Preparation of Environmental Assessments. (a) If (i) a Default caused by reason of a breach of Sections 5.09 or 6.13 has occurred and is continuing, (ii) the Required Lenders reasonably believe that the presence of Hazardous Materials on or about any real property constituting Collateral could reasonably be expected to have a Material Adverse Effect or a material adverse effect on the value of the real property Collateral taken as a whole, (iii) a claim of Environmental Liability is made or threatened in writing with respect to any real property Collateral that could reasonably be expected to have a Material Adverse Effect or a material adverse effect on the value of the real property Collateral taken as a whole, or (iv) if any Loan Party or any of its Subsidiaries acquires property after the Closing Date on which a Lien is required to be granted to secure the Obligations, then in the case of clause (iv), provide to the Administrative Agent and the Lenders not less than twenty (20) days prior to the acquisition thereof (or such lesser number of days as shall be acceptable to the Administrative Agent), and in the case of clauses (i), (ii) and (iii), then at the written request of the Required Lenders, provide to the Lenders within 60 days after such request, in each instance at the expense of the Borrower, (1) a current Environmental Assessment for each of the properties described in such request (which shall be limited to the properties being acquired or which are the subject of such Default, concern or claim), and (2) in the case of clauses (i), (ii) and (iii), an explanation of the Borrower’s (or other Loan Party’s) plans to remedy such Default or other material adverse effect. Each of the Parent and the Borrower shall, and shall cause each Subsidiary (other than an Inactive Subsidiary or an Agway Subsidiary) to, cooperate with each consulting firm making any such Environmental Assessment and supply to any such consulting firm, from time to time and promptly on request, all non-privileged information in their custody or control to facilitate the completion of the applicable Environmental Assessment. In the case of clauses (i), (ii) and (iii) above, if the Borrower fails to deliver to the Administrative Agent a copy of any requested Environmental Assessment within sixty (60) days, of the Required Lenders’ written request, the Administrative Agent may, with respect to either such failure, cause such requested Environmental Assessment to be made at the Borrower’s expense and risk, and in connection therewith, the Parent and the Borrower each hereby grants, and agrees to cause any Subsidiary (other than an Inactive Subsidiary or an Agway Subsidiary) that owns any applicable real property to grant, to the Administrative Agent and its designees, subject to the rights of tenants, (A) access to the applicable real properties at any reasonable time or times, upon reasonable written notice, and (B) a non-exclusive license which is coupled with an interest and is irrevocable for so long as any Lender shall have any Commitment under the Credit Agreement, any Loan or other Obligation (other than contingent indemnification Obligations to the extent no claim giving rise thereto has been asserted) shall remain unpaid or unsatisfied, or any Letter of Credit shall remain outstanding, to make or cause to be made any such requested Environmental Assessments. Without limiting the generality of the foregoing, with respect to the real property Collateral located in the State of California, each of the Parent and the Borrower agree that the Administrative Agent and its designees shall have the same right, power and authority to enter and inspect such real property as is granted to the secured lender under Section 2929.5 of the California Civil Code, and that Administrative Agent shall have the right to appoint a receiver to enter and inspect such real property to the extent such authority is provided under applicable law, including the authority given to the secured lender under Section 564(c) of the California Code of Civil Procedure; provided, Administrative Agent and its designees shall not exercise such rights unless clause (i), (ii) or (iii) is triggered. (b) Each of the Parent and the Borrower acknowledges and agrees for itself and on behalf of its respective Subsidiaries that (i) the Administrative Agent and the Lenders shall be under no duty to make any Environmental Assessment, and in no event shall any such Environmental Assessment give rise to a representation that any Hazardous Material is or is not present, or that there has been or shall be compliance with any Environmental Law, nor shall any of the Loan Parties, their respective Subsidiaries or any other person be entitled to rely on any Environmental Assessment made by the Administrative Agent, any Lender or any other Person at the request of the Required Lenders; provided, however, that the Loan Parties shall be entitled to request a reliance letter from any third party performing an Environmental Assessment if the Loan Parties are responsible for the cost thereof, and the Lenders shall not object to such request (and, if requested by the Borrower, the Administrative Agent will advise such third party that it is authorized to issue such reliance letter at the Loan Parties’ expense); (ii) neither the Administrative Agent nor any Lender owes any duty to inform the Loan Parties, their respective Subsidiaries or any other person of any Hazardous Material or other adverse condition; (iii) neither the Administrative Agent nor any Lender owes any duty of care to protect the Loan Parties, their respective Subsidiaries or any other person against any Hazardous Materials or other adverse condition; provided however, that this Section 6.14 shall not relieve the Administrative Agent or any of its designees for damages that are determined by a court of competent jurisdiction by final and nonappealable judgment to have resulted from its gross negligence or willful misconduct in conducting an Environmental Assessment; (iv) Administrative Agent may, subject to the provisions of Section 11.07 hereof, disclose to interested parties any information Administrative Agent now or hereafter has about the environmental condition or compliance of the real properties of the Parent and the Borrower or their respective Subsidiaries, but shall be under no duty to disclose any such information; (v) the Administrative Agent and the Lenders cannot control or otherwise assure the truthfulness or accuracy of any Environmental Assessments; (vi) the release of Environmental Assessments, or any information contained therein or gathered in connection therewith, to prospective bidders at any foreclosure sale of any real property Collateral associated with any Environmental Assessment may have a material and adverse effect upon the amount that a party may bid at such foreclosure sale; (vii) neither the Administrative Agent nor any of the Lenders shall have any liability whatsoever as a result of delivering any Environmental Assessments, or any information contained therein or gathered in connection therewith, to any prospective bidder at a foreclosure sale; and (viii) the Administrative Agent and each of the Lenders and each Related Party of each of the foregoing Persons are released and forever discharged from any and all claims, damages, causes of action, or other liabilities of any type or nature whatsoever arising out of, connected with or incidental to any Environmental Assessments or the delivery or disclosure thereof; provided, this clause (viii) shall not relieve the Administrative Agent, any Lender or any of their respective Related Parties from claims, damages, causes of action or other liabilities that are determined by a court of competent jurisdiction by final and nonappealable judgment to have resulted from such Person’s gross negligence or willful misconduct in conducting such Environmental Assessments.
Appears in 4 contracts
Samples: Credit Agreement (Suburban Propane Partners Lp), Credit Agreement (Suburban Propane Partners Lp), Credit Agreement (Suburban Propane Partners Lp)
Preparation of Environmental Assessments. (a) If (i) a Default caused by reason of a breach of Sections 5.09 or 6.13 has occurred and is continuing, (ii) the Required Lenders reasonably believe that the presence of Hazardous Materials on or about any real property constituting Collateral could reasonably be expected to have a Material Adverse Effect or a material adverse effect on the value of the real property Collateral taken as a whole, (iii) a claim of Environmental Liability is made or threatened in writing with respect to any real property Collateral that could reasonably be expected to have a Material Adverse Effect or a material adverse effect on the value of the real property Collateral taken as a whole, or (iv) if any Loan Party or any of its Subsidiaries acquires property after the Closing Date on which a Lien is required to be granted to secure the Obligations, then in the case of clause (iv), provide to the Administrative Agent and the Lenders not less than twenty (20) days prior to the acquisition thereof (or such lesser number of days as shall be acceptable to the Administrative Agent), and in the case of clauses (i), (ii) and (iii), then at the written request of the Required Lenders, provide to the Lenders within 60 days after such request, in each instance at the expense of the Borrower, (1) a current Environmental Assessment for each of the properties described in such request (which shall be limited to the properties being acquired or which are the subject of such Default, concern or claim), and (2) in the case of clauses (i), (ii) and (iii), an explanation of the Borrower’s (or other Loan Party’s) plans to remedy such Default or other material adverse effect. Each of the Parent and the Borrower shall, and shall cause each Subsidiary (other than an Inactive Subsidiary or an Agway Subsidiary) to, cooperate with each consulting firm making any such Environmental Assessment and supply to any such consulting firm, from time to time and promptly on request, all non-privileged information in their custody or control to facilitate the completion of the applicable Environmental Assessment. In the case of clauses (i), (ii) and (iii) above, if the Borrower fails to deliver to the Administrative Agent a copy of any requested Environmental Assessment within sixty (60) days, of the Required Lenders’ written request, the Administrative Agent may, with respect to either such failure, cause such requested Environmental Assessment to be made at the Borrower’s expense and risk, and in connection therewith, the Parent and the Borrower each hereby grants, and agrees to cause any Subsidiary (other than an Inactive Subsidiary or an Agway Subsidiary) that owns any applicable real property to grant, to the Administrative Agent and its designees, subject to the rights of tenants, (A) access to the applicable real properties at any reasonable time or times, upon reasonable written notice, and (B) a non-exclusive license which is coupled with an interest and is irrevocable for so long as any Lender shall have any Commitment under the Credit Agreement, any Loan or other Obligation (other than contingent indemnification Obligations to the extent no claim giving rise thereto has been asserted) shall remain unpaid or unsatisfied, or any Letter of Credit shall remain outstandingirrevocable, to make or cause to be made any such requested Environmental Assessments. Without limiting the generality of the foregoing, with respect to the real property Collateral located in the State of California, each of the Parent and the Borrower agree that the Administrative Agent and its designees shall have the same right, power and authority to enter and inspect such real property as is granted to the secured lender under Section 2929.5 of the California Civil Code, and that Administrative Agent shall have the right to appoint a receiver to enter and inspect such real property to the extent such authority is provided under applicable law, including the authority given to the secured lender under Section 564(c) of the California Code of Civil Procedure; provided, Administrative Agent and its designees shall not exercise such rights unless clause (i), (ii) or (iii) is triggered.
(b) Each of the Parent and the Borrower acknowledges and agrees for itself and on behalf of its respective Subsidiaries that (i) the Administrative Agent and the Lenders shall be under no duty to make any Environmental Assessment, and in no event shall any such Environmental Assessment give rise to a representation that any Hazardous Material is or is not present, or that there has been or shall be compliance with any Environmental Law, nor shall any of the Loan Parties, their respective Subsidiaries or any other person be entitled to rely on any Environmental Assessment made by the Administrative Agent, any Lender or any other Person at the request of the Required Lenders; provided, however, that the Loan Parties shall be entitled to request a reliance letter from any third party performing an Environmental Assessment if the Loan Parties are responsible for the cost thereof, and the Lenders shall not object to such request (and, if requested by the Borrower, the Administrative Agent will advise such third party that it is authorized to issue such reliance letter at the Loan Parties’ expense)request; (ii) neither the Administrative Agent nor any Lender owes any duty to inform the Loan Parties, their respective Subsidiaries or any other person of any Hazardous Material or other adverse condition; (iii) neither the Administrative Agent nor any Lender owes any duty of care to protect the Loan Parties, their respective Subsidiaries or any other person against any Hazardous Materials or other adverse condition; provided however, that this Section 6.14 shall not relieve the Administrative Agent or any of its designees for damages that are determined by a court of competent jurisdiction by final and nonappealable judgment to have resulted from its gross negligence or willful misconduct in conducting an Environmental Assessment; (iv) Administrative Agent may, subject to the provisions of Section 11.07 hereof, disclose to interested parties any information Administrative Agent now or hereafter has about the environmental condition or compliance of the real properties of the Parent and the Borrower or their respective Subsidiaries, but shall be under no duty to disclose any such information; (v) the Administrative Agent and the Lenders cannot control or otherwise assure the truthfulness or accuracy of any Environmental Assessments; (vi) the release of Environmental Assessments, or any information contained therein or gathered in connection therewith, to prospective bidders at any foreclosure sale of any real property Collateral associated with any Environmental Assessment may have a material and adverse effect upon the amount that a party may bid at such foreclosure sale; (vii) neither the Administrative Agent nor any of the Lenders shall have any liability whatsoever as a result of delivering any Environmental Assessments, or any information contained therein or gathered in connection therewith, to any prospective bidder at a foreclosure sale; and (viii) the Administrative Agent and each of the Lenders and each Related Party of each of the foregoing Persons are released and forever discharged from any and all claims, damages, causes of action, or other liabilities of any type or nature whatsoever arising out of, connected with or incidental to any Environmental Assessments or the delivery or disclosure thereof; provided, this clause (viii) shall not relieve the Administrative Agent, any Lender or any of their respective Related Parties from claims, damages, causes of action or other liabilities that are determined by a court of competent jurisdiction by final and nonappealable judgment to have resulted from such Person’s gross negligence or willful misconduct in conducting such Environmental Assessments.
Appears in 2 contracts
Samples: Credit Agreement (Suburban Propane Partners Lp), Credit Agreement (Suburban Propane Partners Lp)
Preparation of Environmental Assessments. (a) If (i) a Default caused by reason of a breach of Sections Section 5.09 or Section 6.13 has occurred and is continuing, (ii) the Required Lenders reasonably believe that the presence of Hazardous Materials on or about any real property constituting Collateral could reasonably be expected to have a Material Adverse Effect or a material adverse effect on the value of the real property Collateral taken as a whole, (iii) a claim of Environmental Liability is made or threatened in writing with respect to any real property Collateral that could reasonably be expected to have a Material Adverse Effect or a material adverse effect on the value of the real property Collateral taken as a whole, or (iv) if any Loan Party or any of its Subsidiaries acquires property after the Closing Date on which a Lien is required to be granted to secure the Obligations, then in the case of clause (iv), provide to the Administrative Agent and the Lenders not less than twenty (20) days prior to the acquisition thereof (or such lesser number of days as shall be acceptable to the Administrative Agent), and in the case of clauses (i), (ii) and (iii), then at the written request of the Required Lenders, provide to the Lenders within 60 days after such request, in each instance at the expense of the Borrower, (1) a current Environmental Assessment for each of the properties described in such request (which shall be limited to the properties being acquired or which are the subject of such Default, concern or claim), and (2) in the case of clauses (i), (ii) and (iii), an explanation of the Borrower’s (or other Loan Party’s) plans to remedy such Default or other material adverse effect. Each of the Parent and the Borrower shall, and shall cause each Subsidiary (other than an Inactive Subsidiary or an Agway Subsidiary) to, cooperate with each consulting firm making any such Environmental Assessment and supply to any such consulting firm, from time to time and promptly on request, all non-privileged information in their custody or control to facilitate the completion of the applicable Environmental Assessment. In the case of clauses (i), (ii) and (iii) above, if the Borrower fails to deliver to the Administrative Agent a copy of any requested Environmental Assessment within sixty (60) days, of the Required Lenders’ written request, the Administrative Agent may, with respect to either such failure, cause such requested Environmental Assessment to be made at the Borrower’s expense and risk, and in connection therewith, the Parent and the Borrower each hereby grants, and agrees to cause any Subsidiary (other than an Inactive Subsidiary or an Agway Subsidiary) that owns any applicable real property to grant, to the Administrative Agent and its designees, subject to the rights of tenants, (A) access to the applicable real properties at any reasonable time or times, upon reasonable written notice, and (B) a non-exclusive license which is coupled with an interest and is irrevocable for so long as any Lender shall have any Commitment under the Credit Agreement, any Loan or other Obligation (other than contingent indemnification Obligations to the extent no claim giving rise thereto has been asserted) shall remain unpaid or unsatisfied, or any Letter of Credit shall remain outstanding, to make or cause to be made any such requested Environmental Assessments. Without limiting the generality of the foregoing, with respect to the real property Collateral located in the State of California, each of the Parent and the Borrower agree that the Administrative Agent and its designees shall have the same right, power and authority to enter and inspect such real property as is granted to the secured lender under Section 2929.5 of the California Civil Code, and that Administrative Agent shall have the right to appoint a receiver to enter and inspect such real property to the extent such authority is provided under applicable law, including the authority given to the secured lender under Section 564(c) of the California Code of Civil Procedure; provided, Administrative Agent and its designees shall not exercise such rights unless clause (i), (ii) or (iii) is triggered.
(b) Each of the Parent and the Borrower acknowledges and agrees for itself and on behalf of its respective Subsidiaries that (i) the Administrative Agent and the Lenders shall be under no duty to make any Environmental Assessment, and in no event shall any such Environmental Assessment give rise to a representation that any Hazardous Material is or is not present, or that there has been or shall be compliance with any Environmental Law, nor shall any of the Loan Parties, their respective Subsidiaries or any other person be entitled to rely on any Environmental Assessment made by the Administrative Agent, any Lender or any other Person at the request of the Required Lenders; provided, however, that the Loan Parties shall be entitled to request a reliance letter from any third party performing an Environmental Assessment if the Loan Parties are responsible for the cost thereof, and the Lenders shall not object to such request (and, if requested by the Borrower, the Administrative Agent will advise such third party that it is authorized to issue such reliance letter at the Loan Parties’ expense); (ii) neither the Administrative Agent nor any Lender owes any duty to inform the Loan Parties, their respective Subsidiaries or any other person of any Hazardous Material or other adverse condition; (iii) neither the Administrative Agent nor any Lender owes any duty of care to protect the Loan Parties, their respective Subsidiaries or any other person against any Hazardous Materials or other adverse condition; provided however, that this Section 6.14 shall not relieve the Administrative Agent or any of its designees for damages that are determined by a court of competent jurisdiction by final and nonappealable judgment to have resulted from its gross negligence or willful misconduct in conducting an Environmental Assessment; (iv) Administrative Agent may, subject to the provisions of Section 11.07 hereof, disclose to interested parties any information Administrative Agent now or hereafter has about the environmental condition or compliance of the real properties of the Parent and the Borrower or their respective Subsidiaries, but shall be under no duty to disclose any such information; (v) the Administrative Agent and the Lenders cannot control or otherwise assure the truthfulness or accuracy of any Environmental Assessments; (vi) the release of Environmental Assessments, or any information contained therein or gathered in connection therewith, to prospective bidders at any foreclosure sale of any real property Collateral associated with any Environmental Assessment may have a material and adverse effect upon the amount that a party may bid at such foreclosure sale; (vii) neither the Administrative Agent nor any of the Lenders shall have any liability whatsoever as a result of delivering any Environmental Assessments, or any information contained therein or gathered in connection therewith, to any prospective bidder at a foreclosure sale; and (viii) the Administrative Agent and each of the Lenders and each Related Party of each of the foregoing Persons are released and forever discharged from any and all claims, damages, causes of action, or other liabilities of any type or nature whatsoever arising out of, connected with or incidental to any Environmental Assessments or the delivery or disclosure thereof; provided, this clause (viii) shall not relieve the Administrative Agent, any Lender or any of their respective Related Parties from claims, damages, causes of action or other liabilities that are determined by a court of competent jurisdiction by final and nonappealable judgment to have resulted from such Person’s gross negligence or willful misconduct in conducting such Environmental Assessments.
Appears in 1 contract
Preparation of Environmental Assessments. (a) If (i) a Default caused by reason of a breach of Sections 5.09 or 6.13 has occurred and is continuing, (ii) the Required Lenders reasonably believe that the presence of Hazardous Materials on or about any real property constituting Collateral could reasonably be expected to have a Material Adverse Effect or a material adverse effect on the value of the real property Collateral taken as a whole, (iii) a claim of Environmental Liability is made or threatened in writing with respect to any real property Collateral that could reasonably be expected to have a Material Adverse Effect or a material adverse effect on the value of the real property Collateral taken as a whole, or (iv) if any Loan Party or any of its Subsidiaries acquires property after the Closing Date on which a Lien is required to be granted to secure the Obligations, then in the case of clause (iv), provide to the Administrative Agent and the Lenders not less than twenty (20) days prior to the acquisition thereof (or such lesser number of days as shall be acceptable to the Administrative Agent), and in the case of clauses (i), (ii) and (iii), then at the written request of the Required Lenders, provide to the Lenders within 60 days after such request, in each instance at the expense of the Borrower, (1) a current Environmental Assessment for each of the properties described in such request (which shall be limited to the properties being acquired or which are the subject of such Default, concern or claim), and (2) in the case of clauses (i), (ii) and (iii), an explanation of the Borrower’s (or other Loan Party’s) plans to remedy such Default or other material adverse effect. Each of the Parent and the Borrower shall, and shall cause each Subsidiary (other than an Inactive Subsidiary or an Agway Subsidiary) to, cooperate with each consulting firm making any such Environmental Assessment and supply to any such consulting firm, from time to time and promptly on request, all non-privileged information in their custody or control to facilitate the completion of the applicable Environmental Assessment. In the case of clauses (i), (ii) and (iii) above, if the Borrower fails to deliver to the Administrative Agent a copy of any requested Environmental Assessment within sixty (60) days, of the Required Lenders’ written request, the Administrative Agent may, with respect to either such failure, cause such requested Environmental Assessment to be made at the Borrower’s expense and risk, and in connection therewith, the Parent and the Borrower each hereby grants, and agrees to cause any Subsidiary (other than an Inactive Subsidiary or an Agway Subsidiary) that owns any applicable real property to grant, to the Administrative Agent and its designees, subject to the rights of tenants, (A) access to the applicable real properties at any reasonable time or times, upon reasonable written notice, and (B) a non-exclusive license which is coupled with an interest and is irrevocable for so long as any Lender shall have any Commitment under the Credit Agreement, any Loan or other Obligation (other than contingent indemnification Obligations to the extent no claim giving rise thereto has been asserted) shall remain unpaid or unsatisfied, or any Letter of Credit shall remain outstanding, to make or cause to be made any such requested Environmental Assessments. Without limiting the generality of the foregoing, with respect to the real property Collateral located in the State of California, each of the Parent and the Borrower agree that the Administrative Agent and its designees shall have the same right, power and authority to enter and inspect such real property as is granted to the secured lender under Section 2929.5 of the California Civil Code, and that Administrative Agent shall have the right to appoint a receiver to enter and inspect such real property to the extent such authority is provided under applicable law, including the authority given to the secured lender under Section 564(c) of the California Code of Civil Procedure; provided, Administrative Agent and its designees shall not exercise such rights unless clause (i), (ii) or (iii) is triggered.
(b) Each of the Parent and the Borrower acknowledges and agrees for itself and on behalf of its respective Subsidiaries that (i) the Administrative Agent and the Lenders shall be under no duty to make any Environmental Assessment, and in no event shall any such Environmental Assessment give rise to a representation that any Hazardous Material is or is not present, or that there has been or shall be compliance with any Environmental Law, nor shall any of the Loan Parties, their respective Subsidiaries or any other person be entitled to rely on any Environmental Assessment made by the Administrative Agent, any Lender or any other Person at the request of the Required Lenders; provided, however, that the Loan Parties shall be entitled to request a reliance letter from any third party performing an Environmental Assessment if the Loan Parties are responsible for the cost thereof, and the Lenders shall not object to such request (and, if requested by the Borrower, the Administrative Agent will advise such third party that it is authorized to issue such reliance letter at the Loan Parties’ expense); (ii) neither the Administrative Agent nor any Lender owes any duty to inform the Loan Parties, their respective Subsidiaries or any other person of any Hazardous Material or other adverse condition; (iii) neither the Administrative Agent nor any Lender owes any duty of care to protect the Loan Parties, their respective Subsidiaries or any other person against any Hazardous Materials or other adverse condition; provided however, that this Section 6.14 shall not relieve the Administrative Agent or any of its designees for damages that are determined by a court of competent jurisdiction by final and nonappealable judgment to have resulted from its gross negligence or willful misconduct in conducting an Environmental Assessment; (iv) Administrative Agent may, subject to the provisions of Section 11.07 hereof, disclose to interested parties any information Administrative Agent now or hereafter has about the environmental condition or compliance of the real properties of the Parent and the Borrower or their respective Subsidiaries, but shall be under no duty to disclose any such information; (v) the Administrative Agent and the Lenders cannot control or otherwise assure the truthfulness or accuracy of any Environmental Assessments; (vi) the release of Environmental Assessments, or any information contained therein or gathered in connection therewith, to prospective bidders at any foreclosure sale of any real property Collateral associated with any Environmental Assessment may have a material and adverse effect upon the amount that a party may bid at such foreclosure sale; (vii) neither the Administrative Agent nor any of the Lenders shall have any liability whatsoever as a result of delivering any Environmental Assessments, or any information contained therein or gathered in connection therewith, to any prospective bidder at a foreclosure sale; and (viii) the Administrative Agent and each of the Lenders and each Related Party of each of the foregoing Persons are released and forever discharged from any and all claims, damages, causes of action, or other liabilities of any type or nature whatsoever arising out of, connected with or incidental to any Environmental Assessments or the delivery or disclosure thereof; provided, this clause (viii) shall not relieve the Administrative Agent, any Lender or any of their respective Related Parties from claims, damages, causes of action or other liabilities that are determined by a court of competent jurisdiction by final and nonappealable judgment to have resulted from such Person’s gross negligence or willful misconduct in conducting such Environmental Assessments.;
Appears in 1 contract
