the~~ Lenders to) execute such documents as may be necessary ~~or reasonably requested by any Loan Party~~ to evidence the release of the ~~Liens~~ security interest, mortgage or liens granted to ~~the Collateral~~ Agent for itself and the benefit of the ~~Agents and the~~ Lenders upon ~~such Collateral~~any Collateral to the extent set forth above; provided, ~~however~~that, ~~that~~ (i) ~~the Collateral~~ Agent shall not be required to execute any such document on terms which, in ~~the Collateral~~ Agent’s 's opinion, would expose ~~the Collateral~~ Agent to liability or create any obligations or entail any consequence other than the release of such ~~Liens~~ security interest, mortgage or liens without recourse or ~~warranty,~~ warranty and (ii) such release shall not in any manner discharge, affect or impair the Obligations or any ~~Lien~~ security interest, mortgage or lien upon (or obligations of ~~any Loan Party~~ Borrower in respect of) ~~all interests in~~ the Collateral retained by ~~any Loan Party~~Borrower. (d) Anything contained in any of the Loan Documents to the contrary notwithstanding but subject to the Agreement Among Lenders, the Loan Parties, each Agent and each Lender hereby agree that (i) no Lender shall have any right individually to realize upon any of the Collateral under any Loan Document or to enforce any Guaranty, it being understood and agreed that all powers, rights and remedies under the Loan Documents may be exercised solely by the Collateral Agent for the benefit of the Lenders in accordance with the terms thereof, (ii) in the event of a foreclosure by the Collateral Agent on any of the Collateral pursuant to a public or private sale, the Administrative Agent, the Collateral Agent or any Lender may be the purchaser of any or all of such Collateral at any such sale and (iii) the Collateral Agent, as agent for and representative of the Agents and the Lenders (but not any other Agent or any Lender or Lenders in its or their respective individual capacities unless the Required Lenders shall otherwise agree in writing) shall be entitled (either directly or through one or more acquisition vehicles) for the purpose of bidding and making settlement or payment of the purchase price for all or any portion of the Collateral to be sold (A) at any public or private sale, (B) at any sale conducted by the Collateral Agent under the provisions of the Uniform Commercial Code (including pursuant to Sections 9-610 or 9-620 of the Uniform Commercial Code), (C) at any sale or foreclosure conducted by the Collateral Agent (whether by judicial action or otherwise) in accordance with applicable law or (D) any sale conducted pursuant to the provisions of any Debtor Relief Law (including Section 363 of the Bankruptcy Code), to use and apply all or any of the Obligations as a credit on account of the purchase price for any Collateral payable by the Collateral Agent at such sale. (e) The Collateral Agent shall have no obligation whatsoever to any Lender or any other Person to investigate, confirm or assure that the Collateral exists or is owned by ~~the Loan Parties~~ any Borrower or Guarantor or is cared for, protected or insured or has been ~~encumbered~~ encumbered, or that any particular items of Collateral meet the eligibility criteria applicable in respect of the Loans or Letter of Credit Accommodations hereunder, or whether any particular reserves are appropriate, or that the ~~Lien~~ liens and security interests granted to ~~the Collateral~~ Agent herein or pursuant ~~to this Agreement~~ hereto or ~~any other Loan Document has~~ otherwise have been properly or sufficiently or lawfully created, perfected, protected or enforced or is are entitled to any particular priority, or to exercise at all or in any particular manner or under any duty of care, disclosure or fidelity, or to continue exercising, any of the rights, authorities and powers granted or available to ~~the Collateral~~ Agent in this ~~Section 10.08~~ Agreement or in any of the other ~~Loan Document~~Financing Agreements, it being understood and agreed that in respect of the Collateral, or any act, omission or event related thereto, ~~the Collateral~~ Agent may act in any manner it may deem appropriate, in its ~~sole~~ discretion, given ~~the Collateral~~ Agent’s 's own interest in the Collateral as ~~one of the Lenders~~ a Lender and that ~~the Collateral~~ Agent shall have no duty or liability whatsoever to any other Lender~~, except as otherwise provided herein and in the Agreement Among Lenders~~.

Appears in 1 contract

Samples: Loan and Security Agreement (Huffy Corp)

Collateral Matters. (a) ~~Each~~ The Agent may from time to ~~time~~ time, during the occurrence and continuance of an Event of Default, make such disbursements and advances (“"Agent Advances”") which ~~such~~ the Agent, in its sole discretion, deems necessary or desirable to ~~preserve, protect, prepare for sale~~ preserve or ~~lease or dispose of~~ protect the Collateral or any portion thereof, to enhance the likelihood or maximize the amount of repayment -72- 79 by the ~~Borrowers~~ Borrower of the ~~Loans, Reimbursement Obligations, Letter of Credit Obligations~~ Loans and other Obligations or to pay any other amount chargeable to the ~~Borrowers~~ Borrower pursuant to the terms of this Agreement, including, without limitation, costs, fees and expenses as described in Section ~~12.04~~11.06. The Agent Advances shall be repayable on demand and be secured by the ~~Collateral and shall bear interest at a rate per annum equal to the rate then applicable to Revolving Loans that are Reference Rate Loans~~Collateral. The Agent ~~making any Agent~~ Advances shall not constitute Loans but shall otherwise constitute Obligations hereunder. The Agent shall notify ~~the other Agent,~~ each Lender and the ~~Administrative~~ Borrower in writing of each such Agent Advance, which notice shall include a description of the purpose of such Agent Advance. Without limitation to its obligations pursuant to Section 10.05, each Lender agrees that it shall make available to the ~~Agent making any Agent Advances~~Agent, upon ~~such~~ the Agent’s 's demand, in ~~the currency in which the respective Agent Advance was made~~ Dollars in immediately available funds, the amount equal to such Lender’s 's Pro Rata Share of each such Agent ~~Advance subject to the terms of, the Agreement Among Lenders, provided that any such amount advanced by a Lender shall be deemed a Loan hereunder~~Advance. If such funds are not made available to ~~such~~ the Agent by such ~~Lender, such~~ Lender the Agent shall be entitled to recover such ~~funds~~ funds, on demand from such ~~Lender,~~ Lender together with interest ~~thereon~~ thereon, for each day from the date such payment was due until the date such amount is paid to ~~such~~ the Agent, at the Federal Funds ~~Effective~~ Rate for three Business Days and thereafter at the ~~Reference~~ Prime Rate. (b) The Lenders hereby irrevocably authorize the ~~Collateral~~ Agent, at its option and in its discretion, to release any Lien granted to or held by the ~~Collateral~~ Agent upon any Collateral upon termination of the Total Commitment and ~~Payment~~ payment and satisfaction of all Loans, and all other Obligations which have matured and which the Agent has been notified in ~~Full of the Obligations~~writing are then due and payable; or constituting property being sold or disposed of in the ordinary course of ~~any Loan Party’s~~ the Borrower's business ~~or otherwise~~ and in compliance with the terms of this Agreement and the other Loan Documents; or constituting property in which the ~~Loan Parties~~ Borrower owned no interest at the time the Lien was granted or at any time thereafter; or if approved, authorized or ratified in writing by the ~~applicable Lenders required pursuant to Section 12.02~~Lenders. Upon request by the ~~Collateral~~ Agent at any time, the Lenders will confirm in writing the ~~Collateral~~ Agent’s 's authority to release particular types or items of Collateral pursuant to this Section 10.08(b). (c) Without in any manner limiting the ~~Collateral~~ Agent’s 's authority to act without any specific or further authorization or consent by the Lenders (as set forth in Section 10.08(b)), each Lender agrees to confirm in writing, upon request by the ~~Collateral~~ Agent, the authority to release Collateral conferred upon the ~~Collateral~~ Agent under Section 10.08(b). Upon receipt by the Agent of confirmation from the Lenders of its authority to release any particular item or types of Collateral, and upon prior written request by ~~any Loan Party~~the Borrower, the ~~Collateral~~ Agent shall (and is hereby irrevocably authorized by the Lenders to) execute such documents as may be necessary ~~or reasonably requested by any Loan Party~~ to evidence the release of the Liens granted to the ~~Collateral~~ Agent for the benefit of ~~the Agents and~~ the Lenders upon such Collateral; provided, however, that (i) the ~~Collateral~~ Agent shall not be required to execute any such document on terms which, in the ~~Collateral~~ Agent’s 's opinion, would expose the ~~Collateral~~ Agent to liability or create any obligations or entail any consequence other than the release of such Liens without recourse or warranty, and (ii) such release shall not in any manner discharge, affect or impair the Obligations or any Lien upon (or obligations of ~~any Loan Party~~ the Borrower in respect of) all interests in the Collateral retained by ~~any Loan Party~~the Borrower. (d) Anything contained in any of the Loan Documents to the contrary notwithstanding but subject to the Agreement Among Lenders, the Loan Parties, each Agent and each Lender hereby agree that (i) no Lender shall have any right individually to realize upon any of the Collateral under any Loan Document or to enforce any Guaranty, it being understood and agreed that all powers, rights and remedies under the Loan Documents may be exercised solely by the Collateral Agent for the benefit of the Lenders in accordance with the terms thereof, (ii) in the event of a foreclosure by the Collateral Agent on any of the Collateral pursuant to a public or private sale, the Administrative Agent, the Collateral Agent or any Lender may be the purchaser of any or all of such Collateral at any such sale and (iii) the Collateral Agent, as agent for and representative of the Agents and the Lenders (but not any other Agent or any Lender or Lenders in its or their respective individual capacities unless the Required Lenders shall otherwise agree in writing) shall be entitled (either directly or through one or more acquisition vehicles) for the purpose of bidding and making settlement or payment of the purchase price for all or any portion of the Collateral to be sold (A) at any public or private sale, (B) at any sale conducted by the Collateral Agent under the provisions of the Uniform Commercial Code (including pursuant to Sections 9-610 or 9-620 of the Uniform Commercial Code), (C) at any sale or foreclosure conducted by the Collateral Agent (whether by judicial action or otherwise) in accordance with applicable law or (D) any sale conducted pursuant to the provisions of any Debtor Relief Law (including Section 363 of the Bankruptcy Code), to use and apply all or any of the Obligations as a credit on account of the purchase price for any Collateral payable by the Collateral Agent at such sale. (e) The ~~Collateral~~ Agent shall have no obligation whatsoever to any ~~Lender~~ Lenders to assure that the Collateral exists or is owned by the ~~Loan Parties~~ Borrower or is cared for, protected or insured or has been encumbered or that the Lien granted to the ~~Collateral~~ Agent pursuant to this Agreement ~~or any other Loan Document~~ has been properly or sufficiently or lawfully created, perfected, protected or enforced or is entitled to any particular priority, or to exercise at all or in any particular manner or under any duty of care, disclosure or fidelity, or to continue exercising, any of the rights, authorities and powers granted or available to the Collateral Agent in this Section 10.08 or in any other Loan Document, it being understood and agreed that in respect of the Collateral, or any act, omission or event related thereto, the Collateral Agent may act in any manner it may deem appropriate, in its sole discretion, given the Collateral Agent’s own interest in the Collateral as one of the Lenders and that the Collateral Agent shall have no duty or liability whatsoever to any other Lender, except as otherwise provided herein and in the Agreement Among Lenders.or

Appears in 1 contract

Samples: Revolving Credit and Security Agreement (Cityscape Financial Corp)

Collateral Matters. (a) ~~Each~~ Agent ~~may~~ may, at its option, but shall not be obligated to from time to time, at any time on or after an Event of Default and for so long as the same is continuing or upon any other failure of a condition precedent to the Loan hereunder, make such disbursements and advances (“"Special Agent Advances”") which ~~such~~ Agent, in its sole discretion, (i) deems necessary or desirable either to ~~preserve, protect, prepare for sale~~ preserve or ~~lease or dispose of~~ protect the Collateral or any portion thereof, or (ii) to enhance the likelihood or maximize the amount of repayment by the ~~Borrowers~~ Borrower of the ~~Loans, Reimbursement~~ Loan and other Obligations, ~~Letter of Credit Obligations and other Obligations~~ or (iii) to pay any other amount chargeable to the ~~Borrowers~~ Borrower pursuant to the terms of this ~~Agreement, including, without limitation,~~ Agreement or any of the other Loan Documents consisting of costs, fees and ~~expenses as described in Section 12.04~~expenses. The Special Agent Advances shall be repayable on demand and be together with all interest thereon shall constitute Obligations secured by the ~~Collateral and shall bear interest at a rate per annum equal to the rate then applicable to Revolving Loans that are Reference Rate Loans~~Collateral. ~~The Agent making any~~ Special Agent Advances shall ~~notify~~ not constitute the ~~other Agent, each Lender~~ Loan but shall otherwise constitute Obligations hereunder. Interest on Special Agent Advances shall be payable at the Interest Rate or the Default Rate as applicable and ~~the Administrative Borrower in writing of each such Agent Advance, which notice~~ shall ~~include a description of the purpose of such Agent Advance~~be payable on demand. ~~Without limitation to its obligations pursuant to Section 10.05, each~~ Each Lender agrees that it shall make available to ~~the Agent making any Agent Advances~~Agent, upon ~~such~~ Agent’s 's demand, ~~in the currency in which the respective Agent Advance was made~~ in immediately available funds, the amount equal to such Lender’s 's Pro Rata Share of each such Special Agent ~~Advance subject to the terms of, the Agreement Among Lenders, provided that any such amount advanced by a Lender shall be deemed a Loan hereunder~~Advance. If such funds are not made available to ~~such~~ Agent by such Lender, such Lender shall be deemed a Defaulting Lender and Agent shall be entitled to recover such ~~funds~~ funds, on demand from such ~~Lender,~~ Lender together with interest thereon for each day from the date such payment was due until the date such amount is paid to ~~such Agent,~~ Agent at the Federal Funds ~~Effective~~ Rate for each day during such period (as published by the Federal Reserve Bank of New York or at Agent's option based on the arithmetic mean determined by Agent of the rates for the last transaction in overnight Federal Funds arranged prior to 9:00 a.m. (New York City time) on that day by each of the three ~~Business Days~~ leading brokers of Federal Funds transactions in New York City selected by Agent) and ~~thereafter~~ if such amounts are not paid within three (3) days of Agent's demand, at the ~~Reference Rate~~default rate pursuant to this Agreement. (b) ~~The~~ Lenders hereby irrevocably authorize ~~the Collateral~~ Agent, at its option and in its ~~discretion,~~ discretion to release any ~~Lien granted to~~ security interest in, mortgage or ~~held by~~ lien upon, any of the Collateral ~~Agent upon any Collateral~~ (i) upon termination of the ~~Total Commitment~~ Commitments and ~~Payment in Full~~ payment and satisfaction of all of the ~~Obligations;~~ Obligations or (ii) constituting property being sold or disposed of in if Borrower certifies to Agent that the ~~ordinary course of any Loan Party’s business~~ sale or ~~otherwise~~ disposition is made in compliance with ~~the terms of this Agreement~~ Section 9.4 hereof (and ~~the other Loan Documents;~~ Agent may rely conclusively on any such certificate, without further inquiry), or (iii) constituting property in which the ~~Loan Parties owned no~~ Borrower did not own an interest at the time the ~~Lien~~ security interest, mortgage or lien was granted or at any time thereafter; , or (iv) if required or permitted under the terms of any of the other Loan Documents, including any intercreditor agreement, or (v) approved, authorized or ratified in writing by all of Lenders. Except as provided above, Agent will not release any security interest in, mortgage or lien upon, any of the ~~applicable Lenders required pursuant to Section 12.02~~Collateral without the prior written authorization of all of Lenders. Upon request by ~~the Collateral~~ Agent at any time, ~~the~~ Lenders will promptly confirm in writing ~~the Collateral~~ Agent’s 's authority to release particular types or items of Collateral pursuant to this ~~Section 10.08(b)~~Section. (c) Without in any manner limiting ~~the Collateral~~ Agent’s 's authority to act without any specific or further authorization or consent by the ~~Lenders (as set forth in Section 10.08(b))~~Required Lenders, each Lender agrees to confirm in writing, upon request by ~~the Collateral~~ Agent, the authority to release Collateral conferred upon ~~the Collateral~~ Agent under ~~Section 10.08(b)~~this Section. ~~Upon the prior written request by any Loan Party, the Collateral~~ Agent shall (and is hereby irrevocably authorized by ~~the~~ Lenders to) execute such documents as may be necessary ~~or reasonably requested by any Loan Party~~ to evidence the release of the ~~Liens~~ security interest, mortgage or liens granted to Agent upon any Collateral to the ~~Collateral Agent for the benefit of the Agents and the Lenders upon such Collateral~~extent set forth above; ~~provided~~provided that, ~~however, that~~ (i) ~~the Collateral~~ Agent shall not be required to execute any such document on terms which, in ~~the Collateral~~ Agent’s 's opinion, would expose ~~the Collateral~~ Agent to liability or create any obligations or entail any consequence other than the release of such ~~Liens~~ security interest, mortgage or liens without recourse or ~~warranty,~~ warranty and (ii) such release shall not in any manner discharge, affect or impair the Obligations or any ~~Lien~~ security interest, mortgage or lien upon (or obligations of ~~any Loan Party~~ the Borrower in respect of) ~~all interests in~~ the Collateral retained by ~~any Loan Party~~the Borrower. (d) Anything contained in any of the Loan Documents to the contrary notwithstanding but subject to the Agreement Among Lenders, the Loan Parties, each Agent and each Lender hereby agree that (i) no Lender shall have any right individually to realize upon any of the Collateral under any Loan Document or to enforce any Guaranty, it being understood and agreed that all powers, rights and remedies under the Loan Documents may be exercised solely by the Collateral Agent for the benefit of the Lenders in accordance with the terms thereof, (ii) in the event of a foreclosure by the Collateral Agent on any of the Collateral pursuant to a public or private sale, the Administrative Agent, the Collateral Agent or any Lender may be the purchaser of any or all of such Collateral at any such sale and (iii) the Collateral Agent, as agent for and representative of the Agents and the Lenders (but not any other Agent or any Lender or Lenders in its or their respective individual capacities unless the Required Lenders shall otherwise agree in writing) shall be entitled (either directly or through one or more acquisition vehicles) for the purpose of bidding and making settlement or payment of the purchase price for all or any portion of the Collateral to be sold (A) at any public or private sale, (B) at any sale conducted by the Collateral Agent under the provisions of the Uniform Commercial Code (including pursuant to Sections 9-610 or 9-620 of the Uniform Commercial Code), (C) at any sale or foreclosure conducted by the Collateral Agent (whether by judicial action or otherwise) in accordance with applicable law or (D) any sale conducted pursuant to the provisions of any Debtor Relief Law (including Section 363 of the Bankruptcy Code), to use and apply all or any of the Obligations as a credit on account of the purchase price for any Collateral payable by the Collateral Agent at such sale. (e) The Collateral Agent shall have no obligation whatsoever to any Lender or any other Person to investigate, confirm or assure that the Collateral exists or is owned by ~~the~~ any Loan ~~Parties~~ Party or is cared for, protected or insured or has been ~~encumbered~~ encumbered, or that any particular items of Collateral meet the eligibility criteria applicable in respect of the Loan hereunder, or whether any particular reserves are appropriate, or that the ~~Lien~~ liens and security interests granted to ~~the Collateral~~ Agent pursuant ~~to this Agreement~~ hereto or any ~~other~~ of the Loan ~~Document has~~ Documents or otherwise have been properly or sufficiently or lawfully created, perfected, protected or enforced or is are entitled to any particular priority, or to exercise at all or in any particular manner or under any duty of care, disclosure or fidelity, or to continue exercising, any of the rights, authorities and powers granted or available to ~~the Collateral~~ Agent in this ~~Section 10.08~~ Agreement or in any of the other Loan ~~Document~~Documents, it being understood and agreed that in respect of the Collateral, or any act, omission or event related thereto, subject to the ~~Collateral~~ other terms and conditions contained herein, Agent may act in any manner it may deem appropriate, in its ~~sole~~ discretion, given ~~the Collateral~~ Agent’s 's own interest in the Collateral as ~~one of the Lenders~~ a Lender and that ~~the Collateral~~ Agent shall have no duty or liability whatsoever to any other Lender~~, except as otherwise provided herein and in the Agreement Among Lenders~~.

Appears in 1 contract

Samples: Loan and Security Agreement (Medirect Latino Inc)

Collateral Matters. (a) ~~Each~~ The Agent may from time to ~~time~~ time, during the occurrence and continuance of a Default or Event of Default, make such disbursements and advances (“"Agent Advances”") which ~~such~~ the Agent, in its sole discretion, deems necessary or desirable to ~~preserve, protect, prepare for sale~~ preserve or ~~lease or dispose of~~ protect the Collateral or any portion thereof, to make preparations for Collateral liquidation to enhance the likelihood or maximize the amount of repayment by the Borrowers of the ~~Loans, Reimbursement Obligations, Letter of Credit Obligations~~ Revolving Loans and other Obligations or to pay any other amount chargeable to the Borrowers pursuant to the terms of this Agreement, including, without limitation, costs, fees and expenses as described in Section ~~12.04~~10.04. The Agent Advances shall be repayable on demand and be secured by the ~~Collateral and shall bear interest at a rate per annum equal to the rate then applicable to Revolving Loans that are Reference Rate Loans~~Collateral. The Agent ~~making any Agent~~ Advances shall not constitute Revolving Loans but shall otherwise constitute Obligations hereunder. The Agent shall notify ~~the other Agent,~~ each Lender and the Administrative Borrower in writing of each ~~such~~ Agent Advance, which notice shall include a description of the purpose of such Agent Advance. Without limitation to its obligations pursuant to Section ~~10.05~~9.05, each Lender agrees that it shall make available to the ~~Agent making any Agent Advances~~Agent, upon ~~such~~ the Agent’s 's demand, in ~~the currency in which the respective Agent Advance was made~~ Dollars in immediately available funds, the amount equal to such Lender’s 's Pro Rata Share of ~~each~~ such Agent ~~Advance subject to the terms of, the Agreement Among Lenders, provided that any such amount advanced by a Lender shall be deemed a Loan hereunder~~Advance. If such funds are not made available to ~~such~~ the Agent by such Lender, ~~such~~ the Agent shall be entitled to recover such funds on demand from such Lender, together with interest ~~thereon~~ thereon, for each day from the date such payment was due until the 108 date such amount is paid to ~~such~~ the Agent, at the Federal Funds ~~Effective~~ Rate for three Business Days and thereafter at the Reference Rate. (b) The Lenders hereby irrevocably authorize the ~~Collateral~~ Agent, at its option and in its discretion, to release any Lien granted to or held by the ~~Collateral~~ Agent upon any Collateral upon termination of the Tranche A Total Commitment and ~~Payment~~ payment and satisfaction of all Revolving Loans and all other Obligations which have matured and which the Agent has been notified in ~~Full of the Obligations~~writing are then due and payable; or constituting ~~property~~ Property being sold or disposed of in the ordinary course of any ~~Loan Party’s~~ Borrower's business ~~or otherwise~~ and in compliance with the terms of this Agreement and the other Revolving Loan Documents; or constituting ~~property~~ Property in which the ~~Loan Parties~~ Borrowers owned no interest at the time the Lien was granted or at any time thereafter; or if approved, authorized or ratified in writing by the applicable Lenders required pursuant to Section 12.02. Upon request by the Collateral Agent at any time, the Lenders will confirm in writing the Collateral Agent’s authority to release particular types or items of Collateral pursuant to this Section 10.08(b)Lenders. (c) Without in any manner limiting the ~~Collateral~~ Agent’s 's authority to act without any specific or further authorization or consent by the Lenders (as set forth in Section ~~10.08(b~~9.08(b)), each Lender agrees to confirm in writing, upon request by the ~~Collateral~~ Agent, the authority to release Collateral conferred upon the ~~Collateral~~ Agent under Section ~~10.08(b~~9.08(b). Upon receipt by the Agent of confirmation from the Lenders of its authority to release any particular item or types of Collateral, and upon prior written request by any ~~Loan Party~~Borrower, the ~~Collateral~~ Agent shall (and is hereby irrevocably authorized by the Lenders to) execute such documents as may be necessary ~~or reasonably requested by any Loan Party~~ to evidence the release of the Liens granted to the ~~Collateral~~ Agent for the benefit of ~~the Agents and~~ the Lenders upon such Collateral; provided, however, that (i) the ~~Collateral~~ Agent shall not be required to execute any such document on terms which, in the ~~Collateral~~ Agent’s 's opinion, would expose the ~~Collateral~~ Agent to liability or create any obligations or entail any consequence other than the release of such Liens without recourse or warranty, and (ii) such release shall not in any manner discharge, affect or impair the Obligations or any Lien upon (or obligations of any ~~Loan Party~~ Borrower in respect of) all interests in the Collateral retained by any ~~Loan Party~~Borrower. (d) Anything contained in any of the Loan Documents to the contrary notwithstanding but subject to the Agreement Among Lenders, the Loan Parties, each Agent and each Lender hereby agree that (i) no Lender shall have any right individually to realize upon any of the Collateral under any Loan Document or to enforce any Guaranty, it being understood and agreed that all powers, rights and remedies under the Loan Documents may be exercised solely by the Collateral Agent for the benefit of the Lenders in accordance with the terms thereof, (ii) in the event of a foreclosure by the Collateral Agent on any of the Collateral pursuant to a public or private sale, the Administrative Agent, the Collateral Agent or any Lender may be the purchaser of any or all of such Collateral at any such sale and (iii) the Collateral Agent, as agent for and representative of the Agents and the Lenders (but not any other Agent or any Lender or Lenders in its or their respective individual capacities unless the Required Lenders shall otherwise agree in writing) shall be entitled (either directly or through one or more acquisition vehicles) for the purpose of bidding and making settlement or payment of the purchase price for all or any portion of the Collateral to be sold (A) at any public or private sale, (B) at any sale conducted by the Collateral Agent under the provisions of the Uniform Commercial Code (including pursuant to Sections 9-610 or 9-620 of the Uniform Commercial Code), (C) at any sale or foreclosure conducted by the Collateral Agent (whether by judicial action or otherwise) in accordance with applicable law or (D) any sale conducted pursuant to the provisions of any Debtor Relief Law (including Section 363 of the Bankruptcy Code), to use and apply all or any of the Obligations as a credit on account of the purchase price for any Collateral payable by the Collateral Agent at such sale. (e) The ~~Collateral~~ Agent shall have no obligation whatsoever to any ~~Lender~~ Lenders to assure that the Collateral exists or is owned by the ~~Loan Parties~~ Borrowers or is cared for, protected or insured or has been encumbered or that the Lien granted to the ~~Collateral~~ Agent pursuant to this Agreement ~~or any other Loan Document~~ has been properly or sufficiently or lawfully created, perfected, protected or enforced or is entitled to any particular priority, or to exercise at all or in any particular manner or under any duty of care, disclosure or fidelity, or to continue exercising, any of the rights, authorities and powers granted or available to the ~~Collateral~~ Agent in this Section ~~10.08~~ 9.08 or in any ~~other~~ of the Revolving Loan ~~Document~~Documents, it being understood and agreed that in respect of the Collateral, or any act, omission or event related thereto, the ~~Collateral~~ Agent may act in any manner it may deem appropriate, in its sole discretion, given the ~~Collateral~~ Agent’s 's own interest in the Collateral as one of the Lenders and that the ~~Collateral~~ Agent shall have no duty or liability whatsoever to any other Lender~~, except as otherwise provided herein and in the Agreement Among Lenders.~~. 109

Appears in 1 contract

Samples: Debtor in Possession Financing Agreement (Oakwood Homes Corp)

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

Appears in 1 contract

Samples: Loan and Security Agreement (Perry Ellis International Inc)

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

Appears in 1 contract

Samples: Financing Agreement (Norton McNaughton Inc)

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

Appears in 1 contract

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

Appears in 1 contract

Samples: Financing Agreement (Compass Group Diversified Holdings LLC)

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

Appears in 1 contract

Samples: Revolving Credit and Guaranty Agreement (NewPage CORP)

Collateral Matters. (a) ~~Each~~ The Agent may from time to ~~time~~ time, during the occurrence and continuance of an Event of Default, make such disbursements and advances (“"Agent Advances”") which ~~such~~ the Agent, in its sole discretion, deems necessary or desirable to ~~preserve, protect, prepare for sale~~ preserve or ~~lease or dispose of~~ protect the Collateral or any portion thereof, to enhance the likelihood or maximize the amount of repayment by the ~~Borrowers~~ Borrower of the ~~Loans, Reimbursement Obligations, Letter of Credit Obligations~~ Loans and other Obligations or to pay any other amount chargeable to the ~~Borrowers~~ Borrower pursuant to the terms of this Agreement, including, without limitation, costs, fees and expenses as described in Section ~~12.04~~11.06. The Agent Advances shall be repayable on demand and be secured by the ~~Collateral and shall bear interest at a rate per annum equal to the rate then applicable to Revolving Loans that are Reference Rate Loans~~Collateral. The Agent ~~making any Agent~~ Advances shall not constitute Loans but shall otherwise constitute Obligations hereunder. The Agent shall notify ~~the other Agent,~~ each Lender and the ~~Administrative~~ Borrower in writing of each such Agent Advance, which notice shall include a description of the purpose of such Agent Advance. Without limitation to its obligations pursuant to Section 10.05, each Lender agrees that it shall make available to the ~~Agent making any Agent Advances~~Agent, upon ~~such~~ the Agent’s 's demand, in ~~the currency in which the respective Agent Advance was made~~ Dollars in immediately available funds, the amount equal to such Lender’s 's Pro Rata Share of each such Agent ~~Advance subject to the terms of, the Agreement Among Lenders, provided that any such amount advanced by a Lender shall be deemed a Loan hereunder~~Advance. If such funds are not made available to ~~such~~ the Agent by such ~~Lender, such~~ Lender the Agent shall be entitled to recover such ~~funds~~ funds, on demand from such ~~Lender,~~ Lender together with interest ~~thereon~~ thereon, for each day from the date such payment was due until the date such amount is paid to ~~such~~ the Agent, at the Federal Funds ~~Effective~~ Rate for three Business Days and thereafter at the ~~Reference~~ Prime Rate. (b) The Lenders hereby irrevocably authorize the ~~Collateral~~ Agent, at its option and in its discretion, to release any Lien granted to or held by the ~~Collateral~~ Agent upon any Collateral upon termination of the Total Commitment and ~~Payment~~ payment and satisfaction of all Loans, and all other Obligations which have matured and which the Agent has been notified in ~~Full of the Obligations~~writing are then due and payable; or constituting property being sold or disposed of in the ordinary course of ~~any Loan Party’s~~ the Borrower's business ~~or otherwise~~ and in compliance with the terms of this Agreement and the other Loan Documents; or constituting property in which the ~~Loan Parties~~ Borrower owned no interest at the time the Lien was granted or -80- 87 at any time thereafter; or if approved, authorized or ratified in writing by the ~~applicable Lenders required pursuant to Section 12.02~~Lenders. Upon request by the ~~Collateral~~ Agent at any time, the Lenders will confirm in writing the ~~Collateral~~ Agent’s 's authority to release particular types or items of Collateral pursuant to this Section 10.08(b). (c) Without in any manner limiting the ~~Collateral~~ Agent’s 's authority to act without any specific or further authorization or consent by the Lenders (as set forth in Section 10.08(b)), each Lender agrees to confirm in writing, upon request by the ~~Collateral~~ Agent, the authority to release Collateral conferred upon the ~~Collateral~~ Agent under Section 10.08(b). Upon receipt by the Agent of confirmation from the Lenders of its authority to release any particular item or types of Collateral, and upon prior written request by ~~any Loan Party~~the Borrower, the ~~Collateral~~ Agent shall (and is hereby irrevocably authorized by the Lenders to) execute such documents as may be necessary ~~or reasonably requested by any Loan Party~~ to evidence the release of the Liens granted to the ~~Collateral~~ Agent for the benefit of ~~the Agents and~~ the Lenders upon such Collateral; provided, however, that (i) the ~~Collateral~~ Agent shall not be required to execute any such document on terms which, in the ~~Collateral~~ Agent’s 's opinion, would expose the ~~Collateral~~ Agent to liability or create any obligations or entail any consequence other than the release of such Liens without recourse or warranty, and (ii) such release shall not in any manner discharge, affect or impair the Obligations or any Lien upon (or obligations of ~~any Loan Party~~ the Borrower in respect of) all interests in the Collateral retained by ~~any Loan Party~~the Borrower. (d) Anything contained in any of the Loan Documents to the contrary notwithstanding but subject to the Agreement Among Lenders, the Loan Parties, each Agent and each Lender hereby agree that (i) no Lender shall have any right individually to realize upon any of the Collateral under any Loan Document or to enforce any Guaranty, it being understood and agreed that all powers, rights and remedies under the Loan Documents may be exercised solely by the Collateral Agent for the benefit of the Lenders in accordance with the terms thereof, (ii) in the event of a foreclosure by the Collateral Agent on any of the Collateral pursuant to a public or private sale, the Administrative Agent, the Collateral Agent or any Lender may be the purchaser of any or all of such Collateral at any such sale and (iii) the Collateral Agent, as agent for and representative of the Agents and the Lenders (but not any other Agent or any Lender or Lenders in its or their respective individual capacities unless the Required Lenders shall otherwise agree in writing) shall be entitled (either directly or through one or more acquisition vehicles) for the purpose of bidding and making settlement or payment of the purchase price for all or any portion of the Collateral to be sold (A) at any public or private sale, (B) at any sale conducted by the Collateral Agent under the provisions of the Uniform Commercial Code (including pursuant to Sections 9-610 or 9-620 of the Uniform Commercial Code), (C) at any sale or foreclosure conducted by the Collateral Agent (whether by judicial action or otherwise) in accordance with applicable law or (D) any sale conducted pursuant to the provisions of any Debtor Relief Law (including Section 363 of the Bankruptcy Code), to use and apply all or any of the Obligations as a credit on account of the purchase price for any Collateral payable by the Collateral Agent at such sale. (e) The ~~Collateral~~ Agent shall have no obligation whatsoever to any ~~Lender~~ Lenders to assure that the Collateral exists or is owned by the ~~Loan Parties~~ Borrower or is cared for, protected or insured or has been encumbered or that the Lien granted to the ~~Collateral~~ Agent pursuant to this Agreement ~~or any other Loan Document~~ has been properly or sufficiently or lawfully created, perfected, protected or enforced or is entitled to any particular priority, or to exercise at all or in any particular manner or under any duty of care, disclosure or fidelity, or to continue exercising, any of the rights, authorities and powers granted or available to the ~~Collateral~~ Agent in this Section 10.08 or in any ~~other~~ of the Loan ~~Document~~Documents, it being understood and agreed that in respect of the Collateral, or any act, omission or event related thereto, the ~~Collateral~~ Agent may act in any manner it may deem appropriate, in its sole discretion, given the ~~Collateral~~ Agent’s 's own interest in the Collateral as one of the Lenders and that the ~~Collateral~~ Agent shall have no duty or liability whatsoever to any other Lender~~, except as otherwise provided herein and in the Agreement Among Lenders~~.

Appears in 1 contract

Samples: Revolving Credit and Security Agreement (Cityscape Financial Corp)

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

Appears in 1 contract

Samples: Loan and Security Agreement (Hancock Fabrics Inc)

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

Appears in 1 contract

Samples: Loan and Security Agreement (Lexington Precision Corp)

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

Appears in 1 contract

Samples: Financing Agreement (Waldencast Acquisition Corp.)

Collateral Matters. (a) ~~Each~~ Agent ~~may~~ may, at its option, from time to time, at any time on or after an Event of Default and for so long as the same is continuing or upon any other failure of a condition precedent to the Loans and Letter of Credit Accommodations hereunder, make such disbursements and advances (“Special Agent Advances”) which ~~such~~ Agent, in its sole discretion, deems necessary or desirable either (i) to ~~preserve, protect, prepare for sale~~ preserve or ~~lease or dispose of~~ protect the Collateral or any portion ~~thereof, to enhance~~ thereof (provided that in no event shall Special Agent Advances for such purpose exceed $5,000,000 in the ~~likelihood~~ aggregate outstanding at any time) or ~~maximize the amount of repayment by the Borrowers of the Loans, Reimbursement Obligations, Letter of Credit Obligations and other Obligations or~~ (ii) to pay any other amount chargeable to ~~the Borrowers~~ any Borrower pursuant to the terms of this ~~Agreement, including, without limitation,~~ Agreement consisting of costs, fees and expenses ~~as described in Section 12.04~~and payments to any issuer of Letter of Credit Accommodations. ~~The~~ Special Agent Advances shall be repayable on demand and be secured by the ~~Collateral and shall bear interest at a rate per annum equal to the rate then applicable to Revolving Loans that are Reference Rate Loans~~Collateral. ~~The Agent making any~~ Special Agent Advances shall not constitute Loans but shall otherwise constitute Obligations hereunder. Agent shall notify ~~the other Agent,~~ each Lender and ~~the Administrative Borrower~~ Huffy in writing of each such Special Agent Advance, which notice shall include a description of the purpose of such Special Agent Advance. Without limitation to of its obligations pursuant to Section ~~10.05~~6.9, each Lender agrees that it shall make available to ~~the Agent making any Agent Advances~~Agent, upon ~~such~~ Agent’s demand, ~~in the currency in which the respective Agent Advance was made~~ in immediately available funds, the amount equal to such Lender’s Pro Rata Share of each such Special Agent ~~Advance subject to the terms of, the Agreement Among Lenders, provided that any such amount advanced by a Lender shall be deemed a Loan hereunder~~Advance. If such funds are not made available to ~~such~~ Agent by such Lender, ~~such~~ Agent shall be entitled to recover such ~~funds~~ funds, on demand from such ~~Lender,~~ Lender together with interest ~~thereon~~ thereon, for each day from the date such payment was due until the date such amount is paid to ~~such Agent,~~ Agent at the ~~Federal Funds Effective Rate for three Business Days and thereafter at~~ interest rate then payable by Borrowers in respect of the ~~Reference Rate~~Loans as set forth in Section 3.1(a) hereof. (b) ~~The~~ Lenders hereby irrevocably authorize ~~the Collateral~~ Agent, at its option and in its ~~discretion,~~ discretion to release any ~~Lien granted to~~ security interest in, mortgage or ~~held by~~ lien upon, any of the Collateral ~~Agent upon any Collateral~~ (i) upon termination of the ~~Total Commitment~~ Commitments and ~~Payment in Full~~ payment and satisfaction of all of the ~~Obligations;~~ Obligations and delivery of cash collateral to the extent required under Section 13.1 below, or (ii) constituting property being sold or disposed of in if Huffy certifies to Agent that the ~~ordinary course of any Loan Party’s business~~ sale or ~~otherwise~~ disposition is made in compliance with ~~the terms of this Agreement~~ Section 9.7 hereof (and ~~the other Loan Documents;~~ Agent may rely conclusively on any such certificate, without further inquiry), or (iii) constituting property in which ~~the Loan Parties owned no~~ any Borrower or Guarantor did not own an interest at the time the ~~Lien~~ security interest, mortgage or lien was granted or at any time thereafter; , or (iv) having a value of less than $2,000,000, or (v) if approved, authorized or ratified in writing by all of Lenders. Except as provided above, Agent will not release any security interest in, mortgage or lien upon, any of the ~~applicable~~ Collateral without the prior written authorization of all of Lenders ~~required pursuant~~ (and any Lender may require that the proceeds from any sale or other disposition of the Collateral to ~~Section 12.02~~be so released be applied to the Obligations in a manner satisfactory to such Lender). Upon request by ~~the Collateral~~ Agent at any time, ~~the~~ Lenders will promptly confirm in writing ~~the Collateral~~ Agent’s authority to release particular types or items of Collateral pursuant to this ~~Section 10.08(b)~~Section. (c) Without in any manner limiting ~~the Collateral~~ Agent’s authority to act without any specific or further authorization or consent by the ~~Lenders (as set forth in Section 10.08(b))~~Required Lenders, each Lender agrees to confirm in writing, upon request by ~~the Collateral~~ Agent, the authority to release Collateral conferred upon ~~the Collateral~~ Agent under ~~Section 10.08(b)~~this Section. ~~Upon the prior written request by any Loan Party, the Collateral~~ Agent shall (and is hereby irrevocably authorized by ~~the~~ Lenders to) execute such documents as may be necessary ~~or reasonably requested by any Loan Party~~ to evidence the release of the ~~Liens~~ security interest, mortgage or liens granted to ~~the Collateral~~ Agent for itself and the benefit of the ~~Agents and the~~ Lenders upon ~~such Collateral~~any Collateral to the extent set forth above; provided, ~~however~~that, ~~that~~ (i) ~~the Collateral~~ Agent shall not be required to execute any such document on terms which, in ~~the Collateral~~ Agent’s opinion, would expose ~~the Collateral~~ Agent to liability or create any obligations or entail any consequence other than the release of such ~~Liens~~ security interest, mortgage or liens without recourse or ~~warranty,~~ warranty and (ii) such release shall not in any manner discharge, affect or impair the Obligations or any ~~Lien~~ security interest, mortgage or lien upon (or obligations of ~~any Loan Party~~ Borrower in respect of) ~~all interests in~~ the Collateral retained by ~~any Loan Party~~Borrower. (d) Anything contained in any of the Loan Documents to the contrary notwithstanding but subject to the Agreement Among Lenders, the Loan Parties, each Agent and each Lender hereby agree that (i) no Lender shall have any right individually to realize upon any of the Collateral under any Loan Document or to enforce any Guaranty, it being understood and agreed that all powers, rights and remedies under the Loan Documents may be exercised solely by the Collateral Agent for the benefit of the Lenders in accordance with the terms thereof, (ii) in the event of a foreclosure by the Collateral Agent on any of the Collateral pursuant to a public or private sale, the Administrative Agent, the Collateral Agent or any Lender may be the purchaser of any or all of such Collateral at any such sale and (iii) the Collateral Agent, as agent for and representative of the Agents and the Lenders (but not any other Agent or any Lender or Lenders in its or their respective individual capacities unless the Required Lenders shall otherwise agree in writing) shall be entitled (either directly or through one or more acquisition vehicles) for the purpose of bidding and making settlement or payment of the purchase price for all or any portion of the Collateral to be sold (A) at any public or private sale, (B) at any sale conducted by the Collateral Agent under the provisions of the Uniform Commercial Code (including pursuant to Sections 9-610 or 9-620 of the Uniform Commercial Code), (C) at any sale or foreclosure conducted by the Collateral Agent (whether by judicial action or otherwise) in accordance with applicable law or (D) any sale conducted pursuant to the provisions of any Debtor Relief Law (including Section 363 of the Bankruptcy Code), to use and apply all or any of the Obligations as a credit on account of the purchase price for any Collateral payable by the Collateral Agent at such sale. (e) The Collateral Agent shall have no obligation whatsoever to any Lender or any other Person to investigate, confirm or assure that the Collateral exists or is owned by ~~the Loan Parties~~ any Borrower or Guarantor or is cared for, protected or insured or has been ~~encumbered~~ encumbered, or that any particular items of Collateral meet the eligibility criteria applicable in respect of the Loans or Letter of Credit Accommodations hereunder, or whether any particular reserves are appropriate, or that the ~~Lien~~ liens and security interests granted to ~~the Collateral~~ Agent herein or pursuant ~~to this Agreement~~ hereto or ~~any other Loan Document has~~ otherwise have been properly or sufficiently or lawfully created, perfected, protected or enforced or is are entitled to any particular priority, or to exercise at all or in any particular manner or under any duty of care, disclosure or fidelity, or to continue exercising, any of the rights, authorities and powers granted or available to ~~the Collateral~~ Agent in this ~~Section 10.08~~ Agreement or in any of the other ~~Loan Document~~Financing Agreements, it being understood and agreed that in respect of the Collateral, or any act, omission or event related thereto, ~~the Collateral~~ Agent may act in any manner it may deem appropriate, in its ~~sole~~ discretion, given ~~the Collateral~~ Agent’s own interest in the Collateral as ~~one of the Lenders~~ a Lender and that ~~the Collateral~~ Agent shall have no duty or liability whatsoever to any other Lender~~, except as otherwise provided herein and in the Agreement Among Lenders~~.

Appears in 1 contract

Samples: Loan and Security Agreement (Huffy Corp)

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

Appears in 1 contract

Samples: Loan and Security Agreement (Newark Group, Inc)

Collateral Matters. (a) ~~Each~~ Agent ~~may~~ may, at its option, from time to time, at any time on or after an Event of Default and for so long as the same is continuing or upon any other failure of a condition precedent to the Loans and Letter of Credit Accommodations hereunder, make such disbursements and advances (“Special Agent Advances”) which ~~such~~ Agent, in its sole discretion, deems necessary or desirable either (i) to ~~preserve, protect, prepare for sale~~ preserve or ~~lease or dispose of~~ protect the Collateral or any portion ~~thereof~~thereof (provided that in no event shall Special Agent Advances for such purpose exceed Five Million Dollars ($5,000,000) in the aggregate outstanding at any time), ~~to enhance~~ provided, that, unless all Lenders otherwise agree in writing, the ~~likelihood or maximize~~ Special Agent Advances under this clause (i) shall not cause the aggregate outstanding principal amount ~~of repayment by the Borrowers~~ of the Loans, ~~Reimbursement Obligations,~~ the Letter of Credit ~~Obligations~~ Accommodations and ~~other Obligations~~ such Special Agent Advances to exceed the Maximum Credit, and Agent shall make commercially reasonable arrangements with Borrowers for the repayment in full of such Special Agent Advances within a reasonable time, or (ii) to pay any other amount chargeable to ~~the Borrowers~~ any Borrower pursuant to the terms of this ~~Agreement, including, without limitation,~~ Agreement consisting of costs, fees and expenses ~~as described in Section 12.04~~and payments to any issuer of Letter of Credit Accommodations. ~~The~~ Special Agent Advances shall be repayable on demand and be secured by the ~~Collateral and shall bear interest at a rate per annum equal to the rate then applicable to Revolving Loans that are Reference Rate Loans~~Collateral. ~~The Agent making any~~ Special Agent Advances shall not constitute Loans but shall otherwise constitute Obligations hereunder. Agent shall notify ~~the other Agent,~~ each Lender and ~~the Administrative Borrower~~ Borrowers in writing of each such Special Agent Advance, which notice shall include a description of the purpose of such Special Agent Advance. Without limitation to of its obligations pursuant to Section ~~10.05~~6.10, each Lender agrees that it shall make available to ~~the Agent making any Agent Advances~~Agent, upon ~~such~~ Agent’s demand, ~~in the currency in which the respective Agent Advance was made~~ in immediately available funds, the amount equal to such Lender’s Pro Rata Share of each such Special Agent ~~Advance subject to the terms of, the Agreement Among Lenders, provided that any such amount advanced by a Lender shall be deemed a Loan hereunder~~Advance. If such funds are not made available to ~~such~~ Agent by such Lender, ~~such~~ Agent shall be entitled to recover such ~~funds~~ funds, on demand from such ~~Lender,~~ Lender together with interest ~~thereon~~ thereon, for each day from the date such payment was due until the date such amount is paid to ~~such Agent,~~ Agent at the ~~Federal Funds Effective Rate for three Business Days and thereafter at~~ interest rate then payable by Borrowers in respect of the ~~Reference Rate~~Revolving Loans as set forth in Section 3.1 hereof. (b) ~~The~~ Lenders hereby irrevocably authorize ~~the Collateral~~ Agent, at its option and in its ~~discretion,~~ discretion to release any ~~Lien granted to~~ security interest in, mortgage or ~~held by~~ lien upon, any of the Collateral ~~Agent~~ (i) upon ~~any Collateral upon~~ *** CERTAIN INFORMATION IN THIS EXHIBIT HAS BEEN OMITTED AND FILED SEPARATELY WITH THE COMMISSION. CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH RESPECT TO THE OMITTED PORTIONS. termination of the ~~Total Commitment~~ Commitments and ~~Payment in Full~~ payment and satisfaction of all of the ~~Obligations;~~ Obligations and delivery of cash collateral to the extent required under Section 13.1 hereof, or (ii) constituting property being sold or disposed of in if Borrowers certify to Agent that the ~~ordinary course of any Loan Party’s business~~ sale or ~~otherwise~~ disposition is made in compliance with the terms ~~of this Agreement~~ hereof, including Sections 9.7 and ~~the other Loan Documents;~~ 2.3 hereof (and Agent may rely conclusively on any such certificate, without further inquiry), or (iii) constituting property in which ~~the Loan Parties owned no~~ any Borrower or any Obligor did not own an interest at the time the ~~Lien~~ security interest, mortgage or lien was granted or at any time thereafter; , or (iv) having a value of less than Five Million Dollars ($5,000,000), or (v) if approved, authorized or ratified in writing by all of Lenders. Except as provided above, Agent will not release any security interest in, mortgage or lien upon, any of the ~~applicable~~ Collateral without the prior written authorization of all of Lenders ~~required pursuant~~ (and any Lender may require that the proceeds from any sale or other disposition of the Collateral to ~~Section 12.02~~be so released be applied to the Obligations in a manner satisfactory to such Lender). Upon request by ~~the Collateral~~ Agent at any time, ~~the~~ Lenders will promptly confirm in writing ~~the Collateral~~ Agent’s authority to release particular types or items of Collateral pursuant to this ~~Section 10.08(b)~~Section. (c) Without in any manner limiting ~~the Collateral~~ Agent’s authority to act without any specific or further authorization or consent by the ~~Lenders (as set forth in Section 10.08(b))~~Required Lenders, each Lender agrees to confirm in writing, upon request by ~~the Collateral~~ Agent, the authority to release Collateral conferred upon ~~the Collateral~~ Agent under ~~Section 10.08(b)~~this Section. ~~Upon the prior written request by any Loan Party, the Collateral~~ Agent shall (and is hereby irrevocably authorized by ~~the~~ Lenders to) execute such documents as may be necessary ~~or reasonably requested by any Loan Party~~ to evidence the release of the ~~Liens~~ security interest, mortgage or liens granted to ~~the Collateral~~ Agent for itself and the benefit of the ~~Agents and the~~ Lenders upon ~~such Collateral~~any Collateral to the extent set forth above; provided, ~~however~~that, ~~that~~ (i) ~~the Collateral~~ Agent shall not be required to execute any such document on terms which, in ~~the Collateral~~ Agent’s opinion, would expose ~~the Collateral~~ Agent to liability or create any obligations or entail any consequence other than the release of such ~~Liens~~ security interest, mortgage or liens without recourse or ~~warranty,~~ warranty and (ii) such release shall not in any manner discharge, affect or impair the Obligations or any ~~Lien~~ security interest, mortgage or lien upon (or obligations of any ~~Loan Party~~ Borrower in respect of) ~~all interests in~~ the Collateral retained by any ~~Loan Party~~Borrower. (d) Anything contained in any of the Loan Documents to the contrary notwithstanding but subject to the Agreement Among Lenders, the Loan Parties, each Agent and each Lender hereby agree that (i) no Lender shall have any right individually to realize upon any of the Collateral under any Loan Document or to enforce any Guaranty, it being understood and agreed that all powers, rights and remedies under the Loan Documents may be exercised solely by the Collateral Agent for the benefit of the Lenders in accordance with the terms thereof, (ii) in the event of a foreclosure by the Collateral Agent on any of the Collateral pursuant to a public or private sale, the Administrative Agent, the Collateral Agent or any Lender may be the purchaser of any or all of such Collateral at any such sale and (iii) the Collateral Agent, as agent for and representative of the Agents and the Lenders (but not any other Agent or any Lender or Lenders in its or their respective individual capacities unless the Required Lenders shall otherwise agree in writing) shall be entitled (either directly or through one or more acquisition vehicles) for the purpose of bidding and making settlement or payment of the purchase price for all or any portion of the Collateral to be sold (A) at any public or private sale, (B) at any sale conducted by the Collateral Agent under the provisions of the Uniform Commercial Code (including pursuant to Sections 9-610 or 9-620 of the Uniform Commercial Code), (C) at any sale or foreclosure conducted by the Collateral Agent (whether by judicial action or otherwise) in accordance with applicable law or (D) any sale conducted pursuant to the provisions of any Debtor Relief Law (including Section 363 of the Bankruptcy Code), to use and apply all or any of the Obligations as a credit on account of the purchase price for any Collateral payable by the Collateral Agent at such sale. (e) The Collateral Agent shall have no obligation whatsoever to any Lender or any other Person to investigate, confirm or assure that the Collateral exists or is owned by ~~the Loan Parties~~ any Borrower or any Obligor or is cared for, protected or insured or has been ~~encumbered~~ encumbered, or that any particular items of Collateral meet the eligibility criteria applicable in respect of the Loans or Letter of Credit Accommodations hereunder, or whether any particular reserves are appropriate, or that the ~~Lien~~ liens and security interests granted to ~~the Collateral~~ Agent herein or pursuant ~~to this Agreement~~ hereto or ~~any other Loan Document has~~ otherwise have been properly or sufficiently or lawfully created, perfected, protected or enforced or is are entitled to any particular priority, or to exercise at all or in any particular manner or under any duty of care, disclosure or fidelity, or to continue exercising, any of the rights, authorities and powers granted or available to ~~the Collateral~~ Agent in this ~~Section 10.08~~ Agreement or in any of the other ~~Loan Document~~Financing Agreements, it being understood and agreed that in respect of the Collateral, or any act, omission or event related thereto, ~~the Collateral~~ Agent may act in any manner it may deem appropriate, in its ~~sole~~ discretion, given ~~the Collateral~~ Agent’s own interest in the Collateral as ~~one of the Lenders~~ a Lender and that ~~the Collateral~~ Agent shall have no duty or liability whatsoever to any other Lender~~, except as otherwise provided herein and in the Agreement Among Lenders~~.

Appears in 1 contract

Samples: Loan and Security Agreement (Pc Mall Inc)

Collateral Matters. (a) ~~Each~~ The Collateral Agent may from time to time make such disbursements and advances (“Collateral Agent Advances”) which ~~such~~ the Collateral Agent, in its sole discretion, deems necessary or desirable to preserve, protect, prepare for sale or lease or dispose of the Collateral or any portion thereof, to enhance the likelihood or maximize the amount of repayment by the Borrowers of the ~~Loans, Reimbursement Obligations, Letter of Credit Obligations~~ Loans and other Obligations or to pay any other amount chargeable to the Borrowers pursuant to the terms of this Agreement, including, without limitation, costs, fees and expenses as described in Section 12.04. The Collateral Agent Advances shall be repayable on demand and be secured by the Collateral and shall bear interest at a rate per annum equal to the rate then applicable to ~~Revolving~~ Term Loans that are Reference Rate Loans. The ~~Agent making any~~ Collateral Agent Advances shall constitute Obligations hereunder which may be charged to the Loan Account in accordance with Section 4.01. The Collateral Agent shall notify ~~the other Agent,~~ each Lender and the Administrative Borrower in writing of each such Collateral Agent Advance, which notice shall include a description of the purpose of such Collateral Agent Advance. Without limitation to its obligations pursuant to Section 10.05, each Lender agrees that it shall make available to the ~~Agent making any Agent Advances~~Collateral Agent, upon ~~such~~ the Collateral Agent’s demand, in ~~the currency in which the respective Agent Advance was made~~ Dollars in immediately available funds, the amount equal to such Lender’s Pro Rata Share of each such Collateral Agent ~~Advance subject to the terms of, the Agreement Among Lenders, provided that any such amount advanced by a Lender shall be deemed a Loan hereunder~~Advance. If such funds are not made available to ~~such~~ the Collateral Agent by such Lender, ~~such~~ the Collateral Agent shall be entitled to recover such funds on demand from such Lender, together with interest thereon for each day from the date such payment was due until the date such amount is paid to ~~such~~ the Collateral Agent, at the Federal Funds ~~Effective~~ Rate for three Business Days and thereafter at the Reference Rate. (b) The Lenders hereby irrevocably authorize the Collateral Agent, at its option and in its discretion, to release any Lien granted to or held by the Collateral Agent upon any Collateral upon termination of the Total Term Loan Commitment and ~~Payment~~ payment and satisfaction of all Loans and all other Obligations (other than Contingent Indemnity Obligations) in ~~Full of~~ accordance with the ~~Obligations~~terms hereof; or constituting property being sold or disposed of in the ordinary course of any Loan Party’s business or otherwise in compliance with the terms of this Agreement and the other Loan Documents; or constituting property in which the Loan Parties owned no interest at the time the Lien was granted or at any time thereafter; or if approved, authorized or ratified in writing by the ~~applicable~~ Lenders ~~required pursuant to~~ in accordance with Section 12.02. Upon request by the Collateral Agent at any time, the Lenders will confirm in writing the Collateral Agent’s authority to release particular types or items of Collateral pursuant to this Section 10.08(b). (c) Without in any manner limiting the Collateral Agent’s authority to act without any specific or further authorization or consent by the Lenders (as set forth in Section 10.08(b)), each Lender agrees to confirm in writing, upon request by the Collateral Agent, the authority to release Collateral conferred upon the Collateral Agent under Section 10.08(b). Upon receipt by the Collateral Agent of confirmation from the Lenders of its authority to release any particular item or types of Collateral, and upon prior written request by any Loan Party, the Collateral Agent shall (and is hereby irrevocably authorized by the Lenders to) execute such documents as may be necessary ~~or reasonably requested by any Loan Party~~ to evidence the release of the Liens granted to the Collateral Agent for the benefit of the Agents and the Lenders upon such Collateral; provided, however, that (i) the Collateral Agent shall not be required to execute any such document on terms which, in the Collateral Agent’s opinion, would expose the Collateral Agent to liability or create any obligations or entail any consequence other than the release of such Liens without recourse or warranty, and (ii) such release shall not in any manner discharge, affect or impair the Obligations or any Lien upon (or obligations of any Loan Party in respect of) all interests in the Collateral retained by any Loan Party. (d) Anything contained in any of the Loan Documents to the contrary ~~notwithstanding but subject to the Agreement Among Lenders~~notwithstanding, the Loan Parties, each Agent and each Lender hereby agree that ~~(i)~~ no Lender shall have any right individually to realize upon any of the Collateral under any Loan Document or to enforce any Guaranty, it being understood and agreed that all powers, rights and remedies under the Loan Documents may be exercised solely by the Collateral Agent for the benefit of the Lenders in accordance with the terms thereof, . (iie) in The Agents and the event of a foreclosure by the Collateral Agent on any of the Collateral pursuant to a public or private sale, the Administrative Agent, the Collateral Agent or any Lender may be the purchaser of any or all of such Collateral at any such sale and (iii) Lenders hereby irrevocably authorize the Collateral Agent, as agent for and representative of the Agents and the Lenders (but not any other Agent or any 128498985v11 Lender or Lenders in its or their respective individual capacities unless the Required Lenders shall otherwise agree in writing), to credit bid all or any portion of the Obligations (including by accepting some or all of the Collateral in satisfaction of some or all of the Obligations pursuant to a deed in lieu of foreclosure or otherwise) and in such manner purchase (either directly or through one or more acquisition vehicles) all or any portion of the Collateral (i) at any sale thereof conducted under the provisions of the Bankruptcy Code, including under Section 363, 1123 or 1129 of the Bankruptcy Code, or any similar laws in any other jurisdictions to which a Loan Party is subject, or (ii) at any other sale, foreclosure or acceptance of collateral in lieu of debt conducted by (or with the consent or at the direction of) the Collateral Agent (whether by judicial action or otherwise) in accordance with any applicable law. In connection with any such credit bid and purchase, the Obligations owed to the Agents and the Lenders shall be entitled to be, and shall be, credit bid by the Collateral Agent (but not any other Agent or any Lender or Lenders in its or their respective individual capacities unless the Required Lenders shall otherwise agree in writing) on a ratable basis (with Obligations with respect to contingent or unliquidated claims receiving contingent interests in the acquired assets on a ratable basis that shall vest upon the liquidation of such claims in an amount proportional to the liquidated portion of the contingent claim amount used in allocating the contingent interests) for the asset or assets so purchased (or for the equity interests or debt instruments of the acquisition vehicle or vehicles that are issued in connection with such purchase). In connection with any such bid (A) the Collateral Agent shall be ~~entitled (either directly or through~~ authorized to form one or more acquisition vehicles and to assign any successful credit bid to such acquisition vehicle or vehicles, (B) each of the Agents’ and the Lenders’ ratable interests in the Obligations which were credit bid shall be deemed without any further action under this Agreement to be assigned to such vehicle or vehicles for the purpose of ~~bidding and making settlement or payment of the purchase price for all or any portion of the Collateral to be sold (A) at any public or private~~ closing such sale, (BC) at the Collateral Agent shall be authorized to adopt documents providing for the governance of the acquisition vehicle or vehicles (provided that any ~~sale conducted~~ actions by the Collateral Agent with respect to such acquisition vehicle or vehicles, including any disposition of the assets or equity interests thereof, shall be governed, directly or indirectly, by, and the governing documents shall provide for, control by the vote of the Required Lenders or their permitted assignees under the ~~provisions~~ terms of this Agreement or the governing documents of the ~~Uniform Commercial Code (including pursuant to Sections 9-610~~ applicable acquisition vehicle or ~~9-620~~ vehicles, as the case may be, irrespective of the ~~Uniform Commercial Code~~termination of this Agreement and without giving effect to the limitations on actions by the Required Lenders contained in Section 12.02), (CD) ~~at any sale or foreclosure conducted by~~ the Collateral ~~Agent (whether by judicial action~~ Agent, on behalf of such acquisition vehicle or ~~otherwise) in accordance with applicable law or (D) any sale conducted pursuant~~ vehicles, shall be authorized to ~~the provisions of any Debtor Relief Law (including Section 363~~ issue to each of the ~~Bankruptcy Code)~~Agents and the Lenders, ~~to use and apply all or any of the Obligations as a credit~~ ratably on account of the ~~purchase price~~ relevant Obligations which were credit bid, interests, whether as equity, partnership interests, limited partnership interests or membership interests, in any such acquisition vehicle and/or debt instruments issued by such acquisition vehicle, all without the need for any Agent, any Lender or any acquisition vehicle to take any further action, and (E) to the extent that Obligations that are assigned to an acquisition vehicle are not used to acquire Collateral ~~payable~~ for any reason (as a result of another bid being higher or better, because the amount of Obligations assigned to the acquisition vehicle exceeds the amount of Obligations credit bid by the acquisition vehicle or otherwise), such Obligations shall automatically be reassigned to the Agents and the Lenders pro rata with their original interest in such Obligations and the equity interests and/or debt instruments issued by any acquisition vehicle on account of such Obligations shall automatically be cancelled, without the need for any Agent, any Lender or any acquisition vehicle to take any further action. Notwithstanding that the ratable portion of the Obligations of each Agent and each Lender are deemed assigned to the acquisition vehicle or vehicles as set forth in clause (B) above, each Agent and each Lender shall execute such documents and provide such information regarding such Person (and/or any designee of such Person that will receive interests in or debt instruments issued by such acquisition vehicle) as the Collateral Agent at may reasonably request in connection with the formation of any acquisition vehicle, the formulation or submission of any credit bid or the consummation of the transactions contemplated by such ~~sale~~credit bid. (ef) The Collateral Agent shall have no obligation whatsoever to any Lender to assure that the Collateral exists or is owned by the Loan Parties or is cared for, protected or insured or has been encumbered or that the Lien granted to the Collateral Agent pursuant to this Agreement or any other Loan Document has been properly or sufficiently or lawfully created, perfected, protected or enforced or is entitled to any particular priority, or to exercise at all or in any particular manner or under any duty of care, disclosure or fidelity, or to continue exercising, any of the rights, authorities and powers granted or available to the Collateral Agent in this Section 10.08 or in any other Loan Document, it being understood and agreed that in respect of the Collateral, or any act, omission or event related thereto, the Collateral Agent may act in any manner it may deem appropriate, in its sole discretion, given the 128498985v11 Collateral Agent’s own interest in the Collateral as one of the Lenders and that the Collateral Agent shall have no duty or liability whatsoever to any other Lender, except as otherwise provided ~~herein and in the Agreement Among Lenders~~herein.

Appears in 1 contract

Samples: Financing Agreement (Spark Networks SE)

Collateral Matters. (a) ~~Each~~ Agent ~~may~~ may, at its option, from time to time, at any time on or after an Event of Default and for so long as the same is continuing or upon any other failure of a condition precedent to the Loans and Letter of Credit Accommodations hereunder, make such disbursements and advances (“"Special Agent Advances”") which ~~such~~ Agent, in its sole discretion, (i) deems necessary or desirable either to ~~preserve, protect, prepare for sale~~ preserve or ~~lease or dispose of~~ protect the Collateral or any portion ~~thereof,~~ thereof or (ii) to enhance the likelihood or maximize the amount of repayment by ~~the~~ Borrowers of the ~~Loans, Reimbursement~~ Loans and other Obligations, provided, that, the aggregate principal amount of the Special Agent Advances pursuant to this clause (ii), plus the then outstanding principal amount of the additional Loans and Letter of Credit ~~Obligations~~ Accommodations which Agent may make or provide as set forth in Section 12.8 hereof, shall not exceed the aggregate amount of ten (10%) percent of the Borrowing Base and ~~other Obligations~~ shall not cause the total principal amount of the Loans and Letter of Credit Accommodations to exceed the Maximum Credit, or (iii) to pay any other amount chargeable to ~~the Borrowers~~ any Borrower pursuant to the terms of this ~~Agreement, including, without limitation,~~ Agreement or any of the other Financing Agreements consisting of (A) costs, fees and expenses ~~as described in Section 12.04~~and (B) payments to any issuer of Letter of Credit Accommodations. ~~The~~ Special Agent Advances shall be repayable on demand and be together with all interest thereon shall constitute Obligations secured by the ~~Collateral and~~ Collateral. Special Agent Advances shall ~~bear interest~~ not constitute Loans but shall otherwise constitute Obligations hereunder. Interest on Special Agent Advances shall be payable at ~~a rate per annum equal to~~ the ~~rate~~ Interest Rate then applicable to ~~Revolving~~ Prime Rate Loans ~~that are Reference Rate Loans. The Agent making any Agent Advances~~ and shall ~~notify the other Agent, each Lender and the Administrative Borrower in writing of each such Agent Advance, which notice shall include a description of the purpose of such Agent Advance~~be payable on demand. Without limitation to of its obligations pursuant to Section ~~10.05~~6.10, each Lender agrees that it shall make available to ~~the Agent making any Agent Advances~~Agent, upon ~~such~~ Agent’s 's demand, ~~in the currency in which the respective Agent Advance was made~~ in immediately available funds, the amount equal to such Lender’s 's Pro Rata Share of each such Special Agent ~~Advance subject to the terms of, the Agreement Among Lenders, provided that any such amount advanced by a Lender shall be deemed a Loan hereunder~~Advance. If such funds are not made available to ~~such~~ Agent by such Lender, such Lender shall be deemed a Defaulting Lender and Agent shall be entitled to recover such ~~funds~~ funds, on demand from such ~~Lender,~~ Lender together with interest thereon for each day from the date such payment was due until the date such amount is paid to ~~such Agent,~~ Agent at the Federal Funds ~~Effective~~ Rate for each day during such period (as published by the Federal Reserve Bank of New York or at Agent's option based on the arithmetic mean determined by Agent of the rates for the last transaction in overnight Federal funds arranged prior to 9:00 a.m. (New York City time) on that day by each of the three ~~Business Days~~ leading brokers of Federal funds transactions in New York City selected by Agent) and ~~thereafter~~ if such amounts are not paid within three (3) days of Agent's demand, at the ~~Reference Rate~~highest Interest Rate provided for in Section 3.1 hereof applicable to Prime Rate Loans. (b) ~~The~~ Lenders hereby irrevocably authorize ~~the Collateral~~ Agent, at its option and in its ~~discretion,~~ discretion to release any ~~Lien granted to~~ security interest in, mortgage or ~~held by~~ lien upon, any of the Collateral ~~Agent upon any Collateral~~ (i) upon termination of the ~~Total Commitment~~ Commitments and ~~Payment in Full~~ payment and satisfaction of all of the ~~Obligations;~~ Obligations and delivery of cash collateral to the extent required under Section 13.1 below, or (ii) constituting property being sold or disposed of in if Administrative Borrower or any Borrower certifies to Agent that the ~~ordinary course of any Loan Party’s business~~ sale or ~~otherwise~~ disposition is made in compliance with ~~the terms of this Agreement~~ Section 9.7 hereof (and ~~the other Loan Documents;~~ Agent may rely conclusively on any such certificate, without further inquiry), or (iii) constituting property in which ~~the Loan Parties owned no~~ any Borrower did not own an interest at the time the ~~Lien~~ security interest, mortgage or lien was granted or at any time thereafter; , or (iv) having a value in the aggregate during the term of this Agreement of less than the greater of (x) twenty (20% percent of the Maximum Credit or (y) $30,000,000, but in any twelve (12) month period following the Closing Date, having a value in the aggregate of less than the greater of (x) ten (10%) percent of the Maximum Credit or (y) $15,000,000, or (v) if required or permitted under the terms of any of the other Financing Agreements, including any intercreditor agreement, or (vi) approved, authorized or ratified in writing by all of Lenders. Except as provided above, Agent will not release any security interest in, mortgage or lien upon, any of the ~~applicable Lenders required pursuant to Section 12.02~~Collateral without the prior written authorization of all of Lenders. Upon request by ~~the Collateral~~ Agent at any time, ~~the~~ Lenders will promptly confirm in writing ~~the Collateral~~ Agent’s 's authority to release particular types or items of Collateral pursuant to this ~~Section 10.08(b)~~Section. (c) Without in any manner limiting ~~the Collateral~~ Agent’s 's authority to act without any specific or further authorization or consent by the ~~Lenders (as set forth in Section 10.08(b))~~Required Lenders, each Lender agrees to confirm in writing, upon request by ~~the Collateral~~ Agent, the authority to release Collateral conferred upon ~~the Collateral~~ Agent under ~~Section 10.08(b)~~this Section. ~~Upon the prior written request by any Loan Party, the Collateral~~ Agent shall (and is hereby irrevocably authorized by ~~the~~ Lenders to) execute such documents as may be necessary ~~or reasonably requested by any Loan Party~~ to evidence the release of the ~~Liens~~ security interest, mortgage or liens granted to Agent upon any Collateral to the ~~Collateral Agent for the benefit of the Agents and the Lenders upon such Collateral~~extent set forth above; provided, ~~however~~that, ~~that~~ (i) ~~the Collateral~~ Agent shall not be required to execute any such document on terms which, in ~~the Collateral~~ Agent’s 's opinion, would expose ~~the Collateral~~ Agent to liability or create any obligations or entail any consequence other than the release of such ~~Liens~~ security interest, mortgage or liens without recourse or ~~warranty,~~ warranty and (ii) such release shall not in any manner discharge, affect or impair the Obligations or any ~~Lien~~ security interest, mortgage or lien upon (or obligations of any ~~Loan Party~~ Borrower in respect of) ~~all interests in~~ the Collateral retained by ~~any Loan Party~~such Borrower. (d) Anything contained in any of the Loan Documents to the contrary notwithstanding but subject to the Agreement Among Lenders, the Loan Parties, each Agent and each Lender hereby agree that (i) no Lender shall have any right individually to realize upon any of the Collateral under any Loan Document or to enforce any Guaranty, it being understood and agreed that all powers, rights and remedies under the Loan Documents may be exercised solely by the Collateral Agent for the benefit of the Lenders in accordance with the terms thereof, (ii) in the event of a foreclosure by the Collateral Agent on any of the Collateral pursuant to a public or private sale, the Administrative Agent, the Collateral Agent or any Lender may be the purchaser of any or all of such Collateral at any such sale and (iii) the Collateral Agent, as agent for and representative of the Agents and the Lenders (but not any other Agent or any Lender or Lenders in its or their respective individual capacities unless the Required Lenders shall otherwise agree in writing) shall be entitled (either directly or through one or more acquisition vehicles) for the purpose of bidding and making settlement or payment of the purchase price for all or any portion of the Collateral to be sold (A) at any public or private sale, (B) at any sale conducted by the Collateral Agent under the provisions of the Uniform Commercial Code (including pursuant to Sections 9-610 or 9-620 of the Uniform Commercial Code), (C) at any sale or foreclosure conducted by the Collateral Agent (whether by judicial action or otherwise) in accordance with applicable law or (D) any sale conducted pursuant to the provisions of any Debtor Relief Law (including Section 363 of the Bankruptcy Code), to use and apply all or any of the Obligations as a credit on account of the purchase price for any Collateral payable by the Collateral Agent at such sale. (e) The Collateral Agent shall have no obligation whatsoever to any Lender or any other Person to investigate, confirm or assure that the Collateral exists or is owned by ~~the Loan Parties~~ any Borrower or is cared for, protected or insured or has been ~~encumbered~~ encumbered, or that any particular items of Collateral meet the eligibility criteria applicable in respect of the Loans or Letter of Credit Accommodations hereunder, or whether any particular reserves are appropriate, or that the ~~Lien~~ liens and security interests granted to ~~the Collateral~~ Agent pursuant ~~to this Agreement~~ hereto or any ~~other Loan Document has~~ of the Financing Agreements or otherwise have been properly or sufficiently or lawfully created, perfected, protected or enforced or is are entitled to any particular priority, or to exercise at all or in any particular manner or under any duty of care, disclosure or fidelity, or to continue exercising, any of the rights, authorities and powers granted or available to ~~the Collateral~~ Agent in this ~~Section 10.08~~ Agreement or in any of the other ~~Loan Document~~Financing Agreements, it being understood and agreed that in respect of the Collateral, or any act, omission or event related thereto, ~~the Collateral~~ Agent may act in any manner it may deem appropriate, in its ~~sole~~ discretion, given ~~the Collateral~~ Agent’s 's own interest in the Collateral as ~~one of the Lenders~~ a Lender and that ~~the Collateral~~ Agent shall have no duty or liability whatsoever to any other Lender~~, except as otherwise provided herein and in the Agreement Among Lenders~~.

Appears in 1 contract

Samples: Loan and Security Agreement (Stein Mart Inc)

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

Appears in 1 contract

Samples: Credit Agreement (Deep Down, Inc.)

Appears in 1 contract

Samples: Financing Agreement (Russ Berrie & Co Inc)

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

Appears in 1 contract

Samples: Financing Agreement (GP Investments Acquisition Corp.)

Collateral Matters. (a) ~~Each~~ Agent ~~may~~ may, at its option, from time to time, at any time on or after an Event of Default and for so long as the same is continuing or upon any other failure of a condition precedent to the Revolving Loans and Letter of Credit Accommodations hereunder, make such disbursements and advances (“"Special Agent Advances”") which ~~such~~ Agent, in its sole discretion, deems necessary or desirable either (i) to ~~preserve, protect, prepare for sale~~ preserve or ~~lease or dispose of~~ protect the Collateral or any portion ~~thereof~~thereof (provided, ~~to enhance the likelihood or maximize~~ that, in no event shall the amount of ~~repayment by~~ Special Agent Advances for such purpose, together with the ~~Borrowers~~ aggregate amount of outstanding Over-Advances, exceed the lesser of (A) $20,000,000 or (B) six and one-half (6 1/2%) of the ~~Loans, Reimbursement Obligations, Letter~~ value of ~~Credit Obligations and other Obligations~~ Eligible Inventory in the aggregate outstanding at any time) or (ii) to pay any other amount chargeable to ~~the Borrowers~~ any Borrower pursuant to the terms of this ~~Agreement, including, without limitation,~~ Agreement consisting of costs, fees and expenses ~~as described in Section 12.04~~and payments to any issuer of Letter of Credit Accommodations. ~~The~~ Special Agent Advances shall be repayable on demand and be secured by the ~~Collateral and shall bear interest at a rate per annum equal to the rate then applicable to Revolving Loans that are Reference Rate Loans~~Collateral. ~~The Agent making any~~ Special Agent Advances shall not constitute Revolving Loans but shall otherwise constitute Obligations hereunder. Agent shall notify ~~the other Agent,~~ each Lender and ~~the Administrative Borrower~~ Borrower's Agent in writing of each such Special Agent Advance, which notice shall include a description of the purpose of such Special Agent Advance. Without limitation to of its obligations pursuant to Section ~~10.05~~6.9, each Lender agrees that it shall make available to ~~the Agent making any Agent Advances~~Agent, upon ~~such~~ Agent’s 's demand, ~~in the currency in which the respective Agent Advance was made~~ in immediately available funds, the amount equal to such Revolving Lender’s 's Pro Rata Share of each such Special Agent ~~Advance subject to the terms of, the Agreement Among Lenders, provided that any such amount advanced by a Lender shall be deemed a Loan hereunder~~Advance. If such funds are not made available to ~~such~~ Agent by such Lender, ~~such~~ Agent shall be entitled to recover such ~~funds~~ funds, on demand from such ~~Lender,~~ Lender together with interest thereon for each day from the date such payment was due until the date such amount is paid to ~~such Agent,~~ Agent at the Federal Funds ~~Effective~~ Rate for each day during such period (as published by the Federal Reserve Bank of New York or at Agent's option based on the arithmetic mean determined by Agent of the rates for the last transaction in overnight Federal funds arranged prior to 9:00 a.m. (New York City time) on that day by each of the three ~~Business Days~~ leading brokers of Federal funds transactions in New York City selected by Agent) and ~~thereafter~~ if such amounts are not paid within three (3) days of Agent's demand, at the ~~Reference Rate~~highest Interest Rate provided for in Section 3.1 hereof applicable to Prime Rate Loans. (b) ~~The~~ Lenders hereby irrevocably authorize ~~the Collateral~~ Agent, at its option and in its ~~discretion,~~ discretion to release any ~~Lien granted to~~ security interest in, mortgage or ~~held by~~ lien upon, any of the Collateral ~~Agent upon any Collateral~~ (i) upon termination of the ~~Total Commitment~~ Commitments and ~~Payment in Full~~ payment and satisfaction of all of the ~~Obligations;~~ Obligations and delivery of cash collateral to the extent required under Section 13.1 below, or (ii) constituting property being sold or disposed of in if Borrowers' Agent certifies to Agent and Lenders that the ~~ordinary course of any Loan Party’s business~~ sale or ~~otherwise~~ disposition is made in compliance with ~~the terms of this Agreement~~ Section 9.7 hereof (and ~~the other Loan Documents;~~ Agent may rely conclusively on any such certificate, without further inquiry), or (iii) constituting property in which ~~the Loan Parties owned no~~ any Borrower did not own an interest at the time the ~~Lien~~ security interest, mortgage or lien was granted or at any time thereafter; , or ~~if approved~~(iv) prior to the occurrence of an Event of Default having a value of less than $5,000,000 in the aggregate, ~~authorized~~ or ~~ratified~~ (v) releases otherwise provided for in ~~writing by~~ accordance with the ~~applicable Lenders required pursuant to Section 12.02~~Financing Agreements. Except as provided above, Agent will not release any security interest in, mortgage or lien upon, any of the Collateral without the prior written authorization of all of Lenders. Upon request by ~~the Collateral~~ Agent at any time, ~~the~~ Lenders will promptly confirm in writing ~~the Collateral~~ Agent’s 's authority to release particular types or items of Collateral pursuant to ~~this Section 10.08(b)~~the Financing Agreements. (c) Without in any manner limiting ~~the Collateral~~ Agent’s 's authority to act without any specific or further authorization or consent by the ~~Lenders (as set forth in Section 10.08(b))~~Required Lenders, each Lender agrees to confirm in writing, upon request by ~~the Collateral~~ Agent, the authority to release Collateral conferred upon ~~the Collateral~~ Agent under ~~Section 10.08(b)~~this Section. ~~Upon the prior written request by any Loan Party, the Collateral~~ Agent shall (and is hereby irrevocably authorized by ~~the~~ Lenders to) execute such documents as may be necessary ~~or reasonably requested by any Loan Party~~ to evidence the release of the ~~Liens~~ security interest, mortgage or liens granted to Agent upon any Collateral to the ~~Collateral Agent for the benefit of the Agents and the Lenders upon such Collateral~~extent set forth above; provided, ~~however~~that, ~~that~~ (i) ~~the Collateral~~ Agent shall not be required to execute any such document on terms which, in ~~the Collateral~~ Agent’s 's opinion, would expose ~~the Collateral~~ Agent to liability or create any obligations or entail any consequence other than the release of such ~~Liens~~ security interest, mortgage or liens without recourse or ~~warranty,~~ warranty and (ii) such release shall not in any manner discharge, affect or impair the Obligations or any ~~Lien~~ security interest, mortgage or lien upon (or obligations of ~~any Loan Party~~ Borrowers in respect of) ~~all interests in~~ the Collateral retained by ~~any Loan Party~~Borrowers. (d) Anything contained in any of the Loan Documents to the contrary notwithstanding but subject to the Agreement Among Lenders, the Loan Parties, each Agent and each Lender hereby agree that (i) no Lender shall have any right individually to realize upon any of the Collateral under any Loan Document or to enforce any Guaranty, it being understood and agreed that all powers, rights and remedies under the Loan Documents may be exercised solely by the Collateral Agent for the benefit of the Lenders in accordance with the terms thereof, (ii) in the event of a foreclosure by the Collateral Agent on any of the Collateral pursuant to a public or private sale, the Administrative Agent, the Collateral Agent or any Lender may be the purchaser of any or all of such Collateral at any such sale and (iii) the Collateral Agent, as agent for and representative of the Agents and the Lenders (but not any other Agent or any Lender or Lenders in its or their respective individual capacities unless the Required Lenders shall otherwise agree in writing) shall be entitled (either directly or through one or more acquisition vehicles) for the purpose of bidding and making settlement or payment of the purchase price for all or any portion of the Collateral to be sold (A) at any public or private sale, (B) at any sale conducted by the Collateral Agent under the provisions of the Uniform Commercial Code (including pursuant to Sections 9-610 or 9-620 of the Uniform Commercial Code), (C) at any sale or foreclosure conducted by the Collateral Agent (whether by judicial action or otherwise) in accordance with applicable law or (D) any sale conducted pursuant to the provisions of any Debtor Relief Law (including Section 363 of the Bankruptcy Code), to use and apply all or any of the Obligations as a credit on account of the purchase price for any Collateral payable by the Collateral Agent at such sale. (e) The Collateral Agent shall have no obligation whatsoever to any Lender or any other Person to investigate, confirm or assure that the Collateral exists or is owned by ~~the Loan Parties~~ any Borrower or Obligor or is cared for, protected or insured or has been ~~encumbered~~ encumbered, or that any particular items of Collateral meet the eligibility criteria applicable in respect of the Revolving Loans or Letter of Credit Accommodations hereunder, or whether any particular reserves are appropriate, or that the ~~Lien~~ liens and security interests granted to ~~the Collateral~~ Agent pursuant ~~to this Agreement~~ hereto or any ~~other Loan Document has~~ of the Financing Agreements or otherwise have been properly or sufficiently or lawfully created, perfected, protected or enforced or is are entitled to any particular priority, or to exercise at all or in any particular manner or under any duty of care, disclosure or fidelity, or to continue exercising, any of the rights, authorities and powers granted or available to ~~the Collateral~~ Agent in this ~~Section 10.08~~ Agreement or in any of the other ~~Loan Document~~Financing Agreements, it being understood and agreed that in respect of the Collateral, or any act, omission or event related thereto, ~~the Collateral~~ Agent may act in any manner it may deem appropriate, in its ~~sole~~ discretion, given ~~the Collateral~~ Agent’s 's own interest in the Collateral as ~~one of the Lenders~~ a Lender and that ~~the Collateral~~ Agent shall have no duty or liability whatsoever to any other Lender~~, except as otherwise provided herein and in the Agreement Among Lenders.~~. 118

Appears in 1 contract

Samples: Loan and Security Agreement (Charming Shoppes Inc)

Appears in 1 contract

Samples: Financing Agreement (Magnetek Inc)

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

Appears in 1 contract

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

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

Appears in 1 contract

Samples: Loan and Security Agreement (WHX Corp)

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

Appears in 1 contract

Samples: Credit Agreement (Broder Bros Co)

Appears in 1 contract

Samples: Financing Agreement (Beachbody Company, Inc.)

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

Appears in 1 contract

Samples: Credit Agreement (Bally Total Fitness Holding Corp)

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

Appears in 1 contract

Samples: Senior Convertible Loan Agreement (Value City Department Stores Inc /Oh)

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

Appears in 1 contract

Samples: Financing Agreement (High Voltage Engineering Corp)

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

Appears in 1 contract

Samples: Credit Agreement (TRC Companies Inc /De/)

Collateral Matters. ~~(a) Each~~ Agent ~~may~~ may, at its option, from time to time, at any time on or after an Event of Default and for so long as the same is continuing or upon any other failure of a condition precedent to the Loans and Letter of Credit Accommodations hereunder, make such disbursements and advances (“Special Agent Advances”) which ~~such~~ Agent, in its sole discretion, (i) deems necessary or desirable either to ~~preserve, protect, prepare for sale~~ preserve or ~~lease or dispose of~~ protect the Collateral or any portion ~~thereof,~~ thereof or (ii) to enhance the likelihood or maximize the amount of repayment by ~~the Borrowers~~ Borrower of the ~~Loans~~Loans and other Obligations; PROVIDED, ~~Reimbursement Obligations~~THAT, the aggregate principal amount of the Special Agent Advances pursuant to this clause (ii), plus the then outstanding principal amount of the additional Loans and Letter of Credit ~~Obligations and other Obligations~~ Accommodations which Agent may make or provide as set forth in Section 12.8 hereof, shall not exceed the aggregate amount of $7,500,000 or (iii) to pay any other amount chargeable to ~~the Borrowers~~ Borrower pursuant to the terms of this ~~Agreement, including, without limitation,~~ Agreement or any of the other Financing Agreements consisting of (A) costs, fees and expenses ~~as described in Section 12.04~~and (B) payments to any issuer of Letter of Credit Accommodations. ~~The~~ Special Agent Advances shall be repayable on demand and be together with all interest thereon shall constitute Obligations secured by the ~~Collateral and~~ Collateral. Special Agent Advances shall ~~bear interest~~ not constitute Loans but shall otherwise constitute Obligations hereunder. Interest on Special Agent Advances shall be payable at ~~a rate per annum equal to~~ the ~~rate~~ Interest Rate then applicable to ~~Revolving~~ Prime Rate Loans ~~that are Reference Rate Loans. The Agent making any Agent Advances~~ and shall ~~notify the other Agent, each Lender and the Administrative Borrower in writing of each such Agent Advance, which notice shall include a description of the purpose of such Agent Advance~~be payable on demand. Without limitation to of its obligations pursuant to Section ~~10.05~~6.10, each Lender agrees that it shall make available to ~~the Agent making any Agent Advances~~Agent, upon ~~such~~ Agent’s demand, ~~in the currency in which the respective Agent Advance was made~~ in immediately available funds, the amount equal to such Lender’s Pro Rata Share of each such Special Agent ~~Advance subject to the terms of, the Agreement Among Lenders, provided that any such amount advanced by a Lender shall be deemed a Loan hereunder~~Advance. If such funds are not made available to ~~such~~ Agent by such Lender, such Lender shall be deemed a Defaulting Lender and Agent shall be entitled to recover such ~~funds~~ funds, on demand from such ~~Lender,~~ Lender together with interest thereon for each day from the date such payment was due until the date such amount is paid to ~~such Agent,~~ Agent at the Federal Funds ~~Effective~~ Rate for each day during such period (as published by the Federal Reserve Bank of New York or at Agent’s option based on the arithmetic mean determined by Agent of the rates for the last transaction in overnight Federal funds arranged prior to 9:00 a.m. (New York City time) on that day by each of the three ~~Business Days~~ leading brokers of Federal funds transactions in New York City selected by Agent) and ~~thereafter~~ if such amounts are not paid within three (3) days of Agent’s demand, at the Reference Rate. (b) The Lenders hereby irrevocably authorize the Collateral Agent, at its option and in its discretion, to release any Lien granted to or held by the Collateral Agent upon any Collateral upon termination of the Total Commitment and Payment in Full of the Obligations; or constituting property being sold or disposed of in the ordinary course of any Loan Party’s business or otherwise in compliance with the terms of this Agreement and the other Loan Documents; or constituting property in which the Loan Parties owned no interest at the time the Lien was granted or at any time thereafter; or if approved, authorized or ratified in writing by the applicable Lenders required pursuant to Section 12.02. Upon request by the Collateral Agent at any time, the Lenders will confirm in writing the Collateral Agent’s authority to release particular types or items of Collateral pursuant to this Section 10.08(b). (c) Without in any manner limiting the Collateral Agent’s authority to act without any specific or further authorization or consent by the Lenders (as set forth highest Interest Rate provided for in Section ~~10.08(b)), each Lender agrees~~ 3.1 hereof applicable to confirm in writing, upon request by the Collateral Agent, the authority to release Collateral conferred upon the Collateral Agent under Section 10.08(b). Upon the prior written request by any Loan Party, the Collateral Agent shall (and is hereby irrevocably authorized by the Lenders to) execute such documents as may be necessary or reasonably requested by any Loan Party to evidence the release of the Liens granted to the Collateral Agent for the benefit of the Agents and the Lenders upon such Collateral; provided, however, that (i) the Collateral Agent shall not be required to execute any such document on terms which, in the Collateral Agent’s opinion, would expose the Collateral Agent to liability or create any obligations or entail any consequence other than the release of such Liens without recourse or warranty, and (ii) such release shall not in any manner discharge, affect or impair the Obligations or any Lien upon (or obligations of any Loan Party in respect of) all interests in the Collateral retained by any Loan PartyPrime Rate Loans. (d) Anything contained in any of the Loan Documents to the contrary notwithstanding but subject to the Agreement Among Lenders, the Loan Parties, each Agent and each Lender hereby agree that (i) no Lender shall have any right individually to realize upon any of the Collateral under any Loan Document or to enforce any Guaranty, it being understood and agreed that all powers, rights and remedies under the Loan Documents may be exercised solely by the Collateral Agent for the benefit of the Lenders in accordance with the terms thereof, (ii) in the event of a foreclosure by the Collateral Agent on any of the Collateral pursuant to a public or private sale, the Administrative Agent, the Collateral Agent or any Lender may be the purchaser of any or all of such Collateral at any such sale and (iii) the Collateral Agent, as agent for and representative of the Agents and the Lenders (but not any other Agent or any Lender or Lenders in its or their respective individual capacities unless the Required Lenders shall otherwise agree in writing) shall be entitled (either directly or through one or more acquisition vehicles) for the purpose of bidding and making settlement or payment of the purchase price for all or any portion of the Collateral to be sold (A) at any public or private sale, (B) at any sale conducted by the Collateral Agent under the provisions of the Uniform Commercial Code (including pursuant to Sections 9-610 or 9-620 of the Uniform Commercial Code), (C) at any sale or foreclosure conducted by the Collateral Agent (whether by judicial action or otherwise) in accordance with applicable law or (D) any sale conducted pursuant to the provisions of any Debtor Relief Law (including Section 363 of the Bankruptcy Code), to use and apply all or any of the Obligations as a credit on account of the purchase price for any Collateral payable by the Collateral Agent at such sale. (e) The Collateral Agent shall have no obligation whatsoever to any Lender to assure that the Collateral exists or is owned by the Loan Parties or is cared for, protected or insured or has been encumbered or that the Lien granted to the Collateral Agent pursuant to this Agreement or any other Loan Document has been properly or sufficiently or lawfully created, perfected, protected or enforced or is entitled to any particular priority, or to exercise at all or in any particular manner or under any duty of care, disclosure or fidelity, or to continue exercising, any of the rights, authorities and powers granted or available to the Collateral Agent in this Section 10.08 or in any other Loan Document, it being understood and agreed that in respect of the Collateral, or any act, omission or event related thereto, the Collateral Agent may act in any manner it may deem appropriate, in its sole discretion, given the Collateral Agent’s own interest in the Collateral as one of the Lenders and that the Collateral Agent shall have no duty or liability whatsoever to any other Lender, except as otherwise provided herein and in the Agreement Among Lenders.

Appears in 1 contract

Samples: Loan and Security Agreement (Haynes International Inc)

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

Appears in 1 contract

Samples: Financing Agreement (Alj Regional Holdings Inc)

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

Appears in 1 contract

Samples: Revolving Credit and Security Agreement (Salant Corp)

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

Appears in 1 contract

Samples: Financing Agreement (Limbach Holdings, Inc.)

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

Appears in 1 contract

Samples: Revolving Credit Agreement (Best Products Co Inc)

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

Appears in 1 contract

Samples: Loan and Security Agreement (Delta Apparel Inc)

Appears in 1 contract

Samples: Credit Agreement (Bally Total Fitness Holding Corp)

Collateral Matters. (a) ~~Each~~ Agent may from time to time make such disbursements and advances (“Agent Advances”) which ~~such~~ Agent, in its sole discretion, deems necessary or desirable to preserve, protect, prepare for sale or lease or dispose of the Collateral or any portion thereof, to enhance the likelihood or maximize the amount of repayment by the ~~Borrowers~~ Issuer of the ~~Loans~~Notes, ~~Reimbursement Obligations, Letter of Credit Obligations~~ and other Obligations or to pay any other amount chargeable to the ~~Borrowers~~ Issuer pursuant to the terms of this Agreement, ~~including, without limitation,~~ including costs, fees and expenses as described in Section ~~12.04~~11.04. ~~The~~ Agent Advances shall be repayable on demand and be secured by the ~~Collateral and shall bear interest at a rate per annum equal to the rate then applicable to Revolving Loans that are Reference Rate Loans~~Collateral. ~~The Agent making any~~ Agent Advances shall constitute Obligations hereunder which may be charged to the Note Account in accordance with Section 3.02. Agent shall notify ~~the other Agent,~~ each ~~Lender~~ Purchaser and the ~~Administrative Borrower~~ Issuer in writing of each such Agent Advance, which notice shall include a description of the purpose of such Agent Advance. Without limitation to its obligations pursuant to Section ~~10.05~~9.05, each ~~Lender~~ Purchaser agrees that it shall make available to ~~the Agent making any Agent Advances~~Agent, upon ~~such~~ Agent’s demand, in ~~the currency in which the respective Agent Advance was made~~ Dollars in immediately available funds, the amount equal to such ~~Lender~~Purchaser’s Pro Rata Share of each such Agent ~~Advance subject to the terms of, the Agreement Among Lenders, provided that any such amount advanced by a Lender shall be deemed a Loan hereunder~~Advance. If such funds are not made available to ~~such~~ Agent by such ~~Lender~~Purchaser, ~~such~~ Agent shall be entitled to recover such funds on demand from such ~~Lender~~Purchaser, together with interest thereon for each day from the date such payment was due until the date such amount is paid to ~~such~~ Agent, at the ~~Federal Funds Effective Rate for three Business Days and thereafter at the Reference~~ Interest Rate. (b) The ~~Lenders~~ Purchasers hereby irrevocably authorize ~~the Collateral~~ Agent, at its option and in its discretion, to release any Guarantor or any Lien granted to or held by ~~the Collateral~~ Agent upon any ~~Collateral~~ Collateral: (i) upon ~~termination~~ payment in full in cash of all Obligations (other than contingent obligations; (ii) as permitted under the ~~Total Commitment and Payment in Full of the Obligations~~Purchase Documents; or (iii) constituting property being sold or disposed of ~~in the ordinary course of any Loan Party’s business or otherwise~~ in compliance with the terms of this Agreement and the other ~~Loan~~ Purchase Documents; or (iv) constituting property in which the ~~Loan~~ Issuer Parties owned no interest at the time the Lien was granted or at any time thereafter; or (v) if approved, authorized or ratified in writing by the applicable Lenders required pursuant to Section 12.02. Upon request by the Collateral Agent at any time, the Lenders will confirm in writing the Collateral Agent’s authority to release particular types or items of Collateral pursuant to this Section 10.08(b)Purchasers. (c) Without in any manner limiting ~~the Collateral~~ Agent’s authority to act without any specific or further authorization or consent by the ~~Lenders~~ Purchasers (as set forth in Section ~~10.08(b~~9.08(b)), each ~~Lender~~ Purchaser agrees to confirm in writing, upon request by ~~the Collateral~~ Agent, the authority to release Collateral conferred upon ~~the Collateral~~ Agent under Section ~~10.08(b~~9.08(b). Upon receipt by Agent of confirmation from the Purchasers of its authority to release any particular item or types of Collateral, and upon prior written request by any ~~Loan~~ Issuer Party, ~~the Collateral~~ Agent shall (and is hereby irrevocably authorized by the ~~Lenders~~ Purchasers to) execute such documents as may be necessary ~~or reasonably requested by any Loan Party~~ to evidence the release of the Liens granted to ~~the Collateral~~ Agent for the benefit of ~~the Agents~~ itself and the ~~Lenders~~ Purchasers upon such Collateral; provided, however, that (i) ~~the Collateral~~ Agent shall not be required to execute any such document on terms which, in ~~the Collateral~~ Agent’s opinion, would expose ~~the Collateral~~ Agent to liability or create any obligations or entail any consequence other than the release of such Liens without recourse or warranty, and (ii) such release shall not in any manner discharge, affect or impair the ~~Obligations~~ Obligations, the Conversion Shares, the Warrants, the Warrant Shares or rights arising thereunder or any Lien upon (or obligations of any ~~Loan~~ Issuer Party in respect of) all interests in the Collateral retained by any ~~Loan~~ Issuer Party. (d) Anything contained in any of the Loan Documents to the contrary notwithstanding but subject to the Agreement Among Lenders, the Loan Parties, each Agent and each Lender hereby agree that (i) no Lender shall have any right individually to realize upon any of the Collateral under any Loan Document or to enforce any Guaranty, it being understood and agreed that all powers, rights and remedies under the Loan Documents may be exercised solely by the Collateral Agent for the benefit of the Lenders in accordance with the terms thereof, (ii) in the event of a foreclosure by the Collateral Agent on any of the Collateral pursuant to a public or private sale, the Administrative Agent, the Collateral Agent or any Lender may be the purchaser of any or all of such Collateral at any such sale and (iii) the Collateral Agent, as agent for and representative of the Agents and the Lenders (but not any other Agent or any Lender or Lenders in its or their respective individual capacities unless the Required Lenders shall otherwise agree in writing) shall be entitled (either directly or through one or more acquisition vehicles) for the purpose of bidding and making settlement or payment of the purchase price for all or any portion of the Collateral to be sold (A) at any public or private sale, (B) at any sale conducted by the Collateral Agent under the provisions of the Uniform Commercial Code (including pursuant to Sections 9-610 or 9-620 of the Uniform Commercial Code), (C) at any sale or foreclosure conducted by the Collateral Agent (whether by judicial action or otherwise) in accordance with applicable law or (D) any sale conducted pursuant to the provisions of any Debtor Relief Law (including Section 363 of the Bankruptcy Code), to use and apply all or any of the Obligations as a credit on account of the purchase price for any Collateral payable by the Collateral Agent at such sale. (e) The Collateral Agent shall have no obligation whatsoever to any ~~Lender~~ Purchaser to assure that the Collateral exists or is owned by the ~~Loan~~ Issuer Parties or is cared for, protected or insured or has been encumbered or that the Lien granted to ~~the Collateral~~ Agent pursuant to this Agreement or any other ~~Loan~~ Purchase Document has been properly or sufficiently or lawfully created, perfected, protected or enforced or is entitled to any particular priority, or to exercise at all or in any particular manner or under any duty of care, disclosure or fidelity, or to continue exercising, any of the rights, authorities and powers granted or available to ~~the Collateral~~ Agent in this Section ~~10.08~~ 9.08 or in any other ~~Loan~~ Purchase Document, it being understood and agreed that in respect of the Collateral, or any act, omission or event related thereto, ~~the Collateral~~ Agent may act in any manner it may deem appropriate, in its sole discretion, given ~~the Collateral~~ Agent’s own interest in the Collateral as one of the ~~Lenders~~ Purchasers and that ~~the Collateral~~ Agent shall have no duty or liability whatsoever to any other ~~Lender~~Purchaser, except as otherwise provided ~~herein and in the Agreement Among Lenders~~herein.

Appears in 1 contract

Samples: Note and Warrant Purchase Agreement (Progressive Gaming International Corp)

Appears in 1 contract

Samples: Financing Agreement (Orthofix Medical Inc.)

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

Appears in 1 contract

Samples: Financing Agreement (Steel Partners Holdings L.P.)

Collateral Matters. (a) ~~Each~~ The Administrative Agent may from time to ~~time~~ time, during the occurrence and continuance of an Event of Default, make such disbursements and advances (“"Agent Advances”") which ~~such~~ the Administrative Agent, in its sole discretion, deems necessary or desirable to ~~preserve, protect, prepare for sale~~ preserve or ~~lease or dispose of~~ protect the Collateral or any portion thereof, to enhance the likelihood or maximize the amount of repayment by the ~~Borrowers~~ Companies of the ~~Loans, Reimbursement Obligations, Letter of Credit Obligations~~ Loans and other Obligations or to pay any other amount chargeable to the ~~Borrowers~~ Companies pursuant to the terms of this Agreement, including, without limitation, costs, fees and expenses as described in Section ~~12.04~~10.06. The Agent Advances shall be repayable on demand and be secured by the ~~Collateral and shall bear interest at a rate per annum equal to the rate then applicable to Revolving Loans that are Reference Rate Loans~~Collateral. The Agent ~~making any Agent~~ Advances shall not constitute Loans but shall otherwise constitute Obligations hereunder. The Administrative Agent shall notify ~~the other Agent,~~ each Lender and the ~~Administrative Borrower~~ Companies in writing of each such Administrative Agent Advance, which notice shall include a description of the purpose of such Administrative Agent Advance. Without limitation to its obligations pursuant to Section ~~10.05~~9.05, each Lender agrees that it shall make available to the ~~Agent making any Agent Advances~~Administrative Agent, upon ~~such~~ the Administrative Agent’s 's demand, in ~~the currency in which the respective Agent Advance was made~~ Dollars in immediately available funds, the amount equal to such Lender’s 's Pro Rata Share of each such Administrative Agent ~~Advance subject to the terms of, the Agreement Among Lenders, provided that any such amount advanced by a Lender shall be deemed a Loan hereunder~~Advance. If such funds are not made available to ~~such~~ the Administrative Agent by such ~~Lender, such~~ Lender the Administrative Agent shall be entitled to recover such ~~funds~~ funds, on demand from such ~~Lender,~~ Lender together with interest ~~thereon~~ thereon, for each day from the date such payment was due until the date such amount is paid to ~~such~~ the Administrative Agent, at the ~~Federal~~ Fed Funds ~~Effective~~ Rate for three Business Days and thereafter at the ~~Reference~~ Prime Rate. (b) The Lenders hereby irrevocably authorize the ~~Collateral~~ Administrative Agent, at its option and in its discretion, to release any Lien granted to or held by the ~~Collateral~~ Administrative Agent upon any Collateral upon termination of the Total Commitment and ~~Payment~~ payment and satisfaction of all Loans, and all other Obligations which have matured and which the Administrative Agent has been notified in ~~Full of the Obligations~~writing are then due and payable; or constituting property being sold or disposed of in the ordinary course of ~~any Loan Party’s~~ the Companies' business ~~or otherwise~~ and in compliance with the terms of this Agreement and the other ~~Loan~~ Credit Documents; or constituting property in which the ~~Loan Parties~~ Companies owned no interest at the time the Lien was granted or at any time thereafter; or if approved, authorized or ratified in writing by the ~~applicable Lenders required pursuant to Section 12.02~~Lenders. Upon request by the ~~Collateral~~ Administrative Agent at any time, the Lenders will confirm in writing the ~~Collateral~~ Administrative Agent’s 's authority to release particular types or items of Collateral pursuant to this Section ~~10.08(b~~9.08(b). (c) Without in any manner limiting the ~~Collateral~~ Administrative Agent’s 's authority to act without any specific or further authorization or consent by the Lenders (as set forth in Section ~~10.08(b~~9.08(b)), each Lender agrees to confirm in writing, upon request by the ~~Collateral~~ Administrative Agent, the authority to release Collateral conferred upon the ~~Collateral~~ Administrative Agent under Section ~~10.08(b~~9.08(b). Upon receipt by the Administrative Agent of confirmation from the Lenders of its authority to release any particular item or types of Collateral, and upon prior written request by ~~any Loan Party~~the Companies, the ~~Collateral~~ Administrative Agent shall (and is hereby irrevocably authorized by the Lenders to) execute such documents as may be necessary ~~or reasonably requested by any Loan Party~~ to evidence the release of the Liens granted to the ~~Collateral~~ Administrative Agent for the benefit of ~~the Agents and~~ the Lenders upon such Collateral; provided, however, that (i) the ~~Collateral~~ Administrative Agent shall not be required to execute any such document on terms which, in the ~~Collateral~~ Administrative Agent’s 's opinion, would expose the ~~Collateral~~ Administrative Agent to liability or create any obligations or entail any consequence other than the release of such Liens without recourse or warranty, and (ii) such release shall not in any manner discharge, affect or impair the Obligations or any Lien upon (or obligations of ~~any Loan Party~~ the Companies in respect of) all interests in the Collateral retained by ~~any Loan Party~~the Companies. (d) Anything contained in any of the Loan Documents to the contrary notwithstanding but subject to the Agreement Among Lenders, the Loan Parties, each Agent and each Lender hereby agree that (i) no Lender shall have any right individually to realize upon any of the Collateral under any Loan Document or to enforce any Guaranty, it being understood and agreed that all powers, rights and remedies under the Loan Documents may be exercised solely by the Collateral Agent for the benefit of the Lenders in accordance with the terms thereof, (ii) in the event of a foreclosure by the Collateral Agent on any of the Collateral pursuant to a public or private sale, the The Administrative Agent, the Collateral Agent or any Lender may be the purchaser of any or all of such Collateral at any such sale and (iii) the Collateral Agent, as agent for and representative of the Agents and the Lenders (but not any other Agent or any Lender or Lenders in its or their respective individual capacities unless the Required Lenders shall otherwise agree in writing) shall be entitled (either directly or through one or more acquisition vehicles) for the purpose of bidding and making settlement or payment of the purchase price for all or any portion of the Collateral to be sold (A) at any public or private sale, (B) at any sale conducted by the Collateral Agent under the provisions of the Uniform Commercial Code (including pursuant to Sections 9-610 or 9-620 of the Uniform Commercial Code), (C) at any sale or foreclosure conducted by the Collateral Agent (whether by judicial action or otherwise) in accordance with applicable law or (D) any sale conducted pursuant to the provisions of any Debtor Relief Law (including Section 363 of the Bankruptcy Code), to use and apply all or any of the Obligations as a credit on account of the purchase price for any Collateral payable by the Collateral Agent at such sale. (e) The Collateral Agent shall have no obligation whatsoever to any ~~Lender~~ Lenders to assure that the Collateral exists or is owned by the ~~Loan Parties~~ Companies or is cared for, protected or insured or has been encumbered or that the Lien granted to the ~~Collateral~~ Administrative Agent pursuant to this Agreement ~~or any other Loan Document~~ has been properly or sufficiently or lawfully created, perfected, protected or enforced or is entitled to any particular priority, or to exercise at all or in any particular manner or under any duty of care, disclosure or fidelity, or to continue exercising, any of the rights, authorities and powers granted or available to the ~~Collateral~~ Administrative Agent in this Section ~~10.08~~ 9.08 or in any ~~other Loan Document~~of the Credit Documents, it being understood and agreed that in respect of the Collateral, or any act, omission or event related thereto, the ~~Collateral~~ Administrative Agent may act in any manner it may deem appropriate, in its sole discretion, given the ~~Collateral~~ Administrative Agent’s 's own interest in the Collateral as one of the Lenders and that the ~~Collateral~~ Administrative Agent shall have no duty or liability whatsoever to any other Lender~~, except as otherwise provided herein and in the Agreement Among Lenders~~.

Appears in 1 contract

Samples: Mortgage Loan Warehousing Agreement (Emergent Group Inc)

Collateral Matters. (a) ~~Each~~ Any Agent ~~may~~ may, at its option, from time to time make such disbursements and advances (collectively, the “Agent Advances”) ), which such Agent, in its sole discretion, deems necessary or desirable (i) either to ~~preserve, protect,~~ preserve or protect the Collateral or to prepare for sale or lease or ~~dispose~~ disposition of the Collateral (or any portion thereof), (ii) to enhance the likelihood or maximize the amount of repayment by the ~~Borrowers~~ Loan Parties of the ~~Loans, Reimbursement~~ Loans and other Obligations, ~~Letter of Credit Obligations and other Obligations~~ or (iii) to pay any other amount chargeable to ~~the Borrowers~~ any Loan Party pursuant to the terms of this ~~Agreement~~Agreement or any of the other Loan Documents consisting of costs, fees and expenses, including, without limitation, costs, fees and expenses as described in Section 12.04. The Agent Advances shall be repayable on demand and be secured by the ~~Collateral and~~ Collateral. The Agent Advances shall ~~bear interest at a rate per annum equal~~ constitute Obligations hereunder which may be charged to the ~~rate then applicable to Revolving Loans that are Reference Rate Loans~~Loan Account in accordance with Section 4.02. The Agent making ~~any~~ an Agent ~~Advances~~ Advance shall notify ~~the other Agent,~~ each Lender and the Administrative Borrower in writing of ~~each~~ such Agent Advance, which notice shall include a description of the purpose of such Agent Advance. Without limitation to its obligations pursuant to Section 10.05, each Lender agrees that it shall make available to the ~~Agent making any Agent Advances~~applicable Agent, upon such Agent’s demand, in ~~the currency in which the respective Agent Advance was made~~ Dollars in immediately available funds, the amount equal to such Lender’s Pro Rata Share of each such Agent ~~Advance subject to the terms of, the Agreement Among Lenders, provided that any such amount advanced by a Lender shall be deemed a Loan hereunder~~Advance. If such funds are not made available to ~~such~~ the applicable Agent by such Lender, such Agent shall be entitled to recover such funds on demand from such Lender, together with interest thereon for each day from the date such payment was due until the date such amount is paid to such Agent, at the Federal Funds ~~Effective~~ Rate for three Business Days and thereafter at the Reference Rate. (b) The Lenders hereby irrevocably authorize the Collateral Agent, at its option and in its discretion, to release any Lien granted to or held by the Collateral ~~Agent~~ Agent, and to instruct the Mortgage Trustee to release any Lien granted to or held by the Mortgage Trust, upon any Collateral upon termination of the Total Commitment and ~~Payment~~ payment and satisfaction of all Loans, all Letter of Credit Obligations and all other Obligations which have matured and which the Collateral Agent has been notified in ~~Full of~~ writing are then due and payable in accordance with the ~~Obligations~~terms hereof; or constituting property being sold or disposed of ~~in the ordinary course of any Loan Party’s business or otherwise~~ in compliance with the terms of this Agreement and the other Loan Documents; or constituting property pledged to secure Indebtedness under the NMFFP and subject to a Lien permitted by clause (i) of the definition of “Permitted Liens”; or constituting property in which the Loan Parties owned no interest at the time the Lien was granted or at any time thereafter; or if approved, authorized or ratified in writing by the ~~applicable Lenders required pursuant to Section 12.02~~Required Lenders. Upon request by the Collateral Agent at any time, the Lenders will confirm in writing the Collateral Agent’s authority to release or to instruct the Mortgage Trustee to release particular types or items of Collateral pursuant to this Section 10.08(b). (c) Without in any manner limiting the Collateral Agent’s authority to act without any specific or further authorization or consent by the Lenders (as set forth in Section 10.08(b)), each Lender agrees to confirm in writing, upon request by the Collateral Agent, the authority to release or to instruct the Mortgage Trustee to release Collateral conferred upon the Collateral Agent or the Mortgage Trust under Section 10.08(b). Upon receipt by the Collateral Agent of confirmation from the Lenders of its authority to release any particular item or types of Collateral, and upon prior written request by any Loan Party, the Collateral Agent shall (and is hereby irrevocably authorized by the Lenders to) execute such documents, and instruct the Mortgage Trustee to execute such documents as may be necessary ~~or reasonably requested by any Loan Party~~ to evidence the release of the Liens granted to the Collateral Agent or the Mortgage Trust for the benefit of the ~~Agents and the Lenders~~ Secured Parties upon such Collateral; provided, however, that (i) the Collateral Agent shall not be required to execute any such document on terms which, in the Collateral Agent’s opinion, would expose the Collateral Agent to liability or create any obligations or entail any consequence other than the release of such Liens without recourse or warranty, and (ii) such release shall not in any manner discharge, affect or impair the Obligations or any Lien upon (or obligations of any Loan Party in respect of) all interests in the Collateral retained by any Loan Party. (d) ~~Anything contained in any~~ None of the Loan Documents to the contrary notwithstanding but subject to the Agreement Among Lenders, the Loan Parties, each Agent and each Lender hereby agree that (i) no Lender shall have any right individually to realize upon any of the Collateral under any Loan Document or to enforce any Guaranty, it being understood and agreed that all powers, rights and remedies under the Loan Documents may be exercised solely by the Collateral Agent for the benefit of the Lenders in accordance with the terms thereof, (ii) in the event of a foreclosure by the Collateral Agent on any of the Collateral pursuant to a public or private sale, the Administrative Agent, the Collateral Agent or any Lender may be the purchaser of any or all of such Collateral at any such sale and (iii) the Collateral Agent, ~~as agent for~~ the Mortgage Trustee and representative of the Agents and the Lenders (but not any other Agent or any Lender or Lenders in its or their respective individual capacities unless the Required Lenders shall otherwise agree in writing) shall be entitled (either directly or through one or more acquisition vehicles) for the purpose of bidding and making settlement or payment of the purchase price for all or any portion of the Collateral to be sold (A) at any public or private sale, (B) at any sale conducted by the Collateral Agent under the provisions of the Uniform Commercial Code (including pursuant to Sections 9-610 or 9-620 of the Uniform Commercial Code), (C) at any sale or foreclosure conducted by the Collateral Agent (whether by judicial action or otherwise) in accordance with applicable law or (D) any sale conducted pursuant to the provisions of any Debtor Relief Law (including Section 363 of the Bankruptcy Code), to use and apply all or any of the Obligations as a credit on account of the purchase price for any Collateral payable by the Collateral Agent at such sale. (e) The Collateral Agent Wilmington shall have no any obligation whatsoever to any Lender to assure that the Collateral exists or is owned by the Loan Parties or is cared for, protected or insured or has been encumbered or that the Lien granted to the Collateral Agent or the Mortgage Trust pursuant to this Agreement or any other Loan Document has been properly or sufficiently or lawfully created, perfected, protected or enforced or is entitled to any particular priority, or to exercise at all or in any particular manner or under any duty of care, disclosure or fidelity, or to continue exercising, any of the rights, authorities and powers granted or available to the Collateral Agent in this Section 10.08 or in any other Loan Document, it being understood and agreed that in respect of the Collateral, or any act, omission or event related thereto, the Collateral Agent may act in any manner it may deem appropriate, in its sole discretion, given the Collateral Agent’s own interest in the Collateral as one of the Lenders and that the Collateral Agent shall have no duty or liability whatsoever to any other Lender, except as otherwise provided ~~herein and in the Agreement Among Lenders~~herein.

Appears in 1 contract

Samples: Financing Agreement (Omega Protein Corp)

Collateral Matters. (a) ~~Each~~ The Agent may from time to ~~time~~ time, during the occurrence and continuance of an Event of Default, make such disbursements and advances (“"Agent Advances”") which ~~such~~ the Agent, in its sole discretion, deems necessary or desirable to ~~preserve, protect, prepare for sale~~ preserve or ~~lease or dispose of~~ protect the Collateral or any portion thereof, to enhance the likelihood or maximize the amount of repayment by the Borrowers of the ~~Loans, Reimbursement Obligations, Letter of Credit Obligations~~ Loans and other Obligations or to pay any other amount chargeable to the Borrowers pursuant to the terms of this Agreement, including, without limitation, costs, fees and expenses as described in Section ~~12.04~~10.04. The Agent Advances shall be repayable on demand and be secured by the ~~Collateral and shall bear interest at a rate per annum equal to the rate then applicable to Revolving Loans that are Reference Rate Loans~~Collateral. The Agent ~~making any Agent~~ Advances shall not constitute Loans but shall otherwise constitute Obligations hereunder. The Agent shall notify ~~the other Agent,~~ each Lender and the Administrative Borrower in writing of each ~~such~~ Agent Advance, which notice shall include a description of the purpose of such Agent Advance. Without limitation to its obligations pursuant to Section ~~10.05~~9.05, each Lender agrees that it shall make available to the ~~Agent making any Agent Advances~~Agent, upon ~~such~~ the Agent’s 's demand, in ~~the currency in which the respective Agent Advance was made~~ Dollars in immediately available funds, the amount equal to such Lender’s 's Pro Rata Share of ~~each~~ such Agent ~~Advance subject to the terms of, the Agreement Among Lenders, provided that any such amount advanced by a Lender shall be deemed a Loan hereunder~~Advance. If such funds are not made available to ~~such~~ the Agent by such Lender, ~~such~~ the Agent shall be entitled to recover such funds on demand from such Lender, together with interest ~~thereon~~ thereon, for each day from the date such payment was due until the date such amount is paid to ~~such~~ the Agent, at the Federal Funds ~~Effective~~ Rate for three Business Days and thereafter at the Reference Rate. (b) The Lenders hereby irrevocably authorize the ~~Collateral~~ Agent, at its option and in its discretion, to release any Lien granted to or held by the ~~Collateral~~ Agent upon any Collateral upon termination of the Total Commitment and ~~Payment~~ payment and satisfaction of all Loans and all other Obligations which have matured and which the Agent has been notified in ~~Full of the Obligations~~writing are then due and payable; or constituting ~~property~~ Property being sold or disposed of in the ordinary course of any Loan Party’s 's business ~~or otherwise~~ and in compliance with the terms of this Agreement and the other Loan Documents; or constituting ~~property~~ Property in which the Loan Parties owned no interest at the time the Lien was granted or at any time thereafter; or if approved, authorized or ratified in writing by the ~~applicable Lenders required pursuant to Section 12.02~~Lenders. Upon request by the ~~Collateral~~ Agent at any time, the Lenders will confirm in writing the ~~Collateral~~ Agent’s 's authority to release particular types or items of Collateral pursuant to this Section ~~10.08(b~~9.08(b). (c) Without in any manner limiting the ~~Collateral~~ Agent’s 's authority to act without any specific or further authorization or consent by the Lenders (as set forth in Section ~~10.08(b~~9.08(b)), each Lender agrees to confirm in writing, upon request by the ~~Collateral~~ Agent, the authority to release Collateral conferred upon the ~~Collateral~~ Agent under Section ~~10.08(b~~9.08(b). Upon receipt by the Agent of confirmation from the Lenders of its authority to release any particular item or types of Collateral, and upon prior written request by any Loan Party, the ~~Collateral~~ Agent shall (and is hereby irrevocably authorized by the Lenders to) execute such documents as may be necessary ~~or reasonably requested by any Loan Party~~ to evidence the release of the Liens granted to the ~~Collateral~~ Agent for the benefit of ~~the Agents and~~ the Lenders upon such Collateral; provided, however, that (i) the ~~Collateral~~ Agent shall not be required to execute any such document on terms which, in the ~~Collateral~~ Agent’s 's opinion, would expose the ~~Collateral~~ Agent to liability or create any obligations or entail any consequence other than the release of such Liens without recourse or warranty, and (ii) such release shall not in any manner discharge, affect or impair the Obligations or any Lien upon (or obligations of any Loan Party in respect of) all interests in the Collateral retained by any Loan Party. (d) Anything contained in any of the Loan Documents to the contrary notwithstanding but subject to the Agreement Among Lenders, the Loan Parties, each Agent and each Lender hereby agree that (i) no Lender shall have any right individually to realize upon any of the Collateral under any Loan Document or to enforce any Guaranty, it being understood and agreed that all powers, rights and remedies under the Loan Documents may be exercised solely by the Collateral Agent for the benefit of the Lenders in accordance with the terms thereof, (ii) in the event of a foreclosure by the Collateral Agent on any of the Collateral pursuant to a public or private sale, the Administrative Agent, the Collateral Agent or any Lender may be the purchaser of any or all of such Collateral at any such sale and (iii) the Collateral Agent, as agent for and representative of the Agents and the Lenders (but not any other Agent or any Lender or Lenders in its or their respective individual capacities unless the Required Lenders shall otherwise agree in writing) shall be entitled (either directly or through one or more acquisition vehicles) for the purpose of bidding and making settlement or payment of the purchase price for all or any portion of the Collateral to be sold (A) at any public or private sale, (B) at any sale conducted by the Collateral Agent under the provisions of the Uniform Commercial Code (including pursuant to Sections 9-610 or 9-620 of the Uniform Commercial Code), (C) at any sale or foreclosure conducted by the Collateral Agent (whether by judicial action or otherwise) in accordance with applicable law or (D) any sale conducted pursuant to the provisions of any Debtor Relief Law (including Section 363 of the Bankruptcy Code), to use and apply all or any of the Obligations as a credit on account of the purchase price for any Collateral payable by the Collateral Agent at such sale. (e) The ~~Collateral~~ Agent shall have no obligation whatsoever to any ~~Lender~~ Lenders to assure that the Collateral exists or is owned by the Loan Parties or is cared for, protected or insured or has been encumbered or that the Lien granted to the ~~Collateral~~ Agent pursuant to this Agreement ~~or any other Loan Document~~ has been properly or sufficiently or lawfully created, perfected, protected or enforced or is entitled to any particular priority, or to exercise at all or in any particular manner or under any duty of care, disclosure or fidelity, or to continue exercising, any of the rights, authorities and powers granted or available to the ~~Collateral~~ Agent in this Section ~~10.08~~ 9.08 or in any ~~other~~ of the Loan ~~Document~~Documents, it being understood and agreed that in respect of the Collateral, or any act, omission or event related thereto, the ~~Collateral~~ Agent may act in any manner it may deem appropriate, in its sole discretion, given the ~~Collateral~~ Agent’s 's own interest in the Collateral as one of the Lenders and that the ~~Collateral~~ Agent shall have no duty or liability whatsoever to any other Lender~~, except as otherwise provided herein and in the Agreement Among Lenders~~.

Appears in 1 contract

Samples: Financing Agreement (Sunterra Corp)

Collateral Matters. (a) ~~Each~~ Without limiting its right to demand and receive advances of fees and expenses pursuant to section 11.03 and to refrain from or omit taking any action until and unless such amounts have been advanced and subject to the terms of any separate written agreement which may exist among the Agents and the Holders, the Collateral Agent may from time to time make such disbursements and advances ~~(“Agent Advances”)~~ which ~~such~~ the Collateral Agent, in its sole discretion, deems necessary or desirable to preserve, protect, prepare for sale or lease or dispose of the Collateral or any portion thereof, to enhance the likelihood or maximize the amount of repayment by the ~~Borrowers~~ Issuer of the ~~Loans, Reimbursement Obligations, Letter of Credit Obligations and other~~ Obligations or to pay any other amount chargeable to the ~~Borrowers~~ Issuer pursuant to the terms of this Agreement, including, without limitation, costs, fees and expenses as described in Section 12.04. ~~The Agent Advances~~ Such disbursements and advances shall be repayable by the Issuer on demand and be shall constitute Obligations hereunder secured by the ~~Collateral and shall bear interest at a rate per annum equal to the rate then applicable to Revolving Loans that are Reference Rate Loans~~Collateral. The Collateral Agent ~~making any Agent Advances~~ shall notify ~~the other Agent,~~ each ~~Lender~~ Holder and the ~~Administrative Borrower~~ Issuer in writing of each such ~~Agent Advance~~advance, which notice shall include a description of the purpose of such ~~Agent Advance~~advance. Without ~~limitation to~~ limiting its obligations pursuant to Section ~~10.05~~11.05, each ~~Lender~~ Holder agrees that it shall make available to the ~~Agent making any Agent Advances~~Collateral Agent, upon ~~such~~ the Collateral Agent’s demand, in ~~the currency in which the respective Agent Advance was made~~ Dollars in immediately available funds, the amount equal to such ~~Lender~~Holder’s Pro Rata Share of each such ~~Agent Advance subject to the terms of, the Agreement Among Lenders, provided that any such amount advanced by a Lender shall be deemed a Loan hereunder~~advance. If such funds are not made available to ~~such~~ the Collateral Agent by such ~~Lender~~Holder, ~~such~~ the Collateral Agent shall be entitled to recover such funds on demand from such ~~Lender~~Holder, together with interest thereon for each day from the date such payment was due until the date such amount is paid to ~~such~~ the Collateral Agent, at the Federal Funds ~~Effective Rate for three Business Days and thereafter at the Reference~~ Rate. (b) The ~~Lenders~~ Holders hereby irrevocably authorize the Collateral Agent, at its option and in its discretion, to release any Lien granted to or held by the Collateral Agent upon any Collateral upon ~~termination~~ payment and satisfaction of all Obligations which have matured and which the ~~Total Commitment~~ Collateral Agent has been notified in writing are then due and ~~Payment in Full of the Obligations~~payable; or constituting property being sold or disposed of ~~in the ordinary course of any Loan Party’s business or otherwise~~ in compliance with the terms of this Agreement and the other ~~Loan~~ Note Documents; or constituting property in which the ~~Loan Parties~~ Issuer owned no interest at the time the Lien was granted or at any time thereafter; or if approved, authorized or ratified in writing by the ~~applicable Lenders required pursuant to Section 12.02~~Required Holders. Upon request by the Collateral Agent at any time, the ~~Lenders~~ Holders will confirm in writing the Collateral Agent’s authority to release particular types or items of Collateral pursuant to this Section ~~10.08(b~~11.08(b). (c) Without in any manner limiting the Collateral Agent’s authority to act without any specific or further authorization or consent by the ~~Lenders~~ Holders (as set forth in Section ~~10.08(b~~11.08(b)), each ~~Lender~~ Holder agrees to confirm in writing, upon request by the Collateral Agent, the authority to release Collateral conferred upon the Collateral Agent under Section ~~10.08(b~~11.08(b). Upon receipt by the Collateral Agent of confirmation from the Holders of its authority to release any particular item or types of Collateral, and upon prior written request by ~~any Loan Party~~the Issuer, the Collateral Agent shall (and is hereby irrevocably authorized by the ~~Lenders~~ Holders to) execute such documents as may be necessary ~~or reasonably requested by any Loan Party~~ to evidence the release of the Liens granted to the Collateral Agent for the benefit of the Agents and the ~~Lenders~~ Holders upon such Collateral; provided, however, that (i) the Collateral Agent shall not be required to execute any such document on terms which, in the Collateral Agent’s opinion, would expose the Collateral Agent to liability or create any obligations or entail any consequence other than the release of such Liens without recourse or warranty, and (ii) such release shall not in any manner discharge, affect or impair the Obligations or any Lien upon (or obligations of ~~any Loan Party~~ the Issuer in respect of) all interests in the Collateral retained by ~~any Loan Party~~the Issuer. (d) Anything contained in any of the Loan Documents to the contrary notwithstanding but subject to the Agreement Among Lenders, the Loan Parties, each Agent and each Lender hereby agree that (i) no Lender shall have any right individually to realize upon any of the Collateral under any Loan Document or to enforce any Guaranty, it being understood and agreed that all powers, rights and remedies under the Loan Documents may be exercised solely by the Collateral Agent for the benefit of the Lenders in accordance with the terms thereof, (ii) in the event of a foreclosure by the Collateral Agent on any of the Collateral pursuant to a public or private sale, the Administrative Agent, the Collateral Agent or any Lender may be the purchaser of any or all of such Collateral at any such sale and (iii) the Collateral Agent, as agent for and representative of the The Agents and the Lenders (but not any other Agent or any Lender or Lenders in its or their respective individual capacities unless the Required Lenders shall otherwise agree in writing) shall be entitled (either directly or through one or more acquisition vehicles) for the purpose of bidding and making settlement or payment of the purchase price for all or any portion of the Collateral to be sold (A) at any public or private sale, (B) at any sale conducted by the Collateral Agent under the provisions of the Uniform Commercial Code (including pursuant to Sections 9-610 or 9-620 of the Uniform Commercial Code), (C) at any sale or foreclosure conducted by the Collateral Agent (whether by judicial action or otherwise) in accordance with applicable law or (D) any sale conducted pursuant to the provisions of any Debtor Relief Law (including Section 363 of the Bankruptcy Code), to use and apply all or any of the Obligations as a credit on account of the purchase price for any Collateral payable by the Collateral Agent at such sale. (e) The Collateral Agent shall have no ~~obligation~~ obligations whatsoever to any ~~Lender~~ Holder to confirm or assure that the Collateral exists or is owned by the ~~Loan Parties~~ Issuer or is cared for, protected or insured or has been encumbered or that the Lien granted to the Collateral Agent pursuant to this Agreement or any other ~~Loan~~ Note Document has been properly or sufficiently or lawfully created, perfected, protected or enforced or is entitled to any particular priority, or to exercise at all or in any particular manner or under any duty of care, disclosure or fidelity, or to continue exercising, any of the rights, authorities and powers granted or available to the ~~Collateral Agent~~ Agents in this Section ~~10.08~~ 11.08 or in any other ~~Loan~~ Note Document, it being understood and agreed that in respect of the Collateral, or any act, omission or event related thereto, the ~~Collateral Agent~~ Agents may act in any manner it they may deem appropriate, in ~~its~~ their sole discretion, ~~given the Collateral Agent’s own interest in the Collateral as one of the Lenders~~ and that the ~~Collateral Agent~~ Agents shall have no duty or liability whatsoever to any ~~other Lender~~Holder, except as otherwise provided ~~herein and in the Agreement Among Lenders~~herein.

Appears in 1 contract

Samples: Senior Secured Post Petition Note Purchase Agreement (Anchor Glass Container Corp /New)

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

Appears in 1 contract

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

Collateral Matters. (a) ~~Each~~ Agent ~~may~~ may, at its option, from time to time, at any time on or after an Event of Default and for so long as the same is continuing or upon any other failure of a condition precedent to the Loans and Letter of Credit Accommodations hereunder, make such disbursements and advances (“"Special Agent Advances”") which ~~such~~ Agent, in its sole discretion, (i) deems necessary or desirable either to ~~preserve, protect, prepare for sale~~ preserve or ~~lease or dispose of~~ protect the Collateral or any portion ~~thereof,~~ thereof or (ii) to enhance the likelihood or maximize the amount of repayment by ~~the~~ Borrowers and Guarantors of the ~~Loans, Reimbursement~~ Loans and other Obligations, provided, that, the aggregate principal amount of the Special Agent Advances pursuant to this clause (ii), plus the then outstanding principal amount of the additional Loans and Letter of Credit ~~Obligations and other Obligations~~ Accommodations which Agent may make or provide as set forth in Section 12.8 hereof, shall not exceed the aggregate amount of $10,000,000 outstanding at any time or (iii) to pay any other amount chargeable to ~~the Borrowers~~ any Borrower or Guarantor pursuant to the terms of this ~~Agreement, including, without limitation,~~ Agreement or any of the other Financing Agreements consisting of costs, fees and expenses ~~as described in Section 12.04~~and payments to any issuer of Letter of Credit Accommodations. ~~The~~ Special Agent Advances shall be repayable on written demand and be secured by the ~~Collateral and shall bear interest at a rate per annum equal to the rate then applicable to Revolving Loans that are Reference Rate Loans~~Collateral. ~~The Agent making any~~ Special Agent Advances shall not constitute Loans but shall otherwise constitute Obligations hereunder. Agent shall notify ~~the other Agent,~~ each Lender and ~~the~~ Administrative Borrower in writing of each such Special Agent Advance, which notice shall include a description of the purpose of such Special Agent Advance. Without limitation to of its obligations pursuant to Section ~~10.05~~6.10, each Lender agrees that it shall make available to ~~the Agent making any Agent Advances~~Agent, upon ~~such~~ Agent’s 's demand, ~~in the currency in which the respective Agent Advance was made~~ in immediately available funds, the amount equal to such Lender’s 's Pro Rata Share of each such Special Agent ~~Advance subject to the terms of, the Agreement Among Lenders, provided that any such amount advanced by a Lender shall be deemed a Loan hereunder~~Advance. If such funds are not made available to ~~such~~ Agent by such Lender, ~~such~~ Agent shall be entitled to recover such ~~funds~~ funds, on demand from such ~~Lender,~~ Lender together with interest thereon for each day from the date such payment was due until the date such amount is paid to ~~such Agent,~~ Agent at the Federal Funds ~~Effective~~ Rate for each day during such period (as published by the Federal Reserve Bank of New York or at Agent's option based on the arithmetic mean determined by Agent of the rates for the last transaction in overnight Federal funds arranged prior to 9:00 a.m. (New York City time) on that day by each of the three ~~Business Days~~ leading brokers of Federal funds transactions in New York City selected by Agent) and ~~thereafter~~ if such amounts are not paid within three (3) days of Agent's demand, at the ~~Reference Rate~~highest Interest Rate provided for in Section 3.1 hereof applicable to Prime Rate Loans. (b) ~~The~~ Lenders hereby irrevocably authorize ~~the Collateral~~ Agent, at its option and in its ~~discretion,~~ discretion to release any ~~Lien granted to~~ security interest in, mortgage or ~~held by~~ lien upon, any of the Collateral ~~Agent upon any Collateral~~ (i) upon termination of the ~~Total Commitment~~ Commitments and ~~Payment in Full~~ payment and satisfaction of all of the ~~Obligations;~~ Obligations and delivery of cash collateral to the extent required under Section 13.1 below, or (ii) constituting property being sold or disposed of in if Administrative Borrower or any Borrower certifies to Agent that the ~~ordinary course of any Loan Party’s business~~ sale or ~~otherwise~~ disposition is made in compliance with ~~the terms of this Agreement~~ Section 9.7 hereof (and ~~the other Loan Documents;~~ Agent may rely conclusively on any such certificate, without further inquiry), or (iii) constituting property in which ~~the Loan Parties owned no~~ any Borrower or Guarantor did not own an interest at the time the ~~Lien~~ security interest, mortgage or lien was granted or at any time thereafter; , or (iv) having a value in the aggregate in any twelve (12) month period of less than $2,500,000 or (v) constituting Fixed Asset Collateral being released in compliance with Section 5.3 hereof or (vi) if approved, authorized or ratified in writing by all of Lenders. Except as provided above, Agent will not release any security interest in, mortgage or lien upon, any of the ~~applicable Lenders required pursuant to Section 12.02~~Collateral without the prior written authorization of all of Lenders. Upon request by ~~the Collateral~~ Agent at any time, ~~the~~ Lenders will promptly confirm in writing ~~the Collateral~~ Agent’s 's authority to release particular types or items of Collateral pursuant to this ~~Section 10.08(b).~~Section. 125 (c) Without in any manner limiting ~~the Collateral~~ Agent’s 's authority to act without any specific or further authorization or consent by the ~~Lenders (as set forth in Section 10.08(b))~~Required Lenders, each Lender agrees to confirm in writing, upon request by ~~the Collateral~~ Agent, the authority to release Collateral conferred upon ~~the Collateral~~ Agent under ~~Section 10.08(b)~~this Section. ~~Upon the prior written request by any Loan Party, the Collateral~~ Agent shall (and is hereby irrevocably authorized by ~~the~~ Lenders to) execute and/or file such documents as may be necessary ~~or reasonably requested by any Loan Party~~ to evidence the release of the ~~Liens~~ security interest, mortgage or liens granted to Agent upon any Collateral to the ~~Collateral Agent for the benefit of the Agents and the Lenders upon such Collateral~~extent set forth above; provided, ~~however~~that, ~~that~~ (i) ~~the Collateral~~ Agent shall not be required to execute and/or file any such document on terms which, in ~~the Collateral~~ Agent’s 's good faith opinion, would expose ~~the Collateral~~ Agent to liability or create any obligations or entail any consequence other than the release of such ~~Liens~~ security interest, mortgage or liens without recourse or ~~warranty,~~ warranty and (ii) such release shall not in any manner discharge, affect or impair the Obligations or any ~~Lien~~ security interest, mortgage or lien upon (or obligations of any ~~Loan Party~~ Borrower or Guarantor in respect of) ~~all interests in~~ the Collateral retained by ~~any Loan Party~~such Borrower or Guarantor. (d) Anything contained in any of the Loan Documents to the contrary notwithstanding but subject to the Agreement Among Lenders, the Loan Parties, each Agent and each Lender hereby agree that (i) no Lender shall have any right individually to realize upon any of the Collateral under any Loan Document or to enforce any Guaranty, it being understood and agreed that all powers, rights and remedies under the Loan Documents may be exercised solely by the Collateral Agent for the benefit of the Lenders in accordance with the terms thereof, (ii) in the event of a foreclosure by the Collateral Agent on any of the Collateral pursuant to a public or private sale, the Administrative Agent, the Collateral Agent or any Lender may be the purchaser of any or all of such Collateral at any such sale and (iii) the Collateral Agent, as agent for and representative of the Agents and the Lenders (but not any other Agent or any Lender or Lenders in its or their respective individual capacities unless the Required Lenders shall otherwise agree in writing) shall be entitled (either directly or through one or more acquisition vehicles) for the purpose of bidding and making settlement or payment of the purchase price for all or any portion of the Collateral to be sold (A) at any public or private sale, (B) at any sale conducted by the Collateral Agent under the provisions of the Uniform Commercial Code (including pursuant to Sections 9-610 or 9-620 of the Uniform Commercial Code), (C) at any sale or foreclosure conducted by the Collateral Agent (whether by judicial action or otherwise) in accordance with applicable law or (D) any sale conducted pursuant to the provisions of any Debtor Relief Law (including Section 363 of the Bankruptcy Code), to use and apply all or any of the Obligations as a credit on account of the purchase price for any Collateral payable by the Collateral Agent at such sale. (e) The Collateral Agent shall have no obligation whatsoever to any Lender or any other Person to investigate, confirm or assure that the Collateral exists or is owned by ~~the Loan Parties~~ any Borrower or Guarantor or is cared for, protected or insured or has been ~~encumbered~~ encumbered, or that any particular items of Collateral meet the eligibility criteria applicable in respect of the Loans or Letter of Credit Accommodations hereunder, or whether any particular reserves are appropriate, or that the ~~Lien~~ liens and security interests granted to ~~the Collateral~~ Agent pursuant ~~to this Agreement~~ hereto or any ~~other Loan Document has~~ of the Financing Agreements or otherwise have been properly or sufficiently or lawfully created, perfected, protected or enforced or is are entitled to any particular priority, or to exercise at all or in any particular manner or under any duty of care, disclosure or fidelity, or to continue exercising, any of the rights, authorities and powers granted or available to ~~the Collateral~~ Agent in this ~~Section 10.08~~ Agreement or in any of the other ~~Loan Document~~Financing Agreements, it being understood and agreed that in respect of the Collateral, or any act, omission or event related thereto, ~~the Collateral~~ Agent may act in any manner it may deem appropriate, in its ~~sole~~ discretion, given ~~the Collateral~~ Agent’s 's own interest in the Collateral as ~~one of the Lenders~~ a Lender and that ~~the Collateral~~ Agent shall have no duty or liability whatsoever to any other Lender~~, except as otherwise provided herein and in the Agreement Among Lenders~~.

Appears in 1 contract

Samples: Loan and Security Agreement (Pillowtex Corp)

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

Appears in 1 contract

Samples: Loan and Security Agreement (Delta Apparel Inc)

Collateral Matters. (a) ~~Each~~ The Collateral Agent may from time to time make such disbursements and advances (“Collateral Agent Advances”) which ~~such~~ the Collateral Agent, in its sole discretion, deems necessary or desirable to preserve, protect, prepare for sale or lease or dispose of the Collateral or any portion thereof, to enhance the likelihood or maximize the amount of repayment by the ~~Borrowers~~ Borrower of the Loans, ~~Reimbursement Obligations~~contingent reimbursement obligations with respect to outstanding Letters of Credit, ~~Letter of Credit Obligations~~ and other Obligations or to pay any other amount chargeable to the ~~Borrowers~~ Borrower pursuant to the terms of this Agreement, including, without limitation, costs, fees and expenses as described in Section ~~12.04~~10.5. The Collateral Agent Advances shall be repayable on demand and be secured by the ~~Collateral and shall bear interest at a rate per annum equal to the rate then applicable to Revolving Loans that are Reference Rate Loans~~Collateral. The ~~Agent making any~~ Collateral Agent Advances shall constitute Obligations hereunder which may be charged to the Loan Account. The Collateral Agent shall notify ~~the other Agent,~~ each Lender and the ~~Administrative~~ Borrower in writing of each such Collateral Agent Advance, which notice shall include a description of the purpose of such Collateral Agent Advance. Without limitation to its obligations pursuant to Section ~~10.05~~9.7, each Lender agrees that it shall make available to the ~~Agent making any Agent Advances~~Collateral Agent, upon ~~such~~ the Collateral Agent’s demand, in ~~the currency in which the respective Agent Advance was made~~ Dollars in immediately available funds, the amount equal to such Lender’s Pro Rata Share of each such Collateral Agent ~~Advance subject to the terms of, the Agreement Among Lenders, provided that any such amount advanced by a Lender shall be deemed a Loan hereunder~~Advance. If such funds are not made available to ~~such~~ the Collateral Agent by such Lender, ~~such~~ the Collateral Agent shall be entitled to recover such funds on demand from such Lender, together with interest thereon for each day from the date such payment was due until the date such amount is paid to ~~such~~ the Collateral Agent, at the Federal Funds Effective Rate for three Business Days and thereafter at the ~~Reference Rate~~rate in effect for Term Loans that are Base Rate Loans. (b) The Lenders hereby irrevocably authorize the Collateral Agent, at its option and in its ~~discretion~~sole discretion (without notice to, or vote or consent of any other Agent, any Lender or any affiliate of any Lender that is a party to any Bank Product Agreement), to release any Lien ~~granted to or held by the Collateral Agent upon~~ on any Collateral and to release any guarantee obligations of any Person (i) upon the termination of the ~~Total Commitment~~ Commitments and ~~Payment~~ payment and satisfaction in ~~Full~~ full by Borrower of ~~the~~ all Obligations~~; or~~ , (ii) constituting property being sold or disposed of if a release is required or desirable in connection therewith and if the ~~ordinary course of any Loan Party’s business~~ Borrower certifies to the Collateral Agent that the sale or ~~otherwise in compliance with the terms of~~ disposition is permitted under this Agreement ~~and~~ or the other Loan ~~Documents;~~ Documents and that the proceeds thereof will be applied as required under this Agreement (and the Collateral Agent may rely conclusively on any such certificate, without further inquiry), or (iii) constituting property ~~in which the Loan Parties owned no interest at the time the Lien was granted~~ not then or at any time ~~thereafter;~~ previously owned by a Loan Party or ~~if approved, authorized~~ leased by a Loan Party under a lease that has expired or ~~ratified~~ is terminated in ~~writing by the applicable Lenders required pursuant to Section 12.02~~a transaction permitted under this Agreement. Upon request by the Collateral Agent at any time, the Lenders will confirm in writing the Collateral Agent’s authority to release particular types or items of Collateral pursuant to this Section ~~10.08(b~~9.12(b). (c) Without in any manner limiting the Collateral Agent’s authority to act without any specific or further authorization or consent by the Lenders (as set forth in Section ~~10.08(b~~9.12(b)), each Lender agrees to confirm in writing, upon request by the Collateral Agent, the authority to release Collateral conferred upon the Collateral Agent under Section ~~10.08(b~~9.12(b). ~~Upon~~ If so requested, upon receipt by the Collateral Agent of confirmation from the Lenders of its authority to release any particular item or types of Collateral, and upon prior written request by any Loan Party, the Collateral Agent shall (and is hereby irrevocably authorized by the Lenders to) execute such documents as may be necessary ~~or reasonably requested by any Loan Party~~ to evidence the release of the Liens granted to the Collateral Agent for the benefit of ~~the Agents and~~ the Lenders upon such Collateral; provided, however, that (i) the Collateral Agent shall not be required to execute any such document on terms which, in the Collateral Agent’s opinion, would expose the Collateral Agent to liability or create any obligations or entail any consequence other than the release of such Liens without recourse or warranty, and (ii) such release shall not in any manner discharge, affect or impair the Obligations or any Lien upon (or obligations of any Loan Party in respect of) all interests in the Collateral retained by any Loan Party. (d) ~~Anything contained in any of the Loan Documents~~ Notwithstanding anything to the contrary ~~notwithstanding but subject to the Agreement Among Lenders, the~~ contained herein or any other Loan ~~Parties, each Agent and each Lender hereby agree that~~ Document (i) when all Obligations (other than obligations in respect of any Bank Product Agreement) have been paid in full, all Commitments have terminated or expired and no ~~Lender~~ Letter of Credit shall ~~have~~ be outstanding (other than any ~~right individually to realize upon any~~ Letter of ~~the Collateral under any Loan Document or to enforce any Guaranty, it being understood and agreed~~ Credit that ~~all powers, rights and remedies under the Loan Documents may be exercised solely by the Collateral Agent for the benefit of the Lenders~~ has been cash collateralized in accordance with the terms ~~thereof~~of this Agreement), ~~(ii) in the event of a foreclosure by the Collateral Agent on any~~ upon request of the ~~Collateral pursuant to a public or private sale, the Administrative Agent~~Borrower, the Collateral Agent shall (without notice to, or vote or consent of, any Lender, or any affiliate of any Lender that is a party to any Bank Product Agreements) 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, whether or not on the date of such release there may be ~~the purchaser~~ outstanding Obligations in respect of Bank Product Agreements, and (ii) if any Loan Party Disposes of any Collateral in a transaction not prohibited by this Agreement or ~~all~~ the other Loan Documents, upon request of the Borrower, the Collateral Agent shall (without notice to, or vote or consent of, any Lender, or any affiliate of any Lender that is a party to any Bank Product Agreements) take such actions as shall be required to release its security interest in the Collateral at being Disposed of and release any guarantee obligations of any Person being Disposed of to the extent that any such ~~sale and (iii)~~ Disposition of Collateral results in the Disposition of a Guarantor, in each case if the Borrower certifies to the Collateral ~~Agent,~~ Agent that the Disposition is permitted under this Agreement or the other Loan Documents and that the Proceeds thereof will be applied as ~~agent for and representative of the Agents~~ required under this Agreement (and the ~~Lenders (but not~~ Collateral Agent may rely conclusively on any ~~other Agent or any Lender or Lenders in its or their respective individual capacities unless the Required Lenders shall otherwise agree in writing)~~ such certificate, without further inquiry). Any such release of guarantee obligations shall be ~~entitled (either directly or through one or more acquisition vehicles) for~~ deemed subject to the ~~purpose of bidding and making settlement or payment of the purchase price for all or~~ provision that such guarantee obligations shall be reinstated if after such release any portion of ~~the Collateral to be sold (A) at~~ any public or private sale, (B) at any sale conducted by the Collateral Agent under the provisions of the Uniform Commercial Code (including pursuant to Sections 9-610 or 9-620 of the Uniform Commercial Code), (C) at any sale or foreclosure conducted by the Collateral Agent (whether by judicial action or otherwise) payment in ~~accordance with applicable law or (D) any sale conducted pursuant to the provisions of any Debtor Relief Law (including Section 363 of the Bankruptcy Code), to use and apply all or any~~ 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 the Borrower or any Guarantor, or upon or as a ~~credit on account~~ result of the ~~purchase price for~~ appointment of a receiver, intervenor or conservator of, or trustee or similar officer for, the Borrower or any ~~Collateral payable by the Collateral Agent at~~ Guarantor or any substantial part of its property, or otherwise, all as though such ~~sale~~payment had not been made. (e) The Collateral Agent shall have no obligation whatsoever to any Lender to assure that the Collateral exists or is owned by the Loan Parties or is cared for, protected or insured or has been encumbered or that the Lien granted to the Collateral Agent pursuant to this Agreement or any other Loan Document has been properly or sufficiently or lawfully created, perfected, protected or enforced or is entitled to any particular priority, or to exercise at all or in any particular manner or under any duty of care, disclosure or fidelity, or to continue exercising, any of the rights, authorities and powers granted or available to the Collateral Agent in this Section ~~10.08~~ 9.12 or in any other Loan Document, it being understood and agreed that in respect of the Collateral, or any act, omission or event related thereto, the Collateral Agent may act in any manner it may deem appropriate, in its sole discretion, given the Collateral Agent’s own interest in the Collateral as one of the Lenders and that the Collateral Agent shall have no duty or liability whatsoever to any other Lender, except as otherwise provided ~~herein and in the Agreement Among Lenders~~herein.

Appears in 1 contract

Samples: Credit Agreement (Pope & Talbot Inc /De/)

Appears in 1 contract

Samples: Financing Agreement (Mattress Holding Corp.)

Common use of Collateral Matters Clause in Contracts