Common use of Release Events Clause in Contracts

Release Events. Popular shall have the right and option to obtain the release of the Deposit Materials upon the occurrence of any of the following events (“Release Events”): (a) failure of, or failure to provide, a service (including any transition service) under the MSA that has a material adverse impact on or significantly degrades the availability, use or performance of such service or the relevant business of Popular or any of its Affiliates, if such failure remains uncured seventy-two (72) hours after written notice thereof to EVERTEC (“Service Failure”) or a Material Breach (as defined in the MSA) by EVERTEC under the MSA that is not cured within the time period specified under the MSA (in either case, Popular shall have the right and option to obtain the release of only those Deposit Bundles affected by the Service Failure or Material Breach and any other Deposit Bundles that are reasonably necessary to use and support the affected Deposit Bundles); (b) expiration or termination of the MSA for any reason; (c) EVERTEC is subject to a voluntarily or involuntary bankruptcy proceeding; (d) regulatory requirement (in which case, Popular shall have the right and option to obtain the release of only those Deposit Bundles affected by the regulatory requirement and any other Deposit Bundles that are reasonably necessary to use and support the affected Deposit Bundles); (e) EVERTEC declines Popular’s request for certain improvements, enhancements or other developments (“Requested Improvements”) that EVERTEC is capable of fulfilling (in which case, Popular shall have the right and option to obtain the release of only those Deposit Bundles reasonably necessary to enable the development and support of the Requested Improvements, and Popular will not use such Deposit Bundles except in connection with the development and maintenance of the Requested Improvements); provided, however, in this case Iron Mountain shall not be authorized to release the Deposit Materials unless Popular certifies that the following conditions are met: (A) Popular has negotiated with a third-party vendor an arrangement to prepare the Requested Improvements, (B) after negotiating the arrangement with a third-party vendor Popular offers EVERTEC the right to prepare the Requested Improvements for a price that is equal to that negotiated between Popular and the third-party vendor and upon terms and conditions substantially equivalent to those offered by the third-party vendor (provided that the terms and conditions that EVERTEC would need to meet would not require the delivery of the Requested Improvements in source code form to Popular or require the transfer of the ownership of the intellectual property rights in the Requested Improvements), and (C) EVERTEC does not unconditionally accept such offer within ten (10) business days of its receipt thereof; and (f) EVERTEC notifies Popular that it is incapable for any reason of fulfilling or otherwise does not accept Popular’s request for Requested Improvements or EVERTEC accepts Popular’s request for Requested Improvements and fails to satisfy, in any material respect, any material terms upon which the Parties have agreed such Requested Improvements will be provided (in which case, Popular shall have the right and option to obtain the release of only those Deposit Bundles reasonably necessary to enable the development and support of the Requested Improvements, and Popular will not use such Deposit Bundles except in connection with the development and maintenance of the Requested Improvements).

Release Events. Popular shall have the right and option to obtain the release of the Deposit Materials upon the occurrence of any of the following events (“Release Events”): ): (a) failure of, or failure to provide, a service (including any transition service) under the MSA that has a material adverse impact on or significantly degrades the availability, use or performance of such service or the relevant business of Popular or any of its Affiliates, if such failure remains uncured seventy-two (72) hours after written notice thereof to EVERTEC (“Service Failure”) or a Material Breach (as defined in the MSA) by EVERTEC under the MSA that is not cured within the time period specified under the MSA (in either case, Popular shall have the right and option to obtain the release of only those Deposit Bundles affected by the Service Failure or Material Breach and any other Deposit Bundles that are reasonably necessary to use and support the affected Deposit Bundles); ; (b) expiration or termination of the MSA for any reason; ; (c) EVERTEC is subject to a voluntarily or involuntary bankruptcy proceeding; ; (d) regulatory requirement (in which case, Popular shall have the right and option to obtain the release of only those Deposit Bundles affected by the regulatory requirement and any other Deposit Bundles that are reasonably necessary to use and support the affected Deposit Bundles); ; (e) EVERTEC declines Popular’s request for certain improvements, enhancements or other developments (“Requested Improvements”) that EVERTEC is capable of fulfilling (in which case, Popular shall have the right and option to obtain the release of only those Deposit Bundles reasonably necessary to enable the development and support of the Requested Improvements, and Popular will not use such Deposit Bundles except in connection with the development and maintenance of the Requested Improvements); provided, however, in this case Iron Mountain shall not be authorized to release the Deposit Materials unless Popular certifies that the following conditions are met: (A) Popular has negotiated with a third-party vendor an arrangement to prepare the Requested Improvements, (B) after negotiating the arrangement with a third-party vendor Popular offers EVERTEC the right to prepare the Requested Improvements for a price that is equal to that negotiated between Popular and the third-party vendor and upon terms and conditions substantially equivalent to those offered by the third-party vendor (provided that the terms and conditions that EVERTEC would need to meet would not require the delivery of the Requested Improvements in source code form to Popular or require the transfer of the ownership of the intellectual property rights in the Requested Improvements), and (C) EVERTEC does not unconditionally accept such offer within ten (10) business days of its receipt thereof; and (f) EVERTEC notifies Popular that it is incapable for any reason of fulfilling or otherwise does not accept Popular’s request for Requested Improvements or EVERTEC accepts Popular’s request for Requested Improvements and fails to satisfy, in any material respect, any material terms upon which the Parties have agreed such Requested Improvements will be provided (in which case, Popular shall have the right and option to obtain the release of only those Deposit Bundles reasonably necessary to enable the development and support of the Requested Improvements, and Popular will not use such Deposit Bundles except in connection with the development and maintenance of the Requested Improvements).

Release Events. Popular shall have the right and option to obtain the release of the Deposit Materials Effective upon the occurrence of any either of the following events (each, a “Release EventsEvent”): ), as determined by Administrative Agent in its sole discretion, Administrative Agent may elect, in its sole discretion, to deliver to Escrow Agent written notice (such notice, the “Administrative Agent Instructions”) directing Escrow Agreement to, among other things, (a) failure ofrelease the Escrowed Documents to Administrative Agent (or, or failure at the direction of Administrative Agent, to provide, a service (including any transition service) the Escrow Holder under the MSA that has a material adverse impact on or significantly degrades Deed in Lieu Agreement) in order to consummate the availability, use or performance of such service or the relevant business of Popular or any of its Affiliates, if such failure remains uncured seventy-two (72) hours after written notice thereof to EVERTEC (“Service Failure”) or a Material Breach (as defined in the MSA) by EVERTEC under the MSA that is not cured within the time period specified under the MSA (in either case, Popular shall have the right Closing and option to obtain the release of only those Deposit Bundles affected by the Service Failure or Material Breach and any other Deposit Bundles that are reasonably necessary to use and support the affected Deposit Bundles); (b) expiration or termination of the MSA for any reason;disburse all Escrowed Funds to Administrative Agent: (ci) EVERTEC is subject to a voluntarily the occurrence of any Default or involuntary bankruptcy proceeding; Event of Default under the Financing Documents (d) regulatory requirement (in which case, Popular shall have other than the right and option to obtain the release Acknowledged Events of only those Deposit Bundles affected by the regulatory requirement and any other Deposit Bundles that are reasonably necessary to use and support the affected Deposit Bundles); (e) EVERTEC declines Popular’s request for certain improvements, enhancements or other developments (“Requested Improvements”) that EVERTEC is capable of fulfilling (in which case, Popular shall have the right and option to obtain the release of only those Deposit Bundles reasonably necessary to enable the development and support of the Requested Improvements, and Popular will not use such Deposit Bundles except in connection with the development and maintenance of the Requested ImprovementsDefault); provided, however, in this case Iron Mountain the event Borrowers’ fail to make the regularly scheduled payments of principal and interest due and payable in respect of the Loans on March 31, 2013 or June 30, 2013, the failure to make either such payment, while constituting an Event of Default pursuant to the Loans, shall not be authorized a Release Event; or (ii) the failure of Borrowers to release satisfy any of the Deposit Materials unless Popular certifies requirements set forth in this Escrow Agreement (including on Schedule I attached hereto) (the “Escrow Obligations”) on or before the applicable deadline set forth therein; or (iii) the failure of Borrowers to deliver to Administrative Agent concurrently with the execution hereof, documents, certificates and/or opinions sufficient, in Administrative Agent’s sole discretion, to permit Administrative Agent to conclude that the transactions contemplated by the Deed in Lieu Agreement and this Agreement are supported by reasonably equivalent value and/or are supported by such facts that would prevent the transactions from being avoided, rescinded or set aside by a court of competent jurisdiction Escrow Agent shall comply with the Administrative Agent Instructions, without the need for any instructions or consent from Borrowers, and notwithstanding any conflicting instructions from Borrowers or any other party. Without limitation of the foregoing, upon the occurrence of a Release Event and following conditions are met: (A) Popular has negotiated with a third-party vendor an arrangement to prepare the Requested Improvementsreceipt by Escrow Agent of the Administrative Agent Instructions, (Ba) after negotiating Escrow Agent shall release and distribute all Escrowed Documents and disburse the arrangement Escrowed Funds in accordance with a third-party vendor Popular offers EVERTEC the right to prepare Administrative Agent Instructions, (b) all such Escrowed Documents shall be deemed released by each of the Requested Improvements parties thereto and (c) all such Escrowed Documents (together with all covenants, agreements, representations and warranties of each of the parties thereto) shall be deemed released, delivered and in full force and effect. Each Borrower hereby makes, constitutes and appoints Administrative Agent, its successors and assigns, as such Borrower’s true and lawful attorney, with full power of substitution and authority in the place and stead of such Borrower and in the name of such Borrower or in Administrative Agent’s own name, for a price that is equal to that negotiated between Popular the purpose of carrying out the terms of this Agreement and the third-party vendor Deed in Lieu Documents from and after the occurrence of a Release Event, to take any and all appropriate action and to execute any and all documents and instruments which may be necessary or desirable to accomplish the purpose of this Agreement and the Deed in Lieu Documents and to consummate the transactions contemplated hereby and thereby. Such power of attorney is coupled with an interest and shall be irrevocable following the occurrence of a Release Event. Each Borrower hereby irrevocably authorizes and directs Escrow Agent to act and rely upon terms and conditions substantially equivalent any Administrative Agent Instructions or other notices, instructions, demands or requests delivered by Administrative Agent to those offered by the third-party vendor (provided that the terms and conditions that EVERTEC would need to meet would not require the delivery of the Requested Improvements in source code form to Popular Escrow Agent hereunder or require the transfer of the ownership of the intellectual property rights in the Requested Improvements), and (C) EVERTEC does not unconditionally accept such offer within ten (10) business days of its receipt thereof; and (f) EVERTEC notifies Popular that it is incapable for any reason of fulfilling or otherwise does not accept Popular’s request for Requested Improvements or EVERTEC accepts Popular’s request for Requested Improvements and fails to satisfy, in any material respect, any material terms upon which the Parties have agreed such Requested Improvements will be provided (in which case, Popular shall have the right and option to obtain the release of only those Deposit Bundles reasonably necessary to enable the development and support of the Requested Improvements, and Popular will not use such Deposit Bundles except in connection with the development transactions contemplated hereby or by the Deed in Lieu Documents. Escrow Agent shall be entitled to rely upon and maintenance will be protected in acting upon any Administrative Agent Instructions believed by it to be genuine and correct and to have been signed or sent on behalf of Administrative Agent, without any duty to make an investigation into the facts or matters stated therein. Borrowers hereby agree, on a joint and several basis, to indemnify, defend and hold harmless Escrow Agent from and against any claim, loss, liability, damage or expense (including attorneys’ fees and costs) resulting from or attributable to (a) Escrow Agent’s acting upon unilateral Administrative Agent Instructions from Administrative Agent, (b) Escrow Agent’s failing to act upon any conflicting instructions from Borrowers or (c) Escrow Agent’s modifications to the Deed In Lieu Documents to exclude the Excluded Collateral in accordance with Section 7(a) of the Requested Improvements)Deed in Lieu Agreement, in each case, except to the extent attributable solely and directly to the gross negligence or willful misconduct of Agents or the Lenders.