Consent and Agreement. 1. The Administrative Agent and the Lenders hereby (i) consent to the execution and delivery of the Senior Notes Indenture (including the guarantees set forth therein), the issuance of the Senior Notes and the use of the proceeds thereof to redeem the Senior Subordinated Notes (notwithstanding any Lien that the Administrative Agent and the Lenders may have in such proceeds) and prepay the Revolving Credit Loans as hereinafter provided, (ii) subordinate all Liens that they may have under any Loan Document in the Senior Subordinated Note Redemption Proceeds (as hereinafter defined) to the Lien of the Subordinated Notes Trustee solely for the benefit of the holders of the Senior Subordinated Notes and (iii) consent to the amendment of the Senior Subordinated Note Indenture in the form attached hereto as Exhibit A, subject in each such case to the conditions (which are in addition to those set forth in Article V hereof) that, simultaneously with the issuance of the Senior Notes, and in no event later than April 30, 2001, (x) SMI shall deliver or caused to be delivered to the Senior Subordinated Note Trustee the Redemption Documents together with immediately available Dollars in an amount, not to exceed $114,000,000, equal to the amount required to redeem all outstanding Senior Subordinated Notes on or before June 30, 2001 (such funds, the “Senior Subordinated Note Redemption Proceeds”) and the Administrative Agent shall have received satisfactory evidence thereof, (y) SMI shall deliver to the Administrative Agent for application to the prepayment of any outstanding Revolving Credit Loans immediately available Dollars in an amount equal to the excess of the net proceeds of the Senior Notes over the amount delivered to the Subordinated Note Trustee pursuant to the immediately preceding clause (x) and shall permanently reduce the Aggregate Maximum Revolving Credit Amount to $85,000,000, and (z) no Loan Party shall have granted a Lien in any of its property or assets to the Senior Notes Trustee or any Senior Notes Holder. The parties hereto hereby acknowledge and agree that a failure by SMI to comply with the conditions set forth in the immediately preceding sentence shall be an Event of Default (as defined in the Agreement) and that in such event or in the event that all of the outstanding Senior Subordinated Notes are not redeemed on or before June 30, 2001, the subordination of such Lien shall be void ab initio and of no force and effect. The Administrative Agent and the Lenders further agree that any Event of Default (as defined in the Agreement) which shall occur and be continuing solely as the result of the occurrence of an Event of Default as defined in the Senior Subordinated Notes Indenture on or after the date hereof shall be deemed to be waived upon the payment of all amounts owing under the Senior Subordinated Notes, the satisfaction and discharge thereof and the satisfaction and discharge of all other obligations of any Loan Party to the Senior Subordinated Note Holders under the Senior Subordinated Indenture unless such Event of Default (as defined in the Agreement) is also a Default or Event of Default as defined in the Senior Notes Indenture. The parties hereto hereby further agree that the Net Proceeds of the sale of any asset of any Loan Party shall first be applied to the Obligations as set forth in Section 5.4 of the Agreement and (i) any excess of such Net Proceeds remaining after such application and (ii) any proceeds of any sale of any Qualified Capital Stock (as defined in the Senior Notes Indenture) shall be delivered to the Administrative Agent to be applied to the outstanding Obligations in accordance with Section 12.4 of the Agreement.
Appears in 1 contract
Samples: Credit Agreement (Steinway Musical Instruments Inc)
Consent and Agreement. 1. The Administrative (a) CQP GP hereby acknowledges and irrevocably consents in all respects to the assignment by O&M of all its right, title and interest in the Assigned Agreement to the Collateral Agent as collateral security for the payment and performance by the Borrower of the Borrower’s obligations under the Credit Agreement and the Lenders performance of O&M’s obligations under the Security Documents.
(b) CQP GP hereby acknowledges and irrevocably consents in all respects to the right of the Collateral Agent, upon the occurrence and during the continuance of an Event of Default under the Credit Agreement, to exercise and enforce all rights of O&M under the Assigned Agreement in accordance with the terms of the Assigned Agreement.
(c) Upon the exercise by the Collateral Agent of any of the remedies set forth in and in accordance with the terms of the Credit Agreement and the Security Documents, the Collateral Agent may assign its rights and interests and the rights and interests of O&M under the Assigned Agreement, subject to clause (h) hereof. Upon such assignment, the Collateral Agent shall be released from any further liability under the Assigned Agreement or such new agreement to the extent of the interest assigned.
(d) CQP GP acknowledges and agrees that, notwithstanding anything to the contrary contained in the Assigned Agreement, neither of the following events shall constitute a default by O&M under the Assigned Agreement or require the consent of CQP GP: (i) consent the provision of the Services (as defined in the Assigned Agreement) by a suitable operator by or on behalf of the Collateral Agent following the occurrence and continuance of an event of default under the Credit Agreement; or (ii) foreclosure or any other enforcement of the rights of the lenders under the Credit Agreement or the Security Documents by the Collateral Agent; provided that the actions taken pursuant to clauses (i) or (ii) otherwise comply with applicable law.
(e) Notwithstanding anything to the execution and delivery contrary in the Assigned Agreement, CQP GP shall not, without the prior written consent of the Senior Notes Indenture Collateral Agent, cancel, suspend performance under or terminate the Assigned Agreement unless CQP GP shall have delivered to the Collateral Agent written notice stating that it is entitled to do so under the Assigned Agreement and that it intends to exercise such right on a date no fewer than 30 days after the date of such notice in the case of a payment default or 60 days after the date of such notice in the case of any other default; provided that (including i) such cure period shall be extended to such longer period as may be reasonably required to cure such default if the guarantees set forth thereinCollateral Agent or its assignee or designee has commenced and is diligently pursuing appropriate action to cure such default (provided, however, that in no event shall such extended period exceed an additional 30 days in the case of a payment default or 60 days in the case of any other default) and (ii) if the Collateral Agent or its designee or assignee is prohibited from curing any such default by any process, stay or injunction issued by any governmental authority or pursuant to any bankruptcy or insolvency proceeding or other similar proceeding involving O&M, then such cure period shall be extended for the period of such prohibition. CQP GP’s notice shall specify the nature of the default giving rise to its right to cancel, suspend performance under or terminate the Assigned Agreement and CQP GP shall permit O&M and/or the Collateral Agent to cure such default. Nothing herein shall require the Collateral Agent to cure any default of O&M under the Assigned Agreement or to perform any act, duty or obligation of O&M under the Assigned Agreement, but shall only give it the option to do so. It being understood that, in the event the Collateral Agent cures any default of O&M under the Assigned Agreement, the Collateral Agent shall have no further obligation to cure any subsequent default or to perform any act, duty or obligation of O&M under the Assigned Agreement.
(f) Neither CQP GP nor O&M shall, without the prior written consent of the Required Lenders (as defined in the Credit Agreement), the issuance (i) enter into any novation, material amendment or other material modification of the Senior Notes and the use of the proceeds thereof to redeem the Senior Subordinated Notes (notwithstanding any Lien that the Administrative Agent and the Lenders may have in such proceeds) and prepay the Revolving Credit Loans as hereinafter providedAssigned Agreement, (ii) subordinate all Liens that they may sell, assign or otherwise transfer any of its rights under the Assigned Agreement, (iii) terminate, cancel or suspend its performance under the Assigned Agreement (unless the applicable parties have given the Collateral Agent notice and an opportunity to cure in accordance with clause (e) hereof), (iv) consent to any assignment or other transfer by any other party of its respective rights under any Loan Document the Assigned Agreement, except in connection with a refinancing of the Loans made pursuant to the Credit Agreement or, to the extent such assignment or transfer does not adversely affect the Lenders under the Credit Agreement, a refinancing of the indebtedness created under the Sabine Indenture or the issuance of Additional Notes (as defined in the Senior Subordinated Note Redemption Proceeds Sabine Indenture), or (as hereinafter definedv) consent to any voluntary termination, cancellation or suspension of performance by any party under the Lien Assigned Agreement.
(g) CQP GP shall perform and comply with all material terms and provisions of the Subordinated Notes Trustee solely Assigned Agreement to be performed or complied with by it for the benefit of the holders Collateral Agent.
(h) CQP GP acknowledges and agrees that the Collateral Agent shall not have any liability or obligation under the Assigned Agreement as a result of this Consent and Agreement, the Security Documents or otherwise, nor shall the Collateral Agent be obligated or required to (i) perform O&M’s obligations under the Assigned Agreement, except during any period in which the Collateral Agent has assumed O&M’s rights and obligations under the Assigned Agreement pursuant to clause (b) above, or (ii) take any action to collect or enforce any claim for payment assigned under the Security Documents. For the avoidance of doubt, O&M and CQP GP agree that the payments to be made by CQP GP to O&M under the Assigned Agreement, or as otherwise provided for in this Consent and Agreement, are conditioned upon the performance of O&M’s obligations under the Assigned Agreement. Except as set forth above, neither the Collateral Agent, its designee or assignee nor any other party secured by the Security Documents shall be liable for the performance or observance of any of the Senior Subordinated Notes obligations or duties of O&M under the Assigned Agreement, including the performance by the Collateral Agent or its designee or assignee of any cure of default permitted pursuant to paragraph (b) above, and, except as set forth above, the assignment of the Assigned Agreement by O&M to the Collateral Agent or its designee or assignee pursuant to the Credit Agreement or the Security Documents shall not give rise to any duties or obligations owing to O&M on the part of any of the parties secured by the Credit Agreement or the Security Documents.
(i) If (i) the Assigned Agreement is rejected by a trustee or debtor-in-possession in any bankruptcy or insolvency proceeding involving O&M or (ii) the Assigned Agreement is terminated as a result of any bankruptcy or insolvency proceeding involving O&M, and if within 90 days after such rejection or termination, the Collateral Agent or its designee or assignee shall so request and shall certify in writing to CQP GP that it intends to perform the obligations of O&M as and to the extent required under the Assigned Agreement, CQP GP shall execute and deliver to the Collateral Agent or such designee or assignee a new agreement (“new Assigned Agreement”), (A) pursuant to which new Assigned Agreement CQP GP shall agree to perform the obligations contemplated to be performed by CQP GP under the original Assigned Agreement and the Collateral Agent or such designee or assignee shall agree to perform the obligations contemplated to be performed by O&M under the original Assigned Agreement, (B) which shall be for the balance of the remaining term under the original Assigned Agreement before giving effect to such rejection or termination and (iiiC) consent which shall contain the same conditions, agreements, terms, provisions and limitations as the original Assigned Agreement (except for any requirements which have been fulfilled by O&M prior to such rejection or termination). References in this Consent and Agreement to an “Assigned Agreement” shall be deemed also to refer to the amendment of the Senior Subordinated Note Indenture in the form attached hereto as Exhibit A, subject in each such case to the conditions new Assigned Agreement.
(which are in addition to those set forth in Article V hereofj) that, simultaneously with the issuance of the Senior Notes, and in no event later than April 30, 2001, (x) SMI shall deliver or caused to be delivered to the Senior Subordinated Note Trustee the Redemption Documents together with immediately available Dollars in an amount, not to exceed $114,000,000, equal to the amount required to redeem all outstanding Senior Subordinated Notes on or before June 30, 2001 (such funds, the “Senior Subordinated Note Redemption Proceeds”) and the Administrative Agent shall have received satisfactory evidence thereof, (y) SMI CQP GP shall deliver to the Administrative Collateral Agent for application at the address set forth on the signature pages hereof, or at such other address as the Collateral Agent may designate in writing from time to time to CQP GP, concurrently with the prepayment delivery thereof to O&M a copy of any outstanding Revolving Credit Loans immediately available Dollars each material notice, request or demand (other than such notices delivered in an amount equal the ordinary course of business) given by CQP GP to the excess of the net proceeds of the Senior Notes over the amount delivered to the Subordinated Note Trustee O&M pursuant to the immediately preceding clause Assigned Agreement.
(xk) and CQP GP hereby agrees that it shall permanently reduce the Aggregate Maximum Revolving Credit Amount to $85,000,000not, and (z) no Loan Party nor shall have granted a Lien in it enter into any of its property agreement permitting CQP GP to, set off, counter-claim or assets to the Senior Notes Trustee or otherwise withhold any Senior Notes Holder. The parties hereto hereby acknowledge and agree that a failure by SMI to comply with the conditions set forth in the immediately preceding sentence shall be an Event of Default (as defined in the Agreement) and that in such event or in the event that all of the outstanding Senior Subordinated Notes are not redeemed on or before June 30, 2001, the subordination of such Lien shall be void ab initio and of no force and effect. The Administrative Agent and the Lenders further agree that any Event of Default (as defined in the Agreement) which shall occur and be continuing solely as the result of the occurrence of an Event of Default as defined in the Senior Subordinated Notes Indenture on or after the date hereof shall be deemed to be waived upon the payment of all amounts owing under the Senior Subordinated NotesAssigned Agreement on account of any amounts owed to CQP GP by any of O&M, the satisfaction Collateral Agent or any of their respective subsidiaries, affiliates, successors or permitted assigns.
(l) In a bankruptcy or insolvency proceeding involving O&M, nothing contained herein shall affect or otherwise limit CQP GP’s rights to assert claims and discharge thereof interests against O&M in such proceeding and the satisfaction and discharge of all other obligations of any Loan Party to the Senior Subordinated Note Holders under the Senior Subordinated Indenture unless otherwise participate as a creditor or party in interest in such Event of Default (as defined in the Agreement) is also a Default or Event of Default as defined in the Senior Notes Indenture. The parties hereto hereby further agree that the Net Proceeds of the sale of any asset of any Loan Party shall first be applied to the Obligations as set forth in Section 5.4 of the Agreement and (i) any excess of such Net Proceeds remaining after such application and (ii) any proceeds of any sale of any Qualified Capital Stock (as defined in the Senior Notes Indenture) shall be delivered to the Administrative Agent to be applied to the outstanding Obligations in accordance with Section 12.4 of the Agreementproceeding.
Appears in 1 contract
Samples: Operation and Maintenance Agreement (Cheniere Energy Inc)
Consent and Agreement. 1. The Administrative Agent In consideration of the --------------------- agreements of the Company contained in this Consent and Agreement, the Lenders Purchasers hereby consent and agree:
a. to the Company's negotiation and closing of the Proposed Transactions;
b. that the consummation of the Proposed Transactions will not constitute a default by the Company under Section 5.6 of the Investor Rights Agreement or under Sections 8.9(b), 8.9(c) or 10.1 of the Agreement;
c. that, in connection with the Proposed Transactions, (i) consent the financing to be obtained by the execution and delivery Company in connection with the acquisition of the Xxxxxx Schools and the Line of Credit shall constitute "Senior Notes Indenture Indebtedness" (as such term is defined in the Debentures), and the Debentures shall be expressly subordinate to, and junior in right of payment to, the prior payment in full of all principal of and interest on all Senior Indebtedness (including the guarantees set forth thereinaforementioned indebtedness and line of credit), and (ii) the issuance Company and its subsidiaries may, if required by the financial institutions providing the financing for the Proposed Transactions or in connection with the Line of Credit, grant security interests in the receivables of the Senior Notes and Company or its subsidiaries; and
d. that the use calculation of the proceeds thereof Company's compliance with the One Million Dollar Debt Basket pursuant to redeem Section 10.1(i) of the Senior Subordinated Notes Agreement shall not include (notwithstanding i) any Lien that indebtedness, whether secured or unsecured, assumed by the Administrative Agent and Company or its subsidiaries in connection with the Lenders may have in such proceeds) and prepay the Revolving Credit Loans as hereinafter providedProposed Transactions, (ii) subordinate all Liens that they may have under any Loan Document indebtedness of the acquired companies in the Senior Subordinated Note Redemption Proceeds (as hereinafter defined) to Proposed Transactions existing on the Lien date of the Subordinated Notes Trustee solely for the benefit closing of the holders of the Senior Subordinated Notes and Proposed Transactions, (iii) consent indebtedness incurred by the Company or its subsidiaries in order to consummate the amendment Proposed Transactions, or (iv) the Line of the Senior Subordinated Note Indenture in the form attached hereto as Exhibit A, subject in each such case to the conditions (which are in addition to those set forth in Article V hereof) that, simultaneously with the issuance of the Senior Notes, and in no event later than April 30, 2001, (x) SMI shall deliver or caused to be delivered to the Senior Subordinated Note Trustee the Redemption Documents together with immediately available Dollars in an amount, not to exceed $114,000,000, equal to the amount required to redeem all outstanding Senior Subordinated Notes on or before June 30, 2001 (such funds, the “Senior Subordinated Note Redemption Proceeds”) and the Administrative Agent shall have received satisfactory evidence thereof, (y) SMI shall deliver to the Administrative Agent for application to the prepayment of any outstanding Revolving Credit Loans immediately available Dollars in an amount equal to the excess of the net proceeds of the Senior Notes over the amount delivered to the Subordinated Note Trustee pursuant to the immediately preceding clause (x) and shall permanently reduce the Aggregate Maximum Revolving Credit Amount to $85,000,000, and (z) no Loan Party shall have granted a Lien in any of its property or assets to the Senior Notes Trustee or any Senior Notes Holder. The parties hereto hereby acknowledge and agree that a failure by SMI to comply with the conditions set forth in the immediately preceding sentence shall be an Event of Default (as defined in the Agreement) and that in such event or in the event that all of the outstanding Senior Subordinated Notes are not redeemed on or before June 30, 2001, the subordination of such Lien shall be void ab initio and of no force and effect. The Administrative Agent and the Lenders further agree that any Event of Default (as defined in the Agreement) which shall occur and be continuing solely as the result of the occurrence of an Event of Default as defined in the Senior Subordinated Notes Indenture on or after the date hereof shall be deemed to be waived upon the payment of all amounts owing under the Senior Subordinated Notes, the satisfaction and discharge thereof and the satisfaction and discharge of all other obligations of any Loan Party to the Senior Subordinated Note Holders under the Senior Subordinated Indenture unless such Event of Default (as defined in the Agreement) is also a Default or Event of Default as defined in the Senior Notes Indenture. The parties hereto hereby further agree that the Net Proceeds of the sale of any asset of any Loan Party shall first be applied to the Obligations as set forth in Section 5.4 of the Agreement and (i) any excess of such Net Proceeds remaining after such application and (ii) any proceeds of any sale of any Qualified Capital Stock (as defined in the Senior Notes Indenture) shall be delivered to the Administrative Agent to be applied to the outstanding Obligations in accordance with Section 12.4 of the AgreementCredit.
Appears in 1 contract
Samples: Securities Purchase Agreement (Touchstone Applied Science Associates Inc /Ny/)
Consent and Agreement. 1. The Administrative (a) CQP hereby acknowledges and irrevocably consents in all respects to the assignment by Manager of all its right, title and interest in the Assigned Agreement to the Collateral Agent as collateral security for the payment and performance by the Borrower of the Borrower’s obligations under the Credit Agreement and the Lenders performance of Manager’s obligations under the Security Documents.
(b) CQP hereby acknowledges and irrevocably consents in all respects to the right of the Collateral Agent, upon the occurrence and during the continuance of an Event of Default under the Credit Agreement, to exercise and enforce all rights of Manager under the Assigned Agreement in accordance with the terms of the Assigned Agreement.
(c) Upon the exercise by the Collateral Agent of any of the remedies set forth in and in accordance with the terms of the Credit Agreement and the Security Documents, the Collateral Agent may assign its rights and interests and the rights and interests of Manager under the Assigned Agreement, subject to clause (h) hereof. Upon such assignment, the Collateral Agent shall be released from any further liability under the Assigned Agreement or such new agreement to the extent of the interest assigned.
(d) CQP acknowledges and agrees that, notwithstanding anything to the contrary contained in the Assigned Agreement, neither of the following events shall constitute a default by Manager under the Assigned Agreement or require the consent of CQP: (i) consent the provision of the Services (as defined in the Assigned Agreement) by a suitable provider of services of the type described in the Assigned Agreement by or on behalf of the Collateral Agent following the occurrence and continuance of an event of default under the Credit Agreement; or (ii) foreclosure or any other enforcement of the rights of the lenders under the Credit Agreement or the Security Documents by the Collateral Agent; provided that the actions taken pursuant to clauses (i) or (ii) otherwise comply with applicable law.
(e) Notwithstanding anything to the execution and delivery contrary in the Assigned Agreement, CQP shall not, without the prior written consent of the Senior Notes Indenture Collateral Agent, cancel, suspend performance under or terminate the Assigned Agreement unless CQP shall have delivered to the Collateral Agent written notice stating that it is entitled to do so under the Assigned Agreement and that it intends to exercise such right on a date no fewer than 30 days after the date of such notice in the case of a payment default or 60 days after the date of such notice in the case of any other default; provided that (including i) such cure period shall be extended to such longer period as may be reasonably required to cure such default if the guarantees set forth thereinCollateral Agent or its assignee or designee has commenced and is diligently pursuing appropriate action to cure such default (provided, however, that in no event shall such extended period exceed an additional 30 days in the case of a payment default or 60 days in the case of any other default) and (ii) if the Collateral Agent or its designee or assignee is prohibited from curing any such default by any process, stay or injunction issued by any governmental authority or pursuant to any bankruptcy or insolvency proceeding or other similar proceeding involving Manager, then such cure period shall be extended for the period of such prohibition. CQP’s notice shall specify the nature of the default giving rise to its right to cancel, suspend performance under or terminate the Assigned Agreement and CQP shall permit Manager and/or the Collateral Agent to cure such default. Nothing herein shall require the Collateral Agent to cure any default of Manager under the Assigned Agreement or to perform any act, duty or obligation of Manager under the Assigned Agreement, but shall only give it the option to do so. It being understood that, in the event the Collateral Agent cures any default of Manager under the Assigned Agreement, the Collateral Agent shall have no further obligation to cure any subsequent default or to perform any act, duty or obligation of Manager under the Assigned Agreement.
(f) Neither CQP nor Manager shall, without the prior written consent of the Required Lenders (as defined in the Credit Agreement), the issuance (i) enter into any novation, material amendment or other material modification of the Senior Notes and the use of the proceeds thereof to redeem the Senior Subordinated Notes (notwithstanding any Lien that the Administrative Agent and the Lenders may have in such proceeds) and prepay the Revolving Credit Loans as hereinafter providedAssigned Agreement, (ii) subordinate all Liens that they may sell, assign or otherwise transfer any of its rights under the Assigned Agreement, (iii) terminate, cancel or suspend its performance under the Assigned Agreement (unless the applicable parties have given the Collateral Agent notice and an opportunity to cure in accordance with clause (e) hereof), (iv) consent to any assignment or other transfer by any other party of its respective rights under any Loan Document the Assigned Agreement, except in connection with a refinancing of the Loans made pursuant to the Credit Agreement or, to the extent such assignment or transfer does not adversely affect the Lenders under the Credit Agreement, a refinancing of the indebtedness created under the Sabine Indenture or the issuance of Additional Notes (as defined in the Senior Subordinated Note Redemption Proceeds Sabine Indenture), or (as hereinafter definedv) consent to any voluntary termination, cancellation or suspension of performance by any party under the Lien Assigned Agreement.
(g) CQP shall perform and comply with all material terms and provisions of the Subordinated Notes Trustee solely Assigned Agreement to be performed or complied with by it for the benefit of the holders Collateral Agent.
(h) CQP acknowledges and agrees that the Collateral Agent shall not have any liability or obligation under the Assigned Agreement as a result of this Consent and Agreement, the Security Documents or otherwise, nor shall the Collateral Agent be obligated or required to (i) perform Manager’s obligations under the Assigned Agreement, except during any period in which the Collateral Agent has assumed Manager’s rights and obligations under the Assigned Agreement pursuant to clause (b) above, or (ii) take any action to collect or enforce any claim for payment assigned under the Security Documents. For the avoidance of doubt, Manager and CQP agree that the payments to be made by CQP to Manager under the Assigned Agreement, or as otherwise provided for in this Consent and Agreement, are conditioned upon the performance of Manager’s obligations under the Assigned Agreement. Except as set forth above, neither the Collateral Agent, its designee or assignee nor any other party secured by the Security Documents shall be liable for the performance or observance of any of the Senior Subordinated Notes obligations or duties of Manager under the Assigned Agreement, including the performance by the Collateral Agent or its designee or assignee of any cure of default permitted pursuant to paragraph (b) above, and, except as set forth above, the assignment of the Assigned Agreement by Manager to the Collateral Agent or its designee or assignee pursuant to the Credit Agreement or the Security Documents shall not give rise to any duties or obligations owing to Manager on the part of any of the parties secured by the Credit Agreement or the Security Documents.
(i) If (i) the Assigned Agreement is rejected by a trustee or debtor-in-possession in any bankruptcy or insolvency proceeding involving Manager or (ii) the Assigned Agreement is terminated as a result of any bankruptcy or insolvency proceeding involving Manager, and if within 90 days after such rejection or termination, the Collateral Agent or its designee or assignee shall so request and shall certify in writing to CQP that it intends to perform the obligations of Manager as and to the extent required under the Assigned Agreement, CQP shall execute and deliver to the Collateral Agent or such designee or assignee a new agreement (“new Assigned Agreement”), (A) pursuant to which new Assigned Agreement CQP shall agree to perform the obligations contemplated to be performed by CQP under the original Assigned Agreement and the Collateral Agent or such designee or assignee shall agree to perform the obligations contemplated to be performed by Manager under the original Assigned Agreement, (B) which shall be for the balance of the remaining term under the original Assigned Agreement before giving effect to such rejection or termination and (iiiC) consent which shall contain the same conditions, agreements, terms, provisions and limitations as the original Assigned Agreement (except for any requirements which have been fulfilled by Manager prior to such rejection or termination). References in this Consent and Agreement to an “Assigned Agreement” shall be deemed also to refer to the amendment of the Senior Subordinated Note Indenture in the form attached hereto as Exhibit A, subject in each such case to the conditions new Assigned Agreement.
(which are in addition to those set forth in Article V hereofj) that, simultaneously with the issuance of the Senior Notes, and in no event later than April 30, 2001, (x) SMI shall deliver or caused to be delivered to the Senior Subordinated Note Trustee the Redemption Documents together with immediately available Dollars in an amount, not to exceed $114,000,000, equal to the amount required to redeem all outstanding Senior Subordinated Notes on or before June 30, 2001 (such funds, the “Senior Subordinated Note Redemption Proceeds”) and the Administrative Agent shall have received satisfactory evidence thereof, (y) SMI CQP shall deliver to the Administrative Collateral Agent for application at the address set forth on the signature pages hereof, or at such other address as the Collateral Agent may designate in writing from time to time to CQP, concurrently with the prepayment delivery thereof to Manager a copy of any outstanding Revolving Credit Loans immediately available Dollars each material notice, request or demand (other than such notices delivered in an amount equal the ordinary course of business) given by CQP to the excess of the net proceeds of the Senior Notes over the amount delivered to the Subordinated Note Trustee Manager pursuant to the immediately preceding clause Assigned Agreement.
(xk) and CQP hereby agrees that it shall permanently reduce the Aggregate Maximum Revolving Credit Amount to $85,000,000not, and (z) no Loan Party nor shall have granted a Lien in it enter into any of its property agreement permitting Sabine to, set off, counter-claim or assets to the Senior Notes Trustee or otherwise withhold any Senior Notes Holder. The parties hereto hereby acknowledge and agree that a failure by SMI to comply with the conditions set forth in the immediately preceding sentence shall be an Event of Default (as defined in the Agreement) and that in such event or in the event that all of the outstanding Senior Subordinated Notes are not redeemed on or before June 30, 2001, the subordination of such Lien shall be void ab initio and of no force and effect. The Administrative Agent and the Lenders further agree that any Event of Default (as defined in the Agreement) which shall occur and be continuing solely as the result of the occurrence of an Event of Default as defined in the Senior Subordinated Notes Indenture on or after the date hereof shall be deemed to be waived upon the payment of all amounts owing under the Senior Subordinated NotesAssigned Agreement on account of any amounts owed to CQP by any of Manager, the satisfaction Collateral Agent or any of their respective subsidiaries, affiliates, successors or permitted assigns.
(l) In a bankruptcy or insolvency proceeding involving Manager, nothing contained herein shall affect or otherwise limit CQP’s rights to assert claims and discharge thereof interests against Manager in such proceeding and the satisfaction and discharge of all other obligations of any Loan Party to the Senior Subordinated Note Holders under the Senior Subordinated Indenture unless otherwise participate as a creditor or party in interest in such Event of Default (as defined in the Agreement) is also a Default or Event of Default as defined in the Senior Notes Indenture. The parties hereto hereby further agree that the Net Proceeds of the sale of any asset of any Loan Party shall first be applied to the Obligations as set forth in Section 5.4 of the Agreement and (i) any excess of such Net Proceeds remaining after such application and (ii) any proceeds of any sale of any Qualified Capital Stock (as defined in the Senior Notes Indenture) shall be delivered to the Administrative Agent to be applied to the outstanding Obligations in accordance with Section 12.4 of the Agreementproceeding.
Appears in 1 contract
Samples: Management and Administrative Services Letter Agreement (Cheniere Energy Inc)
Consent and Agreement. 1. The Administrative Agent Consenting Party hereby acknowledges and agrees that, notwithstanding any other provision in the Lenders hereby Operator's Agreement:
(ia) consent Pursuant to the execution Master Security Agreement, the Borrower has granted, transferred and delivery assigned to the Offshore Collateral Agent, as collateral agent for the benefit of Senior Lenders named in the Master Security Agreement, all right, title and interest which Borrower now has or which shall hereafter arise in and to the Operator's Agreement and all claims resulting from any failure of performance or compliance with any of the provisions of the Operator's Agreement, together with full power and authority, in its own name or in the name of Borrower or otherwise, to enforce and request payment under the Operator's Agreement and to collect, receive and give receipts and releases for such amounts.
(b) The Consenting Party hereby irrevocably consents to and accepts the grant, transfer and assignment by the Borrower to the Offshore Collateral Agent for the benefit of and on behalf of the Senior Notes Indenture (including Lenders of all of Borrower's right, title and interest in the guarantees set forth therein), the issuance Operator's Agreement and all claims resulting from any failure of performance or compliance with any of the Senior Notes and the use provisions of the proceeds thereof to redeem the Senior Subordinated Notes (notwithstanding any Lien that the Administrative Agent Operator's Agreement, together with full power and the Lenders may have in such proceeds) and prepay the Revolving Credit Loans as hereinafter providedauthority, (ii) subordinate all Liens that they may have under any Loan Document in the Senior Subordinated Note Redemption Proceeds (as hereinafter defined) to the Lien name of the Subordinated Notes Trustee solely Borrower, to enforce the Operator's Agreement against the Consenting Party, it being understood and agreed that any enforcement by the Offshore Collateral Agent shall not require any further consent from the Consenting Party or constitute a default under the Operator's Agreement. The Consenting Party hereby irrevocably further agrees for the benefit of the holders Offshore Collateral Agent and the Senior Lenders in case of a default under the Operator's Agreement by the Borrower, to accept performance by a Person designated by the Offshore Collateral Agent (or one or more of its representatives or assignees (the "Designee"), as instructed by the Administrative Agent) and neither the Offshore Collateral Agent nor its Designee shall be subject to any defense arising from the Borrower's failure to perform, provided that the Designee's performance shall in all other respects be in accordance with the provisions of the Senior Subordinated Notes and (iiiOperator's Agreement. In no event shall any grant, transfer, assignment or acceptance of performance pursuant to this Section 3(b) consent change or modify Borrower's obligations to the amendment of the Senior Subordinated Note Indenture in the form attached hereto as Exhibit A, subject in each such case to the conditions Consenting Party thereunder.
(which are in addition to those set forth in Article V hereofc) that, simultaneously with the issuance of the Senior Notes, and in no event later than April 30, 2001, (x) SMI shall deliver or caused to be delivered to the Senior Subordinated Note Trustee the Redemption Documents together with immediately available Dollars in an amount, not to exceed $114,000,000, equal to the amount required to redeem all outstanding Senior Subordinated Notes on or before June 30, 2001 (such funds, the “Senior Subordinated Note Redemption Proceeds”) and the Administrative Agent shall have received satisfactory evidence thereof, (y) SMI The Consenting Party shall deliver to the Administrative Offshore Collateral Agent for application at the address specified in Section 5(j), or at such other address as the Offshore Collateral Agent may designate in writing from time to time to the prepayment Consenting Party, concurrently with delivery thereof to the Borrower, a copy of any outstanding Revolving Credit Loans immediately available Dollars material notice, request, demand or other document given by the Consenting Party in an amount equal connection with the Operator's Agreement, along with notice of any material breach, termination or claim of termination under the Operator's Agreement for which notice to the excess Borrower is required under the Operator's Agreement.
(d) The Consenting Party will not, without the prior written consent of the net proceeds Supermajority Facility Lenders, take any action to (i) except as expressly provided in the Operator's Agreement, cancel or terminate, or suspend performance under, the Operator's Agreement or consent to or accept any cancellation, termination or suspension thereof, (ii) exercise any of its rights set forth in the Operator's Agreement to cancel or terminate, or suspend or discontinue performance or withhold deliveries under, the Operator's Agreement unless the Consenting Party shall have delivered to the Offshore Collateral Agent and each Senior Lender written notice stating that it intends to exercise such right on a date not less than 30 days after the date of such notice, specifying the nature of the default giving rise to such right (and, in the case of a payment default, specifying the amount thereof) and permitting the Offshore Collateral Agent or its Designee on behalf of the Senior Notes over Lenders to cure such default by making a payment in the amount delivered in default or by performing or causing to be performed the obligation in default (or if such default is not capable of being cured within said time, then diligently and continuously pursuing all reasonable actions necessary to effect cure), (iii) amend, supplement or otherwise modify the Operator's Agreement (as in effect on the date hereof) unless such amendment or modification would be permitted by Section 7.12 of the Master Participation Agreement or (iv) petition, request or take any other legal or administrative action which seeks, or may reasonably be expected, to rescind, terminate or suspend or amend or modify the Operator's Agreement or any part thereof, other than to enforce rights to which the Consenting Party is entitled pursuant to clause (i) or (ii) of this paragraph. In furtherance of the foregoing clause (ii), the Consenting Party agrees that, notwithstanding anything contained in the Operator's Agreement to the Subordinated Note Trustee pursuant contrary, upon the occurrence of a default under the Operator's Agreement that cannot by its nature be cured by the payment of money, the Consenting Party will not cancel or terminate the Operator's Agreement if, and for so long as, the Offshore Collateral Agent shall be diligently seeking to institute foreclosure proceedings, or to acquire the Borrower's interest in the Operator's Agreement, and the Consenting Party shall grant the Offshore Collateral Agent a reasonable period of time to cure such default upon the occurrence of such foreclosure or acquisition.
(e) In the event that (i) the Operator's Agreement is rejected by a trustee or debtor-in-possession in any bankruptcy or insolvency proceeding involving the Borrower or (ii) the Operator's Agreement is terminated as a result of any bankruptcy or insolvency proceeding involving the Borrower and, if within 60 days after notice by the Consenting Party to the immediately preceding clause (x) Offshore Collateral Agent of such rejection or termination, the Offshore Collateral Agent or its Designee shall so request and shall permanently reduce the Aggregate Maximum Revolving Credit Amount to $85,000,000, and (z) no Loan Party shall have granted a Lien certify in any of its property or assets writing to the Senior Notes Trustee Consenting Party that such party intends to perform the obligations of the Borrower as and to the extent required under the Operator's Agreement and such Designee is sufficiently creditworthy to perform the obligations of the Borrower under the Operator's Agreement, the Consenting Party will execute and deliver to the Offshore Collateral Agent or such Designee a new Operator's Agreement which shall be for the balance of the remaining term under the original Operator's Agreement before giving effect to such rejection or termination and shall contain the same conditions, agreements, terms, provisions and limitations as the agreements, terms, provisions and limitations as the original Operator's Agreement (except for any Senior Notes Holderrequirements which have been fulfilled by the Borrower and the Consenting Party prior to such rejection or termination). References in this Consent and Agreement to such "Operator's Agreement" shall be deemed also to refer to such new Operator's Agreement.
(f) The parties hereto Consenting Party and the Borrower hereby further acknowledge and agree that the Consenting Party will not, without the prior written consent of the Supermajority Facility Lenders, sell, assign, transfer or otherwise dispose of (by operation of law or otherwise) any part of its interest in the Operator's Agreement; provided, that in no event shall the Consenting Party sell, assign, transfer or otherwise dispose of any part of its interest in the Operator's Agreement to any Person unless such Person is a wholly-owned direct or indirect subsidiary of Phelps Dodge Corporation or is another entity satisfactory to xxx Xxpermajority Facility Lenders.
(g) In the event that the Designee succeeds to the Borrower's interest under the Operator's Agreement, whether by foreclosure or otherwise, the Designee may elect (but shall not be required to) by written notice of assumption delivered to the Consenting Party to assume liability for all of the Borrower's obligations under the Operator's Agreement (and the Consenting Party shall not be obligated to recognize any such succession until it has received such written notice of assumption); provided, however that such liability shall not include any liability for claims of the Consenting Party against the Borrower arising from the Borrower's failure by SMI to comply with perform during the conditions period prior to the Offshore Collateral Agent's or such Designee's succession to the Borrower's interest in and under the Operator's Agreement. Except as otherwise set forth in the immediately preceding sentence sentence, the Designee shall not be an Event liable for the performance or observance of Default (as defined any of the obligations or duties of the Borrower under the Operator's Agreement, nor shall the grant of a security interest in the AgreementOperator's Agreement by the Borrower to the Offshore Collateral Agent on behalf of the Senior Lenders give rise to any duties or obligations whatsoever on the part of the Offshore Collateral Agent owing to the Consenting Party.
(h) and that in such event or Upon the exercise by the Offshore Collateral Agent on behalf of the Senior Lenders of any of the remedies set forth in the event that Master Security Agreement, the Offshore Collateral Agent may, to the extent permitted by Article V of the Master Security Agreement, assign its rights and interests and the rights and interests of the Borrower under the Operator's Agreement to any purchaser or transferee of the Offshore Collateral, if such purchaser or transferee shall (i) assume all of the outstanding Senior Subordinated Notes are not redeemed on or before June 30, 2001, the subordination of such Lien shall be void ab initio and of no force and effect. The Administrative Agent and the Lenders further agree that any Event of Default (as defined in the Agreement) which shall occur and be continuing solely as the result obligations of the occurrence of an Event of Default as defined in the Senior Subordinated Notes Indenture on or after the date hereof shall be deemed to be waived upon the payment of all amounts owing Borrower under the Senior Subordinated Notes, the satisfaction and discharge thereof and the satisfaction and discharge of all other obligations of any Loan Party to the Senior Subordinated Note Holders under the Senior Subordinated Indenture unless such Event of Default (as defined in the Agreement) is also a Default or Event of Default as defined in the Senior Notes Indenture. The parties hereto hereby further agree that the Net Proceeds of the sale of any asset of any Loan Party shall first be applied to the Obligations as set forth in Section 5.4 of the Operator's Agreement and (i) any excess of such Net Proceeds remaining after such application and (ii) be, in the reasonable opinion of the Consenting Party, sufficiently creditworthy to perform the obligations of the Borrower under the Operator's Agreement. Upon such assignment and assumption, the Senior Lenders shall be relieved of all obligations under the Operator's Agreement arising after such assignment and assumption.
(i) In the event that the Designee shall assume or be liable for any proceeds of any sale of any Qualified Capital Stock obligation under the Operator's Agreement (as defined contemplated in clause (g) above or otherwise), such liability shall be limited solely to such party's interest in the Senior Notes Indenture) Offshore Collateral (and no officer, director, employee, shareholder or agent thereof shall be delivered to the Administrative Agent to be applied to the outstanding Obligations in accordance have any liability with Section 12.4 of the Agreementrespect thereto).
Appears in 1 contract
Consent and Agreement. 1. The Administrative Agent (a) Each of BOC and Praxair hereby acknowledges receipt of a copy of the Lenders hereby (i) consent Assigned Agreements to which each is a party and consents to the execution assignment of NEA's rights, title and delivery of interest in, to and under the Senior Notes Indenture (including the guarantees set forth therein), the issuance of the Senior Notes and the use of the proceeds thereof to redeem the Senior Subordinated Notes (notwithstanding any Lien that the Administrative Agent and the Lenders may have in such proceeds) and prepay the Revolving Credit Loans Assigned Agreements as hereinafter provided, (ii) subordinate all Liens that they may have under any Loan Document in the Senior Subordinated Note Redemption Proceeds (as hereinafter defined) Additional Project Documents to the Lien of the Subordinated Notes Trustee solely Collateral Agent for the ratable benefit of the holders of the Senior Subordinated Notes and (iii) consent to the amendment of the Senior Subordinated Note Indenture in the form attached hereto as Exhibit A, subject in each such case to the conditions (which are in addition to those set forth in Article V hereof) that, simultaneously with the issuance of the Senior Notes, and in no event later than April 30, 2001, (x) SMI shall deliver or caused to be delivered to the Senior Subordinated Note Trustee the Redemption Documents together with immediately available Dollars in an amount, not to exceed $114,000,000, equal to the amount required to redeem all outstanding Senior Subordinated Notes on or before June 30, 2001 (such funds, the “Senior Subordinated Note Redemption Proceeds”) and the Administrative Agent shall have received satisfactory evidence thereof, (y) SMI shall deliver to the Administrative Agent for application to the prepayment of any outstanding Revolving Credit Loans immediately available Dollars in an amount equal to the excess of the net proceeds of the Senior Notes over the amount delivered to the Subordinated Note Trustee Secured Parties pursuant to the immediately preceding clause Security Agreement.
(xb) and shall permanently reduce the Aggregate Maximum Revolving Credit Amount to $85,000,000, and (z) no Loan Party shall have granted a Lien in any Upon receipt of its property or assets to the Senior Notes Trustee or any Senior Notes Holder. The parties hereto hereby acknowledge and agree that a failure by SMI to comply with the conditions set forth in the immediately preceding sentence shall be an Event of Default (as defined in the Agreement) and that in such event or in the event that all of the outstanding Senior Subordinated Notes are not redeemed on or before June 30, 2001, the subordination of such Lien shall be void ab initio and of no force and effect. The Administrative Agent and the Lenders further agree that any Event of Default (as defined in the Agreement) which shall occur and be continuing solely as the result notice of the occurrence of an Event of Default and during the continuance thereof, the Collateral Agent and any assignee thereof shall be entitled to exercise any and all rights of NEA under the Assigned Agreements in accordance with the terms of the Assigned Agreements, and BOC and Praxair shall comply in all respects with such exercise. Without limiting the generality of the foregoing, the Collateral Agent and any assignee thereof shall have the full right and power to enforce directly against BOC and Praxair all obligations of BOC and Praxair under the Assigned Agreements to which each is a party and otherwise to exercise all remedies thereunder and to make all demands and give all notices and make all requests required or permitted to be made by NEA under the Assigned Agreements, all subject to the terms and conditions of the Assigned Agreements.
(c) Each of BOC and Praxair will perform all terms and conditions of and in accordance with the Assigned Agreements.
(d) Each of BOC and Praxair will not, without the prior written consent of the Collateral Agent, which consent shall not be unreasonably withheld, denied or delayed, take any action to exercise any of its rights to cancel, terminate or suspend performance under the Assigned Agreements unless BOC and/or Praxair, as defined the case may be, shall have delivered to the Collateral Agent written notice stating that it intends to exercise such right on a date not less than 30 days (or such longer period as provided in the Senior Subordinated Notes Indenture on or Assigned Agreements) after the date hereof shall be deemed of delivery of such notice, specifying the nature of the default giving rise to such right (and, in the case of a payment default, specifying the amount thereof) and permitting the Collateral Agent to cure such default by making a payment in the amount in default or by performing or causing to be waived upon performed the obligation in default, as the case may be.
(e) In the event that the Collateral Agent or its Designee(s) shall assume the Assigned Agreements, by foreclosure or otherwise, the Collateral Agent or its Designee(s) shall assume responsibility for all of NEA's obligations under the Assigned Agreement, including, without limitation, payment of all amounts due and owing to BOC and/or Praxair, as the case may be, under the Senior Subordinated Notes, Assigned Agreements and perform all terms and conditions in accordance therein.
(f) Upon the satisfaction and discharge thereof and exercise by the satisfaction and discharge of all other obligations Collateral Agent of any Loan Party to the Senior Subordinated Note Holders under the Senior Subordinated Indenture unless such Event of Default (as defined in the Agreement) is also a Default or Event of Default as defined in the Senior Notes Indenture. The parties hereto hereby further agree that the Net Proceeds of the sale of any asset of any Loan Party shall first be applied to the Obligations as remedies set forth in Section 5.4 12 of the Agreement Security Agreement, the Collateral Agent may assign its rights and interests, and the rights and interests of NEA under the Assigned Agreements to any purchaser or transferee of the Project; provided, that such purchaser or transferee (A) shall confirm to the Collateral Agent in writing that it is either (1) ready, willing and capable of operating the Facility and or (2) shall have engaged the services of another Person who is ready, willing and capable of operating the Facility, (B) shall assume all of the obligations of NEA under the Assigned Agreements, including the payment of any amount due and owing to BOC and/or Praxair, as the case may be, under the Assigned Agreements and (iC) shall perform all of the terms and conditions in accordance therewith. The Collateral Agent shall notify BOC and Praxair of any excess such assignment in writing within [10] days following the date of such Net Proceeds remaining assignment. Upon such assignment and assumption, the Collateral Agent shall be relieved of all obligations under the Assigned Agreements arising from and after the date of such assignment and assumption.
(g) In the event that any of the Assigned Agreements is rejected by a trustee or debtor-in-possession in any bankruptcy or insolvency proceeding involving NEA, and if, within 90 days after such application rejection, the Collateral Agent or its Designee(s) shall so request and shall certify in writing to BOC and/or Praxair, as the case may be, that it intends to perform the obligations of NEA as and to the extent required under the rejected Assigned Agreement, BOC and/or Praxair, as the case may be, will execute and deliver to the Collateral Agent or such Designee(s) a new Assigned Agreement to replace each rejected Agreement. Each new Assigned Agreement shall (a) name the Collateral Agent or such Designee(s) as the "Seller" under the rejected Assigned Agreement, (b) have a term equal to the remaining term under the original rejected Assigned Agreement before giving effect to such rejection, and (iic) contain the same conditions, agreements, terms, provisions and limitations as the original Assigned Agreement commencing as of the date of such rejection (except for any proceeds requirements that have been fulfilled by NEA prior to such rejection). References in this Consent and Agreement to any "Assigned Agreements" shall be deemed also to refer to any such new Assigned Agreements.
(h) In the event that the Collateral Agent or its Designee(s), or any purchaser, transferee, grantee or assignee of the interests of the Collateral Agent or its Designee(s) in the Project shall assume the obligations of NEA under any of the Assigned Agreements (as contemplated in subsections (c), (d), (e) or (f) above or otherwise), liability in respect of any sale and all obligations of any Qualified Capital Stock (as defined such party under such Assigned Agreements shall be limited solely to such party's interest in the Senior Notes Indenture) shall be delivered to the Administrative Agent to be applied to the outstanding Obligations in accordance with Section 12.4 Assigned Agreements (and any officer, director, employee, or shareholder of the AgreementCollateral Agent thereof shall have no liability with respect thereto). Under no circumstances shall State Street Bank and Trust Company have any liability hereunder in its individual capacity.
Appears in 1 contract
Consent and Agreement. 1. The Administrative (a) Sabine hereby acknowledges and irrevocably consents in all respects to the assignment by Operator of all its right, title and interest in the Assigned Agreement to the Collateral Agent as collateral security for the payment and performance by the Borrower of the Borrower’s obligations under the Credit Agreement and the Lenders performance of Operator’s obligations under the Security Documents.
(b) Sabine hereby acknowledges and irrevocably consents in all respects to the right of the Collateral Agent, upon the occurrence and during the continuance of an Event of Default under the Credit Agreement, to exercise and enforce all rights of Operator under the Assigned Agreement in accordance with the terms of the Assigned Agreement.
(c) Upon the exercise by the Collateral Agent of any of the remedies set forth in and in accordance with the terms of the Credit Agreement and the Security Documents, the Collateral Agent may assign its rights and interests and the rights and interests of Operator under the Assigned Agreement, subject to clause (h) hereof. Upon such assignment, the Collateral Agent shall be released from any further liability under the Assigned Agreement or such new agreement to the extent of the interest assigned.
(d) Sabine acknowledges and agrees that, notwithstanding anything to the contrary contained in the Assigned Agreement, neither of the following events shall constitute a default by Operator under the Assigned Agreement or require the consent of Sabine: (i) consent the provision of the Services (as defined in the Assigned Agreement) by a suitable operator by or on behalf of the Collateral Agent following the occurrence and continuance of an event of default under the Credit Agreement; or (ii) foreclosure or any other enforcement of the rights of the lenders under the Credit Agreement or the Security Documents by the Collateral Agent; provided that the actions taken pursuant to clauses (i) or (ii) otherwise comply with applicable law.
(e) Notwithstanding anything to the execution and delivery contrary in the Assigned Agreement, Sabine shall not, without the prior written consent of the Senior Notes Indenture Collateral Agent, cancel, suspend performance under or terminate the Assigned Agreement unless Sabine shall have delivered to the Collateral Agent written notice stating that it is entitled to do so under the Assigned Agreement and that it intends to exercise such right on a date no fewer than 30 days after the date of such notice in the case of a payment default or 60 days after the date of such notice in the case of any other default; provided that (including i) such cure period shall be extended to such longer period as may be reasonably required to cure such default if the guarantees set forth thereinCollateral Agent or its assignee or designee has commenced and is diligently pursuing appropriate action to cure such default (provided, however, that in no event shall such extended period exceed an additional 30 days in the case of a payment default or 60 days in the case of any other default) and (ii) if the Collateral Agent or its designee or assignee is prohibited from curing any such default by any process, stay or injunction issued by any governmental authority or pursuant to any bankruptcy or insolvency proceeding or other similar proceeding involving Operator, then such cure period shall be extended for the period of such prohibition. Sabine’s notice shall specify the nature of the default giving rise to its right to cancel, suspend performance under or terminate the Assigned Agreement and Sabine shall permit Operator and/or the Collateral Agent to cure such default. Nothing herein shall require the Collateral Agent to cure any default of Operator under the Assigned Agreement or to perform any act, duty or obligation of Operator under the Assigned Agreement, but shall only give it the option to do so. It being understood that, in the event the Collateral Agent cures any default of Operator under the Assigned Agreement, the Collateral Agent shall have no further obligation to cure any subsequent default or to perform any act, duty or obligation of Operator under the Assigned Agreement.
(f) Neither Sabine nor Operator shall, without the prior written consent of the Required Lenders (as defined in the Credit Agreement), the issuance (i) enter into any novation, material amendment or other material modification of the Senior Notes and the use of the proceeds thereof to redeem the Senior Subordinated Notes (notwithstanding any Lien that the Administrative Agent and the Lenders may have in such proceeds) and prepay the Revolving Credit Loans as hereinafter providedAssigned Agreement, (ii) subordinate all Liens that they may sell, assign or otherwise transfer any of its rights under the Assigned Agreement, (iii) terminate, cancel or suspend its performance under the Assigned Agreement (unless the applicable parties have given the Collateral Agent notice and an opportunity to cure in accordance with clause (e) hereof), (iv) consent to any assignment or other transfer by any other party of its respective rights under any Loan Document the Assigned Agreement, except in connection with a refinancing of the Loans made pursuant to the Credit Agreement or, to the extent such assignment or transfer does not adversely affect the Lenders under the Credit Agreement, a refinancing of the indebtedness created under the Sabine Indenture or the issuance of Additional Notes (as defined in the Senior Subordinated Note Redemption Proceeds Sabine Indenture), or (as hereinafter definedv) consent to any voluntary termination, cancellation or suspension of performance by any party under the Lien Assigned Agreement.
(g) Sabine shall perform and comply with all material terms and provisions of the Subordinated Notes Trustee solely Assigned Agreement to be performed or complied with by it for the benefit of the holders Collateral Agent.
(h) Sabine acknowledges and agrees that the Collateral Agent shall not have any liability or obligation under the Assigned Agreement as a result of this Consent and Agreement, the Security Documents or otherwise, nor shall the Collateral Agent be obligated or required to (i) perform Operator’s obligations under the Assigned Agreement, except during any period in which the Collateral Agent has assumed Operator’s rights and obligations under the Assigned Agreement pursuant to clause (b) above, or (ii) take any action to collect or enforce any claim for payment assigned under the Security Documents. For the avoidance of doubt, Operator and Sabine agree that the payments to be made by Sabine to Operator under the Assigned Agreement, or as otherwise provided for in this Consent and Agreement, are conditioned upon the performance of Operator’s obligations under the Assigned Agreement. Except as set forth above, neither the Collateral Agent, its designee or assignee nor any other party secured by the Security Documents shall be liable for the performance or observance of any of the Senior Subordinated Notes obligations or duties of Operator under the Assigned Agreement, including the performance by the Collateral Agent or its designee or assignee of any cure of default permitted pursuant to paragraph (b) above, and, except as set forth above, the assignment of the Assigned Agreement by Operator to the Collateral Agent or its designee or assignee pursuant to the Credit Agreement or the Security Documents shall not give rise to any duties or obligations owing to Operator on the part of any of the parties secured by the Credit Agreement or the Security Documents.
(i) If (i) the Assigned Agreement is rejected by a trustee or debtor-in-possession in any bankruptcy or insolvency proceeding involving Operator or (ii) the Assigned Agreement is terminated as a result of any bankruptcy or insolvency proceeding involving Operator, and if within 90 days after such rejection or termination, the Collateral Agent or its designee or assignee shall so request and shall certify in writing to Sabine that it intends to perform the obligations of Operator as and to the extent required under the Assigned Agreement, Sabine shall execute and deliver to the Collateral Agent or such designee or assignee a new agreement (“new Assigned Agreement”), (A) pursuant to which new Assigned Agreement Sabine shall agree to perform the obligations contemplated to be performed by Sabine under the original Assigned Agreement and the Collateral Agent or such designee or assignee shall agree to perform the obligations contemplated to be performed by Operator under the original Assigned Agreement, (B) which shall be for the balance of the remaining term under the original Assigned Agreement before giving effect to such rejection or termination and (iiiC) consent which shall contain the same conditions, agreements, terms, provisions and limitations as the original Assigned Agreement (except for any requirements which have been fulfilled by Operator prior to such rejection or termination). References in this Consent and Agreement to an “Assigned Agreement” shall be deemed also to refer to the new Assigned Agreement.
(j) To the extent that any term or provision of this Consent and Agreement constitutes a material amendment of the Senior Subordinated Note Indenture in Assigned Agreement, within one (1) Business Day of the form attached hereto as Exhibit Aexecution hereof, subject in each such case Sabine hereby agrees to deliver a copy of this Consent and Agreement to the conditions (which are in addition to those set forth in Article V hereof) that, simultaneously Collateral Trustee under the Sabine Indenture along with the issuance a certificate of the Senior Notes, and in no event later than April 30, 2001, (x) SMI shall deliver or caused to be delivered to the Senior Subordinated Note Trustee the Redemption Documents together with immediately available Dollars in an amount, not to exceed $114,000,000, equal to the amount required to redeem all outstanding Senior Subordinated Notes on or before June 30, 2001 (such funds, the “Senior Subordinated Note Redemption Proceeds”) and the Administrative Agent shall have received satisfactory evidence thereof, (y) SMI shall deliver to the Administrative Agent for application to the prepayment of any outstanding Revolving Credit Loans immediately available Dollars in an amount equal to the excess of the net proceeds of the Senior Notes over the amount delivered to the Subordinated Note Trustee pursuant to the immediately preceding clause (x) and shall permanently reduce the Aggregate Maximum Revolving Credit Amount to $85,000,000, and (z) no Loan Party shall have granted a Lien in any of its property or assets to the Senior Notes Trustee or any Senior Notes Holder. The parties hereto hereby acknowledge and agree that a failure by SMI to comply with the conditions set forth in the immediately preceding sentence shall be an Event of Default Authorized Officer (as defined in the AgreementSabine Indenture) and certifying that in such event the proposed amendment or in the event that all of the outstanding Senior Subordinated Notes are termination could not redeemed on or before June 30, 2001, the subordination of such Lien shall reasonably be void ab initio and of no force and effect. The Administrative Agent and the Lenders further agree that any Event of Default expected to have a Material Adverse Effect (as defined in the AgreementSabine Indenture).
(k) which Sabine shall occur and be continuing solely deliver to the Collateral Agent at the address set forth on the signature pages hereof, or at such other address as the result Collateral Agent may designate in writing from time to time to Sabine, concurrently with the delivery thereof to Operator a copy of the occurrence of an Event of Default as defined each material notice, request or demand (other than such notices delivered in the Senior Subordinated Notes Indenture on ordinary course of business) given by Sabine to Operator pursuant to the Assigned Agreement.
(l) Sabine hereby agrees that it shall not, nor shall it enter into any agreement permitting Sabine to, set off, counter-claim or after the date hereof shall be deemed to be waived upon the otherwise withhold any payment of all amounts owing under the Senior Subordinated NotesAssigned Agreement on account of any amounts owed to Sabine by any of Operator, the satisfaction Collateral Agent or any of their respective subsidiaries, affiliates, successors or permitted assigns.
(m) In a bankruptcy or insolvency proceeding involving Operator, nothing contained herein shall affect or otherwise limit Sabine’s rights to assert claims and discharge thereof interests against Operator in such proceeding and the satisfaction and discharge of all other obligations of any Loan Party to the Senior Subordinated Note Holders under the Senior Subordinated Indenture unless otherwise participate as a creditor or party in interest in such Event of Default (as defined in the Agreement) is also a Default or Event of Default as defined in the Senior Notes Indenture. The parties hereto hereby further agree that the Net Proceeds of the sale of any asset of any Loan Party shall first be applied to the Obligations as set forth in Section 5.4 of the Agreement and (i) any excess of such Net Proceeds remaining after such application and (ii) any proceeds of any sale of any Qualified Capital Stock (as defined in the Senior Notes Indenture) shall be delivered to the Administrative Agent to be applied to the outstanding Obligations in accordance with Section 12.4 of the Agreementproceeding.
Appears in 1 contract
Consent and Agreement. 1. The Administrative Agent (A) Subject to the terms, conditions and limitations of this Consent Agreement, including, without limitation, Section 2, below, the Lenders hereby (i) consent to JRGH entering into an agreement for the execution sale of JRG RE and delivery agree to enter into an amendment to the Credit Agreement and certain other Loan Documents, to be effective as of or before the closing of the Senior Notes Indenture (including Specified Transaction. Such amendment shall be in such form as shall be mutually agreed between the guarantees set forth therein)Borrowers, the issuance Administrative Agent, the Letter of Credit Issuer and the Lenders, in connection with the sale of JRG RE to (1) release JRG RE as a Borrower under the Credit Agreement, (2) release all collateral pledged by JRG RE pursuant to the applicable Pledge Agreement, and (3) make certain other amendments to the Loan Documents necessary to, or in connection with, the sale of JRG RE as mutually agreed to by the Borrowers, the Administrative Agent, the Letter of Credit Issuer and the Lenders, subject, in each case, to compliance with the provisions of the Senior Notes and Credit Agreement, including, without limitation, the use mandatory increase of collateral or prepayment provisions of Section 2.10(b) of the proceeds thereof to redeem the Senior Subordinated Notes (notwithstanding any Lien that the Administrative Agent and the Lenders may have in such proceeds) and prepay the Revolving Credit Loans as hereinafter provided, (ii) subordinate all Liens that they may have under any Loan Document in the Senior Subordinated Note Redemption Proceeds (as hereinafter defined) to the Lien of the Subordinated Notes Trustee solely Agreement. The consent provided for the benefit of the holders of the Senior Subordinated Notes and (iii) consent to the amendment of the Senior Subordinated Note Indenture in the form attached hereto as Exhibit A, subject in each such case to the conditions (which are in addition to those set forth in Article V hereof) that, simultaneously with the issuance of the Senior Notes, and in no event later than April 30, 2001, (x) SMI shall deliver or caused to be delivered to the Senior Subordinated Note Trustee the Redemption Documents together with immediately available Dollars in an amount, not to exceed $114,000,000, equal to the amount required to redeem all outstanding Senior Subordinated Notes on or before June 30, 2001 (such funds, the “Senior Subordinated Note Redemption Proceeds”) and the Administrative Agent shall have received satisfactory evidence thereof, (y) SMI shall deliver to the Administrative Agent for application to the prepayment of any outstanding Revolving Credit Loans immediately available Dollars in an amount equal to the excess of the net proceeds of the Senior Notes over the amount delivered to the Subordinated Note Trustee pursuant to the immediately preceding clause sentence (xthe “Subject Consent”) and shall permanently reduce the Aggregate Maximum Revolving Credit Amount not be construed to $85,000,000, and (z) no Loan Party shall have granted a Lien in any of its property or assets apply to the Senior Notes Trustee Borrowers’ performance of (or any Senior Notes Holder. The parties hereto hereby acknowledge and agree that a failure by SMI to comply with perform) the conditions covenants set forth in the immediately preceding sentence shall be an Event of Default (as defined in the AgreementSection 6.03(c) and that in such event or in the event that all Section 6.05 of the outstanding Senior Subordinated Notes are not redeemed on or before June 30, 2001, Credit Agreement except with respect to the subordination of such Lien shall be void ab initio and of no force and effect. The Administrative Agent and the Lenders further agree that any Event of Default (as defined in the Agreement) which shall occur and be continuing solely as the result consummation of the occurrence of an Event of Default Specified Transaction which is expressly consented to as defined in the Senior Subordinated Notes Indenture on or after the date hereof set forth herein.
(B) The Subject Consent (i) is limited to its express terms, (ii) shall not be deemed to be waived upon the payment of all amounts owing under the Senior Subordinated Notes, the satisfaction and discharge thereof and the satisfaction and discharge of all other obligations a waiver of any Loan Party to the Senior Subordinated Note Holders under the Senior Subordinated Indenture unless such Event of Default (as defined in the Agreement) is also a Default or Event of Default that may have existed on or prior to the date hereof, or of any Default or Event of Default that may hereafter arise (other than any Potential Default), (iii) is not intended to, and shall not, establish any course of dealing among the Borrowers, the Administrative Agent, the Letter of Credit Issuer and the Lenders that is inconsistent with the express terms of the Credit Agreement, (iv) shall not operate as defined a waiver of any other right, power, or remedy of the Administrative Agent, the Letter of Credit Issuer or the Lenders under the Credit Agreement, and (v) shall not be construed as an agreement or understanding by the Lenders to grant any waiver or other accommodation in the Senior Notes Indenture. The parties hereto hereby further agree that the Net Proceeds future with respect to any provision of the sale of Credit Agreement or any asset of any Loan Party shall first be applied to the Obligations as set forth in Section 5.4 of the Agreement and (i) any excess of such Net Proceeds remaining after such application and (ii) any proceeds of any sale of any Qualified Capital Stock (other Loan Documents except as defined expressly described in the Senior Notes Indenture) shall be delivered to the Administrative Agent to be applied to the outstanding Obligations in accordance with Section 12.4 of the this Consent Agreement.
(C) The Subject Consent shall expire and be null and void if the Specified Transaction as not been consummated on or before July 8, 2024 unless extended in writing by the parties to this to this Consent Agreement.
Appears in 1 contract
Samples: Consent Agreement (James River Group Holdings, Ltd.)
Consent and Agreement. 1(A) Subject to the terms, conditions and limitations of this Consent Agreement, including, without limitation, Section 2, below, the Lender hereby consents to JRGH entering into an agreement for the sale of JRG RE and agree to enter into an amendment to the Credit Agreement and certain other Loan Documents, to be effective as of or before the closing of the Specified Transaction. The Administrative Agent Such amendment shall be mutually agreed between the Borrowers and the Lenders hereby Lender, in connection with the sale of JRG RE to (1) release JRG RE as a Borrower under the Credit Agreement; provided that (i) consent such release shall be conditioned on receipt by the Lender of either cash in an amount sufficient to Cash Collateralize the LC Exposure (“Cash Collateral”) or letters of credit naming the Lender as the beneficiary where both the issuing bank and letter of credit amounts shall be acceptable to the execution and delivery Lender using commercially reasonable judgment (it being agreed that commercially reasonable judgment includes, without limitation, complying with all internal policies of the Senior Notes Indenture (including the guarantees set forth thereinLender and obtaining all internal approvals), the issuance in each case, with respect to each issued and outstanding Letter of Credit as of the Senior Notes and the use effective date of the proceeds thereof to redeem the Senior Subordinated Notes (notwithstanding any Lien that the Administrative Agent Specified Transaction and the Lenders may have in such proceeds) and prepay the Revolving Credit Loans as hereinafter provided, (ii) subordinate the aggregate amount of Cash Collateral and letters of credit provided pursuant to this clause (1) shall not exceed 105% of the aggregate LC Exposure at such time, (2) release all Liens that they may have under any Loan Document in the Senior Subordinated Note Redemption Proceeds (as hereinafter defined) collateral pledged by JRG RE pursuant to the Lien applicable Pledge Agreement, and (3) make certain other amendments to the Loan Documents necessary to, or in connection with, the sale of JRG RE as mutually agreed to by the Borrowers and the Lender, subject, in each case, to compliance with the provisions of the Subordinated Notes Trustee solely for Credit Agreement, including, without limitation, the benefit mandatory increase of collateral or prepayment provisions of Section 2.10(b) of the holders of the Senior Subordinated Notes and Credit Agreement (iii) consent to the provided, however that such amendment of the Senior Subordinated Note Indenture in the form attached hereto as Exhibit Ashall be subject to, subject in each such case to the conditions (which are in addition to those set forth in Article V hereof) that, simultaneously with the issuance of the Senior Notes, and in no event later than April 30, 2001at a minimum, (x) SMI shall deliver the absence of any material Default or caused Event of Default under the Credit Agreement (other than any Potential Default to be addressed in such amendment), and (y) the absence of any transfer of assets to JRG RE from any other Loan Party between the Consent Effective Date and the closing of the Specified Transaction outside of the ordinary course of business or other than as may be contemplated pursuant to the terms of the agreement pertaining to the Specified Transaction delivered to the Senior Subordinated Note Trustee the Redemption Documents together with immediately available Dollars in an amount, not to exceed $114,000,000, equal Lender on or prior to the amount required to redeem all outstanding Senior Subordinated Notes on or before June 30, 2001 (such funds, the “Senior Subordinated Note Redemption Proceeds”) and the Administrative Agent shall have received satisfactory evidence thereof, (y) SMI shall deliver to the Administrative Agent Consent Effective Date). The consent provided for application to the prepayment of any outstanding Revolving Credit Loans immediately available Dollars in an amount equal to the excess of the net proceeds of the Senior Notes over the amount delivered to the Subordinated Note Trustee pursuant to the immediately preceding sentence (the “Subject Consent”) shall not be construed to apply to the Borrowers’ performance of (or failure to perform) the covenants set forth in Section 6.03(c) or Section 6.05 of the Credit Agreement except with respect to the consummation of the Specified Transaction which is expressly consented to as set forth herein. In the event that the LC Exposure is Cash Collateralized by JRG RE or any other Person pursuant to clause (xA)(1) above, JRG RE or such other Person shall irrevocably pledge, assign and transfer to the Lender and grant to the Lender a first lien on and security interest in: (i) a deposit account established with the Lender that shall permanently reduce be subject to a control agreement and under the Aggregate Maximum Revolving Credit Amount sole dominion and control of the Lender, which control agreement shall be in form and substance reasonably satisfactory to $85,000,000the Lender, (ii) all cash from time to time deposited into such account, (iii) all investments from time to time credited to such account, and all certificates and instruments representing or evidencing any such investments, and (ziv) no Loan Party shall have granted a Lien in any of its property or assets to the Senior Notes Trustee or extent not covered by clauses (i) through (iii) above, all proceeds of any Senior Notes Holder. The parties hereto hereby acknowledge and agree that a failure by SMI to comply with the conditions set forth in the immediately preceding sentence shall be an Event of Default (as defined in the Agreement) and that in such event or in the event that all of the outstanding Senior Subordinated Notes are foregoing.
(B) The Subject Consent (i) is limited to its express terms, (ii) shall not redeemed on or before June 30, 2001, the subordination of such Lien shall be void ab initio and of no force and effect. The Administrative Agent and the Lenders further agree that any Event of Default (as defined in the Agreement) which shall occur and be continuing solely as the result of the occurrence of an Event of Default as defined in the Senior Subordinated Notes Indenture on or after the date hereof shall be deemed to be waived upon the payment of all amounts owing under the Senior Subordinated Notes, the satisfaction and discharge thereof and the satisfaction and discharge of all other obligations a waiver of any Loan Party to the Senior Subordinated Note Holders under the Senior Subordinated Indenture unless such Event of Default (as defined in the Agreement) is also a Default or Event of Default that may have existed on or prior to the date hereof, or of any Default or Event of Default that may hereafter arise (other than any Potential Default), (iii) is not intended to, and shall not, establish any course of dealing among the Borrowers and the Lender that is inconsistent with the express terms of the Credit Agreement, (iv) shall not operate as defined a waiver of any other right, power, or remedy of the Lender under the Credit Agreement, and (v) shall not be construed as an agreement or understanding by the Lender to grant any waiver or other accommodation in the Senior Notes Indenture. The parties hereto hereby further agree that the Net Proceeds future with respect to any provision of the sale of Credit Agreement or any asset of any Loan Party shall first be applied to the Obligations as set forth in Section 5.4 of the Agreement and (i) any excess of such Net Proceeds remaining after such application and (ii) any proceeds of any sale of any Qualified Capital Stock (other Loan Documents except as defined expressly described in the Senior Notes Indenture) shall be delivered to the Administrative Agent to be applied to the outstanding Obligations in accordance with Section 12.4 of the this Consent Agreement.
(C) The Subject Consent shall expire and be null and void if the Specified Transaction as not been consummated on or before July 8, 2024 unless extended in writing by the parties to this Consent Agreement.
Appears in 1 contract
Samples: Consent Agreement (James River Group Holdings, Ltd.)