Releases. (a) Each Junior Priority Representative, for itself and on behalf of each Junior Priority Debt Party under its Junior Priority Debt Facility, agrees that, in the event of a sale, transfer or other disposition of any specified item of Shared Collateral (including all or substantially all of the equity interests of any subsidiary of the Borrower) other than a release granted upon or following the Discharge of Senior Obligations, the Liens granted to the Junior Priority Representatives and the Junior Priority Debt Parties upon such Shared Collateral to secure Junior Priority Debt Obligations shall terminate and be released, automatically and without any further action, concurrently with the termination and release of all Liens granted upon such Shared Collateral to secure Senior Obligations; provided that, in the case of any such sale, transfer or other disposition of Shared Collateral (other than any sale, transfer or other disposition in connection with the enforcement or exercise of any rights or remedies with respect to the Shared Collateral), the Liens granted to the Junior Priority Representatives and the Junior Priority Debt Parties shall not be so released if such sale, transfer or other disposition is not permitted under the terms of any Junior Priority Debt Document. Upon delivery to a Junior Priority Representative of an Officer’s Certificate stating that any such termination and release of Liens securing the Senior Obligations has become effective (or shall become effective concurrently with such termination and release of the Liens granted to the Junior Priority Debt Parties and the Junior Priority Representatives) and any necessary or proper instruments of termination or release prepared by the Borrower or any other Grantor, such Junior Priority Representative will promptly execute, deliver or acknowledge, at the Borrower’s or the other Grantor’s sole cost and expense, such instruments to evidence such termination and release of the Liens. Nothing in this Section 5.01(a) will be deemed to affect any agreement of a Junior Priority Representative, for itself and on behalf of the Junior Priority Debt Parties under its Junior Priority Debt Facility, to release the Liens on the Junior Priority Collateral as set forth in the relevant Junior Priority Debt Documents. (b) Each Junior Priority Representative, for itself and on behalf of each Junior Priority Debt Party under its Junior Priority Debt Facility, hereby irrevocably constitutes and appoints the Designated Senior Representative and any officer or agent of the Designated Senior Representative, with full power of substitution, as its true and lawful attorney-in-fact with full irrevocable power and authority in the place and stead of such Junior Priority Representative or such Junior Priority Debt Party or in the Designated Senior Representative’s own name, from time to time in the Designated Senior Representative’s discretion, for the purpose of carrying out the terms of Section 5.01(a), to take any and all appropriate action and to execute any and all documents and instruments that may be necessary or desirable to accomplish the purposes of Section 5.01(a), including any termination statements, endorsements or other instruments of transfer or release. (c) Notwithstanding anything to the contrary in any Junior Priority Collateral Document, in the event the terms of a Senior Collateral Document and a Junior Priority Collateral Document each require any Grantor (i) to make payment in respect of any item of Shared Collateral, (ii) to deliver or afford control over any item of Shared Collateral to, or deposit any item of Shared Collateral with, (iii) to register ownership of any item of Shared Collateral in the name of or make an assignment of ownership of any Shared Collateral or the rights thereunder to, (iv) cause any securities intermediary, commodity intermediary or other Person acting in a similar capacity to agree to comply, in respect of any item of Shared Collateral, with instructions or orders from, or to treat, in respect of any item of Shared Collateral, as the entitlement holder, (v) hold any item of Shared Collateral in trust for (to the extent such item of Shared Collateral cannot be held in trust for multiple parties under applicable law), (vi) obtain the agreement of a bailee or other third party to hold any item of Shared Collateral for the benefit of or subject to the control of or, in respect of any item of Shared Collateral, to follow the instructions of or (vii) obtain the agreement of a landlord with respect to access to leased premises where any item of Shared Collateral is located or waivers or subordination of rights with respect to any item of Shared Collateral in favor of, in any case, both the Designated Senior Representative and any Junior Priority Representative or Junior Priority Debt Party, such Grantor may, until the applicable Discharge of Senior Obligations has occurred, comply with such requirement under the applicable Junior Priority Collateral Document as it relates to such Shared Collateral by taking any of the actions set forth above only with respect to, or in favor of, the Designated Senior Representative.
Appears in 4 contracts
Samples: Term Loan B Credit Agreement (Vine Resources Inc.), Term Loan Credit Agreement (Vine Resources Inc.), Term Loan Credit Agreement (Vine Resources Inc.)
Releases. (a) Each Junior Second Priority Representative, for itself and on behalf of each Junior Second Priority Debt Party under its Junior Second Priority Debt Facility, agrees that, if in the event of a connection with (i) any sale, transfer or other disposition of any specified item of Shared Collateral by any Grantor (including all other than in connection with any enforcement or substantially all exercise of rights or remedies with respect to the Shared Collateral which shall be governed by clause (ii)) permitted under the terms of the equity interests Senior Debt Documents or consented to by the holders of any subsidiary of Senior Obligations under the Borrower) Senior Debt Documents (other than a release granted upon or following (A) in connection with the Discharge of Senior Obligations, Obligations or (B) after the Liens granted to occurrence and during the Junior Priority Representatives and continuance of any Event of Default under the Junior Second Priority Debt Parties upon such Shared Collateral to secure Junior Priority Debt Obligations shall terminate and be released, automatically and without any further action, concurrently with the termination and release of all Liens granted upon such Shared Collateral to secure Senior Obligations; provided that, in the case of any such sale, transfer Documents) or other disposition of Shared Collateral (other than any sale, transfer or other disposition in connection with ii) the enforcement or exercise of any rights or remedies with respect to the Shared Collateral), the Liens granted to the Junior Priority Representatives and the Junior Priority Debt Parties shall not be so released if such including any sale, transfer or other disposition is not permitted under the terms of Collateral so long as net proceeds of any Junior such Collateral are applied to reduce permanently the Senior Obligations, the Designated Senior Representative, for itself and on behalf of the other Senior Secured Parties releases any of the Senior Liens on the Shared Collateral (a “Release”), then the Liens on such Shared Collateral securing any Second Priority Debt Document. Upon delivery to a Junior Obligations shall be automatically, unconditionally and simultaneously released, and each Second Priority Representative shall, for itself and on behalf of an Officer’s Certificate stating that any the other applicable Second Priority Class Debt Parties, promptly execute and deliver to the Designated Senior Representative and the applicable Grantors such termination statements, releases and release other documents as the Designated Senior Representative or any applicable Grantor may reasonably request to effectively confirm such Release. Similarly, if the equity interests of Liens securing any Person are foreclosed upon or otherwise disposed of pursuant to clause (i) or (ii) above and in connection therewith the Designated Senior Representative releases the Senior Liens on the property or assets of such Person or releases such Person from its guarantee of Senior Obligations, then the Second Priority Lien on such property or assets of such Person and such Person’s guarantee of Second Priority Debt Obligations has become effective (or shall become effective concurrently with such termination and release of the Liens granted be automatically released to the Junior Priority Debt Parties and the Junior Priority Representatives) and any necessary or proper instruments of termination or release prepared by the Borrower or any other Grantor, such Junior Priority Representative will promptly execute, deliver or acknowledge, at the Borrower’s or the other Grantor’s sole cost and expense, such instruments to evidence such termination and release of the Lienssame extent. Nothing in this Section 5.01(a) will be deemed to affect any agreement of a Junior Second Priority Representative, for itself and on behalf of the Junior Second Priority Debt Parties under its Junior Second Priority Debt Facility, to release the Liens on the Junior Second Priority Collateral as set forth in the relevant Junior Second Priority Debt Documents.
(b) Each Junior Second Priority Representative, for itself and on behalf of each Junior Second Priority Debt Party under its Junior Second Priority Debt Facility, hereby irrevocably constitutes and appoints the Designated Senior Representative and any officer or agent of the Designated Senior Representative, with full power of substitution, as its true and lawful attorney-in-fact with full irrevocable power and authority in the place and stead of such Junior Second Priority Representative or such Junior Second Priority Debt Party or in the Designated Senior Representative’s own name, from time to time in the Designated Senior Representative’s discretion, for the purpose of carrying out the terms of Section 5.01(a), to take any and all appropriate action and to execute any and all documents and instruments that may be necessary or desirable to accomplish the purposes of Section 5.01(a), including any termination statements, endorsements or other instruments of transfer or release.
(c) Unless and until the Discharge of Senior Obligations has occurred, each Second Priority Representative, for itself and on behalf of each Second Priority Debt Party under its Second Priority Debt Facility, hereby consents to the application, whether prior to or after an Event of Default (as defined in any Senior Debt Document) of Proceeds of Shared Collateral to the repayment of Senior Obligations pursuant to the Senior Debt Documents, provided that nothing in this Section 5.01(c) shall be construed to prevent or impair the rights of the Second Priority Representatives or the Second Priority Debt Parties to receive Proceeds in connection with the Second Priority Debt Obligations not otherwise in contravention of this Agreement.
(d) Notwithstanding anything to the contrary in any Junior Second Priority Collateral Document, in the event the terms of a Senior Collateral Document and a Junior Second Priority Collateral Document each require any Grantor (i) to make payment in respect of any item of Shared Collateral, (ii) to deliver or afford control over any item of Shared Collateral to, or deposit any item of Shared Collateral with, (iii) to register ownership of any item of Shared Collateral in the name of or make an assignment of ownership of any Shared Collateral or the rights thereunder to, (iv) cause any securities intermediary, commodity intermediary or other Person acting in a similar capacity to agree to comply, in respect of any item of Shared Collateral, with instructions or orders from, or to treat, in respect of any item of Shared Collateral, as the entitlement holder, (v) hold any item of Shared Collateral in trust for (to the extent such item of Shared Collateral cannot be held in trust for multiple parties under applicable law), (vi) obtain the agreement of a bailee or other third party to hold any item of Shared Collateral for the benefit of or subject to the control of or, in respect of any item of Shared Collateral, to follow the instructions of or (vii) obtain the agreement of a landlord with respect to access to leased premises where any item of Shared Collateral is located or waivers or subordination of rights with respect to any item of Shared Collateral in favor of, in any case, both the Designated Senior Representative and any Junior Second Priority Representative or Junior Second Priority Debt Party, such Grantor may, until the applicable Discharge of Senior Obligations has occurred, comply with such requirement under the applicable Junior Second Priority Collateral Document as it relates to such Shared Collateral by taking any of the actions set forth above only with respect to, or in favor of, the Designated Senior Representative.
Appears in 3 contracts
Samples: First Lien/Second Lien Intercreditor Agreement, First Lien/Second Lien Intercreditor Agreement (BrightView Holdings, Inc.), First Lien/Second Lien Intercreditor Agreement (BrightView Holdings, Inc.)
Releases. (a) Each Junior Second Priority Representative, for itself and on behalf of each Junior Second Priority Debt Party under its Junior Second Priority Debt Facility, agrees that, in the event of a sale, transfer or other disposition of any specified item of Shared Collateral (including all or substantially all of the equity interests of any subsidiary of the Borrower) other than a release granted upon or following the Discharge of Senior Obligations, the Liens granted to the Junior Second Priority Representatives and the Junior Second Priority Debt Parties upon such Shared Collateral to secure Junior Second Priority Debt Obligations shall terminate and be released, automatically and without any further action, concurrently with the termination and release of all Liens granted upon such Shared Collateral to secure Senior Obligations; provided that, in the case of any such sale, transfer or other disposition of Shared Collateral (other than any sale, transfer or other disposition in connection with the enforcement or exercise of any rights or remedies with respect to the Shared Collateral), the Liens granted to the Junior Second Priority Representatives and the Junior Second Priority Debt Parties shall not be so released if such sale, transfer or other disposition is not permitted under the terms of any Junior Second Priority Debt Document. Upon delivery to a Junior Second Priority Representative of an Officer’s Certificate stating that any such termination and release of Liens securing the Senior Obligations has become effective (or shall become effective concurrently with such termination and release of the Liens granted to the Junior Second Priority Debt Parties and the Junior Second Priority Representatives) and any necessary or proper instruments of termination or release prepared by the Borrower or any other Grantor, such Junior Second Priority Representative will promptly execute, deliver or acknowledge, at the Borrower’s or the other Grantor’s sole cost and expense, such instruments to evidence such termination and release of the Liens. Nothing in this Section 5.01(a) will be deemed to affect any agreement of a Junior Second Priority Representative, for itself and on behalf of the Junior Second Priority Debt Parties under its Junior Second Priority Debt Facility, to release the Liens on the Junior Second Priority Collateral as set forth in the relevant Junior Second Priority Debt Documents.
(b) Each Junior Second Priority Representative, for itself and on behalf of each Junior Second Priority Debt Party under its Junior Second Priority Debt Facility, hereby irrevocably constitutes and appoints the Designated Senior Representative and any officer or agent of the Designated Senior Representative, with full power of substitution, as its true and lawful attorney-in-fact with full irrevocable power and authority in the place and stead of such Junior Second Priority Representative or such Junior Second Priority Debt Party or in the Designated Senior Representative’s own name, from time to time in the Designated Senior Representative’s discretion, for the purpose of carrying out the terms of Section 5.01(a), to take any and all appropriate action and to execute any and all documents and instruments that may be necessary or desirable to accomplish the purposes of Section 5.01(a), including any termination statements, endorsements or other instruments of transfer or release.
(c) Notwithstanding anything to the contrary in any Junior Second Priority Collateral Document, in the event the terms of a Senior Collateral Document and a Junior Second Priority Collateral Document each require any Grantor (i) to make payment in respect of any item of Shared Collateral, (ii) to deliver or afford control over any item of Shared Collateral to, or deposit any item of Shared Collateral with, (iii) to register ownership of any item of Shared Collateral in the name of or make an assignment of ownership of any Shared Collateral or the rights thereunder to, (iv) cause any securities intermediary, commodity intermediary or other Person acting in a similar capacity to agree to comply, in respect of any item of Shared Collateral, with instructions or orders from, or to treat, in respect of any item of Shared Collateral, as the entitlement holder, (v) hold any item of Shared Collateral in trust for (to the extent such item of Shared Collateral cannot be held in trust for multiple parties under applicable law), (vi) obtain the agreement of a bailee or other third party to hold any item of Shared Collateral for the benefit of or subject to the control of or, in respect of any item of Shared Collateral, to follow the instructions of or (vii) obtain the agreement of a landlord with respect to access to leased premises where any item of Shared Collateral is located or waivers or subordination of rights with respect to any item of Shared Collateral in favor of, in any case, both the Designated Senior Representative and any Junior Second Priority Representative or Junior Second Priority Debt Party, such Grantor may, until the applicable Discharge of Senior Obligations has occurred, comply with such requirement under the applicable Junior Second Priority Collateral Document as it relates to such Shared Collateral by taking any of the actions set forth above only with respect to, or in favor of, the Designated Senior Representative.
Appears in 3 contracts
Samples: Indenture (Hilton Grand Vacations Inc.), Credit Agreement (Red Lion Hotels CORP), Credit Agreement (Hilton Grand Vacations Inc.)
Releases. (a) Each Junior Second Priority Representative, for itself and on behalf of each Junior Second Priority Debt Party under its Junior Second Priority Debt Facility, agrees that, if in the event of a connection with (i) any sale, transfer or other disposition of any specified item of Shared Collateral by any Grantor (including all other than in connection with any enforcement or substantially all exercise of rights or remedies with respect to the Shared Collateral which shall be governed by clause (ii)) permitted under the terms of the equity interests Senior Debt Documents or consented to by the holders of any subsidiary of Senior Obligations under the Borrower) Senior Debt Documents (other than a release granted upon or following in connection with the Discharge of Senior Obligations, the Liens granted to the Junior Priority Representatives and the Junior Priority Debt Parties upon such Shared Collateral to secure Junior Priority Debt Obligations shall terminate and be released, automatically and without any further action, concurrently with the termination and release of all Liens granted upon such Shared Collateral to secure Senior Obligations; provided that, in the case of any such sale, transfer ) or other disposition of Shared Collateral (other than any sale, transfer or other disposition in connection with ii) the enforcement or exercise of any rights or remedies with respect to the Shared Collateral), the Liens granted to the Junior Priority Representatives and the Junior Priority Debt Parties shall not be so released if such including any sale, transfer or other disposition is not permitted under of Collateral, the terms Designated Senior Representative, for itself and on behalf of the other Senior Secured Parties releases any of the Senior Liens on the Shared Collateral (a “Release”), then the Liens on such Shared Collateral securing any Second Priority Debt Obligations shall be automatically, unconditionally and simultaneously released, and each Second Priority Representative shall, for itself and on behalf of the other applicable Second Priority Class Debt Parties, promptly execute and deliver to the Designated Senior Representative and the applicable Grantors such termination statements, releases and other documents as the Designated Senior Representative or any applicable Grantor may reasonably request to effectively confirm such Release. Similarly, if the equity interests of any Junior Person are foreclosed upon or otherwise disposed of pursuant to clause (i) or (ii) above and in connection therewith the Designated Senior Representative releases the Senior Liens on the property or assets of such Person or releases such Person from its guarantee of Senior Obligations, then the Second Priority Lien on such property or assets of such Person and such Person’s guarantee of Second Priority Debt Document. Upon delivery to a Junior Priority Representative of an Officer’s Certificate stating that any such termination and release of Liens securing the Senior Obligations has become effective (or shall become effective concurrently with such termination and release of the Liens granted be automatically released to the Junior Priority Debt Parties and the Junior Priority Representatives) and any necessary or proper instruments of termination or release prepared by the Borrower or any other Grantor, such Junior Priority Representative will promptly execute, deliver or acknowledge, at the Borrower’s or the other Grantor’s sole cost and expense, such instruments to evidence such termination and release of the Lienssame extent. Nothing in this Section 5.01(a) will be deemed to affect any agreement of a Junior Second Priority Representative, for itself and on behalf of the Junior Second Priority Debt Parties under its Junior Second Priority Debt Facility, to release the Liens on the Junior Second Priority Collateral as set forth in the relevant Junior Second Priority Debt Documents.
(b) Each Junior Second Priority Representative, for itself and on behalf of each Junior Second Priority Debt Party under its Junior Second Priority Debt Facility, hereby irrevocably constitutes and appoints the Designated Senior Representative and any officer or agent of the Designated Senior Representative, with full power of substitution, as its true and lawful attorney-in-fact with full irrevocable power and authority in the place and stead of such Junior Second Priority Representative or such Junior Second Priority Debt Party or in the Designated Senior Representative’s own name, from time to time in the Designated Senior Representative’s discretion, for the purpose of carrying out the terms of Section 5.01(a), to take any and all appropriate action and to execute any and all documents and instruments that may be necessary or desirable to accomplish the purposes of Section 5.01(a), including any termination statements, endorsements or other instruments of transfer or release.
(c) Unless and until the Discharge of Senior Obligations has occurred, each Second Priority Representative, for itself and on behalf of each Second Priority Debt Party under its Second Priority Debt Facility, hereby consents to the application, whether prior to or after an Event of Default (as defined in any Senior Debt Document) of Proceeds of Shared Collateral to the repayment of Senior Obligations pursuant to the Senior Debt Documents, provided that nothing in this Section 5.01(c) shall be construed to prevent or impair the rights of the Second Priority Representatives or the Second Priority Debt Parties to receive Proceeds in connection with the Second Priority Debt Obligations not otherwise in contravention of this Agreement.
(d) Notwithstanding anything to the contrary in any Junior Second Priority Collateral Document, in the event the terms of a Senior Collateral Document and a Junior Second Priority Collateral Document each require any Grantor (i) to make payment in respect of any item of Shared Collateral, (ii) to deliver or afford control over any item of Shared Collateral to, or deposit any item of Shared Collateral with, (iii) to register ownership of any item of Shared Collateral in the name of or make an assignment of ownership of any Shared Collateral or the rights thereunder to, (iv) cause any securities intermediary, commodity intermediary or other Person acting in a similar capacity to agree to comply, in respect of any item of Shared Collateral, with instructions or orders from, or to treat, in respect of any item of Shared Collateral, as the entitlement holder, (v) hold any item of Shared Collateral in trust for (to the extent such item of Shared Collateral cannot be held in trust for multiple parties under applicable law), (vi) obtain the agreement of a bailee or other third party to hold any item of Shared Collateral for the benefit of or subject to the control of or, in respect of any item of Shared Collateral, to follow the instructions of or (vii) obtain the agreement of a landlord with respect to access to leased premises where any item of Shared Collateral is located or waivers or subordination of rights with respect to any item of Shared Collateral in favor of, in any case, both the Designated Senior Representative and any Junior Second Priority Representative or Junior Second Priority Debt Party, such Grantor may, until the applicable Discharge of Senior Obligations has occurred, comply with such requirement under the applicable Junior Second Priority Collateral Document as it relates to such Shared Collateral by taking any of the actions set forth above only with respect to, or in favor of, the Designated Senior Representative.
Appears in 3 contracts
Samples: Credit Agreement (Canada Goose Holdings Inc.), Credit Agreement (Canada Goose Holdings Inc.), Credit Agreement (Canada Goose Holdings Inc.)
Releases. (a) Each Junior Priority Representative, for itself and on behalf of each Junior Priority Debt Party under its Junior Priority Debt Facility, agrees that, in At such time as the event of a sale, transfer or other disposition of any specified item of Shared Collateral (including all or substantially all of the equity interests of any subsidiary of the Borrower) other than a release granted upon or following the Discharge of Senior Obligations, the Liens granted to the Junior Priority Representatives Term Loans and the Junior Priority Debt Parties upon such Shared Collateral to secure Junior Priority Debt other Obligations shall terminate and be released, automatically and without any further action, concurrently with the termination and release of all Liens granted upon such Shared Collateral to secure Senior Obligations; provided that, in the case of any such sale, transfer or other disposition of Shared Collateral (other than contingent or indemnification obligations not then asserted or due) shall have been indefeasibly paid in full in cash, the Collateral Agent shall take such actions as shall be required to release its security interest in all Collateral, and to release all guarantee obligations provided for in any saleLoan Document and this Agreement and all obligations (other than those expressly stated to survive such termination) of the Collateral Agent and each Grantor hereunder shall terminate, all without delivery of any instrument or performance of any act by any party, and all rights to the Collateral shall revert to the Grantors. At the request and sole expense of any Grantor following any such termination, the Collateral Agent shall assign, transfer or other disposition in connection with the enforcement or exercise of and deliver to such Grantor any rights or remedies with respect to the Shared Collateral), the Liens granted to the Junior Priority Representatives and the Junior Priority Debt Parties shall not be so released if such sale, transfer or other disposition is not permitted under the terms of any Junior Priority Debt Document. Upon delivery to a Junior Priority Representative of an Officer’s Certificate stating that any such termination and release of Liens securing the Senior Obligations has become effective (or shall become effective concurrently with such termination and release of the Liens granted to the Junior Priority Debt Parties and the Junior Priority Representatives) and any necessary or proper instruments of termination or release prepared Collateral held by the Borrower or any other GrantorCollateral Agent hereunder, and execute and deliver to such Junior Priority Representative will promptly execute, deliver or acknowledge, at the Borrower’s or the other Grantor’s sole cost and expense, Grantor such instruments documents as such Grantor shall reasonably request to evidence such termination and release of the Liens. Nothing in this Section 5.01(a) will be deemed to affect any agreement of a Junior Priority Representative, for itself and on behalf of the Junior Priority Debt Parties under its Junior Priority Debt Facility, to release the Liens on the Junior Priority Collateral as set forth in the relevant Junior Priority Debt Documentstermination.
(b) Each Junior Priority RepresentativeIf any of the Collateral shall be sold, for itself and transferred or otherwise Sold by any Grantor in a transaction permitted by the Credit Agreement, then (i) the security interest in any such Collateral shall be automatically released to the extent that such Sale does not (x) pertain to Voting Stock of the Borrower or any Subsidiary Guarantor or other Collateral in the possession of the Collateral Agent or (y) involve the filing of amendments to or termination of any financing statement or mortgage in favor of the Collateral Agent on behalf of each Junior Priority Debt Party under its Junior Priority Debt Facilitythe Secured Parties and (ii) the Collateral Agent, hereby irrevocably constitutes at the request and appoints the Designated Senior Representative and any officer or agent of the Designated Senior Representative, with full power of substitution, as its true and lawful attorney-in-fact with full irrevocable power and authority in the place and stead sole expense of such Junior Priority Representative Grantor, shall execute and deliver to such Grantor all releases or such Junior Priority Debt Party or in the Designated Senior Representative’s own name, from time to time in the Designated Senior Representative’s discretion, for the purpose of carrying out the terms of Section 5.01(a), to take any and all appropriate action and to execute any and all other documents and instruments that may be reasonably necessary or desirable to accomplish for the purposes release of Section 5.01(a)the Liens created hereby on such Collateral. At the request and sole expense of the Borrower, including any termination statements, endorsements or other instruments of transfer or release.
(c) Notwithstanding anything to the contrary in any Junior Priority Collateral Document, a Subsidiary Guarantor shall be released from its obligations hereunder in the event that all the terms Voting Stock of a Senior Collateral Document and a Junior Priority Collateral Document each require any Grantor (i) to make payment in respect of any item of Shared Collateralsuch Subsidiary Guarantor shall be sold, (ii) to deliver transferred or afford control over any item of Shared Collateral to, or deposit any item of Shared Collateral with, (iii) to register ownership of any item of Shared Collateral in the name of or make an assignment of ownership of any Shared Collateral or the rights thereunder to, (iv) cause any securities intermediary, commodity intermediary or other Person acting otherwise Sold in a similar capacity to agree to complytransaction permitted by the Credit Agreement and the Collateral Agent will assign, in respect of any item of Shared Collateral, with instructions or orders from, or to treat, in respect of any item of Shared Collateral, as the entitlement holder, (v) hold any item of Shared Collateral in trust for (transfer and deliver to the extent Borrower Agent such item of Shared Collateral cannot be held in trust for multiple parties under applicable law), (vi) obtain the agreement of a bailee or other third party to hold any item of Shared Collateral for the benefit of or subject to the control of or, in respect of any item of Shared Collateral, to follow the instructions of or (vii) obtain the agreement of a landlord with respect to access to leased premises where any item of Shared Collateral is located or waivers or subordination of rights with respect to any item of Shared Collateral in favor of, in any case, both the Designated Senior Representative and any Junior Priority Representative or Junior Priority Debt Party, such Grantor may, until the applicable Discharge of Senior Obligations has occurred, comply with Collateral concerning such requirement under the applicable Junior Priority Collateral Document Voting Stock as it relates to such Shared Collateral by taking any may then be in possession of the actions set forth above only with respect to, or in favor of, the Designated Senior RepresentativeCollateral Agent.
Appears in 3 contracts
Samples: Guarantee and Collateral Agreement (SFX Entertainment, INC), Credit Agreement (SFX Entertainment, INC), Guarantee and Collateral Agreement (SFX Entertainment, INC)
Releases. (a) Each Junior Second Priority Representative, for itself and on behalf of each Junior Second Priority Debt Party under its Junior Second Priority Debt Facility, agrees that, in the event the Designated Senior Representative releases its lien on any item of Shared Collateral in connection with a sale, transfer or other disposition of any such specified item of Shared Collateral (including all or substantially all of the equity interests of any subsidiary of the BorrowerCompany) other than a release granted upon or following the Discharge of Senior Obligations, the Liens granted to the Junior Second Priority Representatives and the Junior Second Priority Debt Parties upon such Shared Collateral to secure Junior Second Priority Debt Obligations shall terminate and be released, automatically and without any further action, concurrently with the termination and release of all Liens granted upon such Shared Collateral to secure Senior Obligations; provided that, in the case of any such sale, transfer or other disposition of Shared Collateral (other than any sale, transfer or other disposition in connection with the enforcement or exercise of any rights or remedies with respect to the Shared Collateral), the Liens granted to the Junior Priority Representatives and the Junior Priority Debt Parties shall not be so released if such sale, transfer or other disposition is not permitted under the terms of any Junior Priority Debt Document. Upon delivery to a Junior Second Priority Representative of an Officer’s Certificate stating that any such termination and release of Liens securing the Senior Obligations has become effective (or shall become effective concurrently with such termination and release of the Liens granted to the Junior Second Priority Debt Parties and the Junior Second Priority Representatives) and any necessary or proper instruments of termination or release prepared by the Borrower Company or any other Grantor, such Junior Second Priority Representative will promptly execute, deliver or acknowledge, at the BorrowerCompany’s or the other Grantor’s sole cost and expense, such instruments to evidence such termination and release of the Liens. Nothing in this Section 5.01(a) will be deemed to affect any agreement of a Junior Second Priority Representative, for itself and on behalf of the Junior Second Priority Debt Parties under its Junior Second Priority Debt Facility, to release the Liens on the Junior Second Priority Collateral as set forth in the relevant Junior Second Priority Debt Documents.
(b) Each Junior Second Priority Representative, for itself and on behalf of each Junior Second Priority Debt Party under its Junior Second Priority Debt Facility, hereby irrevocably constitutes and appoints the Designated Senior Representative and any officer or agent of the Designated Senior Representative, with full power of substitution, as its true and lawful attorney-in-fact with full irrevocable power and authority in the place and stead of such Junior Second Priority Representative or such Junior Second Priority Debt Party or in the Designated Senior Representative’s own name, from time to time in the Designated Senior Representative’s discretion, for the purpose of carrying out the terms of Section 5.01(a), to take any and all appropriate action and to execute any and all documents and instruments that may be necessary or desirable to accomplish the purposes of Section 5.01(a), including any termination statements, endorsements or other instruments of transfer or release.
(c) Unless and until the Discharge of Senior Obligations has occurred, each Second Priority Representative, for itself and on behalf of each Second Priority Debt Party under its Second Priority Debt Facility, hereby consents to the application, whether prior to or after an event of default under any Senior Debt Document of proceeds of Shared Collateral to the repayment of Senior Obligations pursuant to the Senior Debt Documents, provided that nothing in this Section 5.01(c) shall be construed to prevent or impair the rights of the Second Priority Representatives or the Second Priority Debt Parties to receive proceeds in connection with the Second Priority Debt Obligations not otherwise in contravention of this Agreement.
(d) Notwithstanding anything to the contrary in any Junior Second Priority Collateral Document, in the event the terms of a Senior Collateral Document and a Junior Second Priority Collateral Document each require any Grantor (i) to make payment in respect of any item of Shared CollateralCollateral to, (ii) to deliver or afford control over any item of Shared Collateral to, or deposit any item of Shared Collateral with, (iii) to register ownership of any item of Shared Collateral in the name of or make an assignment of ownership of any Shared Collateral or the rights thereunder to, (iv) cause any securities intermediary, commodity intermediary or other Person acting in a similar capacity to agree to comply, in respect of any item of Shared Collateral, with instructions or orders from, or to treat, in respect of any item of Shared Collateral, as the entitlement holder, (v) hold any item of Shared Collateral in trust for (to the extent such item of Shared Collateral cannot be held in trust for multiple parties under applicable law), (vi) obtain the agreement of a bailee or other third party to hold any item of Shared Collateral for the benefit of or subject to the control of or, in respect of any item of Shared Collateral, to follow the instructions of or (vii) obtain the agreement of a landlord with respect to access to leased premises where any item of Shared Collateral is located or waivers or subordination of rights with respect to any item of Shared Collateral in favor of, in any case, both the Designated Senior Representative and any Junior Second Priority Representative or Junior Second Priority Debt Party, such Grantor may, until the applicable Discharge of Senior Obligations has occurred, comply with such requirement under the applicable Junior Second Priority Collateral Document as it relates to such Shared Collateral by taking any of the actions set forth above only with respect to, or in favor of, the Designated Senior Representative.
Appears in 2 contracts
Samples: Credit Agreement (Quintiles Transnational Holdings Inc.), Credit Agreement (Dunkin' Brands Group, Inc.)
Releases. (a) Each Junior If, at any time any Grantor or any Senior Secured Party delivers notice to each Second Priority Representative, Representative with respect to any specified Shared Collateral (including for itself and on behalf of each Junior Priority Debt Party under its Junior Priority Debt Facility, agrees thatsuch purpose, in the event case of a sale, transfer the sale or other disposition of any specified item of Shared Collateral (including all or substantially all of the equity interests in any Subsidiary, any Shared Collateral held by such Subsidiary or any direct or indirect Subsidiary thereof) that:
(i) such specified Shared Collateral has been or is being sold, transferred or otherwise disposed of any subsidiary in connection with a Disposition by the owner of such Shared Collateral in a transaction permitted under the Senior Debt Documents; or
(ii) the Senior Liens thereon have been or are being released in connection with a Subsidiary that is released from its guarantee under the Senior Debt Documents; or
(iii) the Senior Liens thereon have been or are being otherwise released as permitted by the Senior Debt Documents or by the Senior Collateral Agent on behalf of the BorrowerSenior Secured Parties (unless, in the case of clause (ii) or (iii) of this Section 5.01(a) such release occurs in connection with, and after giving effect to, a Discharge of Senior Obligations, which discharge is not in connection with a foreclosure of, or other than exercise of remedies with respect to, Shared Collateral by the Senior Secured Parties (such discharge not in connection with any such foreclosure or exercise of remedies or a release granted upon sale or following other disposition generating sufficient proceeds to cause the Discharge of Senior Obligations, a “Payment Discharge”)), then the Second Priority Liens granted to the Junior Priority Representatives and the Junior Priority Debt Parties upon such Shared Collateral will automatically be released and discharged as and when, but only to secure Junior Priority Debt Obligations shall terminate and be releasedthe extent, automatically and without any further action, concurrently with the termination and release of all such Liens granted upon on such Shared Collateral to secure securing Senior Obligations; Obligations are released and discharged (provided that, that in the case of a Payment Discharge, the Liens on any such sale, transfer or other disposition of Shared Collateral (other than any sale, transfer or other disposition disposed of in connection with the enforcement satisfaction in whole or exercise in part of Senior Obligations shall be automatically released but any rights proceeds thereof not used for purposes of the Discharge of Senior Obligations or remedies otherwise in accordance with respect to the Shared Collateral), the Liens granted to the Junior Priority Representatives and the Junior Second Priority Debt Parties Documents shall not be so released if such sale, transfer or other disposition is not permitted under the terms of any Junior subject to Second Priority Debt DocumentLiens and shall be applied pursuant to Section 4.01). Upon delivery to the Second Priority Representatives of a Junior Priority Representative of an Officer’s Certificate notice from the Senior Collateral Agent stating that any such termination and release of Liens securing or supporting the Senior Obligations has become effective (or shall become effective concurrently upon the Second Priority Representatives’ release), the Second Priority Representatives will promptly, at the Company’s expense, execute and deliver such instruments, releases, termination statements or other documents confirming such release on customary terms, which instruments, releases and termination statements shall be substantially identical to the comparable instruments, releases and termination statements executed by the Senior Collateral Agent in connection with such termination release (and release of the Liens granted to the Junior Priority Debt Parties and the Junior Priority Representatives) and any necessary or proper instruments of termination or release shall be prepared by the Borrower Senior Collateral Agent). In the case of the sale of capital stock of a Subsidiary or any other Grantor, such Junior Priority Representative will promptly execute, deliver or acknowledge, at transaction resulting in the Borrower’s or the other Grantor’s sole cost and expense, such instruments to evidence such termination and release of such Subsidiary’s guarantee under the Liens. Nothing Senior Debt Documents in this Section 5.01(a) will be deemed to affect any agreement of a Junior Priority Representativeaccordance with the Credit Agreement, for itself and on behalf the guarantee in favor of the Junior Second Priority Debt Parties under its Junior Priority Debt FacilitySecured Parties, if any, made by such Subsidiary will automatically be released and discharged as and when, but only to release the Liens on extent, the Junior Priority Collateral as set forth in the relevant Junior Priority Debt Documentsguarantee by such Subsidiary of Senior Obligations is released and discharged.
(b) Each Junior Second Priority Representative, for itself and on behalf of each Junior Second Priority Debt Secured Party under its Junior Second Priority Debt Facility, hereby irrevocably constitutes and appoints the Designated Senior Representative Collateral Agent and any officer or agent of the Designated Senior RepresentativeCollateral Agent, with full power of substitution, as its true and lawful attorney-in-fact with full irrevocable power and authority in the place and stead of such Junior Second Priority Representative or such Junior Second Priority Debt Secured Party or in the Designated Senior RepresentativeCollateral Agent’s own name, from time to time in the Designated Senior RepresentativeCollateral Agent’s discretion, for the purpose of carrying out the terms of this Section 5.01(a)5.01, to take any and all appropriate action and to execute any and all documents and instruments that may be necessary or desirable to accomplish the purposes of this Section 5.01(a)5.01, including any termination statements, endorsements or other instruments of transfer or releaserelease (which appointment, being coupled with an interest, is irrevocable); provided that such appointment shall terminate automatically, without any action by the Senior Collateral Agent or any Second Priority Secured Party, upon the Discharge of Senior Obligations, and provided, further, that the Senior Collateral Agent shall notify such Second Priority Representative or such Second Priority Secured Party of any action taken by such Senior Collateral Agent as attorney-in-fact for such Second Priority Representative or such Second Priority Secured Party pursuant to this clause (b).
(c) Unless and until the Discharge of Senior Obligations has occurred, each Second Priority Representative, for itself and on behalf of each Second Priority Secured Party under its Second Priority Debt Facility, hereby consents to the application, whether prior to or after an Event of Default under any Senior Debt Document, of Deposit Account Collateral or proceeds of Shared Collateral to the repayment of Senior Obligations pursuant to the Senior Debt Documents; provided that nothing in this Section 5.01(c) shall be construed to prevent or impair the rights of the Second Priority Representatives or the Second Priority Secured Parties to receive proceeds in connection with the Second Priority Debt Obligations not otherwise in contravention of this Agreement.
(d) Notwithstanding anything to the contrary in any Junior Second Priority Collateral Document, in the event the terms of a Senior Collateral Document and a Junior Second Priority Collateral Document each require any Grantor to (i) to make payment in respect of any item of Shared CollateralCollateral to, (ii) to deliver or afford control over any item of Shared Collateral to, or deposit any item of Shared Collateral with, (iii) to register ownership of any item of Shared Collateral in the name of or make an assignment of ownership of any Shared Collateral or the rights thereunder to, (iv) cause any securities intermediary, commodity intermediary or other Person acting in a similar capacity to agree to comply, in respect of any item of Shared Collateral, with instructions or orders from, or to treat, in respect of any item of Shared Collateral, as the entitlement holder, (v) hold any item of Shared Collateral in trust for (to the extent such item of Shared Collateral cannot be held in trust for multiple parties under applicable law), (vi) obtain the agreement of a bailee or other third party to hold any item of Shared Collateral for the benefit of or subject to the control of or, in respect of any item of Shared Collateral, to follow the instructions of of, or (vii) obtain the agreement of a landlord with respect to access to leased premises where any item of Shared Collateral is located or waivers or subordination of rights with respect to any item of Shared Collateral in favor of, in any case, both the Designated Senior Representative Collateral Agent and any Junior Second Priority Representative or Junior Second Priority Debt Secured Party, such Grantor may, until the applicable Discharge of Senior Obligations has occurred, comply with such requirement under the applicable Junior Second Priority Collateral Document as it relates to such Shared Collateral by taking any of the actions set forth above only with respect to, or in favor of, the Designated Senior RepresentativeCollateral Agent.
Appears in 2 contracts
Samples: Amendment No. 2 (Energy Future Intermediate Holding CO LLC), Second Lien Intercreditor Agreement (Energy Future Intermediate Holding CO LLC)
Releases. (a) Each Junior Second Priority Representative, for itself and on behalf of each Junior Second Priority Debt Party under its Junior Second Priority Debt Facility, agrees that, in the event of a sale, transfer or other disposition of any specified item of Shared Collateral (including all or substantially all of the equity interests of any subsidiary of the Borrower) other than a release granted upon or following the Discharge of Senior ObligationsCompany), the Liens granted to the Junior Second Priority Representatives and the Junior Second Priority Debt Parties upon such Shared Collateral to secure Junior Second Priority Debt Obligations shall terminate and be released, automatically and without any further action, concurrently with the termination and release of all Liens granted upon such Shared Collateral to secure Senior Obligations; provided that, in the case of any such sale, transfer or other disposition of Shared Collateral (other than any sale, transfer or other disposition in connection with the enforcement or exercise of any rights or remedies with respect to the Shared Collateral), the Liens granted to the Junior Priority Representatives and the Junior Priority Debt Parties shall not be so released if such sale, transfer or other disposition is not permitted under the terms of any Junior Priority Debt Document. Upon delivery to a Junior Second Priority Representative of an Officer’s Certificate stating that any such termination and release of Liens securing the Senior Obligations has become effective (or shall become effective concurrently with such termination and release of the Liens granted to the Junior Second Priority Debt Parties and the Junior Second Priority Representatives) and any necessary or proper instruments of termination or release prepared by the Borrower Company or any other Grantor, such Junior Second Priority Representative will promptly execute, deliver or acknowledge, at the BorrowerCompany’s or the other Grantor’s sole cost and expense, such instruments to evidence such termination and release of the Liens. Nothing in this Section 5.01(a) will be deemed to affect any agreement of a Junior Second Priority Representative, for itself and on behalf of the Junior Second Priority Debt Parties under its Junior Second Priority Debt Facility, to release the Liens on the Junior Second Priority Collateral as set forth in the relevant Junior Second Priority Debt Documents.
(b) Each Junior Second Priority Representative, for itself and on behalf of each Junior Second Priority Debt Party under its Junior Second Priority Debt Facility, hereby irrevocably constitutes and appoints the Designated Senior Representative and any officer or agent of the Designated Senior Representative, with full power of substitution, as its true and lawful attorney-in-fact with full irrevocable power and authority in the place and stead of such Junior Second Priority Representative or such Junior Second Priority Debt Party or in the Designated Senior Representative’s own name, from time to time in the Designated Senior Representative’s discretion, for the purpose of carrying out the terms of Section 5.01(a), to take any and all appropriate action and to execute any and all documents and instruments that may be necessary or desirable to accomplish the purposes of Section 5.01(a), including any termination statements, endorsements or other instruments of transfer or release.
(c) Unless and until the Discharge of Senior Obligations has occurred, each Second Priority Representative, for itself and on behalf of each Second Priority Debt Party under its Second Priority Debt Facility, hereby consents to the application, whether prior to or after an event of default under any Senior Debt Document of proceeds of Shared Collateral to the repayment of Senior Obligations pursuant to the Senior Debt Documents, provided that nothing in this Section 5.01(c) shall be construed to prevent or impair the rights of the Second Priority Representatives or the Second Priority Debt Parties to receive proceeds in connection with the Second Priority Debt Obligations not otherwise in contravention of this Agreement.
(d) Notwithstanding anything to the contrary in any Junior Second Priority Collateral Document, in the event the terms of a Senior Collateral Document and a Junior Second Priority Collateral Document each require any Grantor (i) to make payment in respect of any item of Shared CollateralCollateral to, (ii) to deliver or afford control over any item of Shared Collateral to, or deposit any item of Shared Collateral with, (iii) to register ownership of any item of Shared Collateral in the name of or make an assignment of ownership of any Shared Collateral or the rights thereunder to, (iv) cause any securities intermediary, commodity intermediary or other Person acting in a similar capacity to agree to comply, in respect of any item of Shared Collateral, with instructions or orders from, or to treat, in respect of any item of Shared Collateral, as the entitlement holder, (v) hold any item of Shared Collateral in trust for (to the extent such item of Shared Collateral cannot be held in trust for multiple parties under applicable law), (vi) obtain the agreement of a bailee or other third party to hold any item of Shared Collateral for the benefit of or subject to the control of or, in respect of any item of Shared Collateral, to follow the instructions of or (vii) obtain the agreement of a landlord with respect to access to leased premises where any item of Shared Collateral is located or waivers or subordination of rights with respect to any item of Shared Collateral in favor of, in any case, both the Designated Senior Representative and any Junior Second Priority Representative or Junior Second Priority Debt Party, such Grantor may, until the applicable Discharge of Senior Obligations has occurred, comply with such requirement under the applicable Junior Second Priority Collateral Document as it relates to such Shared Collateral by taking any of the actions set forth above only with respect to, or in favor of, the Designated Senior Representative.
Appears in 2 contracts
Samples: Restatement Agreement (Virtu Financial, Inc.), Credit Agreement (Endurance International Group Holdings, Inc.)
Releases. (a) Each Junior Second Priority Representative, for itself and on behalf of each Junior Second Priority Debt Party under its Junior Second Priority Debt Facility, agrees that, in the event of a sale, transfer or other disposition of any specified item of Shared Collateral (including all or substantially all of the equity interests of any subsidiary of the Borrower) other than a release granted upon or following the Discharge of Senior ObligationsCompany), the Liens granted to the Junior Second Priority Representatives and the Junior Second Priority Debt Parties upon such Shared Collateral to secure Junior Second Priority Debt Obligations shall terminate and be released, automatically and without any further action, concurrently with the termination and release of all Liens granted upon such Shared Collateral to secure Senior Obligations; provided that, in the case of any such sale, transfer or other disposition of Shared Collateral (other than any sale, transfer or other disposition in connection with the enforcement or exercise of any rights or remedies with respect to the Shared Collateral), the Liens granted to the Junior Priority Representatives and the Junior Priority Debt Parties shall not be so released if such sale, transfer or other disposition is not permitted under the terms of any Junior Priority Debt Document. Upon delivery to a Junior Second Priority Representative of an Officer’s Certificate stating that any such termination and release of Liens securing the Senior Obligations has become effective (or shall become effective concurrently with such termination and release of the Liens granted to the Junior Second Priority Debt Parties and the Junior Second Priority Representatives) and any necessary or proper instruments of termination or release prepared by the Borrower Company or any other Grantor, such Junior Second Priority Representative will promptly execute, deliver or acknowledge, at the BorrowerCompany’s or the other Grantor’s sole cost and expense, such instruments to evidence such termination and release of the Liens. Nothing in this Section 5.01(a) will be deemed to affect any agreement of a Junior Second Priority Representative, for itself and on behalf of the Junior Second Priority Debt Parties under its Junior Second Priority Debt Facility, to release the Liens on the Junior Second Priority Collateral as set forth in the relevant Junior Second Priority Debt Documents.
(b) Each Junior Second Priority Representative, for itself and on behalf of each Junior Second Priority Debt Party under its Junior Second Priority Debt Facility, hereby irrevocably constitutes and appoints the Designated Senior Representative and any officer or agent of the Designated Senior Representative, with full power of substitution, as its true and lawful attorney-in-fact with full irrevocable power and authority in the place and stead of such Junior Second Priority Representative or such Junior Second Priority Debt Party or in the Designated Senior Representative’s own name, from time to time in the Designated Senior Representative’s discretion, for the purpose of carrying out the terms of Section 5.01(a), to take any and all appropriate action and to execute any and all documents and instruments that may be necessary or desirable to accomplish the purposes of Section 5.01(a), including any termination statements, endorsements or other instruments of transfer or release.
(c) Unless and until the Discharge of Senior Obligations has occurred, each Second Priority Representative, for itself and on behalf of each Second Priority Debt Party under its Second Priority Debt Facility, hereby consents to the application, whether prior to or after an event of default under any Senior Debt Document of proceeds of Shared Collateral to the repayment of Senior Obligations pursuant to the Senior Debt Documents, provided that nothing in this Section 5.01(c) shall be construed to prevent or impair the rights of the Second Priority Representatives or the Second Priority Debt Parties to receive proceeds in connection with the Second Priority Debt Obligations not otherwise in contravention of this Agreement.
(d) Notwithstanding anything to the contrary in any Junior Second Priority Collateral Document, in the event the terms of a Senior Collateral Document and a Junior Second Priority Collateral Document each require any Grantor (i) to make payment in respect of any item of Shared Collateral, (ii) to deliver or afford control over any item of Shared Collateral to, or deposit any item of Shared Collateral with, (iii) to register ownership of any item of Shared Collateral in the name of or make an assignment of ownership of any Shared Collateral or the rights thereunder to, (iv) cause any securities intermediary, commodity intermediary or other Person acting in a similar capacity to agree to comply, in respect of any item of Shared Collateral, with instructions or orders from, or to treat, in respect of any item of Shared Collateral, as the entitlement holder, (v) hold any item of Shared Collateral in trust for (to the extent such item of Shared Collateral cannot be held in trust for multiple parties under applicable law), (vi) obtain the agreement of a bailee or other third party to hold any item of Shared Collateral for the benefit of or subject to the control of or, in respect of any item of Shared Collateral, to follow the instructions of or (vii) obtain the agreement of a landlord with respect to access to leased premises where any item of Shared Collateral is located or waivers or subordination of rights with respect to any item of Shared Collateral in favor of, in any case, both the Designated Senior Representative and any Junior Second Priority Representative or Junior Second Priority Debt Party, such Grantor may, until the applicable Discharge of Senior Obligations has occurred, comply with such requirement under the applicable Junior Second Priority Collateral Document as it relates to such Shared Collateral by taking any of the actions set forth above only with respect to, or in favor of, the Designated Senior Representative.
Appears in 2 contracts
Samples: Amendment Agreement (MPBP Holdings, Inc.), Credit Agreement (TMS International Corp.)
Releases. (a) Each Junior Second Priority Representative, for itself and on behalf of each Junior Second Priority Debt Party under its Junior Second Priority Debt Facility, agrees that, in the event of a sale, transfer or other disposition of any specified item of Shared Collateral (including all or substantially all of the equity interests of any subsidiary of the Borrower) other than a release granted upon or following the Discharge of Senior ObligationsCollateral, the Liens granted to the Junior Second Priority Representatives and the Junior Second Priority Debt Parties upon such Shared Collateral to secure Junior Second Priority Debt Obligations shall terminate and be released, automatically and without any further action, concurrently with the termination and release of all Liens granted upon such Shared Collateral to secure Senior Obligations; provided that, in the case of any such sale, transfer or other disposition of Shared Collateral (other than any sale, transfer or other disposition in connection with the enforcement or exercise of any rights or remedies with respect to the Shared Collateral), the Liens granted to the Junior Priority Representatives and the Junior Priority Debt Parties shall not be so released if such sale, transfer or other disposition is not permitted under the terms of any Junior Priority Debt Document. Upon delivery to a Junior Second Priority Representative of an Officer’s Certificate stating that any such termination and release of Liens securing the Senior Obligations has become effective (or shall become effective concurrently with such termination and release of the Liens granted to the Junior Second Priority Debt Parties and the Junior Second Priority Representatives) and any necessary or proper instruments of termination or release prepared by Holdings, the Borrower or any other Grantor, such Junior Second Priority Representative will promptly execute, deliver or acknowledge, at Holdings’, the Borrower’s or the other Grantor’s sole cost and expense, such instruments to evidence such termination and release of the Liens. Nothing in this Section 5.01(a) will be deemed to affect any agreement of a Junior Second Priority Representative, for itself and on behalf of the Junior Second Priority Debt Parties under its Junior Second Priority Debt Facility, to release the Liens on the Junior Second Priority Collateral as set forth in the relevant Junior Second Priority Debt Documents.
(b) Each Junior Second Priority Representative, for itself and on behalf of each Junior Second Priority Debt Party under its Junior Second Priority Debt Facility, hereby irrevocably constitutes and appoints the Designated Senior Representative Collateral Agent and any officer or agent of the Designated Senior RepresentativeCollateral Agent, with full power of substitution, as its true and lawful attorney-in-fact with full irrevocable power and authority in the place and stead of such Junior Second Priority Representative or such Junior Second Priority Debt Party or in the Designated Senior RepresentativeCollateral Agent’s own name, from time to time in the Designated Senior RepresentativeCollateral Agent’s discretion, for the purpose of carrying out the terms of Section 5.01(a), to take any and all appropriate action and to execute any and all documents and instruments that may be necessary or desirable to accomplish the purposes of Section 5.01(a), including any termination statements, endorsements or other instruments of transfer or release.
(c) Unless and until the Discharge of Senior Obligations has occurred, each Second Priority Representative, for itself and on behalf of each Second Priority Debt Party under its Second Priority Debt Facility, hereby consents to the application, whether prior to or after an event of default under any Senior Debt Document of proceeds of Shared Collateral to the repayment of Senior Obligations pursuant to the Senior Debt Documents, provided that nothing in this Section 5.01(c) shall be construed to prevent or impair the rights of the Second Priority Representatives or the Second Priority Debt Parties to receive proceeds in connection with the Second Priority Debt Obligations not otherwise in contravention of this Agreement.
(d) Notwithstanding anything to the contrary in any Junior Second Priority Collateral Document, in the event the terms of a Senior Collateral Document and a Junior Second Priority Collateral Document each require any Grantor to (i) to make payment in respect of any item of Shared Collateral, (ii) to deliver or afford control over any item of Shared Collateral to, or deposit any item of Shared Collateral with, (iii) to register ownership of any item of Shared Collateral in the name of or make an assignment of ownership of any Shared Collateral or the rights thereunder to, (iv) cause any securities intermediary, commodity intermediary or other Person acting in a similar capacity to agree to comply, in respect of any item of Shared Collateral, with instructions or orders from, or to treat, in respect of any item of Shared Collateral, as the entitlement holder, (v) hold any item of Shared Collateral in trust for (to the extent such item of Shared Collateral cannot be held in trust for multiple parties under applicable law), (vi) obtain the agreement of a bailee or other third party to hold any item of Shared Collateral for the benefit of or subject to the control of or, in respect of any item of Shared Collateral, to follow the instructions of or (vii) obtain the agreement of a landlord with respect to access to leased premises where any item of Shared Collateral is located or waivers or subordination of rights with respect to any item of Shared Collateral in favor of, in any case, both the Designated Senior Representative Collateral Agent and any Junior Second Priority Representative or Junior Second Priority Debt Party, such Grantor may, until the applicable Discharge of Senior Obligations has occurred, comply with such requirement under the applicable Junior Second Priority Collateral Document as it relates to such Shared Collateral by taking any of the actions set forth above only with respect to, or in favor of, the Designated Senior RepresentativeCollateral Agent.
Appears in 2 contracts
Samples: Second Lien Credit Agreement (Trinet Group Inc), First Lien Credit Agreement (Trinet Group Inc)
Releases. (a) Each Junior Priority Representative, for itself and on behalf of each Junior Priority Debt Secured Party under its Junior Priority Debt Facility, agrees that, in the event of a sale, transfer or other disposition of any specified item of Shared Collateral (including all or substantially all of the equity interests of any subsidiary of Holdings) (i) in connection with the Borrowerexercise of remedies in respect of Shared Collateral by a Senior Representative or (ii) if not in connection with the exercise of remedies in respect of Shared Collateral by a Senior Representative, so long as such sale, transfer or other than a release granted upon or following disposition is permitted by the Discharge terms of the Junior Debt Documents and the Senior ObligationsDebt Documents, the Liens granted to the Junior Priority Representatives and the Junior Priority Debt Secured Parties upon such Shared Collateral (but such Liens shall not be deemed to be so released on the Proceeds thereof that were not applied to the payment of Senior Obligations) to secure Junior Priority Debt Obligations shall terminate and be released, automatically and without any further action, concurrently with or to the same extent as the termination and release of all Liens granted upon such Shared Collateral to secure Senior Obligations; provided that, in the case of any such sale, transfer or other disposition of Shared Collateral (other than any sale, transfer or other disposition in connection with the enforcement or exercise of any rights or remedies with respect to the Shared Collateral), the Liens granted to the Junior Priority Representatives and the Junior Priority Debt Parties shall not be so released if such sale, transfer or other disposition is not permitted under the terms of any Junior Priority Debt Document. Upon delivery to a Junior Priority Representative of an Officer’s Certificate stating that any such termination and release of Liens securing the Senior Obligations has become effective (or shall become effective concurrently with such termination and release of the Liens granted to the Junior Priority Debt Secured Parties and the Junior Priority Representatives) and any necessary or proper instruments of termination or release prepared by the Borrower Company or any other Centertainment Group Grantor, such Junior Priority Representative will promptly execute, deliver or acknowledge, at the BorrowerCompany’s or the other Centertainment Group Grantor’s sole cost and expense, such instruments to evidence such termination and release of the Liens. Nothing in this Section 5.01(a) will be deemed to affect any agreement of a Junior Priority Representative, for itself and on behalf of the Junior Priority Debt Secured Parties under its Junior Priority Debt Facility, to release the Liens on the Junior Priority Collateral as set forth in the relevant Junior Priority Debt Documents.
(b) Each Junior Priority Representative, for itself and on behalf of each Junior Priority Debt Secured Party under its Junior Priority Debt Facility, hereby irrevocably constitutes and appoints the Designated each Senior Representative and any officer or agent of the Designated each Senior Representative, with full power of substitution, as its true and lawful attorney-in-fact with full irrevocable power and authority in the place and stead of such Junior Priority Representative or such Junior Priority Debt Secured Party or in the Designated such Senior Representative’s own name, from time to time in the Designated such Senior Representative’s discretion, for the purpose of carrying out the terms of Section 5.01(a), to take any and all appropriate action and to execute any and all documents and instruments that may be necessary or desirable to accomplish the purposes of Section 5.01(a), including any termination statements, endorsements or other instruments of transfer or release.
(c) Unless and until the Discharge of Senior Obligations has occurred, each Junior Representative, for itself and on behalf of each Junior Secured Party under its Junior Debt Facility, hereby consents to the application, whether prior to or after an event of default under any Senior Debt Document, of proceeds of Shared Collateral to the repayment of Senior Obligations pursuant to the Senior Debt Documents; provided that nothing in this Section 5.01(c) shall be construed to prevent or impair the rights of the Junior Representatives or the Junior Secured Parties to receive proceeds in connection with the Junior Obligations not otherwise in contravention of this Agreement.
(d) Notwithstanding anything to the contrary in any Junior Priority Collateral Document, in the event the terms of a Senior Collateral Document and a Junior Priority Collateral Document each require any Centertainment Group Grantor to (i) to make payment in respect of any item of Shared Collateral, (ii) to deliver or afford control over any item of Shared Collateral to, or deposit any item of Shared Collateral with, (iii) to register ownership of any item of Shared Collateral in the name of or make an assignment of ownership of any Shared Collateral or the rights thereunder to, (iv) cause any securities intermediary, commodity intermediary or other Person acting in a similar capacity to agree to comply, in respect of any item of Shared Collateral, with instructions or orders from, or to treat, in respect of any item of Shared Collateral, as the entitlement holder, (v) hold any item of Shared Collateral in trust for (to the extent such item of Shared Collateral cannot be held in trust for multiple parties under applicable law), (vi) obtain the agreement of a bailee or other third party to hold any item of Shared Collateral for the benefit of or subject to the control of or, in respect of any item of Shared Collateral, to follow the instructions of or (vii) obtain the agreement of a landlord with respect to access to leased premises where any item of Shared Collateral is located or waivers or subordination of rights with respect to any item of Shared Collateral in favor of, in any case, both the any Designated Senior Representative and any Junior Priority Representative or Junior Priority Debt Secured Party, such Grantor may, until the applicable Discharge of Senior Obligations has occurred, comply with such requirement under the applicable Junior Priority Collateral Document as it relates to such Shared Collateral by taking any of the actions set forth above only with respect to, or in favor of, the Designated Senior Representative.
Appears in 2 contracts
Samples: First Lien/Second Lien Intercreditor Agreement (Amc Entertainment Holdings, Inc.), Indenture (Amc Entertainment Holdings, Inc.)
Releases. (a) Each Junior Priority RepresentativeCollateral Agent, for itself and on behalf of each Junior Priority Debt Senior Secured Party under with respect to its Junior Priority Debt FacilitySeries of Senior Obligations, agrees that, in the event of a sale, transfer or other disposition of any specified item of Shared Collateral (including all or substantially all of the equity interests of any subsidiary of the Borrower) other than a release granted upon or following the Discharge of Senior Obligationsa Discharge, the Liens granted to the Junior Priority Representatives Collateral Agents and the Junior Priority Debt Senior Secured Parties upon such Shared Collateral to secure Junior Priority Debt each Series of Senior Obligations shall terminate and be released, automatically and without any further action, concurrently with the termination and release of all Liens granted upon such Shared Collateral to secure the Controlling Senior Obligations; provided that, in the case of any such sale, transfer or other disposition of Shared Collateral (other than any sale, transfer or other disposition in connection with the enforcement or exercise of any rights or remedies with respect to the Shared CollateralCollateral in accordance with this Agreement), the Liens granted to secure the Junior Priority Representatives and the Junior Priority Debt Parties Senior Obligations of any Series shall not be so released if such sale, transfer or other disposition is not permitted under the terms of any Junior Priority Debt Documentextant Senior Credit Document relating thereto having restrictions on such sale, transfer or other disposition not more restrictive than those set forth in the Initial Credit Agreement). Upon delivery to a Junior Priority Representative Collateral Agent of a certificate of an Officer’s Certificate authorized officer of the applicable Grantor (which each Grantor hereby agrees to deliver) stating that any such termination and release of Liens securing the Controlling Senior Obligations has become effective (or shall become effective concurrently with such termination and release of the Liens granted to the Junior Priority Debt Parties and the Junior Priority Representativessecuring each other Series of Senior Obligations) and any necessary or proper instruments of termination or release prepared by the Borrower or any other Grantor, each such Junior Priority Representative Collateral Agent will promptly execute, deliver or acknowledge, at the Borrower’s or the other Grantor’s sole cost and expense, such instruments to evidence such termination and release of the Liens. Nothing in this Section 5.01(a2.04(a) will be deemed to affect any agreement of a Junior Priority RepresentativeCollateral Agent, for itself and on behalf of the Junior Priority Debt Senior Secured Parties under its Junior Priority Debt FacilitySeries of Senior Obligations, to release the Liens on the Junior Priority Collateral any collateral as set forth in the relevant Junior Priority Debt Senior Credit Documents.
(b) Each Junior Priority Representative, for itself and on behalf of each Junior Priority Debt Party under its Junior Priority Debt Facility, hereby irrevocably constitutes and appoints the Designated Senior Representative and any officer or agent of the Designated Senior Representative, with full power of substitution, as its true and lawful attorney-in-fact with full irrevocable power and authority in the place and stead of such Junior Priority Representative or such Junior Priority Debt Party or in the Designated Senior Representative’s own name, from time to time in the Designated Senior Representative’s discretion, for the purpose of carrying out the terms of Section 5.01(a), to take any and all appropriate action and to execute any and all documents and instruments that may be necessary or desirable to accomplish the purposes of Section 5.01(a), including any termination statements, endorsements or other instruments of transfer or release.
(c) Notwithstanding anything to the contrary in any Junior Priority Collateral Document, in the event the terms of a Senior Collateral Document and a Junior Priority Collateral Document each require any Grantor (i) to make payment in respect of any item of Shared Collateral, (ii) to deliver or afford control over any item of Shared Collateral to, or deposit any item of Shared Collateral with, (iii) to register ownership of any item of Shared Collateral in the name of or make an assignment of ownership of any Shared Collateral or the rights thereunder to, (iv) cause any securities intermediary, commodity intermediary or other Person acting in a similar capacity to agree to comply, in respect of any item of Shared Collateral, with instructions or orders from, or to treat, in respect of any item of Shared Collateral, as the entitlement holder, (v) hold any item of Shared Collateral in trust for (to the extent such item of Shared Collateral cannot be held in trust for multiple parties under applicable law), (vi) obtain the agreement of a bailee or other third party to hold any item of Shared Collateral for the benefit of or subject to the control of or, in respect of any item of Shared Collateral, to follow the instructions of or (vii) obtain the agreement of a landlord with respect to access to leased premises where any item of Shared Collateral is located or waivers or subordination of rights with respect to any item of Shared Collateral in favor of, in any case, both the Designated Senior Representative and any Junior Priority Representative or Junior Priority Debt Party, such Grantor may, until the applicable Discharge of Senior Obligations has occurred, comply with such requirement under the applicable Junior Priority Collateral Document as it relates to such Shared Collateral by taking any of the actions set forth above only with respect to, or in favor of, the Designated Senior Representative.
Appears in 2 contracts
Samples: Credit Agreement (Vine Resources Inc.), Credit Agreement (Vine Resources Inc.)
Releases. (a) If in connection with any Collateral Enforcement Action by any Senior Lien Representative or any Senior Lien Collateral Agent or any other exercise of any Senior Lien Representative’s or any Senior Lien Collateral Agent’s remedies in respect of the Collateral, in each case prior to the Discharge of Senior Lien Obligations, such Senior Lien Collateral Agent, for itself or on behalf of any of the Senior Lien Claimholders represented by it, releases any of its Liens on any part of the Collateral, then the Liens, if any, of each Junior Lien Collateral Agent, for itself or for the benefit of the Junior Lien Claimholders, on such Collateral, shall be automatically, unconditionally and simultaneously released. Each Junior Priority Lien Representative and each Junior Lien Collateral Agent, for itself or on behalf of any Junior Lien Claimholder represented by it, shall, within a reasonable time following such request, execute and deliver to the Senior Lien Representatives, Senior Lien Collateral Agents or the Company, such termination statements, releases and other documents as any Senior Lien Representative, Senior Lien Collateral Agent or the Company may request in writing to effectively confirm the foregoing releases, provided that the Junior Lien Representative and Junior Lien Collateral Agent shall not be required to take any action if such actions would violate applicable law or court order.
(b) If in connection with any sale, lease, exchange, transfer or other disposition of any Collateral by the Company (collectively, a “Disposition”) permitted under the terms of the Senior Lien Documents and not expressly prohibited under the terms of the Junior Lien Documents (other than in connection with a Collateral Enforcement Action or other exercise of any one or more Senior Lien Representative’s and Senior Lien Collateral Agent’s remedies in respect of the Collateral, which shall be governed by Section 5.3(a) above above), any Senior Lien Collateral Agent, for itself or on behalf of any Senior Lien Claimholder represented by it, releases any of its Liens on any part of the Collateral, other than (A) in connection with, or following, the Discharge of Senior Lien Obligations or (B) after the occurrence and during the continuance of any Event of Default under (and as defined in) any Junior Lien Documents, then the Liens, if any, of each Junior Lien Collateral Agent, for itself or for the benefit of the Junior Lien Claimholders represented by it, on such Collateral shall be automatically, unconditionally and simultaneously released. Each Junior Lien Representative and each Junior Lien Collateral Agent, for itself and on behalf of each other Junior Priority Debt Party under its Lien Claimholder represented by it, shall, promptly execute and deliver to the Senior Lien Representatives, the Senior Lien Collateral Agents or the Company such termination statements, releases and other documents as any Senior Lien Representative, Senior Lien Collateral Agent or the Company may request to effectively confirm such release, provided that the Junior Priority Debt Facility, agrees that, in the event of a sale, transfer Lien Representative and Junior Lien Collateral Agent shall not be required to take any action if such actions would violate applicable law or other disposition of any specified item of Shared Collateral court order.
(including all or substantially all of the equity interests of any subsidiary of the Borrowerc) other than a release granted upon or following Until the Discharge of Senior ObligationsLien Obligations occurs, the Liens granted to the each Junior Priority Representatives Lien Representative and the each Junior Priority Debt Parties upon such Shared Lien Collateral to secure Junior Priority Debt Obligations shall terminate and be released, automatically and without any further action, concurrently with the termination and release of all Liens granted upon such Shared Collateral to secure Senior Obligations; provided that, in the case of any such sale, transfer or other disposition of Shared Collateral (other than any sale, transfer or other disposition in connection with the enforcement or exercise of any rights or remedies with respect to the Shared Collateral), the Liens granted to the Junior Priority Representatives and the Junior Priority Debt Parties shall not be so released if such sale, transfer or other disposition is not permitted under the terms of any Junior Priority Debt Document. Upon delivery to a Junior Priority Representative of an Officer’s Certificate stating that any such termination and release of Liens securing the Senior Obligations has become effective (or shall become effective concurrently with such termination and release of the Liens granted to the Junior Priority Debt Parties and the Junior Priority Representatives) and any necessary or proper instruments of termination or release prepared by the Borrower or any other Grantor, such Junior Priority Representative will promptly execute, deliver or acknowledge, at the Borrower’s or the other Grantor’s sole cost and expense, such instruments to evidence such termination and release of the Liens. Nothing in this Section 5.01(a) will be deemed to affect any agreement of a Junior Priority Representative, for itself and on behalf of the Junior Priority Debt Parties under its Junior Priority Debt Facility, to release the Liens on the Junior Priority Collateral as set forth in the relevant Junior Priority Debt Documents.
(b) Each Junior Priority RepresentativeAgent, for itself and on behalf of each other Junior Priority Debt Party under its Junior Priority Debt FacilityLien Claimholder represented by it, hereby irrevocably constitutes and appoints the Designated Senior Representative Lien Collateral Agent and any officer or agent of the Designated Senior RepresentativeLien Collateral Agent, with full power of substitution, as its true and lawful attorney-in-fact with full irrevocable power and authority in the place and stead of such Junior Priority Representative or Lien Representative, such Junior Priority Debt Party Lien Collateral Agent and such Junior Lien Claimholders or in the Designated Senior RepresentativeLien Collateral Agent’s own name, from time to time in the Designated Senior RepresentativeLien Collateral Agent’s discretion, for the purpose of carrying out the terms of this Section 5.01(a)5.3, to take any and all appropriate action and to execute any and all documents and instruments that which may be necessary or desirable to accomplish the purposes of this Section 5.01(a)5.3, including any termination statements, endorsements or other instruments of transfer or release. This power is coupled with an interest and is irrevocable until the Discharge of Senior Lien Obligations.
(cd) Notwithstanding anything Until the Discharge of Senior Lien Obligations occurs, to the contrary in extent that any Junior Priority Senior Lien Collateral DocumentAgent, in the event the terms of a any Senior Collateral Document and a Junior Priority Collateral Document each require any Grantor Lien Representative or Senior Lien Claimholders (i) to make payment in respect of has released any item of Shared Collateral, Lien on Collateral and any such Liens are later reinstated or (ii) to deliver or afford control over obtains any item of Shared new Liens from the Company, then each Junior Lien Collateral toAgent, or deposit for itself and for the Junior Lien Claimholders represented by it, shall be granted a Lien on any item of Shared such Collateral with, (iii) to register ownership of any item of Shared Collateral in the name of or make an assignment of ownership of any Shared Collateral or the rights thereunder to, (iv) cause any securities intermediary, commodity intermediary or other Person acting in a similar capacity to agree to comply, in respect of any item of Shared Collateral, with instructions or orders from, or to treat, in respect of any item of Shared Collateral, as the entitlement holder, (v) hold any item of Shared Collateral in trust for (except to the extent such item of Shared Lien represents a Junior Lien Declined Lien with respect to the Junior Lien Debt represented by such Junior Lien Collateral cannot be held in trust for multiple parties under applicable lawAgent), (vi) obtain the agreement of a bailee or other third party to hold any item of Shared Collateral for the benefit of or subject to the control lien subordination provisions of orthis Agreement, in respect of any item of Shared Collateraland each Junior Lien Representative, to follow for itself and for the instructions of or (vii) obtain the agreement of a landlord with respect to access to leased premises where any item of Shared Collateral is located or waivers or subordination of rights with respect to any item of Shared Collateral in favor ofJunior Lien Claimholders represented by it, in any case, both the Designated Senior Representative and any Junior Priority Representative or Junior Priority Debt Party, such Grantor may, until the applicable Discharge of Senior Obligations has occurred, comply with such requirement under the applicable Junior Priority Collateral Document as it relates to such Shared Collateral by taking any of the actions set forth above only with respect to, or in favor of, the Designated Senior Representativeshall be granted an additional lien.
Appears in 2 contracts
Samples: Supplemental Indenture (Centrus Energy Corp), Indenture Agreement (Centrus Energy Corp)
Releases. (a) Each Junior Priority Representative, for itself and on behalf of each Junior Priority Debt Party under its Junior Priority Debt Facility, agrees that, in the event of a sale, transfer or other disposition of any specified item of Shared Collateral (including all or substantially all of the equity interests of any subsidiary Subsidiary of the a Borrower) by, or with the consent of, the Designated Senior Representative or otherwise permitted under the Senior Debt Documents, other than a release granted upon or following the Discharge of Senior Obligations, the Liens granted to the Junior Priority Representatives and the Junior Priority Debt Parties upon such Shared Collateral to secure Junior Priority Debt Obligations shall (whether or not any Insolvency or Liquidation Proceeding is pending at such time) terminate and be released, immediately and automatically and without any further action, concurrently with the termination and release of all Liens granted upon such Shared Collateral to secure Senior Obligations; provided that, in the case of any such sale, transfer or other disposition of Shared Collateral (other than any sale, transfer or other disposition in connection with the enforcement or exercise of any rights or remedies with respect to the Shared Collateral), the Liens granted to the Junior Priority Representatives and the Junior Priority Debt Parties shall not be so released if such sale, transfer or other disposition is not permitted under the terms of any Junior Priority Debt Document. Upon delivery to a Junior Priority Representative of an Officer’s Certificate stating that any such termination and release of Liens securing the Senior Obligations has become effective (or shall become effective concurrently with such termination and release of the Liens granted to the Junior Priority Debt Parties and the Junior Priority Representatives) and any necessary or proper instruments of termination or release prepared by the a Borrower or any other Grantor, such Junior Priority Representative will promptly execute, deliver or acknowledge, at the such Borrower’s or the other Grantor’s sole cost and expense, such instruments to evidence such termination and release of the Liens. Nothing in this Section 5.01(a) will be deemed to affect any agreement of a Junior Priority Representative, for itself and on behalf of the Junior Priority Debt Parties under its Junior Priority Debt Facility, to release the Liens on the Junior Priority Collateral as set forth in the relevant Junior Priority Debt Documents.
(b) Each Junior Priority Representative, for itself and on behalf of each Junior Priority Debt Party under its Junior Priority Debt Facility, hereby irrevocably constitutes and appoints the Designated Senior Representative and any officer or agent of the Designated Senior Representative, with full power of substitution, as its true and lawful attorney-in-fact with full irrevocable power and authority in the place and stead of such Junior Priority Representative or such Junior Priority Debt Party or in the Designated Senior Representative’s own name, from time to time in the Designated Senior Representative’s discretion, for the purpose of carrying out the terms of Section 5.01(a), to take any and all appropriate action and to execute any and all documents and instruments that may be necessary or desirable to accomplish the purposes of Section 5.01(a), including any termination statements, endorsements or other instruments of transfer or release. The Designated Senior Representative hereby agrees to take action reasonably requested by the Grantors to carry out the terms of this Section 5.01(b) or to accomplish the purposes of Section 5.01(a).
(c) Unless and until the Discharge of Senior Obligations has occurred, each Junior Priority Representative, for itself and on behalf of each Junior Priority Debt Party under its Junior Priority Debt Facility, hereby consents to the application, whether prior to or after an event of default under any Senior Debt Document of proceeds of Shared Collateral to the repayment of Senior Obligations pursuant to the Senior Debt Documents, provided that nothing in this Section 5.01(c) shall be construed to prevent or impair the rights of the Junior Priority Representatives or the Junior Priority Debt Parties to receive proceeds in connection with the Junior Priority Debt Obligations not otherwise in contravention of this Agreement.
(d) Notwithstanding anything to the contrary in any Junior Priority Collateral Document, in the event the terms of a Senior Collateral Document and a Junior Priority Collateral Document each require any Grantor (i) to make payment any payments in respect of any item of Shared Collateral, (ii) to deliver or afford control over any item of Shared Collateral to, or deposit any item of Shared Collateral with, (iii) to register ownership of any item of Shared Collateral in the name of or make an assignment of ownership of any Shared Collateral or the rights thereunder to, (iv) cause any securities intermediary, commodity intermediary or other Person acting in a similar capacity to agree to comply, in respect of any item of Shared Collateral, with instructions or orders from, or to treat, in respect of any item of Shared Collateral, as the entitlement holder, (v) hold any item of Shared Collateral in trust for (to the extent such item of Shared Collateral cannot be held in trust for multiple parties under applicable law), (vi) obtain the agreement of a bailee or other third party to hold any item of Shared Collateral for the benefit of or subject to the control of or, in respect of any item of Shared Collateral, to follow the instructions of or (vii) obtain the agreement of a landlord with respect to access to leased premises where any item of Shared Collateral is located or waivers or subordination of rights with respect to any item of Shared Collateral in favor of, in any case, both the Designated Senior Representative and any Junior Priority Representative or Junior Priority Debt Party, such Grantor may, until the applicable Discharge of Senior Obligations has occurred, comply with such requirement under the applicable Junior Priority Collateral Document as it relates to such Shared Collateral by taking any of the actions set forth above only with respect to, or in favor of, the Designated Senior Representative; provided, notwithstanding anything to the contrary, any action or compliance with respect to the foregoing by any Grantor shall not cause a default or event of default to exist under any Senior Debt Document or any Junior Priority Debt Document.
Appears in 2 contracts
Samples: Second Lien Credit Agreement (Transfirst Holdings Corp.), First Lien Credit Agreement (Transfirst Holdings Corp.)
Releases. (a) Each Junior Second Priority Representative, for itself and on behalf of each Junior Second Priority Debt Party under its Junior Second Priority Debt Facility, agrees that: (1) if in connection with any exercise of any Senior Representative’s rights or remedies in respect of the Shared Collateral, in each case prior to the Discharge of Senior Debt Obligations, such Senior Representative, for itself or on behalf of any of the Senior Secured Parties, releases any of its Liens on any part of the Shared Collateral or such Senior Representative, for itself or on behalf of any of the Senior Secured Parties releases any Grantor from its obligations under its guaranty of the Senior Debt Obligations, then the Liens, if any, of each Second Priority Representative, for itself or for the benefit of the Second Priority Debt Parties, on such Shared Collateral, and the obligations of such Grantor under its guaranty of the Second Priority Debt Obligations, shall be automatically, unconditionally and simultaneously released to the same extent as the Liens and/or guarantees, as applicable, of such Senior Representative, (2) if in connection with any exercise of any Senior Representative’s remedies, in each case prior to the Discharge of Senior Debt Obligations, the equity interests of any Person are foreclosed upon or otherwise disposed of and such Senior Representative releases its Lien on the property or assets of such Person, then the Liens of each Second Priority Representative with respect to the property or assets of such Person will be automatically released to the same extent as the Liens of such Senior Representative and (3) in the event of a sale, transfer or other disposition of any specified item of Shared Collateral (including all or substantially all of the equity interests of any subsidiary Subsidiary of the BorrowerParent) other than a release granted upon or following the Discharge of Senior Debt Obligations, the Liens granted to the Junior Second Priority Representatives and the Junior Second Priority Debt Parties upon such Shared Collateral to secure Junior Second Priority Debt Obligations shall terminate and be releasedreleased to the same extent as the Liens of such Senior Representative (but not upon any Proceeds thereof that are not otherwise applied in satisfaction of the Senior Debt Obligations) and any Grantor released from its obligations under its guaranty of Senior Debt Obligations released by a Senior Representative shall be released under its guaranty of Second Priority Debt Obligations, automatically and without any further action, concurrently with the termination and release of all Liens granted upon such Shared Collateral to secure Senior Debt Obligations or the release of such Grantor under its guaranty of Senor Obligations; provided that, in the case as applicable. Each Second Priority Representative, for itself or on behalf of any such sale, transfer or other disposition of Shared Collateral (other than any sale, transfer or other disposition in connection with the enforcement or exercise of any rights or remedies with respect to the Shared Collateral), the Liens granted to the Junior Priority Representatives and the Junior Second Priority Debt Parties represented by it, shall not be so released if promptly execute and deliver to the Senior Representatives and such sale, transfer or other disposition is not permitted under the terms of any Junior Priority Debt Document. Upon delivery to a Junior Priority Representative of an Officer’s Certificate stating that any Grantor such termination statements, releases and release of Liens securing other documents as any Senior Representative or such Grantor may request to effectively confirm the Senior Obligations has become effective foregoing releases referred to in clauses (or shall become effective concurrently with such termination 1), (2) and release (3) of the Liens granted to the Junior Priority Debt Parties and the Junior Priority Representatives) and any necessary or proper instruments first sentence of termination or release prepared by the Borrower or any other Grantor, such Junior Priority Representative will promptly execute, deliver or acknowledge, at the Borrower’s or the other Grantor’s sole cost and expense, such instruments to evidence such termination and release of the Liensthis clause (a). Nothing in this Section 5.01(a) will be deemed to affect any agreement of a Junior Second Priority Representative, for itself and on behalf of the Junior Second Priority Debt Parties under its Junior Second Priority Debt Facility, to release the Liens on the Junior Second Priority Collateral as set forth in the relevant Junior Second Priority Debt Documents.
(b) Each Junior Unless and until the Discharge of Senior Debt Obligations has occurred, each Second Priority Representative, for itself and on behalf of each Junior Second Priority Debt Party under its Junior Second Priority Debt Facility, hereby irrevocably constitutes and appoints the Designated Senior Representative and any officer or agent of the Designated Senior Representative, with full power of substitution, as its true and lawful attorney-in-fact with full irrevocable power and authority in the place and stead of such Junior Second Priority Representative or such Junior Second Priority Debt Party or in the Designated Senior Representative’s own name, from time to time in the Designated Senior Representative’s discretion, for the purpose of carrying out the terms of Section 5.01(a), to take any and all appropriate action and to execute any and all documents and instruments that may be necessary or desirable to accomplish the purposes of Section 5.01(a), including any termination statements, endorsements or other instruments of transfer or release.
(c) Unless and until the Discharge of Senior Debt Obligations has occurred, each Second Priority Representative, for itself and on behalf of each Second Priority Debt Party under its Second Priority Debt Facility, hereby consents to the application, whether prior to or after an event of default under any Senior Debt Document of proceeds of Shared Collateral, proceeds of Restricted Assets and Sale Proceeds to the repayment of Senior Debt Obligations pursuant to the Senior Debt Documents, provided that nothing in this Section 5.01(c) shall be construed to prevent or impair the rights of the Second Priority Representatives or the Second Priority Debt Parties to receive proceeds in connection with the Second Priority Debt Obligations not otherwise in contravention of this Agreement.
(d) Notwithstanding anything to the contrary in any Junior Second Priority Collateral Document, in the event the terms of a Senior Collateral Document and a Junior Second Priority Collateral Document each require any Grantor (i) to make payment in respect of any item of Shared CollateralCollateral to, (ii) to deliver or afford control over any item of Shared Collateral to, or deposit any item of Shared Collateral with, (iii) to register ownership of any item of Shared Collateral in the name of or make an assignment of ownership of any Shared Collateral or the rights thereunder to, (iv) cause any securities intermediary, commodity intermediary or other Person acting in a similar capacity to agree to comply, in respect of any item of Shared Collateral, with instructions or orders from, or to treat, in respect of any item of Shared Collateral, as the entitlement holder, (v) hold any item of Shared Collateral in trust for (to the extent such item of Shared Collateral cannot be held in trust for multiple parties under applicable law), (vi) obtain the agreement of a bailee or other third party to hold any item of Shared Collateral for the benefit of or subject to the control of or, in respect of any item of Shared Collateral, to follow the instructions of or (vii) obtain the agreement of a landlord with respect to access to leased premises where any item of Shared Collateral is located or waivers or subordination of rights with respect to any item of Shared Collateral in favor of, in any case, both the Designated Senior Representative and any Junior Second Priority Representative or Junior Second Priority Debt Party, such Grantor may, until the applicable Discharge of Senior Debt Obligations has occurred, comply with such requirement under the applicable Junior Second Priority Collateral Document as it relates to such Shared Collateral by taking any of the actions set forth above only with respect to, or in favor of, the Designated Senior Representative.
Appears in 2 contracts
Samples: Second Lien Credit Agreement (Pennsylvania Real Estate Investment Trust), First Lien Credit Agreement (Pennsylvania Real Estate Investment Trust)
Releases. (a) Each Junior Second Priority Representative, for itself and on behalf of each Junior Second Priority Debt Secured Party under its Junior Second Priority Debt Facility, agrees that, in the event of a sale, transfer or other disposition Disposition of any specified item of Shared Collateral (including all or substantially all of the equity interests Equity Interests of any subsidiary Subsidiary of Holdings) (i) in connection with the exercise of remedies in respect of Collateral by a Senior Priority Representative or (ii) if not in connection with the exercise of remedies in respect of Collateral by the Designated Senior Representative, so long as such Disposition is permitted by the terms of the BorrowerSecond Priority Debt Documents and the Senior Priority Debt Documents and, in the case of this clause (ii) other than a release granted upon or following in connection with the Discharge of Senior Obligations, the Liens granted to the Junior Second Priority Representatives and the Junior Second Priority Debt Secured Parties upon such Shared Collateral (but not on the Proceeds thereof that were not applied to the payment of Senior Obligations) to secure Junior Second Priority Debt Obligations Obligations, shall terminate and be released, automatically and without any further action, concurrently with the termination and release of all Liens granted upon such Shared Collateral to secure Senior Obligations; provided that, in the case of any such sale, transfer or other disposition of Shared Collateral (other than any sale, transfer or other disposition in connection with the enforcement or exercise of any rights or remedies with respect to the Shared Collateral), the Liens granted to the Junior Priority Representatives and the Junior Priority Debt Parties shall not be so released if such sale, transfer or other disposition is not permitted under the terms of any Junior Priority Debt Document. Upon delivery to a Junior Second Priority Representative of an Officer’s Certificate stating that any such termination and release of Liens securing the Senior Obligations has become effective (or shall become effective concurrently with such termination and release of the Liens granted to the Junior Second Priority Debt Secured Parties and the Junior Second Priority Representatives) and any necessary or proper instruments of termination or release prepared by the Borrower Borrowers or any other Grantor, such Junior Second Priority Representative will promptly execute, deliver or acknowledge, at the Lead Borrower’s or the other Grantor’s sole cost and expenseexpense and without any representation or warranty, such instruments to evidence such termination and release of the Liens. Nothing in this Section 5.01(a) will be deemed to affect any agreement of a Junior Second Priority Representative, for itself and on behalf of the Junior Second Priority Debt Secured Parties under its Junior Second Priority Debt Facility, to release the Liens on the Junior Second Priority Collateral as set forth in the relevant Junior Second Priority Debt Documents.
(b) Each Junior Second Priority Representative, for itself and on behalf of each Junior Second Priority Debt Secured Party under its Junior Second Priority Debt Facility, hereby irrevocably constitutes and appoints the Designated Senior Representative and any officer or agent of the Designated Senior Representative, with full power of substitution, as its true and lawful attorney-in-fact with full irrevocable power and authority in the place and stead of such Junior Second Priority Representative or such Junior Second Priority Debt Secured Party or in the Designated Senior Representative’s own name, from time to time in the Designated Senior Representative’s discretion, for the purpose of carrying out the terms of Section 5.01(a), to take any and all appropriate action and to execute any and all documents and instruments that may be necessary or desirable to accomplish the purposes of Section 5.01(a), including any termination statements, endorsements or other instruments of transfer or release.
(c) Unless and until the Discharge of Senior Obligations has occurred, each Second Priority Representative, for itself and on behalf of each Second Priority Secured Party under its Second Priority Debt Facility, hereby consents to the application, whether prior to or after an event of default under any Senior Priority Debt Document of Proceeds of Shared Collateral to the repayment of Senior Obligations pursuant to the Senior Priority Debt Documents, provided that nothing in this Section 5.01(c) shall be construed to prevent or impair the rights of the Second Priority Representatives or the Second Priority Secured Parties to receive Proceeds in connection with the Second Priority Debt Obligations not otherwise in contravention of this Agreement.
(d) Notwithstanding anything to the contrary in any Junior Second Priority Collateral Document, in the event the terms of a Senior Priority Collateral Document and a Junior Second Priority Collateral Document each require any Grantor to (i) to make payment in respect of any item of Shared Collateral, (ii) to deliver or afford control over any item of Shared Collateral to, or deposit any item of Shared Collateral with, (iii) to register ownership of any item of Shared Collateral in the name of or make an assignment of ownership of any Shared Collateral or the rights thereunder to, (iv) cause any securities intermediary, commodity commodities intermediary or other Person acting in a similar capacity to agree to comply, in respect of any item of Shared Collateral, with instructions or orders from, or to treat, in respect of any item of Shared Collateral, as the entitlement holder, (v) hold any item of Shared Collateral in trust for (to the extent such item of Shared Collateral cannot be held in trust for multiple parties under applicable lawLaw), (vi) obtain the agreement of a bailee or other third party to hold any item of Shared Collateral for the benefit of or subject to the control of or, in respect of any item of Shared Collateral, to follow the instructions of of, or (vii) obtain the agreement of a landlord with respect to access to leased premises where any item of Shared Collateral is located or waivers or subordination of rights with respect to any item of Shared Collateral in favor of, in any case, both the Designated Senior Representative and any Junior Second Priority Representative or Junior Second Priority Debt Secured Party, such Grantor may, until the applicable Discharge of Senior Obligations has occurred, comply with such requirement under the applicable Junior Second Priority Collateral Document as it relates to such Shared Collateral by taking any of the actions set forth above only with respect to, or in favor of, the Designated Senior Representative.
Appears in 2 contracts
Samples: First Lien/Second Lien Intercreditor Agreement (PAE Inc), First Lien Term Loan Credit Agreement (VERRA MOBILITY Corp)
Releases. (a) Each Junior Priority Representative, for itself and on behalf of each Junior Priority Debt Party under its Junior Priority Debt Facility, agrees that, in the event of a sale, transfer or other disposition of any specified item of Shared Collateral (including all or substantially all of the equity interests Stock and Stock Equivalent of any subsidiary Subsidiary of the Borrower) (i) in connection with the exercise of Secured Creditor Remedies by the Designated Senior Representative in respect of such Shared Collateral following and during the continuation of an Event of Default under the Senior Debt Documents or (ii) if not in connection with the exercise of Secured Creditor Remedies by the Designated Senior Representative in respect of such Shared Collateral, so long as such sale, transfer or other than disposition is (x) permitted by the terms of the Junior Priority Debt Documents or (y) made with the consent of the Designated Senior Representative at a release granted upon or following time when an Event of Default (as defined in the Discharge of applicable Senior ObligationsDebt Document) is continuing, the Liens granted to the Junior Priority Representatives and the Junior Priority Debt Parties upon such Shared Collateral to secure Junior Priority Debt Obligations shall (whether or not any Insolvency or Liquidation Proceeding is pending at such time) terminate and be released, immediately and automatically and without any further actionaction by any Person, concurrently with the termination and release of all Liens granted upon such Shared Collateral to secure Senior Obligations; provided that, in the case of any such sale, transfer or other disposition of Shared Collateral (other than any sale, transfer or other disposition in connection with the enforcement or exercise of any rights or remedies with respect to the Shared Collateral), the Liens granted to the Junior Priority Representatives and the Junior Priority Debt Parties shall not be so released if such sale, transfer or other disposition is not permitted under the terms of any Junior Priority Debt Document. Upon delivery to a Junior Priority Representative of an Officer’s Certificate stating that any such termination and release of Liens securing the Senior Obligations has become effective (or shall become effective concurrently with such termination and release of the Liens granted to the Junior Priority Debt Parties and the Junior Priority Representatives) and any necessary or proper instruments of termination or release prepared by the Borrower or any other Grantor, such Junior Priority Representative will promptly execute, deliver or acknowledge, at the Borrower’s or the other Grantor’s sole cost and expense, such instruments to evidence such termination and release of the Liens. Nothing in this Section 5.01(a) will be deemed to affect any agreement of a Junior Priority Representative, for itself and on behalf of the Junior Priority Debt Parties under its Junior Priority Debt Facility, to release the Liens on the Junior Priority Collateral as set forth in the relevant Junior Priority Debt Documents.
(b) Each Junior Priority Representative, for itself and on behalf of each Junior Priority Debt Party under its Junior Priority Debt Facility, hereby irrevocably constitutes and appoints the Designated Senior Representative and any officer or agent of the Designated Senior Representative, with full power of substitution, as its true and lawful attorney-in-fact with full irrevocable power and authority in the place and stead of such Junior Priority Representative or such Junior Priority Debt Party or in the Designated Senior Representative’s own name, from time to time in the Designated Senior Representative’s discretion, for the purpose of carrying out the terms of Section 5.01(a), to take any and all appropriate action and to execute and/or authorize any and all documents and instruments that may be necessary or desirable to accomplish the purposes of Section 5.01(a), including any termination statements, notations of liens, endorsements or other instruments of transfer or release. The Designated Senior Representative hereby agrees to take action reasonably requested by the Grantors to carry out the terms of this Section 5.01(b) or to accomplish the purposes of Section 5.01(a).
(c) With respect to any Senior Collateral, unless and until the Discharge of Senior Obligations has occurred, each Junior Priority Representative, for itself and on behalf of each Junior Priority Debt Party under its Junior Priority Debt Facility, hereby consents to the application, whether prior to or after an Event of Default under any Senior Debt Document, of proceeds of such Senior Collateral to the repayment of Senior Obligations pursuant to the Senior Debt Documents, provided that nothing in this Section 5.01(c) shall be construed to prevent or impair the rights of the Junior Priority Representatives or the Junior Priority Debt Parties to receive proceeds in connection with the Junior Priority Debt Obligations not otherwise in contravention of this Agreement.
(d) Notwithstanding anything to the contrary in any Junior Priority Collateral Document, in the event the terms of a Senior Collateral Document and a Junior Priority Collateral Document each require any Grantor (i) to make payment any payments in respect of any item of Shared CollateralCollateral to, (ii) to deliver or afford control over any item of Shared Collateral to, or deposit any item of Shared Collateral with, (iii) to make notations of lien or register ownership of any item of Shared Collateral in the name of or make an assignment of ownership of any Shared Collateral or the rights thereunder to, (iv) cause any securities intermediary, commodity intermediary or other Person acting in a similar capacity to agree to comply, in respect of any item of Shared Collateral, with instructions or orders from, or to treat, in respect of any item of Shared Collateral, as the entitlement holder, (v) hold any item of Shared Collateral in trust for (to the extent such item of Shared Collateral cannot be held in trust for multiple parties under applicable lawApplicable Law), (vi) obtain the agreement of a bailee or other third party to hold any item of Shared Collateral for the benefit of or subject to the control of or, in respect of any item of Shared Collateral, to follow the instructions of or (vii) obtain the agreement of a landlord with respect to access to leased premises where any item of Shared Collateral is located or waivers or subordination of rights with respect to any item of Shared Collateral in favor of, in any case, both the Designated any Senior Representative and any Junior Priority Representative or Junior Priority Debt Party, such Grantor may, until the applicable Discharge of Senior Obligations has occurred, comply with such requirement under the applicable Junior Priority Collateral Document as it relates to such Shared Collateral by taking any of the actions set forth above only with respect to, or in favor of, the Designated Senior Representative; provided that, notwithstanding anything to the contrary, any action or compliance with respect to the foregoing by any Grantor shall not cause a default or Event of Default to exist under any Senior Debt Document or any Junior Priority Debt Document.
Appears in 2 contracts
Samples: Abl Credit Agreement (Avaya Holdings Corp.), Term Loan Credit Agreement (Avaya Holdings Corp.)
Releases. (a) Each Junior Second Priority Representative, for itself and on behalf of each Junior Second Priority Debt Party under its Junior Second Priority Debt Facility, agrees that, if in the event of a connection with (i) any sale, transfer or other disposition of any specified item of Shared Collateral (including all or substantially all of the equity interests of by any subsidiary of the Borrower) other than a release granted upon or following the Discharge of Senior Obligations, the Liens granted to the Junior Priority Representatives and the Junior Priority Debt Parties upon such Shared Collateral to secure Junior Priority Debt Obligations shall terminate and be released, automatically and without any further action, concurrently with the termination and release of all Liens granted upon such Shared Collateral to secure Senior Obligations; provided that, in the case of any such sale, transfer or other disposition of Shared Collateral Obligor (other than any sale, transfer or other disposition in connection with any enforcement or exercise of rights or remedies with respect to the Shared Collateral which shall be governed by clause (ii)) permitted under the terms of the Senior Debt Documents or consented to by the holders of Senior Obligations under the Senior Debt Documents (other than after the occurrence and during the continuance of any Event of Default under the Second Priority Debt Documents) or (ii) the enforcement or exercise of any rights or remedies with respect to the Shared Collateral)Collateral by a Senior Secured Party, the Liens granted to the Junior Priority Representatives and the Junior Priority Debt Parties shall not be so released if such including any sale, transfer or other disposition is not permitted under the terms of Shared Collateral so long as net Proceeds of any Junior such Shared Collateral are applied to reduce permanently the Senior Obligations, the Designated Senior Representative, for itself and on behalf of the other Senior Secured Parties releases any of the Senior Liens on any of the Shared Collateral (a “Release”), then the Liens on such Shared Collateral securing any Second Priority Debt Document. Upon delivery to a Junior Obligations shall be automatically, unconditionally and simultaneously released and each Second Priority Representative of an Officer’s Certificate stating that any such termination shall, for itself and release of Liens securing the Senior Obligations has become effective (or shall become effective concurrently with such termination and release on behalf of the Liens granted to the Junior other applicable Second Priority Class Debt Parties and the Junior Priority Representatives) and any necessary or proper instruments of termination or release prepared by the Borrower or any other Grantor, such Junior Priority Representative will promptly execute, deliver or acknowledge, at the Borrower’s or the other Grantor’s sole cost and expenseexpense of the Obligors, such instruments promptly execute and deliver to evidence the Designated Senior Representative and the applicable Obligors such termination statements, releases and release other documents as the Designated Senior Representative or any applicable Obligor may reasonably request to effectively confirm such Release; provided that, with respect to clause (ii) above, any Proceeds received by the Senior Priority Representatives and any other Senior Secured Party in excess of those necessary to achieve the LiensDischarge of Senior Obligations shall be distributed in accordance with Section 4.01. Similarly, if the equity interests of any Person are foreclosed upon or otherwise disposed of pursuant to clause (i) or (ii) above and in connection therewith the Designated Senior Representative releases the Senior Liens on the Shared Collateral of such Person or releases such Person from its guarantee of Senior Obligations, then the Second Priority Lien on such property or assets of such Person and such Person’s guarantee of Second Priority Debt Obligations shall be automatically released to the same extent. Nothing in this Section 5.01(a) will be deemed to affect any agreement of a Junior Second Priority Representative, for itself and on behalf of the Junior Second Priority Debt Parties under its Junior Second Priority Debt Facility, to release the Liens on the Junior Second Priority Collateral or to release any Person from its guarantee of Second Priority Debt Obligations as set forth in the relevant Junior Second Priority Debt Documents.
(b) Each Junior Priority Representative, for itself and on behalf of each Junior Priority Debt Party under its Junior Priority Debt Facility, hereby irrevocably constitutes and appoints the Designated Senior Representative and any officer or agent of the Designated Senior Representative, with full power of substitution, as its true and lawful attorney-in-fact with full irrevocable power and authority in the place and stead of such Junior Priority Representative or such Junior Priority Debt Party or in the Designated Senior Representative’s own name, from time to time in the Designated Senior Representative’s discretion, for the purpose of carrying out the terms of Section 5.01(a), to take any and all appropriate action and to execute any and all documents and instruments that may be necessary or desirable to accomplish the purposes of Section 5.01(a), including any termination statements, endorsements or other instruments of transfer or release.
(c) Notwithstanding anything to the contrary in any Junior Priority Collateral Document, in the event the terms of a Senior Collateral Document and a Junior Priority Collateral Document each require any Grantor (i) to make payment in respect of any item of Shared Collateral, (ii) to deliver or afford control over any item of Shared Collateral to, or deposit any item of Shared Collateral with, (iii) to register ownership of any item of Shared Collateral in the name of or make an assignment of ownership of any Shared Collateral or the rights thereunder to, (iv) cause any securities intermediary, commodity intermediary or other Person acting in a similar capacity to agree to comply, in respect of any item of Shared Collateral, with instructions or orders from, or to treat, in respect of any item of Shared Collateral, as the entitlement holder, (v) hold any item of Shared Collateral in trust for (to the extent such item of Shared Collateral cannot be held in trust for multiple parties under applicable law), (vi) obtain the agreement of a bailee or other third party to hold any item of Shared Collateral for the benefit of or subject to the control of or, in respect of any item of Shared Collateral, to follow the instructions of or (vii) obtain the agreement of a landlord with respect to access to leased premises where any item of Shared Collateral is located or waivers or subordination of rights with respect to any item of Shared Collateral in favor of, in any case, both the Designated Senior Representative and any Junior Priority Representative or Junior Priority Debt Party, such Grantor may, until the applicable Discharge of Senior Obligations has occurred, comply with such requirement under the applicable Junior Priority Collateral Document as it relates to such Shared Collateral by taking any of the actions set forth above only with respect to, or in favor of, the Designated Senior Representative.
Appears in 2 contracts
Samples: Indenture (DISH Network CORP), Indenture Agreement (DISH Network CORP)
Releases. (a) Each Junior Second Priority Representative, for itself and on behalf of each Junior Second Priority Debt Secured Party under its Junior Second Priority Debt Facility, agrees that, if in the event of connection with (i) a sale, transfer or other disposition Disposition of any specified item of Shared Collateral (including all or substantially all of the equity interests Capital Stock of any subsidiary Subsidiary of the Borrower) (other than in connection with the exercise of remedies with respect to the Shared Collateral which shall be governed by clause (ii)) permitted under the terms of the Second Priority Debt Documents or (ii) the exercise of any remedies with respect to the Shared Collateral by any Senior Priority Secured Parties made or exercised on a release granted upon or following the Discharge of Senior Obligationscommercially reasonable basis, the Liens granted to the Junior Second Priority Representatives and the Junior Second Priority Debt Secured Parties upon such Shared Collateral (but not on the Proceeds thereof) to secure Junior Second Priority Debt Obligations shall terminate and be released, automatically and without any further action, concurrently with the termination and release of all Liens granted upon such Shared Collateral to secure Senior Priority Obligations; provided that, in the case of any such sale, transfer or other disposition of Shared Collateral (other than any sale, transfer or other disposition in connection with the enforcement or exercise of any rights or remedies with respect to the Shared Collateral), the Liens granted to the Junior Priority Representatives and the Junior Priority Debt Parties shall not be so released if such sale, transfer or other disposition is not permitted under the terms of any Junior Priority Debt Document. Upon delivery to a Junior Second Priority Representative of an Officer’s Certificate stating that any such termination and release of Liens securing the Senior Priority Obligations has become effective (or shall become effective concurrently with such termination and release of the Liens granted to the Junior Second Priority Debt Secured Parties and the Junior Second Priority Representatives) and any necessary or proper instruments of termination or release prepared by Holdings, the Borrower or any other Grantor, such Junior Second Priority Representative will promptly execute, deliver or acknowledge, at Holdings’, the Borrower’s or the other Grantor’s sole cost and expenseexpense and without any representation or warranty, such instruments to evidence such termination and release of the Liens. Nothing in this Section 5.01(a) will be deemed to affect any agreement of a Junior Second Priority Representative, for itself and on behalf of the Junior Second Priority Debt Secured Parties under its Junior Second Priority Debt Facility, to release the Liens on the Junior Second Priority Collateral as set forth in the relevant Junior Second Priority Debt Documents.
(b) Each Junior Second Priority Representative, for itself and on behalf of each Junior Second Priority Debt Secured Party under its Junior Second Priority Debt Facility, hereby irrevocably constitutes and appoints the Designated Senior Priority Representative and any officer or agent of the Designated Senior Priority Representative, with full power of substitution, as its true and lawful attorney-in-fact with full irrevocable power and authority in the place and stead of such Junior Second Priority Representative or such Junior Second Priority Debt Secured Party or in the Designated Senior Priority Representative’s own name, from time to time in the Designated Senior Priority Representative’s discretion, for the purpose of carrying out the terms of Section 5.01(a), to take any and all appropriate action and to execute any and all documents and instruments that may be necessary or desirable to accomplish the purposes of Section 5.01(a), including any termination statements, endorsements or other instruments of transfer or release.
(c) Unless and until the Discharge of Senior Priority Obligations has occurred, each Second Priority Representative, for itself and on behalf of each Second Priority Secured Party under its Second Priority Debt Facility, hereby consents to the application, whether prior to or after an event of default under any Senior Priority Debt Document of proceeds of Shared Collateral to the repayment of Senior Priority Obligations pursuant to the Senior Priority Debt Documents; provided that nothing in this Section 5.01(c) shall be construed to prevent or impair the rights of the Second Priority Representatives or the Second Priority Secured Parties to receive proceeds in connection with the Second Priority Debt Obligations not otherwise in contravention of this Agreement.
(d) Notwithstanding anything to the contrary in any Junior Second Priority Collateral Document, in the event the terms of a Senior Priority Collateral Document and a Junior Second Priority Collateral Document each require any Grantor (i) to make payment in respect of any item of Shared Collateral, (ii) to deliver or afford control over any item of Shared Collateral to, or deposit any item of Shared Collateral with, (iii) to register ownership of any item of Shared Collateral in the name of or make an assignment of ownership of any Shared Collateral or the rights thereunder to, (iv) cause any securities intermediary, commodity intermediary or other Person acting in a similar capacity to agree to comply, in respect of any item of Shared Collateral, with instructions or orders from, or to treat, in respect of any item of Shared Collateral, as the entitlement holder, (v) hold any item of Shared Collateral in trust for (to the extent such item of Shared Collateral cannot be held in trust for multiple parties under applicable law), (vi) obtain the agreement of a bailee or other third party to hold any item of Shared Collateral for the benefit of or subject to the control of or, in respect of any item of Shared Collateral, to follow the instructions of or (vii) obtain the agreement of a landlord with respect to access to leased premises where any item of Shared Collateral is located or waivers or subordination of rights with respect to any item of Shared Collateral in favor of, in any case, both the Designated Senior Priority Representative and any Junior Second Priority Representative or Junior Second Priority Debt Secured Party, such Grantor may, until the applicable Discharge of Senior Priority Obligations has occurred, comply with such requirement under the applicable Junior Second Priority Collateral Document as it relates to such Shared Collateral by taking any of the actions set forth above only with respect to, or in favor of, the Designated Senior Priority Representative.
Appears in 2 contracts
Samples: Second Lien Credit Agreement (Grocery Outlet Holding Corp.), First Lien Credit Agreement (Grocery Outlet Holding Corp.)
Releases. (a) Each Junior Second Priority Representative, for itself and on behalf of each Junior Second Priority Debt Party under its Junior Second Priority Debt Facility, agrees that, if in the event of a connection with (i) any sale, transfer or other disposition of any specified item of Shared Collateral (including all or substantially all of the equity interests of by any subsidiary of the Borrower) other than a release granted upon or following the Discharge of Senior Obligations, the Liens granted to the Junior Priority Representatives and the Junior Priority Debt Parties upon such Shared Collateral to secure Junior Priority Debt Obligations shall terminate and be released, automatically and without any further action, concurrently with the termination and release of all Liens granted upon such Shared Collateral to secure Senior Obligations; provided that, in the case of any such sale, transfer or other disposition of Shared Collateral Grantor (other than any sale, transfer or other disposition in connection with any enforcement or exercise of rights or remedies with respect to the Shared Collateral which shall be governed by clause (ii)) permitted under the terms of the Senior Debt Documents or consented to by the holders of Senior Obligations under the Senior Debt Documents (other than after the occurrence and during the continuance of any Event of Default under the Second Priority Debt Documents) or (ii) the enforcement or exercise of any rights or remedies with respect to the Shared Collateral)Collateral by a Senior Secured Party, the Liens granted to the Junior Priority Representatives and the Junior Priority Debt Parties shall not be so released if such including any sale, transfer or other disposition is not permitted under the terms of Shared Collateral so long as net proceeds of any Junior such Shared Collateral are applied to reduce permanently the Senior Obligations, the Designated Senior Representative, for itself and on behalf of the other Senior Secured Parties releases any of the Senior Liens on any of the Shared Collateral (a “Release”), then the Liens on such Shared Collateral securing any Second Priority Debt Document. Upon delivery to a Junior Obligations shall be automatically, unconditionally and simultaneously released, and each Second Priority Representative of an Officer’s Certificate stating that any such termination shall, for itself and release of Liens securing the Senior Obligations has become effective (or shall become effective concurrently with such termination and release on behalf of the Liens granted to the Junior other applicable Second Priority Class Debt Parties and the Junior Priority Representatives) and any necessary or proper instruments of termination or release prepared by the Borrower or any other Grantor, such Junior Priority Representative will promptly execute, deliver or acknowledge, at the Borrower’s or the other Grantor’s sole cost and expenseexpense of the Grantors, such instruments promptly execute and deliver to evidence the Designated Senior Representative and the applicable Grantors such termination statements, releases and release other documents as the Designated Senior Representative or any applicable Grantor may reasonably request to effectively confirm such Release. Similarly, if the equity interests of any Person are foreclosed upon or otherwise disposed of pursuant to clause (i) or (ii) above and in connection therewith the LiensDesignated Senior Representative releases the Senior Liens on the Shared Collateral of such Person or releases such Person from its guarantee of Senior Obligations, then the Second Priority Lien on such property or assets of such Person and such Person’s guarantee of Second Priority Debt Obligations shall be automatically released to the same extent. Nothing in this Section 5.01(a) will 5.01(a)will be deemed to affect any agreement of a Junior Second Priority Representative, for itself and on behalf of the Junior Second Priority Debt Parties under its Junior Second Priority Debt Facility, to release the Liens on the Junior Second Priority Collateral or to release any Person from its guarantee of Second Priority Debt Obligations as set forth in the relevant Junior Second Priority Debt Documents.
(b) Each Junior Second Priority Representative, for itself and on behalf of each Junior Second Priority Debt Party under its Junior Second Priority Debt Facility, hereby irrevocably constitutes and appoints the Designated Senior Representative and any officer or agent of the Designated Senior Representative, with full power of substitution, as its true and lawful attorney-in-fact with full irrevocable power and authority in the place and stead of such Junior Second Priority Representative or such Junior Second Priority Debt Party or in the Designated Senior Representative’s own name, from time to time in the Designated Senior Representative’s discretion, for the purpose of carrying out the terms of Section 5.01(a), to take any and all appropriate action and to execute any and all documents and instruments that may be necessary or desirable to accomplish the purposes of Section 5.01(a), including any termination statements, endorsements or other instruments of transfer or release.
(c) Unless and until the Discharge of Senior Obligations has occurred, each Second Priority Representative, for itself and on behalf of each Second Priority Debt Party under its Second Priority Debt Facility, hereby consents to the application, whether prior to or after an Event of Default (as defined in any Senior Debt Document) of Proceeds of Shared Collateral to the repayment of Senior Obligations pursuant to the Senior Debt Documents, provided that nothing in this Section 5.01(c) shall be construed to prevent or impair the rights of the Second Priority Representatives or the Second Priority Debt Parties to receive Proceeds in connection with the Second Priority Debt Obligations not otherwise in contravention of this Agreement.
(d) Notwithstanding anything to the contrary in any Junior Second Priority Collateral Document, in the event the terms of a Senior Collateral Document and a Junior Second Priority Collateral Document each require any Grantor (i) to make payment in respect of any item of Shared Collateral, (ii) to deliver or afford control over any item of Shared Collateral to, or deposit any item of Shared Collateral with, (iii) to register ownership of any item of Shared Collateral in the name of or make an assignment of ownership of any Shared Collateral or the rights thereunder to, (iv) cause any securities intermediary, commodity intermediary or other Person acting in a similar capacity to agree to comply, in respect of any item of Shared Collateral, with instructions or orders from, or to treat, in respect of any item of Shared Collateral, as the entitlement holder, (v) hold any item of Shared Collateral in trust for (to the extent such item of Shared Collateral cannot be held in trust for multiple parties under applicable law), (vi) obtain the agreement of a bailee or other third party to hold any item of Shared Collateral for the benefit of or subject to the control of or, in respect of any item of Shared Collateral, to follow the instructions of or (vii) obtain the agreement of a landlord with respect to access to leased premises where any item of Shared Collateral is located or waivers or subordination of rights with respect to any item of Shared Collateral in favor of, in any case, both the Designated Senior Representative and any Junior Second Priority Representative or Junior Second Priority Debt Party, such Grantor may, until the applicable Discharge of Senior Obligations has occurred, comply with such requirement under the applicable Junior Second Priority Collateral Document as it relates to such Shared Collateral by taking any of the actions set forth above only with respect to, or in favor of, the Designated Senior Representative.
Appears in 2 contracts
Samples: First Lien/Second Lien Intercreditor Agreement (National Vision Holdings, Inc.), First Lien/Second Lien Intercreditor Agreement (National Vision Holdings, Inc.)
Releases. (a) Each Junior Second Priority Representative, for itself and on behalf of each Junior Second Priority Debt Party under its Junior Second Priority Debt Facility, agrees that, in the event of a sale, transfer or other disposition of any specified item of Shared Collateral (including all or substantially all of the equity interests of any subsidiary Subsidiary) (i) in connection with the exercise of remedies in respect of Collateral or (ii) if not in connection with the Borrowerexercise of remedies in respect of Collateral, so long as an Event of Default (as defined in and under any Second Lien Debt Document) other than a release granted upon or following the Discharge of Senior Obligationshas not occurred and is continuing, the Liens granted to the Junior Second Priority Representatives and the Junior Second Priority Debt Parties upon such Shared Collateral to secure Junior Second Priority Debt Obligations shall terminate and be released, automatically and without any further action, concurrently with the termination and release of all Liens granted upon such Shared Collateral to secure Senior Obligations; provided that, in the case of any such sale, transfer or other disposition of Shared Collateral (other than any sale, transfer or other disposition in connection with the enforcement or exercise of any rights or remedies with respect to the Shared Collateral), the Liens granted to the Junior Priority Representatives and the Junior Priority Debt Parties shall not be so released if such sale, transfer or other disposition is not permitted under the terms of any Junior Priority Debt Document. Upon delivery to a Junior Second Priority Representative of an Officer’s Certificate stating that any such termination and release of Liens securing the Senior Obligations has become effective (or shall become effective concurrently with such termination and release of the Liens granted to the Junior Second Priority Debt Parties and the Junior Second Priority Representatives) and any necessary or proper instruments of termination or release prepared by the Holdings or any Borrower or any other Grantor, such Junior Second Priority Representative will promptly execute, deliver or acknowledge, at Holdings’ or the Borrower’s or the other Grantor’s sole cost and expense, such instruments to evidence such termination and release of the Liens. Nothing in this Section 5.01(a) will be deemed to affect any agreement of a Junior Second Priority Representative, for itself and on behalf of the Junior Second Priority Debt Parties under its Junior Second Priority Debt Facility, to release the Liens on the Junior Second Priority Collateral as set forth in the relevant Junior Second Priority Debt Documents.
(b) Each Junior Priority Representative, for itself and on behalf of each Junior Priority Debt Party under its Junior Priority Debt Facility, hereby irrevocably constitutes and appoints the Designated Senior Representative and any officer or agent of the Designated Senior Representative, with full power of substitution, as its true and lawful attorney-in-fact with full irrevocable power and authority in the place and stead of such Junior Priority Representative or such Junior Priority Debt Party or in the Designated Senior Representative’s own name, from time to time in the Designated Senior Representative’s discretion, for the purpose of carrying out the terms of Section 5.01(a), to take any and all appropriate action and to execute any and all documents and instruments that may be necessary or desirable to accomplish the purposes of Section 5.01(a), including any termination statements, endorsements or other instruments of transfer or release.
(c) Notwithstanding anything to the contrary in any Junior Priority Collateral Document, in the event the terms of a Senior Collateral Document and a Junior Priority Collateral Document each require any Grantor (i) to make payment in respect of any item of Shared Collateral, (ii) to deliver or afford control over any item of Shared Collateral to, or deposit any item of Shared Collateral with, (iii) to register ownership of any item of Shared Collateral in the name of or make an assignment of ownership of any Shared Collateral or the rights thereunder to, (iv) cause any securities intermediary, commodity intermediary or other Person acting in a similar capacity to agree to comply, in respect of any item of Shared Collateral, with instructions or orders from, or to treat, in respect of any item of Shared Collateral, as the entitlement holder, (v) hold any item of Shared Collateral in trust for (to the extent such item of Shared Collateral cannot be held in trust for multiple parties under applicable law), (vi) obtain the agreement of a bailee or other third party to hold any item of Shared Collateral for the benefit of or subject to the control of or, in respect of any item of Shared Collateral, to follow the instructions of or (vii) obtain the agreement of a landlord with respect to access to leased premises where any item of Shared Collateral is located or waivers or subordination of rights with respect to any item of Shared Collateral in favor of, in any case, both the Designated Senior Representative and any Junior Priority Representative or Junior Priority Debt Party, such Grantor may, until the applicable Discharge of Senior Obligations has occurred, comply with such requirement under the applicable Junior Priority Collateral Document as it relates to such Shared Collateral by taking any of the actions set forth above only with respect to, or in favor of, the Designated Senior Representative.
Appears in 2 contracts
Samples: Amendment and Restatement Agreement (Cbre Group, Inc.), Credit Agreement (Cb Richard Ellis Group Inc)
Releases. (a) Each Junior Priority Representative, for itself and on behalf of each Junior Priority Debt Party under its Junior Priority Debt Facility, agrees that, in Upon the event of a sale, transfer or other disposition of any specified item of Shared Collateral (including all or substantially all request of the equity interests of Borrower in connection with any subsidiary of the Borrower) other than a release granted upon or following the Discharge of Senior Obligations, the Liens granted to the Junior Priority Representatives and the Junior Priority Debt Parties upon such Shared Collateral to secure Junior Priority Debt Obligations shall terminate and be released, automatically and without any further action, concurrently with the termination and release of all Liens granted upon such Shared Collateral to secure Senior Obligations; provided that, in the case of any such sale, transfer or other disposition of Shared Collateral Asset Sale (other than any sale, transfer or other disposition in connection with the enforcement or exercise of any the Collateral Agent’s rights or and remedies with in respect of the Collateral provided for in Section 3) by the Borrower, to the Shared extent permitted by the terms of all of the Transaction Documents, or in connection with the disposal of any Excluded Collateral), the Liens granted Collateral Agent will, at the Borrower’s expense, execute and deliver to the Junior Priority Representatives Borrower such documents (including UCC termination statements) as the Borrower may reasonably request to evidence and effectuate the irrevocable and concurrent release of any Lien granted under any of the Collateral Documents in any Collateral being disposed of in connection with such Asset Sale or Excluded Collateral transaction; provided that in each case the Borrower shall have delivered to each Collateral Agent and each Secured Debt Representative, at least 10 Business Days, or such lesser period of time as the Collateral Agent or each Secured Debt Representative may agree, prior to the date of the proposed release, a written request for release identifying (generally) the relevant Collateral and the Junior Priority provisions under the Transaction Documents which permit such Asset Sale, together with a certification by the Borrower stating that such Asset Sale or Excluded Collateral transaction is in compliance with the terms of all of the Transaction Documents and that the proceeds of such Asset Sale will be applied in accordance with the terms of the Transaction Documents. The Borrower shall provide the Collateral Agent and each Secured Debt Parties Representative with all information as such Person may reasonably request to verify the accuracy of such certification. The Collateral Agent shall not be so released if such sale, transfer or other disposition is not permitted under the terms of any Junior Priority Debt Document. Upon delivery required to a Junior Priority Representative of an Officer’s Certificate stating that deliver any such release documents until its (and its legal counsel) expenses have been paid in connection therewith.
(b) Upon the Discharge Date, all rights to the Collateral shall revert to the Borrower, and, upon the written request of the Borrower, the Collateral Agent will, at the Borrower’s expense, (i) promptly cause to be transferred and delivered, without any recourse, warranty or representation whatsoever, any Collateral and any proceeds received in respect thereof, (ii) execute and deliver to the Borrower such UCC termination statements and release of Liens securing other documentation as the Senior Obligations has become effective (or shall become effective concurrently with such Borrower may reasonably request to effect the termination and release of the Liens granted on the Collateral and (iii) execute and deliver to the Junior Priority Debt Parties and the Junior Priority Representatives) and any necessary or proper instruments of termination or release prepared by Borrower such other documentation as the Borrower or any other Grantor, such Junior Priority Representative will promptly execute, deliver or acknowledge, at may reasonably request to affect the termination of the Borrower’s or and the other GrantorPledgor’s sole cost and expense, such instruments to evidence such termination and release of the Liens. Nothing in this Section 5.01(a) will be deemed to affect any agreement of a Junior Priority Representative, for itself and on behalf of the Junior Priority Debt Parties under its Junior Priority Debt Facility, to release the Liens on the Junior Priority Collateral as set forth in the relevant Junior Priority Debt Documents.
(b) Each Junior Priority Representative, for itself and on behalf of each Junior Priority Debt Party under its Junior Priority Debt Facility, hereby irrevocably constitutes and appoints the Designated Senior Representative and any officer or agent of the Designated Senior Representative, with full power of substitution, as its true and lawful attorney-in-fact with full irrevocable power and authority in the place and stead of such Junior Priority Representative or such Junior Priority Debt Party or in the Designated Senior Representative’s own name, from time to time in the Designated Senior Representative’s discretion, for the purpose of carrying out the terms of Section 5.01(a), to take any and all appropriate action and to execute any and all documents and instruments that may be necessary or desirable to accomplish the purposes of Section 5.01(a), including any termination statements, endorsements or other instruments of transfer or release.
(c) Notwithstanding anything to the contrary in any Junior Priority Collateral Document, in the event the terms of a Senior Collateral Document and a Junior Priority Collateral Document each require any Grantor (i) to make payment in respect of any item of Shared Collateral, (ii) to deliver or afford control over any item of Shared Collateral to, or deposit any item of Shared Collateral with, (iii) to register ownership of any item of Shared Collateral in the name of or make an assignment of ownership of any Shared Collateral or the rights thereunder to, (iv) cause any securities intermediary, commodity intermediary or other Person acting in a similar capacity to agree to comply, in respect of any item of Shared Collateral, with instructions or orders from, or to treat, in respect of any item of Shared Collateral, as the entitlement holder, (v) hold any item of Shared Collateral in trust for (to the extent such item of Shared Collateral cannot be held in trust for multiple parties under applicable law), (vi) obtain the agreement of a bailee or other third party to hold any item of Shared Collateral for the benefit of or subject to the control of or, in respect of any item of Shared Collateral, to follow the instructions of or (vii) obtain the agreement of a landlord with respect to access to leased premises where any item of Shared Collateral is located or waivers or subordination of rights with respect to any item of Shared Collateral in favor of, in any case, both the Designated Senior Representative and any Junior Priority Representative or Junior Priority Debt Party, such Grantor may, until the applicable Discharge of Senior Obligations has occurred, comply with such requirement obligations under the applicable Junior Priority Collateral Document as Transaction Documents to which it relates is a party (other than any such obligation which is intended by its terms to such Shared Collateral by taking any of survive the actions set forth above only with respect to, or in favor of, the Designated Senior RepresentativeDischarge Date).
Appears in 2 contracts
Samples: Collateral Agency and Intercreditor Agreement (Dynegy Inc.), Collateral Agency and Intercreditor Agreement (Dynegy Inc /Il/)
Releases. (a) Each Junior Second Priority Representative, for itself and on behalf of each Junior Second Priority Debt Party under its Junior Second Priority Debt Facility, agrees that, if in the event of a connection with (i) any sale, transfer or other disposition of any specified item of Shared Collateral (including all or substantially all of the equity interests of by any subsidiary of the Borrower) other than a release granted upon or following the Discharge of Senior Obligations, the Liens granted to the Junior Priority Representatives and the Junior Priority Debt Parties upon such Shared Collateral to secure Junior Priority Debt Obligations shall terminate and be released, automatically and without any further action, concurrently with the termination and release of all Liens granted upon such Shared Collateral to secure Senior Obligations; provided that, in the case of any such sale, transfer or other disposition of Shared Collateral Grantor (other than any sale, transfer or other disposition in connection with any enforcement or exercise of rights or remedies with respect to the Shared Collateral which shall be governed by clause (ii)) permitted under the terms of the Senior Debt Documents or consented to by the holders of Senior Obligations under the Senior Debt Documents (other than after the occurrence and during the continuance of any Event of Default under the Second Priority Debt Documents) or (ii) the enforcement or exercise of any rights or remedies with respect to the Shared Collateral)Collateral by a Senior Secured Party, the Liens granted to the Junior Priority Representatives and the Junior Priority Debt Parties shall not be so released if such including any sale, transfer or other disposition is not permitted under the terms of Shared Collateral so long as net proceeds of any Junior such Shared Collateral are applied to reduce permanently the Senior Obligations, the Designated Senior Representative, for itself and on behalf of the other Senior Secured Parties releases any of the Senior Liens on any of the Shared Collateral (a “Release”), then the Liens on such Shared Collateral securing any Second Priority Debt Document. Upon delivery to a Junior Obligations shall be automatically, unconditionally and simultaneously released and each Second Priority Representative of an Officer’s Certificate stating that any such termination shall, for itself and release of Liens securing the Senior Obligations has become effective (or shall become effective concurrently with such termination and release on behalf of the Liens granted to the Junior other applicable Second Priority Class Debt Parties and the Junior Priority Representatives) and any necessary or proper instruments of termination or release prepared by the Borrower or any other Grantor, such Junior Priority Representative will promptly execute, deliver or acknowledge, at the Borrower’s or the other Grantor’s sole cost and expenseexpense of the Grantors, such instruments promptly execute and deliver to evidence the Designated Senior Representative and the applicable Grantors such termination statements, releases and release other documents as the Designated Senior Representative or any applicable Grantor may reasonably request to effectively confirm such Release; provided that, with respect to clause (ii) above, any proceeds received by the Senior Priority Representatives and any other Senior Secured Party in excess of those necessary to achieve the LiensDischarge of Senior Obligations shall be distributed in accordance with Section 4.01. Similarly, if the equity interests of any Person are foreclosed upon or otherwise disposed of pursuant to clause (i) or (ii) above and in connection therewith the Designated Senior Representative releases the Senior Liens on the Shared Collateral of such Person or releases such Person from its guarantee of Senior Obligations, then the Second Priority Lien on such property or assets of such Person and such Person’s guarantee of Second Priority Debt Obligations shall be automatically released to the same extent. Nothing in this Section 5.01(a) will be deemed to affect any agreement of a Junior Second Priority Representative, for itself and on behalf of the Junior Second Priority Debt Parties under its Junior Second Priority Debt Facility, to release the Liens on the Junior Second Priority Collateral or to release any Person from its guarantee of Second Priority Debt Obligations as set forth in the relevant Junior Second Priority Debt Documents.
(b) Each Junior Priority Representative, for itself and on behalf of each Junior Priority Debt Party under its Junior Priority Debt Facility, hereby irrevocably constitutes and appoints the Designated Senior Representative and any officer or agent of the Designated Senior Representative, with full power of substitution, as its true and lawful attorney-in-fact with full irrevocable power and authority in the place and stead of such Junior Priority Representative or such Junior Priority Debt Party or in the Designated Senior Representative’s own name, from time to time in the Designated Senior Representative’s discretion, for the purpose of carrying out the terms of Section 5.01(a), to take any and all appropriate action and to execute any and all documents and instruments that may be necessary or desirable to accomplish the purposes of Section 5.01(a), including any termination statements, endorsements or other instruments of transfer or release.
(c) Notwithstanding anything to the contrary in any Junior Priority Collateral Document, in the event the terms of a Senior Collateral Document and a Junior Priority Collateral Document each require any Grantor (i) to make payment in respect of any item of Shared Collateral, (ii) to deliver or afford control over any item of Shared Collateral to, or deposit any item of Shared Collateral with, (iii) to register ownership of any item of Shared Collateral in the name of or make an assignment of ownership of any Shared Collateral or the rights thereunder to, (iv) cause any securities intermediary, commodity intermediary or other Person acting in a similar capacity to agree to comply, in respect of any item of Shared Collateral, with instructions or orders from, or to treat, in respect of any item of Shared Collateral, as the entitlement holder, (v) hold any item of Shared Collateral in trust for (to the extent such item of Shared Collateral cannot be held in trust for multiple parties under applicable law), (vi) obtain the agreement of a bailee or other third party to hold any item of Shared Collateral for the benefit of or subject to the control of or, in respect of any item of Shared Collateral, to follow the instructions of or (vii) obtain the agreement of a landlord with respect to access to leased premises where any item of Shared Collateral is located or waivers or subordination of rights with respect to any item of Shared Collateral in favor of, in any case, both the Designated Senior Representative and any Junior Priority Representative or Junior Priority Debt Party, such Grantor may, until the applicable Discharge of Senior Obligations has occurred, comply with such requirement under the applicable Junior Priority Collateral Document as it relates to such Shared Collateral by taking any of the actions set forth above only with respect to, or in favor of, the Designated Senior Representative.
Appears in 2 contracts
Samples: First Lien Credit Agreement (Focus Financial Partners Inc.), First Lien Credit Agreement (Focus Financial Partners Inc.)
Releases. (a) Each Subject to the penultimate sentence of this Section 5.01(a), each Junior Priority Representative, for itself and on behalf of each Junior Priority Debt Party under its Junior Priority Debt Facility, agrees that, in the event of a sale, transfer or other disposition of any specified item of Shared Collateral (including all or substantially all of the equity interests of any subsidiary of the Borrower) other than (a release granted upon or following the Discharge of Senior Obligations“Disposition”), the Liens granted to the Junior Priority Representatives and the Junior Priority Debt Parties upon such Shared Collateral to secure Junior Priority Debt Obligations shall terminate and or shall be released, automatically and without any further action, concurrently with the termination and or release of all Liens granted upon such Shared Collateral to secure Senior Obligations; , provided that, in that the case parties’ respective Liens shall attach to the net proceeds of any such sale, transfer or other disposition of Shared Collateral (other than any sale, transfer or other disposition in connection Disposition with the enforcement or exercise of any rights or remedies with respect same Lien priorities as provided in this Agreement to the Shared Collateral), extent such proceeds are not otherwise utilized to permanently reduce the Liens granted to the Junior Priority Representatives and the Junior Priority Debt Parties shall not be so released if such sale, transfer or other disposition is not permitted under the terms of any Junior Priority Debt DocumentSenior Obligations. Upon delivery to a Junior Priority Representative of an Officer’s Certificate stating that any such termination and or release of Liens securing the Senior Obligations has become effective (or shall become effective concurrently with such termination and or release of the Liens granted to the Junior Priority Debt Parties and the Junior Priority Representatives) and any necessary or proper instruments of termination or release prepared by the Borrower or any other Grantor, such Junior Priority Representative will promptly execute, deliver or acknowledge, at the Borrower’s ’ or the other Grantor’s sole cost and expense, such instruments to evidence such termination and or release of the Liens; provided, however that such Officer’s Certificate shall not be required for any termination or release in connection with the exercise of remedies following an event of default. Nothing in this Section 5.01(a) will be deemed to (x) affect any agreement of a Junior Priority Representative, for itself and on behalf of the Junior Priority Debt Parties under its Junior Priority Debt Facility, to release the Liens on the Junior Priority Collateral as set forth in the relevant Junior Priority Debt Documents or (y) except in the case of a Disposition in connection with the exercise of secured creditors’ rights and remedies, require the release of Liens granted upon such Shared Collateral to secure Junior Priority Debt Obligations if such Disposition is not permitted under the terms of the Junior Priority Debt Documents. If in connection with any enforcement action or other exercise of rights and remedies by any Senior Representative, in each case, prior to a Discharge of Senior Obligations, the equity interests of any Person are foreclosed upon or otherwise disposed of and such Senior Representative releases its Lien on the property or assets of such Person, then the liens of each Junior Representative and Junior Priority Debt Parties will be released to the same extent as the Liens of such Senior Representative and Senior Secured Parties are released.
(b) Each Junior Priority Representative, for itself and on behalf of each Junior Priority Debt Party under its Junior Priority Debt Facility, hereby irrevocably constitutes and appoints the Designated Senior Representative and any officer or agent of the Designated Senior Representative, with full power of substitution, as its true and lawful attorney-in-fact with full irrevocable power and authority in the place and stead of such Junior Priority Representative or such Junior Priority Debt Party or in the Designated Senior Representative’s own name, from time to time in the Designated Senior Representative’s discretion, for the purpose of carrying out the terms of Section 5.01(a), to take any and all appropriate action and to execute any and all documents and instruments that may be necessary or desirable to accomplish the purposes of Section 5.01(a), including any termination statements, endorsements or other instruments of transfer or release.
(c) Notwithstanding Unless and until the Discharge of Senior Obligations has occurred, each Junior Representative, for itself and on behalf of each Junior Priority Debt Party under its Junior Priority Debt Facility, hereby consents to the application, whether prior to or after an event of default under any Senior Debt Document of Proceeds of Shared Collateral to the repayment of Senior Obligations pursuant to the Senior Debt Documents, provided that nothing in this Section 5.01(c) shall be construed to prevent or impair the rights of the Junior Representatives or the Junior Priority Debt Parties to receive proceeds in connection with the Junior Priority Debt Obligations not otherwise in contravention of this Agreement.
(d) Subject to Sections 5.06(a) and 5.06(f), notwithstanding anything to the contrary in any Junior Priority Collateral Document, in the event the terms of a Senior Collateral Document and a Junior Priority Collateral Document each require any Grantor to (i) to make any payment in respect of any item of Shared CollateralCollateral to, (ii) to deliver or afford control over any item of Shared Collateral to, or deposit any item of Shared Collateral with, (iii) to register ownership of any item of Shared Collateral in the name of or make an assignment of ownership of any Shared Collateral or the rights thereunder to, (iv) cause any securities intermediary, commodity intermediary or other Person acting in a similar capacity to agree to comply, in respect of any item of Shared Collateral, with instructions or orders from, or to treat, in respect of any item of Shared Collateral, as the entitlement holder, (v) hold any item of Shared Collateral in trust for (to the extent such item of Shared Collateral cannot be held in trust for multiple parties under applicable law), (vi) obtain the agreement of a bailee or other third party to hold any item of Shared Collateral for the benefit of or subject to the control of or, in respect of any item of Shared Collateral, to follow the instructions of or (vii) obtain the agreement of a landlord with respect to access to leased premises where any item of Shared Collateral is located or waivers or subordination of rights with respect to any item of Shared Collateral in favor of, in any case, both the Designated any Senior Representative or Senior Secured Party and any Junior Priority Representative or Junior Priority Debt Party, such Grantor may, until the applicable Discharge of Senior Obligations has occurred, comply with such requirement under the applicable Junior Priority Collateral Document as it relates to such Shared Collateral by taking any of the actions set forth above only with respect to, or in favor of, the Designated Senior Representative.
Appears in 2 contracts
Samples: Credit Agreement (Wyndham Destinations, Inc.), Credit Agreement (Wyndham Destinations, Inc.)
Releases. (a) Each Junior Priority Representative, for itself and on behalf of each Junior Priority Debt Party under its Junior Priority Debt Facility, agrees that, if in the event of a connection with (i) any sale, transfer or other disposition of any specified item of Shared Collateral (including all or substantially all of the equity interests of by any subsidiary of the Borrower) other than a release granted upon or following the Discharge of Senior Obligations, the Liens granted to the Junior Priority Representatives and the Junior Priority Debt Parties upon such Shared Collateral to secure Junior Priority Debt Obligations shall terminate and be released, automatically and without any further action, concurrently with the termination and release of all Liens granted upon such Shared Collateral to secure Senior Obligations; provided that, in the case of any such sale, transfer or other disposition of Shared Collateral Grantor (other than any sale, transfer or other disposition in connection with any enforcement or exercise of rights or remedies with respect to the Shared Collateral which shall be governed by clause (ii)) permitted under the terms of the Senior Debt Documents or consented to by the holders of Senior Obligations under the Senior Debt Documents (other than after the occurrence and during the continuance of any Event of Default under the Junior Debt Documents) or (ii) the enforcement or exercise of any rights or remedies with respect to the Shared Collateral)Collateral by a Senior Secured Party, the Liens granted to the Junior Priority Representatives and the Junior Priority Debt Parties shall not be so released if such including any sale, transfer or other disposition is not permitted under the terms of Shared Collateral so long as net proceeds of any Junior Priority Debt Document. Upon delivery such Shared Collateral are applied to a Junior Priority Representative of an Officer’s Certificate stating that any such termination and release of Liens securing reduce permanently the Senior Obligations has become effective (or shall become effective concurrently with such termination Obligations, the Designated Senior Representative, for itself and release on behalf of the other Senior Secured Parties releases any of the Senior Liens granted to on any of the Shared Collateral (a “Release”), then the Liens on such Shared Collateral securing any Junior Priority Debt Obligations shall be automatically, unconditionally and simultaneously released and each Junior Representative shall, for itself and on behalf of the other applicable Junior Class Debt Parties and the Junior Priority Representatives) and any necessary or proper instruments of termination or release prepared by the Borrower or any other Grantor, such Junior Priority Representative will promptly execute, deliver or acknowledge, at the Borrower’s or the other Grantor’s sole cost and expenseexpense of the Grantors, such instruments promptly execute and deliver to evidence the Designated Senior Representative and the applicable Grantors such termination statements, releases and release other documents as the Designated Senior Representative or any applicable Grantor may reasonably request to effectively confirm such Release; provided that, with respect to clause (ii) above, any proceeds received by the Senior Priority Representatives and any other Senior Secured Party in excess of those necessary to achieve the LiensDischarge of Senior Obligations shall be distributed in accordance with Section 4.01. Similarly, if the equity interests of any Person are foreclosed upon or otherwise disposed of pursuant to clause (i) or (ii) above and in connection therewith the Designated Senior Representative releases the Senior Liens on the Shared Collateral of such Person or releases such Person from its guarantee of Senior Obligations, then the Junior Lien on such property or assets of such Person and such Person’s guarantee of Junior Debt Obligations shall be automatically released to the same extent. Nothing in this Section 5.01(a) will be deemed to affect any agreement of a Junior Priority Representative, for itself and on behalf of the Junior Priority Debt Parties under its Junior Priority Debt Facility, to release the Liens on the Junior Priority Collateral or to release any Person from its guarantee of Junior Debt Obligations as set forth in the relevant Junior Priority Debt Documents.
(b) Each Junior Priority Representative, for itself and on behalf of each Junior Priority Debt Party under its Junior Priority Debt Facility, hereby irrevocably constitutes and appoints the Designated Senior Representative and any officer or agent of the Designated Senior Representative, with full power of substitution, as its true and lawful attorney-in-fact with full irrevocable power and authority in the place and stead of such Junior Priority Representative or such Junior Priority Debt Party or in the Designated Senior Representative’s own name, from time to time in the Designated Senior Representative’s discretion, for the purpose of carrying out the terms of Section 5.01(a), to take any and all appropriate action and to execute any and all documents and instruments that may be necessary or desirable to accomplish the purposes of Section 5.01(a), including any termination statements, endorsements or other instruments of transfer or release.
(c) Unless and until the Discharge of Senior Obligations has occurred, each Junior Representative, for itself and on behalf of each Junior Debt Party under its Junior Debt Facility, hereby consents to the application, whether prior to or after an Event of Default (as defined in any Senior Debt Document) of Proceeds of Shared Collateral to the repayment of Senior Obligations pursuant to the Senior Debt Documents, provided that nothing in this Section 5.01(c) shall be construed to prevent or impair the rights of the Junior Representatives or the Junior Debt Parties to receive Proceeds in connection with the Junior Debt Obligations not otherwise in contravention of this Agreement.
(d) Notwithstanding anything to the contrary in any Junior Priority Collateral Document, in the event the terms of a Senior Collateral Document and a Junior Priority Collateral Document each require any Grantor (i) to make payment in respect of any item of Shared Collateral, (ii) to deliver or afford control over any item of Shared Collateral to, or deposit any item of Shared Collateral with, (iii) to register ownership of any item of Shared Collateral in the name of or make an assignment of ownership of any Shared Collateral or the rights thereunder to, (iv) cause any securities intermediary, commodity intermediary or other Person acting in a similar capacity to agree to comply, in respect of any item of Shared Collateral, with instructions or orders from, or to treat, in respect of any item of Shared Collateral, as the entitlement holder, (v) hold any item of Shared Collateral in trust for (to the extent such item of Shared Collateral cannot be held in trust for multiple parties under applicable law), (vi) obtain the agreement of a bailee or other third party to hold any item of Shared Collateral for the benefit of or subject to the control of or, in respect of any item of Shared Collateral, to follow the instructions of or (vii) obtain the agreement of a landlord with respect to access to leased premises where any item of Shared Collateral is located or waivers or subordination of rights with respect to any item of Shared Collateral in favor of, in any case, both the Designated Senior Representative and any Junior Priority Representative or Junior Priority Debt Party, such Grantor may, until the applicable Discharge of Senior Obligations has occurred, comply with such requirement under the applicable Junior Priority Collateral Document as it relates to such Shared Collateral by taking any of the actions set forth above only with respect to, or in favor of, the Designated Senior Representative.
Appears in 2 contracts
Samples: Second Lien Credit Agreement (Focus Financial Partners Inc.), Second Lien Credit Agreement (Focus Financial Partners Inc.)
Releases. (a) Each Junior Second Priority Representative, for itself and on behalf of each Junior Second Priority Debt Party under its Junior Second Priority Debt Facility, agrees that, in the event of a sale, transfer or other disposition of any specified item of Shared Collateral (including all or substantially all of the equity interests of any subsidiary of the Parent Borrower) other than a release granted upon or following the Discharge of Senior Obligations), the Liens granted to the Junior Second Priority Representatives and the Junior Second Priority Debt Parties upon such Shared Collateral to secure Junior Second Priority Debt Obligations shall terminate and be released, automatically and without any further action, concurrently with the termination and release of all Liens granted upon such Shared Collateral to secure Senior Obligations; provided that, in the case of any such sale, transfer or other disposition of Shared Collateral (other than any sale, transfer or other disposition in connection with the enforcement or exercise of any rights or remedies with respect to the Shared Collateral), the Liens granted to the Junior Priority Representatives and the Junior Priority Debt Parties shall not be so released if such sale, transfer or other disposition is not permitted under the terms of any Junior Priority Debt Document. Upon delivery to a Junior Second Priority Representative of an Officer’s Certificate stating that any such termination and release of Liens securing the Senior Obligations has become effective (or shall become effective concurrently with such termination and release of the Liens granted to the Junior Second Priority Debt Parties and the Junior Second Priority Representatives) and any necessary or proper instruments of termination or release prepared by the Parent Borrower or any other Grantor, such Junior Second Priority Representative will promptly execute, deliver or acknowledge, at the Parent Borrower’s or the other Grantor’s sole cost and expense, such instruments to evidence such termination and release of the Liens. Nothing in this Section 5.01(a) will be deemed to affect any agreement of a Junior Second Priority Representative, for itself and on behalf of the Junior Second Priority Debt Parties under its Junior Second Priority Debt Facility, to release the Liens on the Junior Second Priority Collateral as set forth in the relevant Junior Second Priority Debt Documents.
(b) Each Junior Second Priority Representative, for itself and on behalf of each Junior Second Priority Debt Party under its Junior Second Priority Debt Facility, hereby irrevocably constitutes and appoints the Designated Senior Representative Collateral Agent and any officer or agent of the Designated Senior RepresentativeCollateral Agent, with full power of substitution, as its true and lawful attorney-in-fact with full irrevocable power and authority in the place and stead of such Junior Second Priority Representative or such Junior Second Priority Debt Party or in the Designated Senior RepresentativeCollateral Agent’s own name, from time to time in the Designated Senior RepresentativeCollateral Agent’s discretion, for the purpose of carrying out the terms of Section 5.01(a), to take any and all appropriate action and to execute any and all documents and instruments that may be necessary or desirable to accomplish the purposes of Section 5.01(a), including any termination statements, endorsements or other instruments of transfer or release.
(c) Unless and until the Discharge of Senior Obligations has occurred, each Second Priority Representative, for itself and on behalf of each Second Priority Debt Party under its Second Priority Debt Facility, hereby consents to the application, whether prior to or after an event of default under any Senior Debt Document of proceeds of Shared Collateral to the repayment of Senior Obligations pursuant to the Senior Debt Documents, provided that nothing in this Section 5.01(c) shall be construed to prevent or impair the rights of the Second Priority Representatives or the Second Priority Debt Parties to receive proceeds in connection with the Second Priority Debt Obligations not otherwise in contravention of this Agreement.
(d) Notwithstanding anything to the contrary in any Junior Second Priority Collateral Document, in the event the terms of a Senior Collateral Document and a Junior Second Priority Collateral Document each require any Grantor (i) to make payment in respect of any item of Shared Collateral, (ii) to deliver or afford control over any item of Shared Collateral to, or deposit any item of Shared Collateral with, (iii) to register ownership of any item of Shared Collateral in the name of or make an assignment of ownership of any Shared Collateral or the rights thereunder to, (iv) cause any securities intermediary, commodity intermediary or other Person acting in a similar capacity to agree to comply, in respect of any item of Shared Collateral, with instructions or orders from, or to treat, in respect of any item of Shared Collateral, as the entitlement holder, (v) hold any item of Shared Collateral in trust for (to the extent such item of Shared Collateral cannot be held in trust for multiple parties under applicable law), (vi) obtain the agreement of a bailee or other third party to hold any item of Shared Collateral for the benefit of or subject to the control of or, in respect of any item of Shared Collateral, to follow the instructions of or (vii) obtain the agreement of a landlord with respect to access to leased premises where any item of Shared Collateral is located or waivers or subordination of rights with respect to any item of Shared Collateral in favor of, in any case, both the Designated Senior Representative Collateral Agent and any Junior Second Priority Representative or Junior Second Priority Debt Party, such Grantor may, until the applicable Discharge of Senior Obligations has occurred, comply with such requirement under the applicable Junior Second Priority Collateral Document as it relates to such Shared Collateral by taking any of the actions set forth above only with respect to, or in favor of, the Designated Senior RepresentativeCollateral Agent.
Appears in 2 contracts
Samples: Credit Agreement (SMART Global Holdings, Inc.), Credit Agreement (SMART Global Holdings, Inc.)
Releases. (a) Each Junior Priority Representative, for itself and on behalf of each Junior Priority Debt Party under its Junior Priority Debt Facility, agrees that, in the event of a sale, transfer or other disposition of any specified item of Shared Collateral (including all or substantially all of the equity interests of any subsidiary Subsidiary of the Borrower) by, or with the consent of, the Designated Senior Representative or otherwise permitted under the Senior Debt Documents, other than a release granted upon (unless granted in connection with) or following the Discharge of Senior Obligations, the Liens granted to the Junior Priority Representatives and the Junior Priority Debt Parties upon such Shared Collateral to secure Junior Priority Debt Obligations shall (whether or not any Insolvency or Liquidation Proceeding is pending at such time) terminate and be released, immediately and automatically and without any further actionaction by any Person, concurrently with the termination and release of all Liens granted upon such Shared Collateral to secure Senior Obligations; provided that, in the case of any such sale, transfer or other disposition of Shared Collateral (other than any sale, transfer or other disposition in connection with the enforcement or exercise of any rights or remedies with respect to the Shared Collateral), the Liens granted to the Junior Priority Representatives and the Junior Priority Debt Parties shall not be so released if such sale, transfer or other disposition is not permitted under the terms of any Junior Priority Debt Document. Upon delivery to a Junior Priority Representative of an Officer’s Certificate stating that any such termination and release of Liens securing the Senior Obligations has become effective (or shall become effective concurrently with such termination and release of the Liens granted to the Junior Priority Debt Parties and the Junior Priority Representatives) and any necessary or proper instruments of termination or release prepared by the Borrower or any other Grantor, such Junior Priority Representative will promptly execute, deliver or acknowledge, at the Borrower’s or the other Grantor’s sole cost and expense, such instruments to evidence such termination and release of the Liens. Nothing in this Section 5.01(a) will be deemed to affect any agreement of a Junior Priority Representative, for itself and on behalf of the Junior Priority Debt Parties under its Junior Priority Debt Facility, to release the Liens on the Junior Priority Collateral as set forth in the relevant Junior Priority Debt Documents.
(b) Each Junior Priority Representative, for itself and on behalf of each Junior Priority Debt Party under its Junior Priority Debt Facility, hereby irrevocably constitutes and appoints the Designated Senior Representative and any officer or agent of the Designated Senior Representative, with full power of substitution, as its true and lawful attorney-in-fact with full irrevocable power and authority in the place and stead of such Junior Priority Representative or such Junior Priority Debt Party or in the Designated Senior Representative’s own name, from time to time in the Designated Senior Representative’s discretion, for the purpose of carrying out the terms of Section 5.01(a), to take any and all appropriate action and to execute and/or authorize any and all documents and instruments that may be necessary or desirable to accomplish the purposes of Section 5.01(a), including any termination statements, notations of liens, endorsements or other instruments of transfer or release. The Designated Senior Representative hereby agrees to take action reasonably requested by the Grantors to carry out the terms of this Section 5.01(b) or to accomplish the purposes of Section 5.01(a).
(c) Unless and until the Discharge of Senior Obligations has occurred, each Junior Priority Representative, for itself and on behalf of each Junior Priority Debt Party under its Junior Priority Debt Facility, hereby consents to the application, whether prior to or after an event of default under any Senior Debt Document, of proceeds of Shared Collateral to the repayment of Senior Obligations pursuant to the Senior Debt Documents, provided that nothing in this Section 5.01(c) shall be construed to prevent or impair the rights of the Junior Priority Representatives or the Junior Priority Debt Parties to receive proceeds in connection with the Junior Priority Debt Obligations not otherwise in contravention of this Agreement.
(d) Notwithstanding anything to the contrary in any Junior Priority Collateral Document, in the event the terms of a Senior Collateral Document and a Junior Priority Collateral Document each require any Grantor (i) to make payment any payments in respect of any item of Shared CollateralCollateral to, (ii) to deliver or afford control over any item of Shared Collateral to, or deposit any item of Shared Collateral with, (iii) to make notations of lien or register ownership of any item of Shared Collateral in the name of or make an assignment of ownership of any Shared Collateral or the rights thereunder to, (iv) cause any securities intermediary, commodity intermediary or other Person acting in a similar capacity to agree to comply, in respect of any item of Shared Collateral, with instructions or orders from, or to treat, in respect of any item of Shared Collateral, as the entitlement holder, (v) hold any item of Shared Collateral in trust for (to the extent such item of Shared Collateral cannot be held in trust for multiple parties under applicable law), (vi) obtain the agreement of a bailee or other third party to hold any item of Shared Collateral for the benefit of or subject to the control of or, in respect of any item of Shared Collateral, to follow the instructions of or (vii) obtain the agreement of a landlord with respect to access to leased premises where any item of Shared Collateral is located or waivers or subordination of rights with respect to any item of Shared Collateral in favor of, in any case, both the Designated any Senior Representative and any Junior Priority Representative or Junior Priority Debt Party, such Grantor may, until the applicable Discharge of Senior Obligations has occurred, comply with such requirement under the applicable Junior Priority Collateral Document as it relates to such Shared Collateral by taking any of the actions set forth above only with respect to, or in favor of, the Designated Senior Representative; provided that, notwithstanding anything to the contrary, any action or compliance with respect to the foregoing by any Grantor shall not cause a default or event of default to exist under any Senior Debt Document or any Junior Priority Debt Document.
Appears in 2 contracts
Samples: Credit Agreement (Vistra Energy Corp), Credit Agreement (Energy Future Competitive Holdings Co LLC)
Releases. (a) Each Junior Second Priority Representative, for itself and on behalf of each Junior Second Priority Debt Party under its Junior Second Priority Debt Facility, agrees that, in the event of a sale, transfer or other disposition of any specified item of Shared Collateral (including all or substantially all of the equity interests of any subsidiary of the BorrowerCompany) other than (a release granted upon or following the Discharge of Senior Obligations“Disposition”), the Liens granted to the Junior Second Priority Representatives and the Junior Second Priority Debt Parties upon such Shared Collateral to secure Junior Second Priority Debt Obligations shall terminate and or shall be released, automatically and without any further action, concurrently with the termination and or release of all Liens granted upon such Shared Collateral to secure Senior Obligations; , provided that, in that the case parties’ respective Liens shall attach to the net proceeds of any such sale, transfer or other disposition of Shared Collateral (other than any sale, transfer or other disposition in connection Disposition with the enforcement or exercise of any rights or remedies with respect same Lien priorities as provided in this Agreement to the Shared Collateral), extent such proceeds are not otherwise utilized to permanently reduce the Liens granted to the Junior Priority Representatives and the Junior Priority Debt Parties shall not be so released if such sale, transfer or other disposition is not permitted under the terms of any Junior Priority Debt DocumentSenior Obligations. Upon delivery to a Junior Second Priority Representative of an Officer’s Certificate or other written document (including any release document from the Designated Senior Representative) stating or providing evidence that any such termination and or release of Liens securing the Senior Obligations has become effective (or shall become effective concurrently with such termination and or release of the Liens granted to the Junior Second Priority Debt Parties and the Junior Second Priority Representatives) and any necessary or proper instruments of termination or release prepared by the Borrower Company or any other Grantor, such Junior Second Priority Representative will promptly execute, deliver or acknowledge, at the BorrowerCompany’s or the other Grantor’s sole cost and expense, such instruments to evidence such termination and or release of the Liens; provided, however that such Officer’s Certificate shall not be required for any termination or release in connection with the exercise of remedies following an Event of Default. Nothing in this Section 5.01(a) will be deemed to (x) affect any agreement of a Junior Second Priority Representative, for itself and on behalf of the Junior Second Priority Debt Parties under its Junior Second Priority Debt Facility, to release the Liens on the Junior Second Priority Collateral as set forth in the relevant Junior Second Priority Debt Documents or (y) except in the case of a Disposition in connection with the exercise of secured creditors’ rights and remedies, require the release of Liens granted upon such Shared Collateral to secure Second Priority Debt Obligations if such Disposition is not permitted under the terms of the Second Priority Debt Documents.
(b) Each Junior Second Priority Representative, for itself and on behalf of each Junior Second Priority Debt Party under its Junior Second Priority Debt Facility, hereby irrevocably constitutes and appoints the Designated Senior Representative and any officer or agent of the Designated Senior Representative, with full power of substitution, as its true and lawful attorney-in-fact with full irrevocable power and authority in the place and stead of such Junior Second Priority Representative or such Junior Second Priority Debt Party or in the Designated Senior Representative’s own name, from time to time in the Designated Senior Representative’s discretion, for the purpose of carrying out the terms of Section 5.01(a), to take any and all appropriate action and to execute any and all documents and instruments that may be necessary or desirable to accomplish the purposes of Section 5.01(a), including any termination statements, endorsements or other instruments of transfer or release.
(c) Unless and until the Discharge of Senior Obligations has occurred, each Second Priority Representative, for itself and on behalf of each Second Priority Debt Party under its Second Priority Debt Facility, hereby consents to the application, whether prior to or after an event of default under any Senior Debt Document of Proceeds of Shared Collateral to the repayment of Senior Obligations pursuant to the Senior Debt Documents, provided that nothing in this Section 5.01(c) shall be construed to prevent or impair the rights of the Second Priority Representatives or the Second Priority Debt Parties to receive Proceeds in connection with the Second Priority Debt Obligations not otherwise in contravention of this Agreement.
(d) Notwithstanding anything to the contrary in any Junior Second Priority Collateral Document, in the event the terms of a Senior Collateral Document and a Junior Second Priority Collateral Document each require any Grantor to (i) to make payment in respect of any item of Shared CollateralCollateral to, (ii) to deliver or afford control over any item of Shared Collateral to, or deposit any item of Shared Collateral with, (iii) to register ownership of any item of Shared Collateral in the name of of, or make an assignment of ownership of any Shared Collateral or the rights thereunder to, (iv) cause any securities intermediary, commodity intermediary or other Person acting in a similar capacity to agree to comply, in respect of any item of Shared Collateral, with instructions or orders from, or to treat, in respect of any item of Shared Collateral, as the entitlement holder, (v) hold any item of Shared Collateral in trust for (to the extent such item of Shared Collateral cannot be held in trust for multiple parties under applicable law), (vi) obtain the agreement of a bailee or other third party to hold any item of Shared Collateral for the benefit of or subject to the control of or, in respect of any item of Shared Collateral, to follow the instructions of or (vii) obtain the agreement of a landlord with respect to access to leased premises where any item of Shared Collateral is located or waivers or subordination of rights with respect to any item of Shared Collateral in favor of, in any case, both the Designated any Senior Representative or Senior Secured Party and any Junior Second Priority Representative or Junior Second Priority Debt Party, such Grantor may, until the applicable Discharge of Senior Obligations has occurred, comply with such requirement under the applicable Junior Second Priority Collateral Document as it relates to such Shared Collateral by taking any of the actions set forth above only with respect to, or in favor of, the Designated Senior Representative.
Appears in 2 contracts
Samples: First/Second Lien Intercreditor Agreement (Sotera Health Co), First/Second Lien Intercreditor Agreement (Sotera Health Topco, Inc.)
Releases. (a) Each Junior Second Priority Representative, for itself and on behalf of each Junior Second Priority Debt Secured Party under its Junior Second Priority Debt Facility, agrees that, in the event of a saleany release of Liens on Shared Collateral securing any First Priority Obligations in connection with (i) the exercise of remedies in respect of Collateral or (ii) if not in connection with the exercise of remedies in respect of Collateral, transfer or other disposition of any specified item Disposition of Shared Collateral (including all or substantially all of the equity interests Capital Stock of any subsidiary Subsidiary of the Borrower) other than a release granted upon or following so long as Disposition is permitted by the Discharge terms of Senior Obligationsthe Second Priority Debt Documents, the Liens granted to the Junior Second Priority Representatives and the Junior Second Priority Debt Secured Parties upon such Shared Collateral (but not upon the proceeds thereof) to secure Junior Second Priority Debt Obligations shall terminate and be released, automatically and without any further action, concurrently with the termination and release of all Liens granted upon such Shared Collateral to secure Senior First Priority Obligations; provided that, in the case of any such sale, transfer or other disposition of Shared Collateral (other than any sale, transfer or other disposition in connection with the enforcement or exercise of any rights or remedies with respect to the Shared Collateral), the Liens granted to the Junior Priority Representatives and the Junior Priority Debt Parties shall not be so released if such sale, transfer or other disposition is not permitted under the terms of any Junior Priority Debt Document. Upon delivery to a Junior each Second Priority Representative of an Officer’s Certificate stating that any such termination and release of Liens securing the Senior First Priority Obligations has become effective (or shall become effective concurrently with such termination and release of the Liens granted to the Junior Second Priority Debt Secured Parties and the Junior Second Priority Representatives) and any necessary or proper instruments of termination or release prepared by the Borrower or any other Grantor, such Junior each Second Priority Representative will promptly execute, deliver or acknowledge, at the Borrower’s or the other Grantor’s sole cost and expenseexpense and without any recourse, representation or warranty, such instruments to evidence such termination and release of the Liens. Nothing in this Section 5.01(a) will be deemed to affect any agreement of a Junior Second Priority Representative, for itself and on behalf of the Junior Second Priority Debt Secured Parties under its Junior Second Priority Debt Facility, to release the Liens on the Junior Second Priority Collateral as set forth in the relevant Junior Second Priority Debt Documents.
(b) Each Junior Second Priority Representative, for itself and on behalf of each Junior Second Priority Debt Secured Party under its Junior Second Priority Debt Facility, hereby irrevocably constitutes and appoints the Designated Senior First Priority Representative and any officer or agent of the Designated Senior First Priority Representative, with full power of substitution, as its true and lawful attorney-in-fact with full irrevocable power and authority in the place and stead of such Junior Second Priority Representative or such Junior Second Priority Debt Secured Party or in the Designated Senior First Priority Representative’s own name, from time to time in the Designated Senior First Priority Representative’s discretion, for the purpose of carrying out the terms of Section 5.01(a), to take any and all appropriate action and to execute any and all documents and instruments that may be necessary or desirable to accomplish the purposes of Section 5.01(a), including any termination statements, endorsements or other instruments of transfer or release.
(c) Unless and until the Discharge of First Priority Obligations has occurred, each Second Priority Representative, for itself and on behalf of each Second Priority Secured Party under its Second Priority Debt Facility, hereby consents to the application, whether prior to or after an event of default under any First Priority Debt Document of proceeds of Shared Collateral to the repayment of First Priority Obligations pursuant to the First Priority Debt Documents, provided that nothing in this Section 5.01(c) shall be construed to prevent or impair the rights of the Second Priority Representatives or the Second Priority Secured Parties to receive proceeds in connection with the Second Priority Debt Obligations not otherwise in contravention of this Agreement.
(d) Notwithstanding anything to the contrary in any Junior Second Priority Collateral Document, in the event the terms of a Senior First Priority Collateral Document and a Junior Second Priority Collateral Document each require any Grantor (i) to make payment in respect of any item of Shared Collateral, (ii) to deliver or afford control over any item of Shared Collateral to, or deposit any item of Shared Collateral with, (iii) to register ownership of any item of Shared Collateral in the name of or make an assignment of ownership of any Shared Collateral or the rights thereunder to, (iv) cause any securities intermediary, commodity intermediary or other Person acting in a similar capacity to agree to comply, in respect of any item of Shared Collateral, with instructions or orders from, or to treat, in respect of any item of Shared Collateral, as the entitlement holder, (v) hold any item of Shared Collateral in trust for (to the extent such item of Shared Collateral cannot be held in trust for multiple parties under applicable law), (vi) obtain the agreement of a bailee or other third party to hold any item of Shared Collateral for the benefit of or subject to the control of or, in respect of any item of Shared Collateral, to follow the instructions of or (vii) obtain the agreement of a landlord with respect to access to leased premises where any item of Shared Collateral is located or waivers or subordination of rights with respect to any item of Shared Collateral in favor of, in any case, both the Designated Senior First Priority Representative and any Junior Second Priority Representative or Junior Second Priority Debt Secured Party, such Grantor may, until the applicable Discharge of Senior First Priority Obligations has occurred, comply with such requirement under the applicable Junior Second Priority Collateral Document as it relates to such Shared Collateral by taking any of the actions set forth above only with respect to, or in favor of, the Designated Senior First Priority Representative.
Appears in 2 contracts
Samples: Junior Priority Intercreditor Agreement (Ocwen Financial Corp), Indenture (Ocwen Financial Corp)
Releases. (a) Each Junior Second Priority Representative, for itself and on behalf of each Junior Second Priority Debt Secured Party under its Junior Second Priority Debt Facility, agrees that, in the event of a sale, transfer or other disposition Disposition of any specified item of Shared Collateral (including all or substantially all of the equity interests Capital Stock of any subsidiary Subsidiary of the BorrowerBorrowers) other than a release granted upon (i) in connection with the exercise of remedies in respect of Collateral or following (ii) if not in connection with the Discharge exercise of remedies in respect of Collateral, so long as such Disposition is permitted by the terms of the Senior ObligationsPriority Debt Documents, the Liens granted to the Junior Second Priority Representatives and the Junior Second Priority Debt Secured Parties upon such Shared Collateral (but not on the proceeds thereof) to secure Junior Second Priority Debt Obligations shall terminate and be released, automatically and without any further action, concurrently with the termination and release of all Liens granted to the Designated Senior Representative upon such Shared Collateral to secure Senior Obligations; provided that, in the case of any such sale, transfer or other disposition of Shared Collateral (other than any sale, transfer or other disposition in connection with the enforcement or exercise of any rights or remedies with respect to the Shared Collateral), the Liens granted to the Junior Priority Representatives and the Junior Priority Debt Parties shall not be so released if such sale, transfer or other disposition is not permitted under the terms of any Junior Priority Debt Document. Upon delivery to a Junior Second Priority Representative of an Officer’s Certificate stating that any such termination and release of Liens securing the Senior Obligations has become effective (or shall become effective concurrently with such termination and release of the Liens granted to the Junior Second Priority Debt Secured Parties and the Junior Second Priority Representatives) and any necessary or proper instruments of termination or release prepared by the Borrower Borrowers or any other Grantor, such Junior Second Priority Representative will promptly execute, deliver or acknowledge, at the Borrower’s Borrowers’ or the such other Grantor’s sole cost and expenseexpense and without any representation or warranty, such instruments to evidence such termination and release of the Liens. Nothing in this Section 5.01(a) will be deemed to affect any agreement of a Junior Second Priority Representative, for itself and on behalf of the Junior Second Priority Debt Secured Parties under its Junior Second Priority Debt Facility, to release the Liens on the Junior Second Priority Collateral as set forth in the relevant Junior Second Priority Debt Documents.
(b) Each Junior Second Priority Representative, for itself and on behalf of each Junior Second Priority Debt Secured Party under its Junior Second Priority Debt Facility, hereby irrevocably constitutes and appoints the Designated Senior Representative and any officer or agent of the Designated Senior Representative, with full power of substitution, as its true and lawful attorney-in-fact with full irrevocable power and authority in the place and stead of such Junior Second Priority Representative or such Junior Second Priority Debt Secured Party or in the Designated Senior Representative’s own name, from time to time in the Designated Senior Representative’s discretion, for the purpose of carrying out the terms of Section 5.01(a), to take any and all appropriate action and to execute any and all documents and instruments that may be necessary or desirable to accomplish the purposes of Section 5.01(a), including any termination statements, endorsements or other instruments of transfer or release.
(c) Notwithstanding anything to the contrary in any Junior Priority Collateral Document, in the event the terms of a Senior Collateral Document Unless and a Junior Priority Collateral Document each require any Grantor (i) to make payment in respect of any item of Shared Collateral, (ii) to deliver or afford control over any item of Shared Collateral to, or deposit any item of Shared Collateral with, (iii) to register ownership of any item of Shared Collateral in the name of or make an assignment of ownership of any Shared Collateral or the rights thereunder to, (iv) cause any securities intermediary, commodity intermediary or other Person acting in a similar capacity to agree to comply, in respect of any item of Shared Collateral, with instructions or orders from, or to treat, in respect of any item of Shared Collateral, as the entitlement holder, (v) hold any item of Shared Collateral in trust for (to the extent such item of Shared Collateral cannot be held in trust for multiple parties under applicable law), (vi) obtain the agreement of a bailee or other third party to hold any item of Shared Collateral for the benefit of or subject to the control of or, in respect of any item of Shared Collateral, to follow the instructions of or (vii) obtain the agreement of a landlord with respect to access to leased premises where any item of Shared Collateral is located or waivers or subordination of rights with respect to any item of Shared Collateral in favor of, in any case, both the Designated Senior Representative and any Junior Priority Representative or Junior Priority Debt Party, such Grantor may, until the applicable Discharge of Senior Obligations has occurred, comply with such requirement each Second Priority Representative, for itself and on behalf of each Second Priority Secured Party under its Second Priority Debt Facility, hereby consents to the applicable Junior application, whether prior to or after an event of default under any Senior Priority Collateral Debt Document as it relates to such of proceeds of Shared Collateral by taking any to the repayment of Senior Obligations pursuant to the Senior Priority Debt Documents, provided that nothing in this Section 5.01(c) shall be construed to prevent or impair the rights of the actions set forth above only Second Priority Representatives or the Second Priority Secured Parties to receive proceeds in connection with respect to, or the Second Priority Debt Obligations not otherwise in favor of, the Designated Senior Representativecontravention of this Agreement.
Appears in 1 contract
Releases. (a) Each Junior Priority Representative, for itself and on behalf of each Junior Priority Debt Party under its Junior Priority Debt Facility, agrees that, in the event of a sale, transfer or other disposition of any specified item of Shared Collateral (including all or substantially all of the equity interests of any subsidiary of the Borrower) other than a release granted upon or following the Discharge of Senior Obligations, the Liens granted to the Junior Priority Representatives and the Junior Priority Debt Parties upon such Shared Collateral to secure Junior Priority Debt Obligations shall terminate and be released, automatically and without any further action, concurrently with the termination and release of all Liens granted upon such Shared Collateral to secure Senior Obligations; provided that, in the case of any such sale, transfer or other disposition of Shared Collateral (other than any sale, transfer or other disposition If in connection with the enforcement or exercise of the Senior Agent’s remedies in respect of any rights Common Collateral subject to its Senior Liens, the Senior Agent, for itself or remedies with respect on behalf of the Senior Secured Parties, releases its Senior Liens on any part of such Common Collateral, then the Junior Liens on such Common Collateral shall be automatically, unconditionally and simultaneously released; provided, that such Junior Liens shall remain on the Proceeds of such Common Collateral, subject to the Shared Collateral), the Liens granted to the relative priorities set forth in Article II. The Junior Priority Representatives and the Junior Priority Debt Parties shall not be so released if such sale, transfer or other disposition is not permitted under the terms of any Junior Priority Debt Document. Upon delivery to a Junior Priority Representative of an Officer’s Certificate stating that any such termination and release of Liens securing the Senior Obligations has become effective (or shall become effective concurrently with such termination and release of the Liens granted to the Junior Priority Debt Parties and the Junior Priority Representatives) and any necessary or proper instruments of termination or release prepared by the Borrower or any other Grantor, such Junior Priority Representative will promptly execute, deliver or acknowledge, at the Borrower’s or the other Grantor’s sole cost and expense, such instruments to evidence such termination and release of the Liens. Nothing in this Section 5.01(a) will be deemed to affect any agreement of a Junior Priority RepresentativeAgent, for itself and on behalf of the Junior Priority Debt Parties under its Junior Priority Debt FacilitySecured Parties, agrees promptly to release execute and deliver to the Liens on Senior Agent or the Junior Priority Collateral applicable Grantor such termination statements, releases and other documents as set forth in the relevant Junior Priority Debt DocumentsSenior Agent or such Grantor may request to confirm such release.
(b) Each If in connection with any sale, lease, exchange, transfer or other disposition of any Common Collateral (collectively, a “Disposition”) permitted under the terms of both the Senior Credit Documents and the Junior Priority RepresentativeCredit Documents (other than in connection with the exercise of the Senior Agent’s remedies in respect of Common Collateral as provided in paragraph (a) above), the Senior Agent, for itself or on behalf of the Senior Secured Parties, releases any of its Senior Liens on any part of such Common Collateral, other than (i) in connection with the Discharge of Senior Obligations or (ii) after the occurrence and during the continuance of any Event of Default under the Junior Credit Documents, then the Junior Liens of the Junior Agent and the Junior Secured Parties on such Collateral shall be automatically, unconditionally and simultaneously released; provided, that such Junior Liens shall remain on the Proceeds of such Common Collateral, subject to the relative priorities set forth in Article II. The Junior Agent, for itself or on behalf of the Junior Secured Parties, promptly shall execute and deliver to the Senior Agent or the applicable Grantor such termination statements, releases and other documents as the Senior Agent or such Grantor may request to confirm such release.
(c) Until the Discharge of Senior Obligations has occurred, the Junior Agent, for itself and on behalf of each the Junior Priority Debt Party under its Junior Priority Debt FacilitySecured Parties, hereby irrevocably constitutes and appoints the Designated Senior Representative Agent and any officer or agent of the Designated Senior RepresentativeAgent, with full power of substitution, as its true and lawful attorney-in-fact with full irrevocable power and authority in the name, place and stead of such the Junior Priority Representative Agent or such Junior Priority Debt Party Secured Parties or in the Designated Senior RepresentativeAgent’s own name, from time to time in the Designated Senior RepresentativeAgent’s discretion, for the purpose of carrying out the terms of Section 5.01(a)this Section, to take any and all appropriate action and to execute any and all documents and instruments that which may be necessary or desirable appropriate to accomplish the purposes of Section 5.01(a)this Section, including any termination statements, endorsements or other instruments of transfer or release.
(cd) Notwithstanding anything to Until the contrary in any Junior Priority Collateral Document, in the event the terms of a Senior Collateral Document and a Junior Priority Collateral Document each require any Grantor (i) to make payment in respect of any item of Shared Collateral, (ii) to deliver or afford control over any item of Shared Collateral to, or deposit any item of Shared Collateral with, (iii) to register ownership of any item of Shared Collateral in the name of or make an assignment of ownership of any Shared Collateral or the rights thereunder to, (iv) cause any securities intermediary, commodity intermediary or other Person acting in a similar capacity to agree to comply, in respect of any item of Shared Collateral, with instructions or orders from, or to treat, in respect of any item of Shared Collateral, as the entitlement holder, (v) hold any item of Shared Collateral in trust for (to the extent such item of Shared Collateral cannot be held in trust for multiple parties under applicable law), (vi) obtain the agreement of a bailee or other third party to hold any item of Shared Collateral for the benefit of or subject to the control of or, in respect of any item of Shared Collateral, to follow the instructions of or (vii) obtain the agreement of a landlord with respect to access to leased premises where any item of Shared Collateral is located or waivers or subordination of rights with respect to any item of Shared Collateral in favor of, in any case, both the Designated Senior Representative and any Junior Priority Representative or Junior Priority Debt Party, such Grantor may, until the applicable Discharge of Senior Obligations has occurred, comply to the extent that the Senior Agent or Senior Secured Parties release any Senior Lien on Common Collateral and any such Lien is later reinstated, then the Junior Agent with such requirement under the applicable Junior Priority Collateral Document as it relates respect to such Shared Collateral by taking any Common Collateral, for itself and on behalf of the actions set forth above only with respect toJunior Secured Parties, or in favor ofshall have, and hereby is hereby granted, a Lien on such Common Collateral, subject to the Designated Senior Representativelien subordination provisions of this Agreement.
Appears in 1 contract
Samples: Lien Subordination and Intercreditor Agreement (Symmetry Holdings Inc)
Releases. (a) Each Junior Priority RepresentativeLicensee hereby irrevocably and unconditionally releases and fully discharges County and County’s respective successors, predecessors, assigns and all past, present and future elected and appointed officers, agents, employees, representatives, attorneys and all persons acting by, through, under or in concert with County, from all any and all claims which Licensee may have or claim to have arising out of or related to the Existing License or the failure of County to perform any of its obligations under the Existing License, including any claims of right to possession, or rights to access or use the Premises for itself and on behalf of each Junior Priority Debt Party under its Junior Priority Debt Facilityany purpose after the Termination Date. Licensee acknowledges that (i) Licensee may discover, agrees that, in the event of a sale, transfer incur or other disposition of any specified item of Shared Collateral (including all suffer from claims which were unknown or substantially all unanticipated as of the equity interests effective date of any subsidiary this Agreement and (ii) Licensee is assuming the risk of the Borrower) other than a release granted upon or following the Discharge of Senior Obligationssuch unknown and unanticipated claims and agrees that this Agreement applies to such unknown and unanticipated claims. THIS RELEASE INCLUDES CLAIMS OF WHICH LICENSEE IS PRESENTLY UNAWARE OR WHICH LICENSEE DOES NOT PRESENTLY SUSPECT TO EXIST WHICH, the Liens granted to the Junior Priority Representatives and the Junior Priority Debt Parties upon such Shared Collateral to secure Junior Priority Debt Obligations shall terminate and be releasedIF KNOWN BY LICENSEE, automatically and without any further actionWOULD MATERIALLY AFFECT LICENSEE’S RELEASE OF COUNTY. LICENSEE SPECIFICALLY WAIVES THE PROVISION OF CALIFORNIA CIVIL CODE SECTION 1542, concurrently with the termination and release of all Liens granted upon such Shared Collateral to secure Senior Obligations; provided thatWHICH PROVIDES AS FOLLOWS: “A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR DOES NOT KNOW OR SUSPECT TO EXIST IN HIS OR HER FAVOR AT THE TIME OF EXECUTING THE RELEASE, in the case of any such sale, transfer or other disposition of Shared Collateral (other than any sale, transfer or other disposition in connection with the enforcement or exercise of any rights or remedies with respect to the Shared Collateral), the Liens granted to the Junior Priority Representatives and the Junior Priority Debt Parties shall not be so released if such sale, transfer or other disposition is not permitted under the terms of any Junior Priority Debt Document. Upon delivery to a Junior Priority Representative of an OfficerWHICH IF KNOWN BY HIM OR HER MUST HAVE MATERIALLY AFFECTED HIS OR HER SETTLEMENT WITH THE DEBTOR.” Licensee’s Certificate stating that any such termination and release of Liens securing the Senior Obligations has become effective (or shall become effective concurrently with such termination and release of the Liens granted to the Junior Priority Debt Parties and the Junior Priority Representatives) and any necessary or proper instruments of termination or release prepared by the Borrower or any other Grantor, such Junior Priority Representative will promptly execute, deliver or acknowledge, at the Borrowerinitials County’s or the other Grantor’s sole cost and expense, such instruments to evidence such termination and release of the Liens. Nothing in this Section 5.01(a) will be deemed to affect any agreement of a Junior Priority Representative, for itself and on behalf of the Junior Priority Debt Parties under its Junior Priority Debt Facility, to release the Liens on the Junior Priority Collateral as set forth in the relevant Junior Priority Debt Documents.initials
(b) Each Junior Priority RepresentativeLicensee represents and warrants to County that Licensee has not assigned or transferred, for itself and on behalf of each Junior Priority Debt Party under its Junior Priority Debt Facilityor purported to assign or transfer, hereby irrevocably constitutes and appoints or will at any time prior to the Designated Senior Representative and any officer Termination Date, assign or agent of the Designated Senior Representative, with full power of substitution, as its true and lawful attorney-in-fact with full irrevocable power and authority in the place and stead of such Junior Priority Representative or such Junior Priority Debt Party or in the Designated Senior Representative’s own name, from time to time in the Designated Senior Representative’s discretion, for the purpose of carrying out the terms of Section 5.01(a), to take any and all appropriate action and to execute any and all documents and instruments that may be necessary or desirable to accomplish the purposes of Section 5.01(a), including any termination statements, endorsements or other instruments of transfer or releasepurport to assign or transfer, any Claim or right to possession nor any portion thereof or any interest therein, and Licensee agrees to indemnify, defend and hold harmless County Indemnified Parties from and against any claim based upon or arising out of any such assignment or transfer, or purported assignment or transfer, by Licensee.
(c) Notwithstanding anything Effective upon County’s peaceable recovery of possession of the Premises on or before the Termination Date, or on or before the Lockout Date with Licensee in full compliance with Paragraph 6 above, then County waives any and all rent owed to the contrary County under the Existing License or any extension thereof (hereinafter “Rent Waiver”). The Rent Waiver is also conditional upon receipt of a written executed note from the undersigned Licensee agent dated on the same day possession is returned, stating that Licensee has removed all of its possessions and possessions of its Members from the Premises and that County may proceed to dispose or destroy any items which may remain in the Premises without any need to store or keep any items found at the Premises. Any contest, opposition, or effort to delay the UD Action by Licensee or any of its Members will remove and erase the County’s obligation as to the Rent Waiver, and County may proceed to attempt to collect all costs incurred as a result, and to make every effort to collect any and all rents owing, including but not limited to percentage rents.
(d) In addition to the Rent Waiver, and upon the same conditions as set forth therefor in 8(c) above, County will agree to set aside and vacate any judgment for possession, and dismiss the UD Action, and/or agree to seal any court records of the UD Action. Licensee will prepare any documentation for the sealing of the records, or dismissal of the UD Action for execution by counsel for County in the UD Action, and Licensee will make any court appearance needed with co-operation of counsel for County. Upon any dismissal of the UD Action, Licensee waives any costs, or fees incurred and will not seek any costs or fees in regard to the UD Action from County or its counsel in that action. Inherent in any Junior Priority Collateral Document, in actions by County to remove the event the terms of a Senior Collateral Document and a Junior Priority Collateral Document each require any Grantor (i) to make payment in respect of any item of Shared Collateral, (ii) to deliver or afford control over any item of Shared Collateral toUD record, or deposit any item of Shared Collateral withset aside the judgment, (iii) to register ownership of any item of Shared Collateral in is the name of or make an assignment of ownership of any Shared Collateral or the rights thereunder to, (iv) cause any securities intermediary, commodity intermediary or other Person acting in a similar capacity to agree to comply, in respect of any item of Shared Collateral, with instructions or orders from, or to treat, in respect of any item of Shared Collateral, as the entitlement holder, (v) hold any item of Shared Collateral in trust for (to the extent such item of Shared Collateral canunderstanding that Licensee will not be held in trust for multiple parties under applicable law), (vi) obtain returning to occupy the agreement of a bailee or other third party to hold any item of Shared Collateral for the benefit of or subject to the control of or, in respect of any item of Shared Collateral, to follow the instructions of or (vii) obtain the agreement of a landlord with respect to access to leased premises where any item of Shared Collateral is located or waivers or subordination of rights with respect to any item of Shared Collateral in favor of, in any case, both the Designated Senior Representative and any Junior Priority Representative or Junior Priority Debt Party, such Grantor may, until the applicable Discharge of Senior Obligations has occurred, comply with such requirement under the applicable Junior Priority Collateral Document as it relates to such Shared Collateral by taking any of the actions set forth above only with respect to, or in favor of, the Designated Senior RepresentativePremises.
Appears in 1 contract
Samples: Termination Agreement
Releases. (a) Each Junior Second Priority Representative, for itself and on behalf of each Junior Second Priority Debt Party under its Junior Second Priority Debt Facility, agrees that, in the event of a sale, transfer or other disposition of any specified item of Shared Collateral (including all or substantially all of the equity interests of any subsidiary of the BorrowerCompany) other than (i) in connection with an Enforcement Action or (ii) if not in connection with an Enforcement Action, so long as (I) permitted under the terms of the Senior Debt Documents and the Second Priority Debt Documents, or (II) the Senior Representative has not received written notice from a Second Priority Representative before the Senior Representative grants a Lien release granted upon or following for such Shared Collateral that an event of default has occurred that has not been waived under the Discharge of Senior ObligationsSecond Priority Debt Documents, the Liens granted to the Junior Second Priority Representatives and the Junior Second Priority Debt Parties upon such Shared Collateral to secure Junior Second Priority Debt Obligations shall terminate and be released, automatically and without any further action, concurrently with the termination and release of all Liens granted upon such Shared Collateral to secure Senior Obligations; Obligations (provided that, in that to the case extent the Proceeds of any such sale, transfer transfer, or other disposition of Shared Collateral (other than any sale, transfer or other disposition are not otherwise applied to reduce the Senior Obligations in connection with the enforcement or exercise of any rights or remedies with respect to the Shared Collateral)manner provided for in this Agreement, the Liens granted to of the Junior Priority Representatives and the Junior Second Priority Debt Parties shall not be so released if will attach to such sale, transfer or other disposition is not permitted under Proceeds on the terms same basis of any Junior priority as the Liens on the Shared Collateral securing the Second Priority Debt DocumentObligations pursuant to this Agreement). Upon delivery to written request from the Senior Representative in a Junior Priority Representative of an Officer’s Certificate stating request that states that any such termination and release of Liens securing the Senior Obligations has become effective (or that shall become effective concurrently with such the termination and release of the Liens granted to the Junior Second Priority Debt Parties and the Junior Second Priority Representatives) and any necessary or proper instruments of termination or release prepared by ), the Borrower or any other Grantor, such Junior Second Priority Representative will promptly (but in any event within five (5) Business Days) execute, deliver or acknowledge, at the BorrowerCompany’s or the other Grantor’s sole cost and expense, such termination statements, releases, instruments and other documents as the Senior Representative or the Company may request to confirm or evidence such termination and release of the Liens. Nothing in this Section 5.01(a) will be deemed to affect any agreement of a Junior Second Priority Representative, for itself and on behalf of the Junior Second Priority Debt Parties under its Junior Second Priority Debt Facility, to release the grant additional releases of Liens on the Junior Second Priority Collateral as set forth in the relevant Junior Priority Debt DocumentsCollateral.
(b) Each Junior Second Priority Representative, for itself and on behalf of each Junior Second Priority Debt Party under its Junior Second Priority Debt Facility, hereby irrevocably constitutes and appoints the Designated Senior Representative and any officer or agent of the Designated Senior Representative, with full power of substitution, as its true and lawful attorney-in-fact with full irrevocable power and authority in the place and stead of such Junior Second Priority Representative or such Junior Second Priority Debt Party or in the Designated Senior Representative’s own name, from time to time in the Designated Senior Representative’s discretion, for the purpose of carrying out the terms of Section 5.01(a), to take any and all appropriate action and to execute any and all documents and instruments that may be necessary or desirable to accomplish the purposes of Section 5.01(a), including any termination statements, endorsements or other instruments of transfer or release. The appointment in this Section 5.01(b) is irrevocable and is coupled with an interest.
(c) Unless and until the Discharge of Senior Obligations has occurred, each Second Priority Representative, for itself and on behalf of each Second Priority Debt Party under its Second Priority Debt Facility, hereby consents to the application, whether prior to or after an event of default under any Senior Debt Document, of Proceeds of Shared Collateral to the repayment of Senior Obligations pursuant to the Senior Debt Documents, provided that nothing in this Section 5.01(c) shall be construed to prevent or impair the rights of the Second Priority Representatives or the Second Priority Debt Parties to receive Proceeds in connection with the Second Priority Debt Obligations not otherwise in contravention of this Agreement.
(d) Notwithstanding anything to the contrary in any Junior Second Priority Collateral Document, in the event the terms of a Senior Collateral Document and a Junior Second Priority Collateral Document each require any Grantor (i) to make payment in respect of any item of Shared CollateralCollateral to, (ii) to deliver or afford control over (to the extent only one party can have control of such Shared Collateral) any item of Shared Collateral to, or deposit any item of Shared Collateral with, (iii) to register ownership of any item of Shared Collateral in the name of or make an assignment of ownership of any Shared Collateral or the rights thereunder tothereunder, and (iv) cause any securities intermediary, commodity intermediary or other Person acting in a similar capacity to agree to comply, in respect of any item of Shared Collateral, with instructions or orders from, or to treat, in respect of any item of Shared Collateral, as the entitlement holder, (v) hold any item of Shared Collateral in trust for (to the extent such item of Shared Collateral cannot be held in trust for multiple parties under applicable law), (vi) obtain the agreement of a bailee or other third party to hold any item of Shared Collateral for the benefit of or subject to the control of or, in respect of any item of Shared Collateral, to follow the instructions of or (vii) obtain the agreement of a landlord with respect to access to leased premises where any item of Shared Collateral is located or waivers or subordination of rights with respect to any item of Shared Collateral in favor of, in any case, both the Designated Senior Representative and any Junior Second Priority Representative or Junior Second Priority Debt Party, such Grantor mayshall, until the applicable Discharge of Senior Obligations has occurred, comply with such requirement under the applicable Junior Second Priority Collateral Document as it relates to such Shared Collateral by taking any of the actions set forth above only with respect to, or in favor of, the Designated Senior Representative.
Appears in 1 contract
Samples: Second Lien Intercreditor Agreement (Callon Petroleum Co)
Releases. (a) Each Junior First Lien Priority Representative, for itself and on behalf of each Junior First Lien Priority Debt Party under its Junior First Lien Priority Debt Facility, agrees that, in the event of a sale, transfer transfer, or other disposition of any specified item of Shared Collateral (including all or substantially all of the equity interests of any subsidiary of the Borrower) other than a release granted upon or following the Discharge of Senior ObligationsCollateral, the Liens granted to the Junior First Lien Priority Representatives and the Junior First Lien Priority Debt Parties upon such Shared Collateral to secure Junior First Lien Priority Debt Obligations shall terminate and be released, automatically and without any further action, concurrently with the termination and release of all Liens granted upon such Shared Collateral to secure Super Senior Obligations; provided that, in the case of any such sale, transfer transfer, or other disposition of Shared Collateral (other than any sale, transfer transfer, or other disposition in connection with the an Enforcement Action or any other enforcement or exercise of any rights or remedies with respect to the Shared Collateral), the Liens granted to the Junior First Lien Priority Representatives and the Junior First Lien Priority Debt Parties shall not be so released if (i) such sale, transfer transfer, or other disposition is not permitted under the terms of any Junior First Lien Priority Debt DocumentDocument or (ii) such release of Super Senior Secured Parties’ Liens is granted upon or following the Discharge of Super Senior Obligations. Upon delivery to a Junior First Lien Priority Representative of an Officer’s Certificate stating that any such termination and release of Liens securing the Super Senior Obligations has become effective (or shall become effective concurrently with such termination and release of the Liens granted to the Junior First Lien Priority Debt Parties and the Junior First Lien Priority Representatives) and any necessary or proper instruments of termination or release prepared by the Borrower or any other Grantor, such Junior First Lien Priority Representative will promptly execute, deliver deliver, or acknowledge, at the Borrower’s or the other Grantor’s sole cost and expense, such instruments to evidence such termination and release of the Liens. Nothing in this Section 5.01(a6.01(a) will be deemed to affect any agreement of a Junior First Lien Priority Representative, for itself and on behalf of the Junior First Lien Priority Debt Parties under its Junior First Lien Priority Debt Facility, to release the First Lien Priority Liens on the Junior First Lien Priority Collateral as set forth in the relevant Junior First Lien Priority Debt Documents.
(b) Each Junior First Lien Priority Representative, for itself and on behalf of each Junior First Lien Priority Debt Party under its Junior First Lien Priority Debt Facility, hereby irrevocably constitutes and appoints the Designated Super Senior Representative and any officer or agent of the Designated Super Senior Representative, with full power of substitution, as its true and lawful attorney-in-fact with full irrevocable power and authority in the place and stead of such Junior First Lien Priority Representative or such Junior First Lien Priority Debt Party or in the Designated Super Senior Representative’s own name, from time to time in the Designated Super Senior Representative’s discretion, for the purpose of carrying out the terms of Section 5.01(a6.01(a), to take any and all appropriate action and to execute any and all documents and instruments that may be necessary or desirable to accomplish the purposes of Section 5.01(a6.01(a), including any termination statements, endorsements endorsements, or other instruments of transfer or release.
(c) Unless and until the Discharge of Super Senior Obligations has occurred, each First Lien Priority Representative, for itself and on behalf of each First Lien Priority Debt Party under its First Lien Priority Debt Facility, hereby consents to the application whether prior to or after an event of default under any Super Senior Debt Document of Proceeds of Shared Collateral to the repayment of Super Senior Obligations pursuant to the Super Senior Debt Documents, provided that nothing in this Section 6.01(c) shall be construed to prevent or impair the rights of the First Lien Priority Representatives or the First Lien Priority Debt Parties to receive Proceeds in connection with the First Lien Priority Debt Obligations not otherwise in contravention of this Agreement.
(d) Notwithstanding anything to the contrary in any Junior First Lien Priority Collateral Document, in the event the terms of a Super Senior Collateral Document and a Junior First Lien Priority Collateral Document each require any Grantor (i) to make payment in respect of any item of Shared Collateral, (ii) to deliver or afford control over any item of Shared Collateral to, or deposit any item of Shared Collateral with, (iii) to register ownership of any item of Shared Collateral in the name of or make an assignment of ownership of any Shared Collateral or the rights thereunder to, (iv) cause any securities intermediary, commodity intermediary or other Person acting in a similar capacity to agree to comply, in respect of any item of Shared Collateral, with instructions or orders from, or to treat, in respect of any item of Shared Collateral, as the entitlement holder, (v) hold any item of Shared Collateral in trust for (to the extent such item of Shared Collateral cannot be held in trust for multiple parties under applicable law), (vi) obtain the agreement of a bailee or other third party to hold any item of Shared Collateral for the benefit of or subject to the control of or, in respect of any item of Shared Collateral, to follow the instructions of or (vii) obtain the agreement of a landlord with respect to access to leased premises where any item of Shared Collateral is located or waivers or subordination of rights with respect to any item of Shared Collateral in favor of, in any case, both the Designated Super Senior Representative and any Junior First Lien Priority Representative or Junior First Lien Priority Debt Party, such Grantor may, until the applicable Discharge of Super Senior Obligations has occurred, comply with such requirement under the applicable Junior First Lien Priority Collateral Document as it relates to such Shared Collateral by taking any of the actions set forth above only with respect to, or in favor of, the Designated Super Senior Representative.
Appears in 1 contract
Releases. (a) Each Junior Priority Representative, for itself and on behalf of each Junior Priority Debt Party under its Junior Priority Debt Facility, agrees that, in the event of a sale, transfer or other disposition of any specified item of Shared Collateral (including all or substantially all of the equity interests of any subsidiary of the Borrower) other Other than a release granted upon or following the Discharge of Senior Obligations, the Liens granted to the Junior Priority Representatives and the Junior Priority Debt Parties upon such Shared Collateral to secure Junior Priority Debt Obligations shall terminate and be released, automatically and without any further action, concurrently with the termination and release of all Liens granted upon such Shared Collateral to secure Senior Obligations; provided that, in the case of any such sale, transfer or other disposition of Shared Collateral (other than any sale, transfer or other disposition in connection with the enforcement payment in full of the Senior Obligations (unless such payment in full is made with proceeds from an Enforcement Action or exercise other dispositions of any rights or remedies with respect to the Shared Collateral), the Liens granted upon any release, sale or disposition of Senior Obligations Collateral permitted pursuant to the Junior Priority Representatives terms of the Senior Obligations Collateral Documents and any agreements governing the Junior Priority Debt Parties shall not be so released if such sale, transfer Senior Obligations that results in the release of the Senior Lien on any Senior Obligations Collateral (including without limitation any sale or other disposition pursuant to any Enforcement Action), the Junior Lien on such Senior Obligations Collateral (but not on any proceeds of such Senior Obligations Collateral which is not permitted under the terms of any Junior Priority Debt Document. Upon delivery required to a Junior Priority Representative of an Officer’s Certificate stating that any such termination and release of Liens securing be paid to the Senior Obligations has become effective (Secured Parties) shall be automatically and unconditionally released with no further consent or shall become effective concurrently with such termination and release action of the Liens granted to the Junior Priority Debt Parties and the Junior Priority Representatives) and any necessary or proper instruments of termination or release prepared by the Borrower or any other Grantor, such Junior Priority Representative will promptly execute, deliver or acknowledge, at the Borrower’s or the other Grantor’s sole cost and expense, such instruments to evidence such termination and release of the Liens. Nothing in this Section 5.01(a) will be deemed to affect any agreement of a Junior Priority Representative, for itself and on behalf of the Junior Priority Debt Parties under its Junior Priority Debt Facility, to release the Liens on the Junior Priority Collateral as set forth in the relevant Junior Priority Debt DocumentsPerson.
(b) Each of the Junior Priority RepresentativeAdministrative Agent and Junior Collateral Agent, for itself and on behalf of itself and the other Junior Obligations Secured Parties, at the sole cost and expense of the Loan Parties, shall promptly execute and deliver such release documents and instruments and shall take such further actions as the applicable Senior Administrative Agent and Senior Collateral Agent shall request to evidence any release of the Junior Lien described in paragraph (a) above. Each of the Junior Administrative Agent and Junior Collateral Agent and each other Junior Priority Debt Obligations Secured Party under its Junior Priority Debt Facility, hereby irrevocably constitutes and appoints the Designated applicable Senior Representative Administrative Agent and Senior Collateral Agent and any officer or agent duly authorized person of the Designated such Senior RepresentativeAdministrative Agent and Senior Collateral Agent, with full power of substitution, as its true and lawful attorney-in-fact with full irrevocable power and authority of attorney in the place and stead of such the Junior Priority Representative or such Obligations Secured Parties and in the name of the Junior Priority Debt Party Obligations Secured Parties or in the Designated applicable Senior RepresentativeAdministrative Agent and Senior Collateral Agent’s own name, from time to time time, in the Designated such Senior RepresentativeAdministrative Agent and Senior Collateral Agent’s sole discretion, for the purpose purposes of carrying out the terms of Section 5.01(a)this paragraph, to take any and all appropriate action and to execute and deliver any and all documents and instruments that as may be necessary or desirable to accomplish the purposes of Section 5.01(a)this paragraph, including including, without limitation, any termination financing statements, endorsements endorsements, assignments, releases or other documents or instruments of transfer or release(which appointment, being coupled with an interest, is irrevocable).
(c) Notwithstanding anything to the contrary in any Junior Priority Collateral Document, in the event the terms of a Senior Collateral Document and a Junior Priority Collateral Document each require any Grantor (i) to make payment in respect of any item of Shared Collateral, (ii) to deliver or afford control over any item of Shared Collateral to, or deposit any item of Shared Collateral with, (iii) to register ownership of any item of Shared Collateral in the name of or make an assignment of ownership of any Shared Collateral or the rights thereunder to, (iv) cause any securities intermediary, commodity intermediary or other Person acting in a similar capacity to agree to comply, in respect of any item of Shared Collateral, with instructions or orders from, or to treat, in respect of any item of Shared Collateral, as the entitlement holder, (v) hold any item of Shared Collateral in trust for (to the extent such item of Shared Collateral cannot be held in trust for multiple parties under applicable law), (vi) obtain the agreement of a bailee or other third party to hold any item of Shared Collateral for the benefit of or subject to the control of or, in respect of any item of Shared Collateral, to follow the instructions of or (vii) obtain the agreement of a landlord with respect to access to leased premises where any item of Shared Collateral is located or waivers or subordination of rights with respect to any item of Shared Collateral in favor of, in any case, both the Designated Senior Representative and any Junior Priority Representative or Junior Priority Debt Party, such Grantor may, until the applicable Discharge of Senior Obligations has occurred, comply with such requirement under the applicable Junior Priority Collateral Document as it relates to such Shared Collateral by taking any of the actions set forth above only with respect to, or in favor of, the Designated Senior Representative.
Appears in 1 contract
Samples: Asset Based Loan Credit Agreement (Express Parent LLC)
Releases. (a) Each Subject to the last sentence of this Section 5.01(a), each Junior Priority Representative, for itself and on behalf of each Junior Priority Debt Party under its Junior Priority Debt Facility, agrees that, in the event of a sale, transfer or other disposition of any specified item of Shared Collateral (including all or substantially all of the equity interests of any subsidiary of the BorrowerCompany) other than (a release granted upon or following the Discharge of Senior Obligations“Disposition”), the Liens granted to the Junior Priority Representatives and the Junior Priority Debt Parties upon such Shared Collateral to secure Junior Priority Debt Obligations shall terminate and shall be released, automatically and without any further action, concurrently with the termination and or release of all Liens granted upon such Shared Collateral to secure Senior Obligations; , provided that, in that the case parties’ respective Liens shall attach to the net proceeds of any such sale, transfer or other disposition of Shared Collateral (other than any sale, transfer or other disposition in connection Disposition with the enforcement or exercise of any rights or remedies with respect same Lien priorities as provided in this Agreement to the Shared Collateral), extent such proceeds are not otherwise utilized to permanently reduce the Liens granted to the Junior Priority Representatives and the Junior Priority Debt Parties shall not be so released if such sale, transfer or other disposition is not permitted under the terms of any Junior Priority Debt DocumentSenior Obligations. Upon delivery to a Junior Priority Representative of an Officer’s Certificate stating that any such termination and or release of Liens securing the Senior Obligations has become effective (or shall become effective concurrently with such termination and or release of the Liens granted to the Junior Priority Debt Parties and the Junior Priority Representatives) and any necessary or proper instruments of termination or release prepared by the Borrower Company or any other Grantor, such Junior Priority Representative will promptly execute, deliver or acknowledge, at the BorrowerCompany’s or the other Grantor’s sole cost and expense, such instruments to evidence such termination and or release of the Liens; provided, however that such Officer’s Certificate shall not be required for any termination or release in connection with the exercise of remedies following an Event of Default. Nothing in this Section 5.01(a) will be deemed to (x) affect any agreement of a Junior Priority Representative, for itself and on behalf of the Junior Priority Debt Parties under its Junior Priority Debt Facility, to release the Liens on the Junior Priority Collateral as set forth in the relevant Junior Priority Debt Documents or (y) except in the case of a Disposition in connection with the exercise of secured creditors’ rights and remedies, require the release of Liens granted upon such Shared Collateral to secure Junior Priority Debt Obligations if such Disposition is not permitted under the terms of the Junior Priority Debt Documents.
(b) Each Junior Priority Representative, for itself and on behalf of each Junior Priority Debt Party under its Junior Priority Debt Facility, hereby irrevocably constitutes and appoints the Designated Senior Representative and any officer or agent of the Designated Senior Representative, with full power of substitution, as its true and lawful attorney-in-fact with full irrevocable power and authority in the place and stead of such Junior Priority Representative or such Junior Priority Debt Party or in the Designated Senior Representative’s own name, from time to time in the Designated Senior Representative’s discretion, for the purpose of carrying out the terms of Section 5.01(a), to take any and all appropriate action and to execute any and all documents and instruments that may be necessary or desirable to accomplish the purposes of Section 5.01(a), including any termination statements, endorsements or other instruments of transfer or release.
(c) Notwithstanding Unless and until the Discharge of Senior Obligations has occurred, each Junior Representative, for itself and on behalf of each Junior Priority Debt Party under its Junior Priority Debt Facility, hereby consents to the application, whether prior to or after an event of default under any Senior Debt Document of proceeds of Shared Collateral to the repayment of Senior Obligations pursuant to the Senior Debt Documents, provided that nothing in this Section 5.01(c) shall be construed to prevent or impair the rights of the Junior Representatives or the Junior Priority Debt Parties to receive proceeds in connection with the Junior Priority Debt Obligations not otherwise in contravention of this Agreement.
(d) Subject to Sections 5.06(a) and 5.06(f), notwithstanding anything to the contrary in any Junior Priority Collateral Document, in the event the terms of a Senior Collateral Document and a Junior Priority Collateral Document each require any Grantor to (i) to make payment in respect of any item of Shared CollateralCollateral to, (ii) to deliver or afford control over any item of Shared Collateral to, or deposit any item of Shared Collateral with, (iii) to register ownership of any item of Shared Collateral in the name of or make an assignment of ownership of any Shared Collateral or the rights thereunder to, (iv) cause any securities intermediary, commodity intermediary or other Person acting in a similar capacity to agree to comply, in respect of any item of Shared Collateral, with instructions or orders from, or to treat, in respect of any item of Shared Collateral, as the entitlement holder, (v) hold any item of Shared Collateral in trust for (to the extent such item of Shared Collateral cannot be held in trust for multiple parties under applicable law), (vi) obtain the agreement of a bailee or other third party to hold any item of Shared Collateral for the benefit of or subject to the control of or, in respect of any item of Shared Collateral, to follow the instructions of or (vii) obtain the agreement of a landlord with respect to access to leased premises where any item of Shared Collateral is located or waivers or subordination of rights with respect to any item of Shared Collateral in favor of, in any case, both the Designated any Senior Representative or Senior Secured Party and any Junior Priority Representative or Junior Priority Debt Party, such Grantor may, until the applicable Discharge of Senior Obligations has occurred, comply with such requirement under the applicable Junior Priority Collateral Document as it relates to such Shared Collateral by taking any of the actions set forth above only with respect to, or in favor of, the Designated Senior Representative.
Appears in 1 contract
Samples: Indenture (Chart Industries Inc)
Releases. (a) Each Junior Priority RepresentativeTrustee, for itself and on behalf of each Junior Priority Debt Party under its Junior Priority Debt FacilityNoteholder, agrees that, in the event of a sale, transfer or other disposition of any specified item of Shared Common Collateral (including all or substantially all of the equity interests of any subsidiary of the Borrower) other than a release granted upon or following the Discharge of Senior ObligationsIssuer), the Liens granted to the Junior Priority Representatives and the Junior Priority Debt Parties Trustee upon such Shared Common Collateral to secure Junior Priority Debt Obligations Noteholder Claims shall terminate and be released, automatically and without any further action, concurrently with the termination and release of (i) all Liens granted upon such Shared Common Collateral to secure Senior Obligations; provided thatLender Claims and (ii) if any Pari Passu Lien Obligations shall be designated as such, in the case of any such sale, transfer or other disposition of Shared Collateral (other than any sale, transfer or other disposition in connection with the enforcement or exercise of any rights or remedies with respect to the Shared Collateral), the all Liens granted upon such Common Collateral to the Junior Priority Representatives and the Junior Priority Debt Parties shall not be so released if such sale, transfer or other disposition is not permitted under the terms of any Junior Priority Debt Documentsecure Pari Passu Lien Obligations. Upon delivery to a Junior Priority Representative the Trustee of an Officer’s Certificate stating that any such termination and release of Liens securing the Senior Lender Claims and, if applicable, the Pari Passu Lien Obligations has become effective (or shall become effective concurrently with such termination and release of the Liens granted to the Junior Priority Debt Parties and the Junior Priority RepresentativesTrustee) and any necessary or proper instruments of termination or release prepared by the Borrower Company or any other Grantor, such Junior Priority Representative the Trustee will promptly execute, deliver or acknowledge, at the BorrowerCompany’s or the other Grantor’s Grantors’ sole cost and expense, such instruments to evidence such termination and release of the LiensLiens granted to the Trustee. Nothing in this Section 5.01(a5.1(a) will shall be deemed to affect any the agreement of a Junior Priority Representative, for itself and on behalf of the Junior Priority Debt Parties under its Junior Priority Debt Facility, to release the Liens on the Junior Priority Collateral as set forth in the relevant Junior Priority Debt Documents.
(b) Each Junior Priority RepresentativeTrustee, for itself and on behalf of each Junior Priority Debt Party under its Junior Priority Debt Facilityholder of Notes, to release the Liens on the Noteholder Collateral as set forth in the Indenture.
(b) The Trustee, for itself and on behalf of each Noteholder, hereby irrevocably constitutes and appoints the Designated Senior Representative Intercreditor Agent and any officer or agent of the Designated Senior RepresentativeIntercreditor Agent, with full power of substitution, as its true and lawful attorney-in-fact with full irrevocable power and authority in the place and stead of such Junior Priority Representative the Trustee or such Junior Priority Debt Party holder or in the Designated Senior RepresentativeIntercreditor Agent’s own name, from time to time in the Designated Senior RepresentativeIntercreditor Agent’s discretion, for the purpose of carrying out the terms of Section 5.01(a5.1(a), to take any and all appropriate action and to execute any and all documents and instruments that may be necessary or desirable to accomplish the purposes of Section 5.01(a5.1(a), including any termination statements, endorsements or other instruments of transfer or release.
(c) Unless and until the Discharge of Senior Lender Claims has occurred, the Trustee, for itself and on behalf of each Noteholder, hereby consents to the application, whether prior to or after an event of default under the Senior Credit Agreement, of Deposit Account Collateral or proceeds of Common Collateral to the repayment of Senior Lender Claims pursuant to the Senior Credit Agreement, provided that nothing in this Section 5.1(c) shall be construed to prevent or impair the rights of the Trustee or the Noteholders to receive proceeds in connection with the Noteholder Claims not otherwise in contravention of this Agreement.
(d) Notwithstanding anything to the contrary in any Junior Priority Noteholder Collateral Document, in the event the terms of a Senior Collateral Document and a Junior Priority Noteholder Collateral Document each require any Grantor (i) to make payment in respect of any item of Shared Common Collateral, (ii) to deliver or afford control over any item of Shared Common Collateral to, or deposit any item of Shared Common Collateral with, (iii) to register ownership of any item of Shared Common Collateral in the name of or make an assignment of ownership of any Shared Common Collateral or the rights thereunder to, (iv) cause any securities intermediary, commodity intermediary or other Person acting in a similar capacity to agree to comply, in respect of any item of Shared Common Collateral, with instructions or orders from, or to treat, in respect of any item of Shared Common Collateral, as the entitlement holder, (v) hold any item of Shared Common Collateral in trust for (to the extent such item of Shared Common Collateral cannot be held in trust for multiple parties under applicable law), (vi) obtain the agreement of a bailee or other third party to hold any item of Shared Common Collateral for the benefit of or subject to the control of or, in respect of any item of Shared Common Collateral, to follow the instructions of or (vii) obtain the agreement of a landlord with respect to access to leased premises where any item of Shared Common Collateral is located or waivers or subordination of rights with respect to any item of Shared Common Collateral in favor of, in any case, both the Designated Senior Representative Intercreditor Agent and any Junior Priority Representative or Junior Priority Debt Partythe Trustee, such Grantor may, until the applicable Discharge of Senior Obligations Lender Claims has occurred, comply with such requirement under the applicable Junior Priority Noteholder Collateral Document as it relates to such Shared Common Collateral by taking any of the actions set forth above only with respect to, or in favor of, the Designated Senior RepresentativeIntercreditor Agent.
Appears in 1 contract
Releases. (a) Each Subject to the penultimate sentence of this Section 5.01(a), each Junior Priority Representative, for itself and on behalf of each Junior Priority Debt Party under its Junior Priority Debt Facility, agrees that, in the event of a sale, transfer or other disposition of any specified item of Shared Collateral (including all or substantially all of the equity interests of any subsidiary of the BorrowerHoldings) other than (a release granted upon or following the Discharge of Senior Obligations“Disposition”), the Liens granted to the Junior Priority Representatives and the Junior Priority Debt Parties upon such Shared Collateral to secure Junior Priority Debt Obligations shall terminate and or shall be released, automatically and without any further action, concurrently with the termination and or release of all Liens granted upon such Shared Collateral to secure Senior Obligations; , provided that, in that the case parties’ respective Liens shall attach to the net proceeds of any such sale, transfer or other disposition of Shared Collateral (other than any sale, transfer or other disposition in connection Disposition with the enforcement or exercise of any rights or remedies with respect same Lien priorities as provided in this Agreement to the Shared Collateral), extent such proceeds are not otherwise utilized to permanently reduce the Liens granted to the Junior Priority Representatives and the Junior Priority Debt Parties shall not be so released if such sale, transfer or other disposition is not permitted under the terms of any Junior Priority Debt DocumentSenior Obligations. Upon delivery to a Junior Priority Representative of an Officer’s Certificate stating that any such termination and or release of Liens securing the Senior Obligations has become effective (or shall become effective concurrently with such termination and or release of the Liens granted to the Junior Priority Debt Parties and the Junior Priority Representatives) and any necessary or proper instruments of termination or release prepared by the Borrower or Holdings, any other Grantor, such Junior Priority Representative will promptly execute, deliver or acknowledge, at the Borrower’s Holdings’ or the other Grantor’s sole cost and expense, such instruments to evidence such termination and or release of the Liens; provided, however that such Officer’s Certificate shall not be required for any termination or release in connection with the exercise of remedies following an event of default. Nothing in this Section 5.01(a) will be deemed to (x) affect any agreement of a Junior Priority Representative, for itself and on behalf of the Junior Priority Debt Parties under its Junior Priority Debt Facility, to release the Liens on the Junior Priority Collateral as set forth in the relevant Junior Priority Debt Documents or (y) except in the case of a Disposition in connection with the exercise of secured creditors’ rights and remedies, require the release of Liens granted upon such Shared Collateral to secure Junior Priority Debt Obligations if such Disposition is not permitted under the terms of the Junior Priority Debt Documents. If in connection with any enforcement action or other exercise of rights and remedies by the Senior Representative, in each case, prior to a Discharge of Senior Obligations, the equity interests of any Person are foreclosed upon or otherwise disposed of and such Senior Representative releases its Lien on the property or assets of such Person, then the liens of each Junior Representative and Junior Priority Debt Parties will be released to the same extent as the Liens of such Senior Representative and Senior Secured Parties are released.
(b) Each Junior Priority Representative, for itself and on behalf of each Junior Priority Debt Party under its Junior Priority Debt Facility, hereby irrevocably constitutes and appoints the Designated Senior Representative and any officer or agent of the Designated Senior Representative, with full power of substitution, as its true and lawful attorney-in-fact with full irrevocable power and authority in the place and stead of such Junior Priority Representative or such Junior Priority Debt Party or in the Designated Senior Representative’s own name, from time to time in the Designated Senior Representative’s discretion, for the purpose of carrying out the terms of Section 5.01(a), to take any and all appropriate action and to execute any and all documents and instruments that may be necessary or desirable to accomplish the purposes of Section 5.01(a), including any termination statements, endorsements or other instruments of transfer or release.
(c) Notwithstanding Unless and until the Discharge of Senior Obligations has occurred, each Junior Representative, for itself and on behalf of each Junior Priority Debt Party under its Junior Priority Debt Facility, hereby consents to the application, whether prior to or after an event of default under any Senior Debt Document of Proceeds of Shared Collateral to the repayment of Senior Obligations pursuant to the Senior Debt Documents, provided that nothing in this Section 5.01(c) shall be construed to prevent or impair the rights of the Junior Representatives or the Junior Priority Debt Parties to receive proceeds in connection with the Junior Priority Debt Obligations not otherwise in contravention of this Agreement.
(d) Subject to Sections 5.06(a) and 5.06(f), notwithstanding anything to the contrary in any Junior Priority Collateral Document, in the event the terms of a Senior Collateral Document and a Junior Priority Collateral Document each require any Grantor to (i) to make any payment in respect of any item of Shared CollateralCollateral to, (ii) to deliver or afford control over any item of Shared Collateral to, or deposit any item of Shared Collateral with, (iii) to register ownership of any item of Shared Collateral in the name of or make an assignment of ownership of any Shared Collateral or the rights thereunder to, (iv) cause any securities intermediary, commodity intermediary or other Person acting in a similar capacity to agree to comply, in respect of any item of Shared Collateral, with instructions or orders from, or to treat, in respect of any item of Shared Collateral, as the entitlement holder, (v) hold any item of Shared Collateral in trust for (to the extent such item of Shared Collateral cannot be held in trust for multiple parties under applicable law), (vi) obtain the agreement of a bailee or other third party to hold any item of Shared Collateral for the benefit of or subject to the control of or, in respect of any item of Shared Collateral, to follow the instructions of or (vii) obtain the agreement of a landlord with respect to access to leased premises where any item of Shared Collateral is located or waivers or subordination of rights with respect to any item of Shared Collateral in favor of, in any case, both the Designated Senior Representative or Senior Secured Party and any Junior Priority Representative or Junior Priority Debt Party, such Grantor may, until the applicable Discharge of Senior Obligations has occurred, comply with such requirement under the applicable Junior Priority Collateral Document as it relates to such Shared Collateral by taking any of the actions set forth above only with respect to, or in favor of, the Designated Senior Representative.
Appears in 1 contract
Releases. (a) Each Junior Priority Representative, for itself and on behalf of each Junior Priority Debt Party under its Junior Priority Debt Facility, agrees that, in the event of a sale, transfer or other disposition of any specified item of Shared Collateral (including all or substantially all of the equity interests of any subsidiary of the Borrower) other than a release granted upon or following the Discharge of Senior Obligations, the Liens granted to the Junior Priority Representatives and the Junior Priority Debt Parties upon such Shared Collateral to secure Junior Priority Debt Obligations shall terminate and be released, automatically and without any further action, concurrently with the termination and release of all Liens granted upon such Shared Collateral to secure Senior Obligations; provided that, in the case of any such sale, transfer or other disposition of Shared Collateral (other than any sale, transfer or other disposition in connection with the enforcement or exercise of any rights or remedies with respect to the Shared Collateral), the Liens granted to the Junior Priority Representatives and the Junior Priority Debt Parties shall not be so released if such sale, transfer or other disposition is not permitted under the terms of any Junior Priority Debt Document. Upon delivery to a Junior Priority Representative of an Officer’s Certificate stating that any such termination and release of Liens securing the Senior Obligations has become effective (or shall become effective concurrently with such termination and release of the Liens granted to the Junior Priority Debt Parties and the Junior Priority Representatives) and any necessary or proper instruments of termination or release prepared by the Borrower or any other Grantor, such Junior Priority Representative will promptly execute, deliver or acknowledge, at the Borrower’s or the other Grantor’s sole cost and expense, such instruments to evidence such termination and release of the Liens. Nothing in this Section 5.01(a) will be deemed to affect any agreement of a Junior Priority Representative, for itself and on behalf of the Junior Priority Debt Parties under its Junior Priority Debt Facility, to release the Liens on the Junior Priority Collateral as set forth in the relevant Junior Priority Debt Documents.
(b) Each Junior Priority Representative, for itself and on behalf of each Junior Priority Debt Party under its Junior Priority Debt Facility, hereby irrevocably constitutes and appoints the Designated Senior Representative and any officer or agent of the Designated Senior Representative, with full power of substitution, as its true and lawful attorney-in-fact with full irrevocable power and authority in the place and stead of such Junior Priority Representative or such Junior Priority Debt Party or in the Designated Senior Representative’s own name, from time to time in the Designated Senior Representative’s discretion, for the purpose of carrying out the terms of Section 5.01(a), to take any and all appropriate action and to execute any and all documents and instruments that may be necessary or desirable to accomplish the purposes of Section 5.01(a), including any termination statements, endorsements or other instruments of transfer or release.
(c) Unless and until the Discharge of Senior Obligations has occurred, each Junior Priority Representative, for itself and on behalf of each Junior Priority Debt Party under its Junior Priority Debt Facility, hereby consents to the application, whether prior to or after an event of default under any Senior Debt Document of proceeds of Shared Collateral to the repayment of Senior Obligations pursuant to the Senior Debt Documents, provided that nothing in this Section 5.01(c) shall be construed to prevent or impair the rights of the Junior Priority Representatives or the Junior Priority Debt Parties to receive proceeds in connection with the Junior Priority Debt Obligations not otherwise in contravention of this Agreement.
(d) Notwithstanding anything to the contrary in any Junior Priority Collateral Document, in the event the terms of a Senior Collateral Document and a Junior Priority Collateral Document each require any Grantor (i) to make payment in respect of any item of Shared Collateral, (ii) to deliver or afford control over any item of Shared Collateral to, or deposit any item of Shared Collateral with, (iii) to register ownership of any item of Shared Collateral in the name of or make an assignment of ownership of any Shared Collateral or the rights thereunder to, (iv) cause any securities intermediary, commodity intermediary or other Person acting in a similar capacity to agree to comply, in respect of any item of Shared Collateral, with instructions or orders from, or to treat, in respect of any item of Shared Collateral, as the entitlement holder, (v) hold any item of Shared Collateral in trust for (to the extent such item of Shared Collateral cannot be held in trust for multiple parties under applicable law), (vi) obtain the agreement of a bailee or other third party to hold any item of Shared Collateral for the benefit of or subject to the control of or, in respect of any item of Shared Collateral, to follow the instructions of or (vii) obtain the agreement of a landlord with respect to access to leased premises where any item of Shared Collateral is located or waivers or subordination of rights with respect to any item of Shared Collateral in favor of, in any case, both the Designated Senior Representative and any Junior Priority Representative or Junior Priority Debt Party, such Grantor may, until the applicable Discharge of Senior Obligations has occurred, comply with such requirement under the applicable Junior Priority Collateral Document as it relates to such Shared Collateral by taking any of the actions set forth above only with respect to, or in favor of, the Designated Senior Representative.
Appears in 1 contract
Samples: First Lien Credit Agreement (American Renal Associates Holdings, Inc.)
Releases. (a) Each Junior Priority The release of any Lien granted upon the Collateral shall require the prior written consent of the Secured Debt Representatives; provided that each Secured Debt Representative, for itself and on behalf of each Junior Priority Debt Secured Party under its Junior Priority Secured Debt FacilityDocument, agrees that, in the event of a sale, transfer or other disposition Disposition of any specified item of Shared Collateral (including all or substantially all of the equity interests Equity Interests of any subsidiary Subsidiary of the BorrowerParent Guarantor) other than a release granted upon (i) in connection with the exercise of remedies in respect of Collateral in accordance with the provisions of this Agreement or following (ii) if not in connection with the Discharge exercise of Senior Obligationsremedies in respect of Collateral, so long as such Disposition is permitted by the terms of the Secured Debt Documents and the Collateral Documents, the Liens granted to the Junior Priority Secured Debt Representatives and the Junior Priority Debt Secured Parties upon such Shared Collateral to secure Junior Priority Debt Secured Obligations shall terminate and be released, automatically and without any further action, concurrently with the termination and release of all Liens granted upon such Shared Collateral to secure Senior First Priority Secured Obligations; , provided that, that (A) the Lien securing the Secured Obligations shall attach to the proceeds thereof and (B) the proceeds thereof are applied to permanently reduce the Secured Debt in the case of any such sale, transfer or other disposition of Shared Collateral (other than any sale, transfer or other disposition in connection accordance with the enforcement or exercise of any rights or remedies with respect to the Shared Collateral), the Liens granted to the Junior Priority Representatives and the Junior Priority Debt Parties shall not be so released if such sale, transfer or other disposition is not permitted under the terms of any Junior Priority Debt DocumentPost-Default Waterfalls. Upon delivery to a Junior Priority the Notes Secured Debt Representative of an Officer’s Certificate stating that any such termination and release of Liens securing the Senior First Priority Secured Obligations has become effective (or shall become effective concurrently with such termination and release of the Liens granted to the Junior Priority Debt Notes Secured Parties and the Junior Priority RepresentativesNotes Secured Debt Representative) and any necessary or proper instruments of termination or release prepared by the Borrower Issuer or any other GrantorObligor, such Junior Priority the Notes Secured Debt Representative will promptly execute, deliver or acknowledge, at the BorrowerIssuer’s or the other GrantorObligor’s sole cost and expenseexpense and without any representation or warranty, such instruments (in form and substance reasonably satisfactory to each Secured Debt Representative) to evidence such termination and release of the Liens. Nothing Liens in this Section 5.01(a) will be deemed to affect any agreement of a Junior Priority Representative, for itself and on behalf of accordance with the Junior Priority Debt Parties under its Junior Priority Debt Facility, to release the Liens on the Junior Priority Collateral as set forth in the relevant Junior Priority Secured Debt Documents.
(b) Each Junior Priority Secured Debt Representative, for itself and on behalf of each Junior Priority Debt Secured Party under its Junior Priority Secured Debt FacilityDocument, hereby irrevocably constitutes and appoints the Designated Senior each applicable Collateral Agent and Applicable Collateral Representative and any officer or agent of the Designated Senior Representativethereof, with full power of substitution, as its true and lawful attorney-in-fact with full irrevocable power and authority in the place and stead of such Junior Priority Secured Debt Representative or such Junior Priority Debt Secured Party or in the Designated Senior applicable Collateral Agent or Applicable Collateral Representative’s own name, from time to time in the Designated Senior Representative’s discretionaccordance with this Agreement, for the purpose of carrying out the terms of Section 5.01(a), to take any and all appropriate action and to execute any and all documents and instruments that may be necessary or desirable to accomplish the purposes of Section 5.01(a), including any termination statements, endorsements or other instruments of transfer or release.
(c) Notwithstanding anything Unless and until the Discharge of First Priority Secured Obligations has occurred, the Notes Secured Debt Representative, for itself and on behalf of each Notes Secured Party under the Notes Secured Debt Documents, hereby consents to the contrary in application, whether prior to or after an event of default under any Junior First Priority Collateral Secured Debt Document, in of all payments, including the event the terms proceeds of a Senior any enforcement of Collateral Document and a Junior Priority Collateral Document each require or any Grantor (i) to make payment payments in respect of any item of Shared Collateral, (ii) to deliver or afford control over any item of Shared Collateral to, or deposit any item of Shared Collateral with, (iii) to register ownership guarantees of any item Series of Shared Collateral in Secured Debt, to the name repayment of or make an assignment of ownership of any Shared Collateral First Priority Secured Obligations pursuant to the Payment Waterfalls or the rights thereunder to, (iv) cause any securities intermediary, commodity intermediary or other Person acting in a similar capacity to agree to comply, in respect of any item of Shared Collateral, with instructions or orders from, or to treat, in respect of any item of Shared CollateralPost-Default Waterfalls, as applicable, provided that nothing in this Section 5.01(c) shall be construed to prevent or impair the entitlement holder, (v) hold any item rights of Shared Collateral in trust for (to the extent such item of Shared Collateral cannot be held in trust for multiple parties under applicable law), (vi) obtain the agreement of a bailee or other third party to hold any item of Shared Collateral for the benefit of or subject to the control of or, in respect of any item of Shared Collateral, to follow the instructions of or (vii) obtain the agreement of a landlord with respect to access to leased premises where any item of Shared Collateral is located or waivers or subordination of rights with respect to any item of Shared Collateral in favor of, in any case, both the Designated Senior Representative and any Junior Priority Notes Secured Debt Representative or Junior Priority Debt Party, such Grantor may, until the applicable Discharge Notes Secured Parties to receive proceeds in connection with the Notes Secured Obligations not otherwise in contravention of Senior Obligations has occurred, comply with such requirement under the applicable Junior Priority Collateral Document as it relates to such Shared Collateral by taking any of the actions set forth above only with respect to, or in favor of, the Designated Senior Representativethis Agreement.
Appears in 1 contract
Samples: Intercreditor, Collateral Sharing and Accounts Agreement (Azul Sa)
Releases. (a) Each Junior Priority Representative, for itself and on behalf of each Junior Priority Debt Party under its Junior Priority Debt Facility, agrees that, in the event of a sale, transfer or other disposition of any specified item of Shared Collateral (including all or substantially all of the equity interests of any subsidiary of the BorrowerCompany) in connection with (i) the exercise of remedies in respect of Collateral or (ii) any sale, transfer or other than a release granted upon disposition that is permitted under the Junior Debt Documents as in effect on the date hereof or following the Discharge of Senior Obligationssubsequently permitted thereunder, the Liens granted to the Junior Priority Representatives and the Junior Priority Debt Parties upon such Shared Collateral to secure Junior Priority Debt Obligations shall terminate and be released, automatically and without any further action, concurrently with the termination and release of all Liens granted upon such Shared Collateral to secure Senior Obligations; provided that, in the case of any such sale, transfer or other disposition of Shared Collateral (other than any sale, transfer or other disposition in connection with the enforcement or exercise of any rights or remedies with respect to the Shared Collateral), that the Liens granted to securing the Junior Priority Representatives Senior Obligations and the Junior Priority Debt Parties shall not be so released if such sale, transfer or other disposition is not permitted under Obligations will attach to the terms Proceeds of any the sale on the same basis of priority as the Liens on the Collateral securing the Senior Obligations rank to the Liens on the Collateral securing the Junior Priority Debt DocumentObligations pursuant to this Agreement. Upon delivery to a Junior Priority Representative of an Officer’s Certificate stating that any such termination and release of Liens securing the Senior Obligations has become effective (or shall become effective concurrently with such termination and release of the Liens granted to the Junior Priority Debt Parties and the Junior Priority Representatives) and any necessary or proper instruments of termination or release prepared by the Borrower Company or any other Grantor, such Junior Priority Representative will promptly execute, deliver or acknowledge, at the BorrowerCompany’s or the other Grantor’s sole cost and expense, such instruments to evidence such termination and release of the Liens. Nothing in this Section 5.01(a) will be deemed to affect any agreement of a Junior Priority Representative, for itself and on behalf of the Junior Priority Debt Parties under its Junior Priority Debt Facility, to release the Liens on the Junior Priority Collateral as set forth in the relevant Junior Priority Debt Documents.
(b) Each Junior Priority Representative, for itself and on behalf of each Junior Priority Debt Party under its Junior Priority Debt Facility, hereby irrevocably constitutes and appoints the Designated Senior Representative and any officer or agent of the Designated Senior Representative, with full power of substitution, as its true and lawful attorney-in-fact with full irrevocable power and authority in the place and stead of such Junior Priority Representative or such Junior Priority Debt Party or in the Designated Senior Representative’s own name, from time to time in the Designated Senior Representative’s discretion, for the purpose of carrying out the terms of Section 5.01(a), to take any and all appropriate action and to execute any and all documents and instruments that may be necessary or desirable to accomplish the purposes of Section 5.01(a), including any termination statements, endorsements or other instruments of transfer or release.
(c) Notwithstanding anything to the contrary in any Junior Priority Collateral Document, in the event the terms of a Senior Collateral Document and a Junior Priority Collateral Document each require any Grantor (i) to make payment in respect of any item of Shared CollateralCollateral to, (ii) to deliver or afford control over (to the extent only one party can have control of such Collateral) any item of Shared Collateral to, or deposit any item of Shared Collateral with, (iii) to register ownership of any item of Shared Collateral in the name of or make an assignment of ownership of any Shared Collateral or the rights thereunder tothereunder, and (iv) cause any securities intermediary, commodity intermediary or other Person acting in a similar capacity to agree to comply, in respect of any item of Shared Collateral, with instructions or orders from, or to treat, in respect of any item of Shared Collateral, as the entitlement holder, (v) hold any item of Shared Collateral in trust for (to the extent such item of Shared Collateral cannot be held in trust for multiple parties under applicable law), (vi) obtain the agreement of a bailee or other third party to hold any item of Shared Collateral for the benefit of or subject to the control of or, in respect of any item of Shared Collateral, to follow the instructions of or (vii) obtain the agreement of a landlord with respect to access to leased premises where any item of Shared Collateral is located or waivers or subordination of rights with respect to any item of Shared Collateral in favor of, in any case, both the Designated Senior Representative and any Junior Priority Representative or Junior Priority Debt Party, such Grantor may, until the applicable Discharge of Senior Obligations has occurred, comply with such requirement under the applicable Junior Priority Collateral Document as it relates to such Shared Collateral by taking any of the actions set forth above only with respect to, or in favor of, the Designated Senior Representative.
Appears in 1 contract
Releases. (a) Each Junior Second Priority Representative, for itself and on behalf of each Junior Second Priority Debt Party under its Junior Second Priority Debt Facility, agrees that, in the event of a sale, transfer or other disposition of any specified item of Shared Collateral (including all or substantially all of the equity interests of any subsidiary of the Parent Borrower) other than a release granted upon or following the Discharge of Senior Obligations), the Liens granted to the Junior Second Priority Representatives and the Junior Second Priority Debt Parties upon such Shared Collateral to secure Junior Second Priority Debt Obligations shall terminate and be released, automatically and without any further action, concurrently with the termination and release of all Liens granted upon such Shared Collateral to secure Senior Obligations; provided that, in the case of any such sale, transfer or other disposition of Shared Collateral (other than any sale, transfer or other disposition in connection with the enforcement or exercise of any rights or remedies with respect to the Shared Collateral), the Liens granted to the Junior Priority Representatives and the Junior Priority Debt Parties shall not be so released if such sale, transfer or other disposition is not permitted under the terms of any Junior Priority Debt Document. Upon delivery to a Junior Second Priority Representative of any necessary or proper instruments of termination or release prepared by the Parent Borrower or any other Grantor and, if requested by the Second Priority Representative, an Officer’s Certificate stating that any such termination and release of Liens securing the Senior Obligations has become effective (or shall become effective concurrently with such termination and release of the Liens granted to the Junior Second Priority Debt Parties and the Junior Second Priority Representatives) and any necessary or proper instruments of termination or release prepared by the Borrower or any other Grantor), such Junior Second Priority Representative will promptly execute, deliver or acknowledge, at the Parent Borrower’s or the other Grantor’s sole cost and expense, such instruments to evidence such termination and release of the Liens. Nothing in this Section 5.01(a) will be deemed to affect any agreement of a Junior Second Priority Representative, for itself and on behalf of the Junior Second Priority Debt Parties under its Junior Second Priority Debt Facility, to release the Liens on the Junior Second Priority Collateral as set forth in the relevant Junior Second Priority Debt Documents.
(b) Each Junior Second Priority Representative, for itself and on behalf of each Junior Second Priority Debt Party under its Junior Second Priority Debt Facility, hereby irrevocably constitutes and appoints the Designated Senior Representative and any officer or agent of the Designated Senior Representative, with full power of substitution, as its true and lawful attorney-in-fact with full irrevocable power and authority in the place and stead of such Junior Second Priority Representative or such Junior Second Priority Debt Party or in the Designated Senior Representative’s own name, from time to time in the Designated Senior Representative’s discretion, for the purpose of carrying out the terms of Section 5.01(a), to take any and all appropriate action and to execute any and all documents and instruments that may be necessary or desirable to accomplish the purposes of Section 5.01(a), including any termination statements, endorsements or other instruments of transfer or release.
(c) Unless and until the Discharge of Senior Obligations has occurred, each Second Priority Representative, for itself and on behalf of each Second Priority Debt Party under its Second Priority Debt Facility, hereby consents to the application, whether prior to or after an event of default under any Senior Debt Document of proceeds of Shared Collateral to the repayment of Senior Obligations pursuant to the Senior Debt Documents, provided that nothing in this Section 5.01(c) shall be construed to prevent or impair the rights of the Second Priority Representatives or the Second Priority Debt Parties to receive proceeds in connection with the Second Priority Debt Obligations not otherwise in contravention of this Agreement.
(d) Notwithstanding anything to the contrary in any Junior Second Priority Collateral Document, in the event the terms of a Senior Collateral Document and a Junior Second Priority Collateral Document each require any Grantor (i) to make payment in respect of any item of Shared Collateral, (ii) to deliver or afford control over any item of Shared Collateral to, or deposit any item of Shared Collateral with, (iii) to register ownership of any item of Shared Collateral in the name of or make an assignment of ownership of any Shared Collateral or the rights thereunder to, (iv) cause any securities intermediary, commodity intermediary or other Person acting in a similar capacity to agree to comply, in respect of any item of Shared Collateral, with instructions or orders from, or to treat, in respect of any item of Shared Collateral, as the entitlement holder, (v) hold any item of Shared Collateral in trust for (to the extent such item of Shared Collateral cannot be held in trust for multiple parties under applicable law), (vi) obtain the agreement of a bailee or other third party to hold any item of Shared Collateral for the benefit of or subject to the control of or, in respect of any item of Shared Collateral, to follow the instructions of or (vii) obtain the agreement of a landlord with respect to access to leased premises where any item of Shared Collateral is located or waivers or subordination of rights with respect to any item of Shared Collateral in favor of, in any case, both the Designated Senior Representative and any Junior Second Priority Representative or Junior Second Priority Debt Party, such Grantor may, until the applicable Discharge of Senior Obligations has occurred, comply with such requirement under the applicable Junior Second Priority Collateral Document as it relates to such Shared Collateral by taking any of the actions set forth above only with respect to, or in favor of, the Designated Senior Representative.
Appears in 1 contract
Releases. (a) Each Junior Priority Representative, for itself and on behalf of each Junior Priority Debt Secured Party under its Junior Priority Debt Facility, agrees that, in the event of a sale, transfer or other disposition of any specified item of Shared Collateral (including all or substantially all of the equity interests of any subsidiary of the Borrower) other than a release granted upon or following the Discharge of Senior ObligationsHoldings), the Liens granted to the Junior Priority Representatives and the Junior Priority Debt Secured Parties upon such Shared Collateral to secure Junior Priority Debt Obligations shall terminate and be released, automatically and without any further action, concurrently with the termination and release of all Liens granted upon such Shared Collateral to secure Senior Obligations; provided that, in Obligations (but shall attach to the case proceeds of any such sale, transfer transfer, or other disposition of Shared Collateral (other than any sale, transfer or other disposition in connection with the enforcement or exercise of any rights or remedies with respect subject to the Shared Collateral), the Liens granted priorities set forth herein and to the Junior Priority Representatives and the Junior Priority Debt Parties shall not be so released if such sale, transfer or other disposition is not permitted under the terms provisions of any Junior Priority Debt DocumentSection 5.01(c)). Upon delivery to a Junior Priority Representative of an Officer’s Certificate stating that any such termination and release of Liens securing the Senior Obligations has become effective (or shall become effective concurrently with such termination and release of the Liens granted to the Junior Priority Debt Secured Parties and the Junior Priority Representatives) and any necessary or proper instruments of termination or release prepared by the Borrower Borrowers or any other Grantor, such Junior Priority Representative will promptly execute, deliver or acknowledge, at the Borrower’s or the other Grantor’s sole cost and expense, such instruments to evidence such termination and release of the Liens. Nothing in this Section 5.01(a) will be deemed to affect any agreement of a Junior Priority Representative, for itself and on behalf of the Junior Priority Debt Secured Parties under its Junior Priority Debt Facility, to release the Liens on the Junior Priority Collateral as set forth in the relevant Junior Priority Debt Documents.
(b) Each Junior Priority Representative, for itself and on behalf of each Junior Priority Debt Secured Party under its Junior Priority Debt Facility, hereby irrevocably constitutes and appoints the Designated each Senior Representative and any officer or agent of the Designated each Senior Representative, with full power of substitution, as its true and lawful attorney-in-fact with full irrevocable power and authority in the place and stead of such Junior Priority Representative or such Junior Priority Debt Secured Party or in the Designated such Senior Representative’s own name, from time to time in the Designated such Senior Representative’s discretion, for the purpose of carrying out the terms of Section 5.01(a), to take any and all appropriate action and to execute any and all documents and instruments that may be necessary or desirable to accomplish the purposes of Section 5.01(a), including any termination statements, endorsements or other instruments of transfer or release.
(c) Unless and until the Discharge of Senior Obligations has occurred, each Junior Representative, for itself and on behalf of each Junior Secured Party under its Junior Debt Facility, hereby consents to the application, whether prior to or after an event of default under any Senior Debt Document of proceeds of Shared Collateral to the repayment of Senior Obligations pursuant to the Senior Debt Documents, provided that nothing in this Section 5.01(c) shall be construed to prevent or impair the rights of the Junior Representatives or the Junior Secured Parties to receive proceeds in connection with the Junior Obligations not otherwise in contravention of this Agreement.
(d) Notwithstanding anything to the contrary in any Junior Priority Collateral Document, in the event the terms of a Senior Collateral Document and a Junior Priority Collateral Document each require any Grantor (i) to make payment in respect of any item of Shared Collateral, (ii) to deliver or afford control over any item of Shared Collateral to, or deposit any item of Shared Collateral with, (iii) to register ownership of any item of Shared Collateral in the name of or make an assignment of ownership of any Shared Collateral or the rights thereunder to, (iv) cause any securities intermediary, commodity intermediary or other Person acting in a similar capacity to agree to comply, in respect of any item of Shared Collateral, with instructions or orders from, or to treat, in respect of any item of Shared Collateral, as the entitlement holder, (v) hold any item of Shared Collateral in trust for (to the extent such item of Shared Collateral cannot be held in trust for multiple parties under applicable law), (vi) obtain the agreement of a bailee or other third party to hold any item of Shared Collateral for the benefit of or subject to the control of or, in respect of any item of Shared Collateral, to follow the instructions of or (vii) obtain the agreement of a landlord with respect to access to leased premises where any item of Shared Collateral is located or waivers or subordination of rights with respect to any item of Shared Collateral in favor of, in any case, both the any Designated Senior Representative and any Junior Priority Representative or Junior Priority Debt Secured Party, such Grantor may, until the applicable Discharge of Senior Obligations has occurred, comply with such requirement under the applicable Junior Priority Collateral Document as it relates to such Shared Collateral by taking any of the actions set forth above only with respect to, or in favor of, the Designated Senior Representative.
Appears in 1 contract
Releases. (a) Each Junior Second Priority Representative, for itself and on behalf of each Junior Second Priority Debt Party under its Junior Second Priority Debt Facility, agrees that, in the event of a sale, transfer or other disposition of any specified item of Shared Collateral (including all or substantially all of the equity interests of any subsidiary of the Borrower) other than a release granted upon (i) in connection with the exercise of remedies in respect of Collateral or following (ii) if not in connection with the Discharge exercise of Senior Obligationsremedies in respect of the Collateral, so long as an Event of Default (as defined in and under any Second Lien Debt Document) has not occurred and is continuing, the Liens granted to the Junior Second Priority Representatives and the Junior Second Priority Debt Parties upon such Shared Collateral to secure Junior Second Priority Debt Obligations shall terminate and be released, automatically and without any further action, concurrently with the termination and release of all Liens granted upon such Shared Collateral to secure Senior Obligations; provided that, in the case of any such sale, transfer or other disposition of Shared Collateral (other than any sale, transfer or other disposition in connection with the enforcement or exercise of any rights or remedies with respect to the Shared Collateral), the Liens granted to the Junior Priority Representatives and the Junior Priority Debt Parties shall not be so released if such sale, transfer or other disposition is not permitted under the terms of any Junior Priority Debt Document. Upon delivery to a Junior Second Priority Representative of an Officer’s Certificate stating that any such termination and release of Liens securing the Senior Obligations has become effective (or shall become effective concurrently with such termination and release of the Liens granted to the Junior Second Priority Debt Parties and the Junior Second Priority Representatives) and any necessary or proper instruments of termination or release prepared by the Borrower or any other Grantor, such Junior Second Priority Representative will promptly execute, deliver or acknowledge, at the Borrower’s or the other Grantor’s sole cost and expense, such instruments to evidence such termination and release of the Liens. Nothing in this Section 5.01(a) will be deemed to affect any agreement of a Junior Second Priority Representative, for itself and on behalf of the Junior Second Priority Debt Parties under its Junior Second Priority Debt Facility, to release the Liens on the Junior Second Priority Collateral as set forth in the relevant Junior Second Priority Debt Documents.
(b) Each Junior Second Priority Representative, for itself and on behalf of each Junior Second Priority Debt Party under its Junior Second Priority Debt Facility, hereby irrevocably constitutes and appoints the Designated Senior Representative and any officer or agent of the Designated Senior Representative, with full power of substitution, as its true and lawful attorney-in-fact with full irrevocable power and authority in the place and stead of such Junior Second Priority Representative or such Junior Second Priority Debt Party or in the Designated Senior Representative’s own name, from time to time in the Designated Senior Representative’s discretion, for the purpose of carrying out the terms of Section 5.01(a), to take any and all appropriate action and to execute any and all documents and instruments that may be necessary or desirable to accomplish the purposes of Section 5.01(a), including any termination statements, endorsements or other instruments of transfer or release.
(c) Unless and until the Discharge of Senior Obligations has occurred, each Second Priority Representative, for itself and on behalf of each Second Priority Debt Party under its Second Priority Debt Facility, hereby consents to the application, whether prior to or after an event of default under any Senior Debt Document of proceeds of Shared Collateral to the repayment of Senior Obligations pursuant to the Senior Debt Documents, provided that nothing in this Section 5.01(c) shall be construed to prevent or impair the rights of the Second Priority Representatives or the Second Priority Debt Parties to receive proceeds in connection with the Second Priority Debt Obligations not otherwise in contravention of this Agreement.
(d) Notwithstanding anything to the contrary in any Junior Second Priority Collateral Document, in the event the terms of a Senior Collateral Document and a Junior Second Priority Collateral Document each require any Grantor (i) to make payment in respect of any item of Shared Collateral, (ii) to deliver or afford control over any item of Shared Collateral to, or deposit any item of Shared Collateral with, (iii) to register ownership of any item of Shared Collateral in the name of or make an assignment of ownership of any Shared Collateral or the rights thereunder to, (iv) cause any securities intermediary, commodity intermediary or other Person acting in a similar capacity to agree to comply, in respect of any item of Shared Collateral, with instructions or orders from, or to treat, in respect of any item of Shared Collateral, as the entitlement holder, (v) hold any item of Shared Collateral in trust for (to the extent such item of Shared Collateral cannot be held in trust for multiple parties under applicable law), (vi) obtain the agreement of a bailee or other third party to hold any item of Shared Collateral for the benefit of or subject to the control of or, in respect of any item of Shared Collateral, to follow the instructions of or (vii) obtain the agreement of a landlord with respect to access to leased premises where any item of Shared Collateral is located or waivers or subordination of rights with respect to any item of Shared Collateral in favor of, in any case, both the Designated Senior Representative and any Junior Second Priority Representative or Junior Second Priority Debt Party, such Grantor may, until the applicable Discharge of Senior Obligations has occurred, comply with such requirement under the applicable Junior Second Priority Collateral Document as it relates to such Shared Collateral by taking any of the actions set forth above only with respect to, or in favor of, the Designated Senior Representative.
Appears in 1 contract
Releases. (a) Each Junior Priority Representative, for itself and on behalf of each Junior Priority Debt Party under its Junior Priority Debt Facility, agrees that, in the event of a sale, transfer or other disposition of any specified item of Shared Collateral (including all or substantially all of the equity interests of any subsidiary of the Borrower) other than a release granted upon or following the Discharge of Senior ObligationsCompany), the Liens granted to the Junior Priority Representatives and the Junior Priority Debt Parties upon such Shared Collateral to secure Junior Priority Debt Obligations shall terminate and be released, automatically and without any further action, concurrently with the termination and release of all Liens granted upon such Shared Collateral to secure Senior Obligations; provided that, in the case of any such sale, transfer or other disposition of Shared Collateral (other than any sale, transfer or other disposition in connection with the enforcement or exercise of any rights or remedies with respect to the Shared Collateral), the Liens granted to the Junior Priority Representatives and the Junior Priority Debt Parties shall not be so released if such sale, transfer or other disposition is not permitted under the terms of any Junior Priority Debt Document. Upon delivery to a Junior Priority Representative of an Officer’s Certificate stating that any such termination and release of Liens securing the Senior Obligations has become effective (or shall become effective concurrently with such termination and release of the Liens granted to the Junior Priority Debt Parties and the Junior Priority Representatives) and any necessary or proper instruments of termination or release prepared by the Borrower Company or any other Grantor, such Junior Priority Representative will promptly execute, deliver or acknowledge, at the BorrowerCompany’s or the other Grantor’s sole cost and expense, such instruments to evidence such termination and release of the Liens. Nothing in this Section 5.01(a) will be deemed to affect any agreement of a Junior Priority Representative, for itself and on behalf of the Junior Priority Debt Parties under its Junior Priority Debt Facility, to release the Liens on the Junior Priority Collateral as set forth in the relevant Junior Priority Debt Documents.
(b) Each Junior Priority Representative, for itself and on behalf of each Junior Priority Debt Party under its Junior Priority Debt Facility, hereby irrevocably constitutes and appoints the Designated Senior Representative and any officer or agent of the Designated Senior Representative, with full power of substitution, as its true and lawful attorney-in-fact with full irrevocable power and authority in the place and stead of such Junior Priority Representative or such Junior Priority Debt Party or in the Designated Senior Representative’s own name, from time to time in the Designated Senior Representative’s discretion, for the purpose of carrying out the terms of Section 5.01(a), to take any and all appropriate action and to execute any and all documents and instruments that may be necessary or desirable to accomplish the purposes of Section 5.01(a), including any termination statements, endorsements or other instruments of transfer or release.
(c) Notwithstanding anything to the contrary in any Junior Priority Collateral Document, in the event the terms of a Senior Collateral Document and a Junior Priority Collateral Document each require any Grantor (i) to make payment in respect of any item of Shared Collateral, (ii) to deliver or afford control over any item of Shared Collateral to, or deposit any item of Shared Collateral with, (iii) to register ownership of any item of Shared Collateral in the name of or make an assignment of ownership of any Shared Collateral or the rights thereunder to, (iv) cause any securities intermediary, commodity intermediary or other Person acting in a similar capacity to agree to comply, in respect of any item of Shared Collateral, with instructions or orders from, or to treat, in respect of any item of Shared Collateral, as the entitlement holder, (v) hold any item of Shared Collateral in trust for (to the extent such item of Shared Collateral cannot be held in trust for multiple parties under applicable law), (vi) obtain the agreement of a bailee or other third party to hold any item of Shared Collateral for the benefit of or subject to the control of or, in respect of any item of Shared Collateral, to follow the instructions of or (vii) obtain the agreement of a landlord with respect to access to leased premises where any item of Shared Collateral is located or waivers or subordination of rights with respect to any item of Shared Collateral in favor of, in any case, both the Designated Senior Representative and any Junior Priority Representative or Junior Priority Debt Party, such Grantor may, until the applicable Discharge of Senior Obligations has occurred, comply with such requirement under the applicable Junior Priority Collateral Document as it relates to such Shared Collateral by taking any of the actions set forth above only with respect to, or in favor of, the Designated Senior Representative.
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Releases. (a) Each The Junior Priority Lien Representative, for itself and on behalf of each Junior Priority Debt Party under its Junior Priority Debt FacilityLien Secured Party, agrees that, in the event of a sale, transfer or other disposition of any specified item of Shared Collateral (including all i) in connection with the exercise of remedies in respect of Collateral by the Senior Lien Representative or substantially all (ii) if not in connection with the exercise of remedies in respect of Collateral by the Senior Lien Representative, so long as such sale, transfer or other disposition is permitted by the terms of the equity interests Junior Lien Debt Documents and the Senior Lien Debt Documents and, in the case of any subsidiary each of the Borrowerforegoing clauses (i) other than a release granted upon or following the Discharge of Senior Obligationsand (ii), the Liens granted to the Junior Priority Representatives Lien Representative and the Junior Priority Debt Lien Secured Parties upon such Shared Collateral (but not on the Proceeds thereof that were not applied to the payment of Senior Lien Obligations) to secure Junior Priority Debt Lien Obligations shall terminate and be released, automatically and without any further action, concurrently with the termination and release of all Liens granted upon such Shared Collateral to secure Senior Lien Obligations; provided that, in the case of any such sale, transfer or other disposition of Shared Collateral (other than any sale, transfer or other disposition in connection with the enforcement or exercise of any rights or remedies with respect to the Shared Collateral), the Liens granted to the Junior Priority Representatives and the Junior Priority Debt Parties shall not be so released if such sale, transfer or other disposition is not permitted under the terms of any Junior Priority Debt Document. Upon delivery to a the Junior Priority Lien Representative of an Officer’s Certificate stating that any such termination and release of Liens securing the Senior Lien Obligations has become effective (or shall become effective concurrently with such termination and release of the Liens granted to the Junior Priority Debt Lien Secured Parties and the Junior Priority RepresentativesLien Representative) and any necessary or proper instruments of termination or release prepared by the Borrower or any other Grantor, such Junior Priority Lien Representative will promptly execute, deliver or acknowledge, at the Borrower’s or the other such Grantor’s sole cost and expenseexpense and without any representation or warranty, such instruments to evidence such termination and release of the Liens. Nothing in this Section 5.01(a) will be deemed to affect any agreement of a Junior Priority Representative, for itself and on behalf of the Junior Priority Debt Parties under its Junior Priority Debt Facility, to release the Liens on the Junior Priority Collateral as set forth in the relevant Junior Priority Debt Documents.
(b) Each The Junior Priority Lien Representative, for itself and on behalf of each Junior Priority Debt Party under its Junior Priority Debt FacilityLien Secured Party, hereby irrevocably constitutes and appoints the Designated Senior Lien Representative and any officer or agent of the Designated Senior Lien Representative, with full power of substitution, as its true and lawful attorney-in-fact with full irrevocable power and authority in the place and stead of such Junior Priority Lien Representative or such Junior Priority Debt Lien Secured Party or in the Designated Senior Lien Representative’s own name, from time to time in the Designated Senior Lien Representative’s discretion, for the purpose of carrying out the terms of Section 5.01(a), to take any and all appropriate action and to execute any and all documents and instruments that may be necessary or desirable to accomplish the purposes of Section 5.01(a), including any termination statements, endorsements or other instruments of transfer or release.
(c) Notwithstanding anything to the contrary in any Junior Priority Lien Collateral Document, in the event the terms of a Senior Lien Collateral Document and a Junior Priority Lien Collateral Document each require any Grantor (i) to make payment in respect of any item of Shared Collateral, (ii) to deliver or afford control over any item of Shared Collateral to, or deposit any item of Shared Collateral with, (iii) to register ownership of any item of Shared Collateral in the name of or make an assignment of ownership of any Shared Collateral or the rights thereunder to, (iv) cause any securities intermediary, commodity intermediary or other Person acting in a similar capacity to agree to comply, in respect of any item of Shared Collateral, with instructions or orders from, or to treat, in respect of any item of Shared Collateral, as the entitlement holder, (v) hold any item of Shared Collateral in trust for (to the extent such item of Shared Collateral cannot be held in trust for multiple parties under applicable law), (vi) obtain the agreement of a bailee or other third party to hold any item of Shared Collateral for the benefit of or subject to the control of or, in respect of any item of Shared Collateral, to follow the instructions of or (vii) obtain the agreement of a landlord with respect to access to leased premises where any item of Shared Collateral is located or waivers or subordination of rights with respect to any item of Shared Collateral in favor of, in any case, both the Designated Senior Lien Representative and any the Junior Priority Lien Representative or Junior Priority Debt Lien Secured Party, such Grantor may, until the applicable Discharge of Senior Lien Obligations has occurred, comply with such requirement under the applicable Junior Priority Lien Collateral Document as it relates to such Shared Collateral by taking any of the actions set forth above only with respect to, or in favor of, the Designated Senior Lien Representative.
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Releases. (a) Each Junior Second Priority Representative, for itself and on behalf of each Junior Second Priority Debt Party under its Junior Second Priority Debt Facility, agrees that, in the event of a sale, transfer or other disposition of any specified item of Shared Collateral (including all or substantially all of the equity interests of any subsidiary of the BorrowerCompany) other than a release granted upon (i) in connection with the exercise of remedies in respect of Collateral or following (ii) if not in connection with the Discharge exercise of Senior Obligationsremedies in respect of the Collateral, so long as an Event of Default (as defined in and under any Second Priority Debt Document) has not occurred and is continuing, the Liens granted to the Junior Second Priority Representatives and the Junior Second Priority Debt Parties upon such Shared Collateral to secure Junior Second Priority Debt Obligations shall terminate and be released, automatically and without any further action, concurrently with the termination and release of all Liens granted upon such Shared Collateral to secure Senior Obligations; provided that, in the case of any such sale, transfer or other disposition of Shared Collateral (other than any sale, transfer or other disposition in connection with the enforcement or exercise of any rights or remedies with respect to the Shared Collateral), the Liens granted to the Junior Priority Representatives and the Junior Priority Debt Parties shall not be so released if such sale, transfer or other disposition is not permitted under the terms of any Junior Priority Debt Document. Upon delivery to a Junior Second Priority Representative of an Officer’s Certificate stating that any such termination and release of Liens securing the Senior Obligations has become effective (or shall become effective concurrently with such termination and release of the Liens granted to the Junior Second Priority Debt Parties and the Junior Second Priority Representatives) and any necessary or proper instruments of termination or release prepared by the Borrower Company or any other Grantor, such Junior Second Priority Representative will promptly execute, deliver or acknowledge, at the BorrowerCompany’s or the other Grantor’s sole cost and expense, such instruments to evidence such termination and release of the Liens. Nothing in this Section 5.01(a) will be deemed to affect any agreement of a Junior Second Priority Representative, for itself and on behalf of the Junior Second Priority Debt Parties under its Junior Second Priority Debt Facility, to release the Liens on the Junior Second Priority Collateral as set forth in the relevant Junior Second Priority Debt Documents.
(b) Each Junior Second Priority Representative, for itself and on behalf of each Junior Second Priority Debt Party under its Junior Second Priority Debt Facility, hereby irrevocably constitutes and appoints the Designated Senior Representative and any officer or agent of the Designated Senior Representative, with full power of substitution, as its true and lawful attorney-in-fact with full irrevocable power and authority in the place and stead of such Junior Second Priority Representative or such Junior Second Priority Debt Party or in the Designated Senior Representative’s own name, from time to time in the Designated Senior Representative’s discretion, for the purpose of carrying out the terms of Section 5.01(a), to take any and all appropriate action and to execute any and all documents and instruments that may be necessary or desirable to accomplish the purposes of Section 5.01(a), including any termination statements, endorsements or other instruments of transfer or release.
(c) Unless and until the Discharge of Senior Obligations has occurred, each Second Priority Representative, for itself and on behalf of each Second Priority Debt Party under its Second Priority Debt Facility, hereby consents to the application, whether prior to or after an event of default under any Senior Debt Document of proceeds of Shared Collateral to the repayment of Senior Obligations pursuant to the Senior Debt Documents, provided that nothing in this Section 5.01(c) shall be construed to prevent or impair the rights of the Second Priority Representatives or the Second Priority Debt Parties to receive proceeds in connection with the Second Priority Debt Obligations not otherwise in contravention of this Agreement.
(d) Notwithstanding anything to the contrary in any Junior Second Priority Collateral Document, in the event the terms of a Senior Collateral Document and a Junior Second Priority Collateral Document each require any Grantor (i) to make payment in respect of any item of Shared CollateralCollateral to, (ii) to deliver or afford control over (to the extent only one party can have control of such Shared Collateral) any item of Shared Collateral to, or deposit any item of Shared Collateral with, (iii) to register ownership of any item of Shared Collateral in the name of or make an assignment of ownership of any Shared Collateral or the rights thereunder tothereunder, and (iv) cause any securities intermediary, commodity intermediary or other Person acting in a similar capacity to agree to comply, in respect of any item of Shared Collateral, with instructions or orders from, or to treat, in respect of any item of Shared Collateral, as the entitlement holder, (v) hold any item of Shared Collateral in trust for (to the extent such item of Shared Collateral cannot be held in trust for multiple parties under applicable law), (vi) obtain the agreement of a bailee or other third party to hold any item of Shared Collateral for the benefit of or subject to the control of or, in respect of any item of Shared Collateral, to follow the instructions of or (vii) obtain the agreement of a landlord with respect to access to leased premises where any item of Shared Collateral is located or waivers or subordination of rights with respect to any item of Shared Collateral in favor of, in any case, both the Designated Senior Representative and any Junior Second Priority Representative or Junior Second Priority Debt Party, such Grantor may, until the applicable Discharge of Senior Obligations has occurred, comply with such requirement under the applicable Junior Second Priority Collateral Document as it relates to such Shared Collateral by taking any of the actions set forth above only with respect to, or in favor of, the Designated Senior Representative.
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Releases. (a) Each Junior Priority RepresentativeUpon the Effective Date, for itself all FLSA Settlement Collective members shall be deemed to fully, forever, irrevocably and on behalf unconditionally release, remise, and discharge Academy, its parents, divisions, subsidiaries, predecessors and successors, and its and their directors, officers, members, fiduciaries, insurers, employees, attorneys and agents (each in their individual and corporate capacities) (collectively referred to as the “Released Parties”), from any and all suits, actions, causes of each Junior Priority Debt Party under its Junior Priority Debt Facilityaction, agrees thatclaims, in or demands against the event Released Parties or any of a salethem, transfer or other disposition of any specified item of Shared Collateral (including all or substantially all of the equity interests of any subsidiary of the Borrower) other than a release granted upon or following the Discharge of Senior Obligations, the Liens granted limited to the Junior Priority Representatives release of Released FLSA Claims and (for State Settlement Class members) Released State Law Claims, as defined in Section 1, above. No other claims are released. If a State Settlement Class member does not timely submit a Claim form under the Junior Priority Debt Parties upon Notice procedures, that individual does not release any claims whatsoever under the Fair Labor Standards Act by this settlement, although Academy retains any defenses to unreleased FLSA claims based on the Claim of (i) setoff, or (ii) that the amount paid as the State Law Only Payment equals or exceeds the maximum possible amount available under the FLSA on the Claim such Shared Collateral to secure Junior Priority Debt Obligations shall terminate and be released, automatically and without that any further action, concurrently with recovery under the termination FLSA would constitute a prohibited double recovery. The parties agree that the assertion and release of all Liens granted upon such Shared Collateral to secure Senior Obligations; provided that, these claims and participation in the case of any such sale, transfer this Action under this settlement shall have no res judicata or other disposition of Shared Collateral (other than any sale, transfer or other disposition in connection with the enforcement or exercise of any rights or remedies with respect claim preclusion effect as to the Shared Collateral), the Liens granted to the Junior Priority Representatives and the Junior Priority Debt Parties shall claims not be so explicitly released if such sale, transfer or other disposition is not permitted under the terms of any Junior Priority Debt Document. Upon delivery to a Junior Priority Representative of an Officer’s Certificate stating that any such termination and release of Liens securing the Senior Obligations has become effective (or shall become effective concurrently with such termination and release of the Liens granted to the Junior Priority Debt Parties and the Junior Priority Representatives) and any necessary or proper instruments of termination or release prepared by the Borrower or any other Grantor, such Junior Priority Representative will promptly execute, deliver or acknowledge, at the Borrower’s or the other Grantor’s sole cost and expense, such instruments to evidence such termination and release of the Liens. Nothing in this Section 5.01(a) will be deemed to affect any agreement of a Junior Priority Representative, for itself and on behalf of the Junior Priority Debt Parties under its Junior Priority Debt Facility, to release the Liens on the Junior Priority Collateral as set forth in the relevant Junior Priority Debt Documentsherein.
(b) Each Junior Priority RepresentativeUpon the Effective Date, all State Settlement Class members who do not timely submit a Claim form under the Notice procedures to become a FLSA Settlement Collective member, and who do not submit a request for itself exclusion from the State Settlement Class shall be deemed to fully, forever, irrevocably and on behalf of each Junior Priority Debt Party under its Junior Priority Debt Facilityunconditionally release, hereby irrevocably constitutes remise, and appoints discharge the Designated Senior Representative and any officer or agent of the Designated Senior Representative, with full power of substitution, as its true and lawful attorney-in-fact with full irrevocable power and authority in the place and stead of such Junior Priority Representative or such Junior Priority Debt Party or in the Designated Senior Representative’s own name, Released Parties from time to time in the Designated Senior Representative’s discretion, for the purpose of carrying out the terms of Section 5.01(a), to take any and all appropriate action suits, actions, causes of action, claims, or demands against the Released Parties or any of them, limited to the release of Released State Law Claims, as defined in Section 1, above. No other claims are released, and to execute any the parties agree that the assertion and all documents release of these claims and instruments that may be necessary or desirable to accomplish the purposes of Section 5.01(a), including any termination statements, endorsements participation in this Action under this settlement shall have no res judicata or other instruments of transfer or releaseclaim preclusion effect as to claims not explicitly released herein.
(c) Notwithstanding anything Upon timely filing of an Claim form, a State Settlement Class member who was not a FLSA Collective member shall be deemed to have consented to join the FLSA Collective Action and to fully, forever, irrevocably and unconditionally release, remise, and discharge the Released Parties, from any and all suits, actions, causes of action, claims, or demands against the Released Parties or any of them, limited to the contrary release of Released FLSA Claims and Released State Law Claims, as defined in Section 1, above. No other claims are released, and the parties agree that the assertion and release of these claims and participation in this Action under this settlement shall have no res judicata or other claim preclusion effect as to claims not explicitly released herein.
(d) Upon the Effective Date, Academy releases any Junior Priority Collateral Documentclaims against a Participating Class Member arising out of his or her assertion of the Released FLSA Claims and/or Released State Law Claims, and releases any claims against a Participating Class Member for recoupment or reimbursement of severance payments or sign-on bonuses paid. Academy further agrees that participation in this settlement shall not be deemed to violate any prior release or other covenant not to xxx agreement between a Participating Class Member and Academy.
(e) The preceding release agreements between the parties shall be conspicuously included in the event the terms of a Senior Collateral Document and a Junior Priority Collateral Document each require any Grantor (i) to make payment in respect of any item of Shared Collateral, (ii) to deliver or afford control over any item of Shared Collateral to, or deposit any item of Shared Collateral with, (iii) to register ownership of any item of Shared Collateral in the name of or make an assignment of ownership of any Shared Collateral or the rights thereunder to, (iv) cause any securities intermediary, commodity intermediary or other Person acting in a similar capacity to agree to comply, in respect of any item of Shared Collateral, with instructions or orders from, or to treat, in respect of any item of Shared Collateral, as the entitlement holder, (v) hold any item of Shared Collateral in trust for (to the extent such item of Shared Collateral cannot be held in trust for multiple parties under applicable law), (vi) obtain the agreement of a bailee or other third party to hold any item of Shared Collateral for the benefit of or subject to the control of or, in respect of any item of Shared Collateral, to follow the instructions of or (vii) obtain the agreement of a landlord with respect to access to leased premises where any item of Shared Collateral is located or waivers or subordination of rights with respect to any item of Shared Collateral in favor of, in any case, both the Designated Senior Representative and any Junior Priority Representative or Junior Priority Debt Party, such Grantor may, until the applicable Discharge of Senior Obligations has occurred, comply with such requirement under the applicable Junior Priority Collateral Document as it relates to such Shared Collateral by taking any of the actions set forth above only with respect to, or in favor of, the Designated Senior RepresentativeNotices.
Appears in 1 contract
Samples: Settlement Agreement
Releases. (a) Each Junior Second Priority Representative, for itself and on behalf of each Junior Second Priority Debt Party under its Junior Second Priority Debt Facility, agrees that, if in the event of a connection with (i) any sale, transfer or other disposition of any specified item of Shared Collateral (including all or substantially all of the equity interests of by any subsidiary of the Borrower) other than a release granted upon or following the Discharge of Senior Obligations, the Liens granted to the Junior Priority Representatives and the Junior Priority Debt Parties upon such Shared Collateral to secure Junior Priority Debt Obligations shall terminate and be released, automatically and without any further action, concurrently with the termination and release of all Liens granted upon such Shared Collateral to secure Senior Obligations; provided that, in the case of any such sale, transfer or other disposition of Shared Collateral Obligor (other than any sale, transfer or other disposition in connection with any enforcement or exercise of rights or remedies with respect to the Shared Collateral which shall be governed by clause (ii)) permitted under the terms of the Senior Debt Documents or consented to by the holders of Senior Obligations under the Senior Debt Documents (other than after the occurrence and during the continuance of any Event of Default under the Second Priority Debt Documents) or (ii) the enforcement or exercise of any rights or remedies with respect to the Shared Collateral)Collateral by a Senior Secured Party, the Liens granted to the Junior Priority Representatives and the Junior Priority Debt Parties shall not be so released if such including any sale, transfer or other disposition is not permitted under the terms of Shared Collateral so long as net Proceeds of any Junior such Shared Collateral are applied to reduce permanently the Senior Obligations, the Designated Senior Representative, for itself and on behalf of the other Senior Secured Parties releases any of the Senior Liens on any of the Shared Collateral (a “Release”), then the Liens on such Shared Collateral securing any Second Priority Debt Document. Upon delivery to a Junior Obligations shall be automatically, unconditionally and simultaneously released and each Second Priority Representative of an Officer’s Certificate stating that any such termination shall, for itself and release of Liens securing the Senior Obligations has become effective (or shall become effective concurrently with such termination and release on behalf of the Liens granted to the Junior other applicable Second Priority Class Debt Parties and the Junior Priority Representatives) and any necessary or proper instruments of termination or release prepared by the Borrower or any other Grantor, such Junior Priority Representative will promptly execute, deliver or acknowledge, at the Borrower’s or the other Grantor’s sole cost and expenseexpense of the Obligors, such instruments promptly execute and deliver to evidence the Designated Senior Representative and the applicable Obligors such termination statements, releases and release other documents as the Designated Senior Representative or any applicable Obligor may reasonably request to effectively confirm such Release; provided that, with respect to clause (ii) above, any Proceeds received by the Senior Priority Representatives and any other Senior Secured Party in excess of those necessary to achieve the LiensDischarge of Senior Obligations shall be distributed in accordance with Section 4.01. Similarly, if the equity interests of any Person are foreclosed upon or otherwise disposed of pursuant to clause (i) or (ii) above and in connection therewith the Designated Senior Representative releases the Senior Liens on the Shared Collateral of such Person or releases such Person from its guarantee of Senior Obligations, then the Second Priority Lien on such property or assets of such Person and such Person’s guarantee of Second Priority Debt Obligations shall be automatically released to the same extent. Nothing in this Section 5.01(a) will be deemed to affect any agreement of a Junior Second Priority Representative, for itself and on behalf of the Junior Second Priority Debt Parties under its Junior Second Priority Debt Facility, to release the Liens on the Junior Second Priority Collateral or to release any Person from its guarantee of Second Priority Debt Obligations as set forth in the relevant Junior Second Priority Debt Documents.
(b) Each Junior Second Priority Representative, for itself and on behalf of each Junior Second Priority Debt Party under its Junior Second Priority Debt Facility, hereby irrevocably constitutes and appoints the Designated Senior Representative and any officer or agent of the Designated Senior Representative, with full power of substitution, as its true and lawful attorney-in-fact with full irrevocable power and authority in the place and stead of such Junior Second Priority Representative or such Junior Second Priority Debt Party or in the Designated Senior Representative’s own name, from time to time in the Designated Senior Representative’s discretion, for the purpose of carrying out the terms of Section 5.01(a), to take any and all appropriate action and to execute any and all documents and instruments that may be necessary or desirable to accomplish the purposes of Section 5.01(a), including any termination statements, endorsements or other instruments of transfer or release.
(c) Unless and until the Discharge of Senior Obligations has occurred, each Second Priority Representative, for itself and on behalf of each Second Priority Debt Party under its Second Priority Debt Facility, hereby consents to the application, whether prior to or after an Event of Default (as defined in any Senior Debt Document) of Proceeds of Shared Collateral to the repayment of Senior Obligations pursuant to the Senior Debt Documents, provided that nothing in this Section 5.01(c) shall be construed to prevent or impair the rights of the Second Priority Representatives or the Second Priority Debt Parties to receive Proceeds in connection with the Second Priority Debt Obligations not otherwise in contravention of this Agreement.
(d) Notwithstanding anything to the contrary in any Junior Second Priority Collateral Document, in the event the terms of a Senior Collateral Document and a Junior Second Priority Collateral Document each require any Grantor Obligor (i) to make payment in respect of any item of Shared Collateral, (ii) to deliver or afford control over any item of Shared Collateral to, or deposit any item of Shared Collateral with, (iii) to register ownership of any item of Shared Collateral in the name of or make an assignment of ownership of any Shared Collateral or the rights thereunder to, (iv) cause any securities intermediary, commodity intermediary or other Person acting in a similar capacity to agree to comply, in respect of any item of Shared Collateral, with instructions or orders from, or to treat, in respect of any item of Shared Collateral, as the entitlement holder, (v) hold any item of Shared Collateral in trust for (to the extent such item of Shared Collateral cannot be held in trust for multiple parties under applicable law), (vi) obtain the agreement of a bailee or other third party to hold any item of Shared Collateral for the benefit of or subject to the control of or, in respect of any item of Shared Collateral, to follow the instructions of or (vii) obtain the agreement of a landlord with respect to access to leased premises where any item of Shared Collateral is located or waivers or subordination of rights with respect to any item of Shared Collateral in favor of, in any case, both the Designated Senior Representative and any Junior Second Priority Representative or Junior Second Priority Debt Party, such Grantor Obligor may, until the applicable Discharge of Senior Obligations has occurred, comply with such requirement under the applicable Junior Second Priority Collateral Document as it relates to such Shared Collateral by taking any of the actions set forth above only with respect to, or in favor of, the Designated Senior Representative.
Appears in 1 contract
Samples: First Lien/Second Lien Intercreditor Agreement (DISH Network CORP)
Releases. (a) Each Junior Priority Representative, for itself and on behalf of each Junior Priority Debt Secured Party under its Junior Priority Debt Facility, agrees that, in the event of a sale, transfer or other disposition of any specified item of Shared Collateral (including all or substantially all of the equity interests of any subsidiary Subsidiary of the Borrower) or the release of any Guarantee for any Secured Obligation that is either (x) in connection with any foreclosure or other than exercise of remedies (or a release granted upon disposition effected in lieu of such a foreclosure or following exercise of remedies) with respect to Shared Collateral by the Discharge of Designated Senior ObligationsRepresentative or (y) consented to by the Designated Senior Representative, the Guarantees and the Liens granted to the Junior Priority Representatives and the Junior Priority Debt Secured Parties upon such Shared Collateral to secure Junior Priority Debt Obligations shall (but not on the Proceeds thereof) (and any Guarantees provided by any Grantors in respect thereof) shall, in each case, terminate and be released, automatically and without any further action, concurrently with the termination and release of all Liens granted upon such Shared Collateral and Guarantees of the Grantors in respect thereof to secure Senior Obligations; provided that, in Obligations and to the case of any same extent as such sale, transfer or other disposition of Liens granted upon such Shared Collateral (other than any sale, transfer or other disposition in connection with the enforcement or exercise of any rights or remedies with respect and such Guarantees to the Shared Collateral), the Liens granted to the Junior Priority Representatives and the Junior Priority Debt Parties shall not be so released if such sale, transfer or other disposition is not permitted under the terms of any Junior Priority Debt Documentsecured Senior Obligations are released. Upon delivery to a Junior Priority Representative of an Officer’s Certificate stating that any such termination and release of Liens securing the Senior Obligations has become effective (or shall become effective concurrently with such termination and release of the Liens granted to the Junior Priority Debt Secured Parties and the Junior Priority Representatives) and any necessary or proper instruments of termination or release prepared by the Borrower or any other Grantor, such Junior Priority Representative will promptly execute, deliver or acknowledge, at the Borrower’s or the other Grantor’s sole cost and expense, such instruments to evidence such termination and release of the LiensLiens and Guarantees. Nothing in this Section 5.01(a) will be deemed to affect any agreement of a Junior Priority Representative, for itself and on behalf of the Junior Priority Debt Secured Parties under its Junior Priority Debt Facility, to release the Liens on the Junior Priority Collateral as set forth in the relevant Junior Priority Debt Documents.
(b) Each Junior Priority Representative, for itself and on behalf of each Junior Priority Debt Secured Party under its Junior Priority Debt Facility, hereby irrevocably constitutes and appoints the Designated each Senior Representative and any officer or agent of the Designated each Senior Representative, with full power of substitution, as its true and lawful attorney-in-fact with full irrevocable power and authority in the place and stead of such Junior Priority Representative or such Junior Priority Debt Secured Party or in the Designated such Senior Representative’s own name, from time to time in the Designated such Senior Representative’s discretion, for the purpose of carrying out the terms of Section 5.01(a), to take any and all appropriate action and to execute any and all documents and instruments that may be necessary or desirable to accomplish the purposes of Section 5.01(a), including any termination statements, endorsements or other instruments of transfer or release.
(c) Unless and until the Discharge of Senior Obligations has occurred, each Junior Representative, for itself and on behalf of each Junior Secured Party under its Junior Debt Facility, hereby consents to the application, whether prior to or after an event of default under any Senior Debt Document of Proceeds of Shared Collateral to the repayment of Senior Obligations pursuant to the Senior Debt Documents, provided that nothing in this Section 5.01(c) shall be construed to prevent or impair the rights of the Junior Representatives or the Junior Secured Parties to enforce this Agreement or to receive payments in connection with the Junior Obligations not otherwise in contravention of this Agreement.
(d) Notwithstanding anything to the contrary in any Junior Priority Collateral Document, in the event the terms of a Senior Collateral Document and a Junior Priority Collateral Document each require any Grantor (i) to make payment in respect of any item of Shared Collateral, (ii) to deliver or afford control over any item of Shared Collateral to, or deposit any item of Shared Collateral with, (iii) to register ownership of any item of Shared Collateral in the name of or make an assignment of ownership of any Shared Collateral or the rights thereunder tothereunder, (iv) to cause any securities intermediary, commodity intermediary or other Person acting in a similar capacity to agree to comply, in respect of any item of Shared Collateral, with instructions or orders from, or to treat, in respect of any item of Shared Collateral, as the entitlement holder, (v) to hold any item of Shared Collateral in trust for (to the extent such item of Shared Collateral cannot be held in trust for multiple parties under applicable law), (vi) to obtain the agreement of a bailee or other third party to hold any item of Shared Collateral for the benefit of or subject to the control of or, in respect of any item of Shared Collateral, to follow the instructions of or (vii) to obtain the agreement of a landlord with respect to access to leased premises where any item of Shared Collateral is located or waivers or subordination of rights with respect to any item of Shared Collateral in favor of, in any case, both the any Designated Senior Representative and any Junior Priority Representative or Junior Priority Debt Secured Party, such Grantor may, to the extent such action cannot be taken with respect to both the Designated Senior Representative and the Designated Junior Representative after use of commercially reasonable efforts to do so, until the applicable Discharge of Senior Obligations has occurred, comply with such requirement under the applicable Junior Priority Collateral Document as it relates to such Shared Collateral by taking any of the actions set forth above only with respect to, or in favor of, the Designated Senior Representative. To the extent any such actions have been taken in favor of the Designated Junior Representative prior to the date of this Agreement, the applicable arrangements resulting therefrom shall continue to be in effect and be subject to Section 5.05.
Appears in 1 contract
Releases. (a) Each Junior The Second Priority Representative, for itself and on behalf of each Junior Second Priority Debt Party under its Junior the Second Priority Debt Facility, agrees that, in the event of a sale, transfer or other disposition of any specified item of Shared Collateral (including all or substantially all of the equity interests of any subsidiary of the BorrowerCompany) in connection with (i) the exercise of remedies in respect of Collateral or (ii) any sale, transfer or other than a release granted upon disposition that is permitted under the Second Priority Debt Documents as in effect on the date hereof or following the Discharge of Senior Obligationssubsequently permitted thereunder, the Liens granted to the Junior Second Priority Representatives Representative and the Junior Second Priority Debt Parties upon such Shared Collateral to secure Junior Second Priority Debt Obligations shall terminate and be released, automatically and without any further action, concurrently with the termination and release of all Liens granted upon such Shared Collateral to secure Senior Obligations; provided that, in that the case of any such sale, transfer or other disposition of Shared Collateral (other than any sale, transfer or other disposition in connection with Liens securing the enforcement or exercise of any rights or remedies with respect Senior Obligations and the Second Priority Debt Obligations will attach to the Shared Collateral), Proceeds of the sale on the same basis of priority as the Liens granted on the Collateral securing the Senior Obligations rank to the Junior Priority Representatives and Liens on the Junior Collateral securing the Second Priority Debt Parties shall not be so released if such sale, transfer or other disposition is not permitted under the terms of any Junior Priority Debt DocumentObligations pursuant to this Agreement. Upon delivery to a Junior Second Priority Representative of an Officer’s Certificate (as defined in Section 8.08) stating that any such termination and release of Liens securing the Senior Obligations has become effective (or shall become effective concurrently with such termination and release of the Liens granted to the Junior Second Priority Debt Parties and the Junior Second Priority RepresentativesRepresentative) and any necessary or proper instruments of termination or release prepared by the Borrower Company or any other Grantor, such Junior Second Priority Representative will promptly execute, deliver or acknowledge, at the BorrowerCompany’s or the other Grantor’s sole cost and expense, such instruments to evidence such termination and release of the Liens. Nothing in this Section 5.01(a) will be deemed to affect any agreement of a Junior Second Priority Representative, for itself and on behalf of the Junior Second Priority Debt Parties under its Junior the Second Priority Debt Facility, to release the Liens on the Junior Priority Collateral as set forth in the relevant Junior Second Priority Debt Documents.
(b) Each Junior Until the Discharge of the Senior Obligations, the Second Priority Representative, for itself and on behalf of each Junior Second Priority Debt Party under its Junior the Second Priority Debt Facility, hereby irrevocably constitutes and appoints the Designated Senior Representative and any officer or agent of the Designated Senior Representative, with full power of substitution, as its true and lawful attorney-in-fact with full irrevocable power and authority in the place and stead of such Junior Second Priority Representative or such Junior Second Priority Debt Party or in the Designated Senior Representative’s own name, from time to time in the Designated Senior Representative’s discretion, for the purpose of carrying out the terms of Section 5.01(a), to take any and all appropriate action and to execute any and all documents and instruments that may be necessary or desirable to accomplish the purposes of Section 5.01(a), including any termination statements, endorsements or other instruments of transfer or release.
(c) Notwithstanding anything to the contrary in any Junior Second Priority Collateral Document, in the event the terms of a Senior Collateral Document and a Junior Second Priority Collateral Document each require any Grantor (i) to make payment in respect of any item of Shared CollateralCollateral to, (ii) to deliver or afford control over (to the extent only one party can have control of such Collateral) any item of Shared Collateral to, or deposit any item of Shared Collateral with, (iii) to register ownership of any item of Shared Collateral in the name of or make an assignment of ownership of any Shared Collateral or the rights thereunder tothereunder, and (iv) cause any securities intermediary, commodity intermediary or other Person acting in a similar capacity to agree to comply, in respect of any item of Shared Collateral, with instructions or orders from, or to treat, in respect of any item of Shared Collateral, as the entitlement holder, (v) hold any item of Shared Collateral in trust for (to the extent such item of Shared Collateral cannot be held in trust for multiple parties under applicable law), (vi) obtain the agreement of a bailee or other third party to hold any item of Shared Collateral for the benefit of or subject to the control of or, in respect of any item of Shared Collateral, to follow the instructions of or (vii) obtain the agreement of a landlord with respect to access to leased premises where any item of Shared Collateral is located or waivers or subordination of rights with respect to any item of Shared Collateral in favor of, in any case, both the Designated Senior Representative and any Junior Second Priority Representative or Junior Second Priority Debt Party, such Grantor may, until the applicable Discharge of Senior Obligations has occurred, comply with such requirement under the applicable Junior Second Priority Collateral Document as it relates to such Shared Collateral by taking any of the actions set forth above only with respect to, or in favor of, the Designated Senior Representative.
Appears in 1 contract
Samples: Second Lien Credit Agreement (Magnum Hunter Resources Corp)
Releases. (a) Each Junior Priority Representative, for itself and on behalf of each Junior Priority Debt Party under its Junior Priority Debt Facility, agrees that, in the event of a sale, transfer or other disposition of any specified item of Shared Collateral (including all or substantially all of the equity interests of any subsidiary Subsidiary) (i) in connection with the exercise of remedies in respect of Collateral or (ii) if not in connection with the Borrowerexercise of remedies in respect of Collateral, so long as an Event of Default (as defined in and under any Junior Lien Debt Document) other than a release granted upon or following the Discharge of Senior Obligationshas not occurred and is continuing, the Liens granted to the Junior Priority Representatives and the Junior Priority Debt Parties upon such Shared Collateral to secure Junior Priority Debt Obligations shall terminate and be released, automatically and without any further action, concurrently with the termination and release of all Liens granted upon such Shared Collateral to secure Senior Obligations; provided that, in the case of any such sale, transfer or other disposition of Shared Collateral (other than any sale, transfer or other disposition in connection with the enforcement or exercise of any rights or remedies with respect to the Shared Collateral), the Liens granted to the Junior Priority Representatives and the Junior Priority Debt Parties shall not be so released if such sale, transfer or other disposition is not permitted under the terms of any Junior Priority Debt Document. Upon delivery to a Junior Priority Representative of an Officer’s Certificate stating that any such termination and release of Liens securing the Senior Obligations has become effective (or shall become effective concurrently with such termination and release of the Liens granted to the Junior Priority Debt Parties and the Junior Priority Representatives) and any necessary or proper instruments of termination or release prepared by the Borrower or any other Grantor, such Junior Priority Representative will promptly execute, deliver or acknowledge, at the Borrower’s or the other Grantor’s sole cost and expense, such instruments to evidence such termination and release of the Liens. Nothing in this Section 5.01(a) will be deemed to affect any agreement of a Junior Priority Representative, for itself and on behalf of the Junior Priority Debt Parties under its Junior Priority Debt Facility, to release the Liens on the Junior Priority Collateral as set forth in the relevant Junior Priority Debt Documents.
(b) Each Junior Priority Representative, for itself and on behalf of each Junior Priority Debt Party under its Junior Priority Debt Facility, hereby irrevocably constitutes and appoints the Designated Senior Representative and any officer or agent of the Designated Senior Representative, with full power of substitution, as its true and lawful attorney-in-fact with full irrevocable power and authority in the place and stead of such Junior Priority Representative or such Junior Priority Debt Party or in the Designated Senior Representative’s own name, from time to time in the Designated Senior Representative’s discretion, for the purpose of carrying out the terms of Section 5.01(a), to take any and all appropriate action and to execute any and all documents and instruments that may be necessary or desirable to accomplish the purposes of Section 5.01(a), including any termination statements, endorsements or other instruments of transfer or release.
(c) Notwithstanding anything to the contrary in any Junior Priority Collateral Document, in the event the terms of a Senior Collateral Document and a Junior Priority Collateral Document each require any Grantor (i) to make payment in respect of any item of Shared Collateral, (ii) to deliver or afford control over any item of Shared Collateral to, or deposit any item of Shared Collateral with, (iii) to register ownership of any item of Shared Collateral in the name of or make an assignment of ownership of any Shared Collateral or the rights thereunder to, (iv) cause any securities intermediary, commodity intermediary or other Person acting in a similar capacity to agree to comply, in respect of any item of Shared Collateral, with instructions or orders from, or to treat, in respect of any item of Shared Collateral, as the entitlement holder, (v) hold any item of Shared Collateral in trust for (to the extent such item of Shared Collateral cannot be held in trust for multiple parties under applicable law), (vi) obtain the agreement of a bailee or other third party to hold any item of Shared Collateral for the benefit of or subject to the control of or, in respect of any item of Shared Collateral, to follow the instructions of or (vii) obtain the agreement of a landlord with respect to access to leased premises where any item of Shared Collateral is located or waivers or subordination of rights with respect to any item of Shared Collateral in favor of, in any case, both the Designated Senior Representative and any Junior Priority Representative or Junior Priority Debt Party, such Grantor may, until the applicable Discharge of Senior Obligations has occurred, comply with such requirement under the applicable Junior Priority Collateral Document as it relates to such Shared Collateral by taking any of the actions set forth above only with respect to, or in favor of, the Designated Senior Representative.
Appears in 1 contract
Samples: Credit Agreement (Costar Group Inc)
Releases. (a) Each Junior Priority RepresentativeThe Company shall have the right to optionally prepay Revolving Loans in whole at any time and in part at any time so long as no Default, for itself Early Amortization Event or Event of Default has occurred and on behalf of each Junior Priority Debt Party under its Junior Priority Debt Facility, agrees that, in the event of is continuing or will result therefrom. In connection with any such prepayment or a sale, transfer or other disposition of any specified item of Shared Collateral (including all or substantially all of the equity interests of any subsidiary of the Borrower) other than a release granted upon or following the Discharge of Senior ObligationsPermitted Asset Sale, the Liens granted to the Junior Priority Representatives and the Junior Priority Debt Parties upon such Shared Collateral to secure Junior Priority Debt Obligations shall terminate and be released, automatically and without Company may request a Release in connection therewith at any further action, concurrently with the termination and release of all Liens granted upon such Shared Collateral to secure Senior Obligations; provided that, in the case of any such sale, transfer or other disposition of Shared Collateral (other than any sale, transfer or other disposition time but only in connection with the enforcement a Whole Loan Sale, Securitization Transaction or exercise of any rights or remedies with respect a Permitted Asset Sale, in each case subject to the Shared Collateral), the Liens granted to the Junior Priority Representatives and the Junior Priority Debt Parties shall not be so released if such sale, transfer or other disposition is not permitted under the terms of this Section 2.6. The Company may request a Release on any Junior Priority Debt Document. Upon delivery to Business Day (a Junior Priority Representative of an Officer’s Certificate stating that any such termination and release of Liens securing the Senior Obligations has become effective (or shall become effective concurrently with such termination and release of the Liens granted “Release Date”) by delivering to the Junior Priority Debt Parties Administrative Agent and the Junior Priority RepresentativesCollateral Agent by not later than 3:00 p.m. New York City time at least two (2) and any necessary or proper instruments of termination or release prepared by Business Days prior to the Borrower or any other Grantorrequested Release Date, such Junior Priority Representative will promptly execute, deliver or acknowledge, at the Borrower’s or the other Grantor’s sole cost and expense, such instruments to evidence such termination and release of the Liens. Nothing in this Section 5.01(a) will be deemed to affect any agreement of a Junior Priority Representative, for itself and on behalf of the Junior Priority Debt Parties under its Junior Priority Debt Facility, to release the Liens on the Junior Priority Collateral as set forth written notice substantially in the relevant Junior Priority Debt Documents.
form of Exhibit I (ba “Release Notice”) Each Junior Priority Representative(which Release Notice the Administrative Agent shall promptly make available to the Lenders in accordance with its customary practice). In connection with (A) any prepayment, for itself and on behalf of each Junior Priority Debt Party under its Junior Priority Debt Facility, hereby irrevocably constitutes and appoints the Designated Senior Representative and or (B) any officer or agent of the Designated Senior Representative, Release made in accordance with full power of substitution, as its true and lawful attorney-in-fact with full irrevocable power and authority in the place and stead of such Junior Priority Representative or such Junior Priority Debt Party or in the Designated Senior Representative’s own name, from time to time in the Designated Senior Representative’s discretion, for the purpose of carrying out the terms of this Section 5.01(a)2.6, the Company may elect to take reduce the Revolving Commitments, pro rata based on each Lender’s Pro Rata Share (each such election, a “Commitment Reduction” and each such amount, a “Commitment Reduction Amount”) and such Commitment Reduction shall be effective upon the date of such prepayment or the related Release on the Release Date, as applicable. In connection with (A) any and all appropriate action and to execute prepayment, or (B) any and all documents and instruments that may be necessary or desirable to accomplish the purposes of Section 5.01(a), including any termination statements, endorsements or other instruments of transfer or release.
(c) Notwithstanding anything to the contrary Release made in any Junior Priority Collateral Document, in the event accordance with the terms of a Senior Collateral Document and a Junior Priority Collateral Document each require any Grantor (i) to make payment in respect of any item of Shared Collateral, (ii) to deliver or afford control over any item of Shared Collateral to, or deposit any item of Shared Collateral with, (iii) to register ownership of any item of Shared Collateral in the name of or make an assignment of ownership of any Shared Collateral or the rights thereunder to, (iv) cause any securities intermediary, commodity intermediary or other Person acting in a similar capacity to agree to complythis Section 2.6, in respect of any item of Shared Collateral, with instructions or orders from, or to treat, in respect of any item of Shared Collateral, as the entitlement holder, (v) hold any item of Shared Collateral in trust for (to the extent such item of Shared Collateral cannot be held in trust for multiple parties under applicable law), (vi) obtain the agreement of a bailee or other third party to hold any item of Shared Collateral for the benefit of or subject to the control of or, in respect of any item of Shared Collateral, to follow the instructions of or (vii) obtain the agreement of a landlord with respect to access to leased premises where any item of Shared Collateral is located or waivers or subordination of rights with respect to any item of Shared Collateral in favor of, in any case, both the Designated Senior Representative and any Junior Priority Representative or Junior Priority Debt Party, such Grantor may, until the applicable Discharge of Senior Obligations has occurred, comply with such requirement under the applicable Junior Priority Collateral Document each case as it relates to a Whole Loan Sale, any Lender may elect to reduce their respective Revolving Commitments, pro rata based on each Lender’s Pro Rata Share (each such Shared Collateral by taking any election, a “Lender Commitment Reduction”), with notice from the relevant Lender to the Administrative Agent of such election (which notice the actions set forth above only Administrative Agent shall promptly make available to the other Lenders in accordance with respect toits customary practice), and such Lender Commitment Reduction shall be effective upon the date of such prepayment or in favor ofthe related Release on the Release Date, as applicable. Each Release Notice shall be irrevocable and effective upon receipt; provided further that if such Release Notice is delivered more than two Business Days prior to the requested Release Date, it shall be revocable, without penalty, through the close of business on the Business Day preceding such second prior Business Day. By not later than 3:00 p.m. New York City time at least one Business Day prior to the requested Release Date, the Designated Senior RepresentativeCompany shall deliver to the Administrative Agent and the Collateral Agent, a written notice substantially in the form of Exhibit J (a “Release Letter”) (which document the Administrative Agent shall promptly make available to the Lenders in accordance with its customary practice), confirming the Release Date and setting forth certain information related to the distribution of funds on such Release Date and, if applicable, the Release of certain Receivables. Company will select no less than a pro rata share (by Outstanding Principal Balance) of Delinquent Receivables for any such Release.
Appears in 1 contract
Releases. (a) Each Junior Priority Representative, for itself and on behalf of each Junior Priority Debt Party under its Junior Priority Debt Facility, agrees that, in the event of a sale, transfer or other disposition of any specified item of Shared Collateral (including all or substantially all of the equity interests of any subsidiary of the BorrowerCompany) other than a release granted upon in connection with the exercise of remedies in respect of Collateral or following the Discharge of Senior Obligationsotherwise, the Liens granted to the Junior Priority Representatives and the Junior Priority Debt Parties upon such Shared Collateral to secure Junior Priority Debt Obligations shall terminate and be released, automatically and without any further action, concurrently with the termination and release of all Liens granted upon such Shared Collateral to secure Senior Obligations; provided that, in the case of any such sale, transfer or other disposition of Shared Collateral (other than any sale, transfer or other disposition in connection with the enforcement or exercise of any rights or remedies with respect to the Shared Collateral), the Liens granted to the Junior Priority Representatives and the Junior Priority Debt Parties shall not be so released if such sale, transfer or other disposition is not permitted under the terms of any Junior Priority Debt Document. Upon delivery to a Junior Priority Representative of an Officer’s Certificate stating that any such termination and release of Liens securing the Senior Obligations has become effective (or shall become effective concurrently with such termination and release of the Liens granted to the Junior Priority Debt Parties and the Junior Priority Representatives) and any necessary or proper instruments of termination or release prepared by the Borrower Company or any other Grantor, such Junior Priority Representative will promptly execute, deliver or acknowledge, at the BorrowerCompany’s or the other Grantor’s sole cost and expense, such instruments to evidence such termination and release of the Liens. Nothing in this Section 5.01(a) will be deemed to affect any agreement of a Junior Priority Representative, for itself and on behalf of the Junior Priority Debt Parties under its Junior Priority Debt Facility, to release the Liens on the Junior Priority Collateral as set forth in the relevant Junior Priority Debt Documents.
(b) Each Junior Priority Representative, for itself and on behalf of each Junior Priority Debt Party under its Junior Priority Debt Facility, hereby irrevocably constitutes and appoints the Designated Senior Representative and any officer or agent of the Designated Senior Representative, with full power of substitution, as its true and lawful attorney-in-fact with full irrevocable power and authority in the place and stead of such Junior Priority Representative or such Junior Priority Debt Party or in the Designated Senior Representative’s own name, from time to time in the Designated Senior Representative’s discretion, for the purpose of carrying out the terms of Section 5.01(a), to take any and all appropriate action and to execute any and all documents and instruments that may be necessary or desirable to accomplish the purposes of Section 5.01(a), including any termination statements, endorsements or other instruments of transfer or release.
(c) Unless and until the Discharge of Senior Obligations has occurred, each Junior Priority Representative, for itself and on behalf of each Junior Priority Debt Party under its Junior Priority Debt Facility, hereby consents to the application, whether prior to or after an event of default under any Senior Debt Document of proceeds of Shared Collateral to the repayment of Senior Obligations pursuant to the Senior Debt Documents, provided that nothing in this Section 5.01(c) shall be construed to prevent or impair the rights of the Junior Priority Representatives or the Junior Priority Debt Parties to receive proceeds in connection with the Junior Priority Debt Obligations not otherwise in contravention of this Agreement.
(d) Notwithstanding anything to the contrary in any Junior Priority Collateral Document, in the event the terms of a Senior Collateral Document and a Junior Priority Collateral Document each require any Grantor (i) to make payment in respect of any item of Shared Collateral, (ii) to deliver or afford control over any item of Shared Collateral to, or deposit any item of Shared Collateral with, (iii) to register ownership of any item of Shared Collateral in the name of or make an assignment of ownership of any Shared Collateral or the rights thereunder to, (iv) cause any securities intermediary, commodity intermediary or other Person acting in a similar capacity to agree to comply, in respect of any item of Shared Collateral, with instructions or orders from, or to treat, in respect of any item of Shared Collateral, as the entitlement holder, (v) hold any item of Shared Collateral in trust for (to the extent such item of Shared Collateral cannot be held in trust for multiple parties under applicable law), (vi) obtain the agreement of a bailee or other third party to hold any item of Shared Collateral for the benefit of or subject to the control of or, in respect of any item of Shared Collateral, to follow the instructions of or (vii) obtain the agreement of a landlord with respect to access to leased premises where any item of Shared Collateral is located or waivers or subordination of rights with respect to any item of Shared Collateral in favor of, in any case, both the Designated Senior Representative and any Junior Priority Representative or Junior Priority Debt Party, such Grantor may, until the applicable Discharge of Senior Obligations has occurred, comply with such requirement under the applicable Junior Priority Collateral Document as it relates to such Shared Collateral by taking any of the actions set forth above only with respect to, or in favor of, the Designated Senior Representative.
Appears in 1 contract
Samples: Credit Agreement (CHC Group Ltd.)
Releases. (ai) Each Junior Priority Representative, for itself and on behalf of each Junior Priority Debt Party under its Junior Priority Debt Facility, agrees that, in Borrower shall have the event of a sale, transfer or other disposition of any specified item of Shared Collateral (including all or substantially all of the equity interests of any subsidiary of the Borrower) other than a release granted upon or following the Discharge of Senior Obligations, the Liens granted right to the Junior Priority Representatives and the Junior Priority Debt Parties upon such Shared Collateral to secure Junior Priority Debt Obligations shall terminate and be released, automatically and without any further action, concurrently with the termination and release of all Liens granted upon such Shared Collateral to secure Senior Obligations; provided that, in the case of any such sale, transfer or other disposition of Shared Collateral (other than any sale, transfer or other disposition in connection with the enforcement or exercise of any rights or remedies with respect to the Shared Collateral), the Liens granted to the Junior Priority Representatives and the Junior Priority Debt Parties shall not be so released if such sale, transfer or other disposition is not permitted under the terms of any Junior Priority Debt Document. Upon delivery to a Junior Priority Representative of an Officer’s Certificate stating that any such termination and release of Liens securing the Senior Obligations has become effective (or shall become effective concurrently with such termination and release of the Liens granted to the Junior Priority Debt Parties and the Junior Priority Representatives) and any necessary or proper instruments of termination or release prepared by the Borrower or any other Grantor, such Junior Priority Representative will promptly execute, deliver or acknowledge, at the Borrower’s or the other Grantor’s sole cost and expense, such instruments to evidence such termination and release of the Liens. Nothing in this Section 5.01(a) will be deemed to affect any agreement of a Junior Priority Representative, for itself and on behalf of the Junior Priority Debt Parties under its Junior Priority Debt Facility, request Agent to release the Liens on the Junior Priority Collateral as set forth in the relevant Junior Priority Debt Documents.
(b) Each Junior Priority Representative, for itself and on behalf of each Junior Priority Debt Party under its Junior Priority Debt Facility, hereby irrevocably constitutes and appoints the Designated Senior Representative and any officer or agent of the Designated Senior Representative, with full power of substitution, as its true and lawful attorney-in-fact with full irrevocable power and authority in the place and stead of such Junior Priority Representative or such Junior Priority Debt Party or in the Designated Senior Representative’s own name, from time to time any certificates, instruments, Chattel Paper, and other writings evidencing any Receivable Collateral in connection with any modifications or terminations thereof permitted hereunder and under the Designated Senior Representative’s discretion, Credit Agreement. Promptly following delivery by Borrower of a written request to Agent requesting any such release and describing in reasonable detail the basis for the purpose release request, and upon receipt of carrying out any additional information Agent may reasonably request, Agent shall release (or cause to be released) the terms of Section 5.01(a)certificate, to take any and all appropriate action and to execute any and all documents and instruments that may be necessary or desirable to accomplish the purposes of Section 5.01(a), including any termination statements, endorsements instrument or other instruments writing which is the subject of transfer the release request. In the case of a request contemplating the substitution of any certificate, instrument or other writing, Borrower shall deliver the substitute certificate, instrument or other writing on the date of the release; PROVIDED, HOWEVER, that if such simultaneous substitution shall be impracticable, Borrower shall deliver the substitute certificate, instrument or other writing within five Business Days following the release.
(cii) Notwithstanding anything Provided that an Event of Default is not continuing, Borrower shall have the right to request Agent to release from time to time any certificates, instruments, Chattel Paper, and other writings evidencing any Receivable Collateral in connection with any sale of such Receivable Collateral pursuant to the contrary in any Junior Priority Loan Purchase Agreements by delivery of a duly executed Purchase Notice listing the Receivable Collateral Documentrequested to be released. Promptly following receipt thereof, Agent shall execute and deliver to Borrower a Release, and Agent shall release (or cause to be released), and contemporaneously deliver, or cause to be delivered to Buyer (as defined is the NCB Purchase Agreement), the certificates, instruments, Chattel Paper, and other writings evidencing the Receivable Collateral requested to be released in the event such Purchase Notice; PROVIDED that immediately after giving effect to such release of Receivable Collateral, the aggregate principal amount of the Loans outstanding shall not exceed the Borrowing Base. Agent agrees to take all such other actions as Borrower may reasonably request to accomplish the release of Receivable Collateral in accordance with the terms of a Senior Collateral Document and a Junior Priority Collateral Document each require any Grantor (i) to make payment in respect of any item of Shared Collateral, (ii) to deliver or afford control over any item of Shared Collateral to, or deposit any item of Shared Collateral with, (iii) to register ownership of any item of Shared Collateral in the name of or make an assignment of ownership of any Shared Collateral or the rights thereunder to, (iv) cause any securities intermediary, commodity intermediary or other Person acting in a similar capacity to agree to comply, in respect of any item of Shared Collateral, with instructions or orders from, or to treat, in respect of any item of Shared Collateral, as the entitlement holder, (v) hold any item of Shared Collateral in trust for (to the extent such item of Shared Collateral cannot be held in trust for multiple parties under applicable lawthis Section 3(d)(ii), (vi) obtain the agreement of a bailee or other third party to hold any item of Shared Collateral for the benefit of or subject to the control of or, in respect of any item of Shared Collateral, to follow the instructions of or (vii) obtain the agreement of a landlord with respect to access to leased premises where any item of Shared Collateral is located or waivers or subordination of rights with respect to any item of Shared Collateral in favor of, in any case, both the Designated Senior Representative and any Junior Priority Representative or Junior Priority Debt Party, such Grantor may, until the applicable Discharge of Senior Obligations has occurred, comply with such requirement under the applicable Junior Priority Collateral Document as it relates to such Shared Collateral by taking any of the actions set forth above only with respect to, or in favor of, the Designated Senior Representative.
Appears in 1 contract
Samples: Credit Agreement (Certified Grocers of California LTD)
Releases. (a) Each Subject to the penultimate sentence of this Section 5.01(a), each Junior Priority Representative, for itself and on behalf of each Junior Priority Debt Party under its Junior Priority Debt Facility, agrees that, in the event of a sale, transfer or other disposition of any specified item of Shared Collateral (including all or substantially all of the equity interests of any subsidiary of the BorrowerHoldings) other than (a release granted upon or following the Discharge of Senior Obligations“Disposition”), the Liens granted to the Junior Priority Representatives and the Junior Priority Debt Parties upon such Shared Collateral to secure Junior Priority Debt Obligations shall terminate and or shall be released, automatically and without any further action, concurrently with the termination and or release of all Liens granted upon such Shared Collateral to secure Senior Obligations; , provided that, in that the case parties’ respective Liens shall attach to the net proceeds of any such sale, transfer or other disposition of Shared Collateral (other than any sale, transfer or other disposition in connection Disposition with the enforcement or exercise of any rights or remedies with respect same Lien priorities as provided in this Agreement to the Shared Collateral), extent such proceeds are not otherwise utilized to permanently reduce the Liens granted to the Junior Priority Representatives and the Junior Priority Debt Parties shall not be so released if such sale, transfer or other disposition is not permitted under the terms of any Junior Priority Debt DocumentSenior Obligations. Upon delivery to a Junior Priority Representative of an Officer’s Certificate stating that any such termination and or release of Liens securing the Senior Obligations has become effective (or shall become effective concurrently with such termination and or release of the Liens granted to the Junior Priority Debt Parties and the Junior Priority Representatives) and any necessary or proper instruments of termination or release prepared by the Borrower or Holdings, any other Grantor, such Junior Priority Representative will promptly execute, deliver or acknowledge, at the Borrower’s Holdings’ or the other Grantor’s sole cost and expense, such instruments to evidence such termination and or release of the Liens; provided, however that such Officer’s Certificate shall not be required for any termination or release in connection with the exercise of remedies following an event of default. Nothing in this Section 5.01(a) will be deemed to (x) affect any agreement of a Junior Priority Representative, for itself and on behalf of the Junior Priority Debt Parties under its Junior Priority Debt Facility, to release the Liens on the Junior Priority Collateral as set forth in the relevant Junior Priority Debt Documents or (y) except in the case of a Disposition in connection with the exercise of secured creditors’ rights and remedies, require the release of Liens granted upon such Shared Collateral to secure Junior Priority Debt Obligations if such Disposition is not permitted under the terms of the Junior Priority Debt Documents. If in connection with any enforcement action or other exercise of rights and remedies by any Senior Representative, in each case, prior to a Discharge of Senior Obligations, the equity interests of any Person are foreclosed upon or otherwise disposed of and such Senior Representative releases its Lien on the property or assets of such Person, then the liens of each Junior Representative and Junior Priority Debt Parties will be released to the same extent as the Liens of such Senior Representative and Senior Secured Parties are released.
(b) Each Junior Priority Representative, for itself and on behalf of each Junior Priority Debt Party under its Junior Priority Debt Facility, hereby irrevocably constitutes and appoints the Designated Senior Representative and any officer or agent of the Designated Senior Representative, with full power of substitution, as its true and lawful attorney-in-fact with full irrevocable power and authority in the place and stead of such Junior Priority Representative or such Junior Priority Debt Party or in the Designated Senior Representative’s own name, from time to time in the Designated Senior Representative’s discretion, for the purpose of carrying out the terms of Section 5.01(a), to take any and all appropriate action and to execute any and all documents and instruments that may be necessary or desirable to accomplish the purposes of Section 5.01(a), including any termination statements, endorsements or other instruments of transfer or release.
(c) Notwithstanding Unless and until the Discharge of Senior Obligations has occurred, each Junior Representative, for itself and on behalf of each Junior Priority Debt Party under its Junior Priority Debt Facility, hereby consents to the application, whether prior to or after an event of default under any Senior Debt Document of Proceeds of Shared Collateral to the repayment of Senior Obligations pursuant to the Senior Debt Documents, provided that nothing in this Section 5.01(c) shall be construed to prevent or impair the rights of the Junior Representatives or the Junior Priority Debt Parties to receive proceeds in connection with the Junior Priority Debt Obligations not otherwise in contravention of this Agreement.
(d) Subject to Sections 5.06(a) and 5.06(f), notwithstanding anything to the contrary in any Junior Priority Collateral Document, in the event the terms of a Senior Collateral Document and a Junior Priority Collateral Document each require any Grantor to (i) to make any payment in respect of any item of Shared CollateralCollateral to, (ii) to deliver or afford control over any item of Shared Collateral to, or deposit any item of Shared Collateral with, (iii) to register ownership of any item of Shared Collateral in the name of or make an assignment of ownership of any Shared Collateral or the rights thereunder to, (iv) cause any securities intermediary, commodity intermediary or other Person acting in a similar capacity to agree to comply, in respect of any item of Shared Collateral, with instructions or orders from, or to treat, in respect of any item of Shared Collateral, as the entitlement holder, (v) hold any item of Shared Collateral in trust for (to the extent such item of Shared Collateral cannot be held in trust for multiple parties under applicable law), (vi) obtain the agreement of a bailee or other third party to hold any item of Shared Collateral for the benefit of or subject to the control of or, in respect of any item of Shared Collateral, to follow the instructions of or (vii) obtain the agreement of a landlord with respect to access to leased premises where any item of Shared Collateral is located or waivers or subordination of rights with respect to any item of Shared Collateral in favor of, in any case, both the Designated any Senior Representative or Senior Secured Party and any Junior Priority Representative or Junior Priority Debt Party, such Grantor may, until the applicable Discharge of Senior Obligations has occurred, comply with such requirement under the applicable Junior Priority Collateral Document as it relates to such Shared Collateral by taking any of the actions set forth above only with respect to, or in favor of, the Designated Senior Representative.
Appears in 1 contract
Samples: Intercreditor Agreement (Houghton Mifflin Harcourt Co)
Releases. (a) Each Junior Second Priority Representative, for itself and on behalf of each Junior Second Priority Debt Secured Party under its Junior Second Priority Debt Facility, agrees that, in the event of a sale, transfer or other disposition Disposition of any specified item of Shared Collateral (including all or substantially all of the equity interests Equity Interests of the Borrower or any subsidiary Subsidiary of the Borrower) (i) in connection with the exercise of remedies in respect of Collateral by a Designated Senior Representative or (ii) if not in connection with the exercise of remedies in respect of Collateral by the Designated Senior Representative, so long as such Disposition is permitted by the terms of the Senior Priority Debt Documents and, in the case of this clause (ii) other than a release granted upon or following in connection with the Discharge of Senior Obligations, the Liens granted to the Junior Second Priority Representatives and the Junior Second Priority Debt Secured Parties upon such Shared Collateral (but not on the Proceeds thereof that were not applied to the payment of Senior Obligations) to secure Junior Second Priority Debt Obligations shall terminate and be released, automatically and without any further action, concurrently with the termination and release of all Liens granted upon such Shared Collateral to secure Senior Obligations; provided that, in the case of any such sale, transfer or other disposition of Shared Collateral (other than any sale, transfer or other disposition in connection with the enforcement or exercise of any rights or remedies with respect to the Shared Collateral), the Liens granted to the Junior Priority Representatives and the Junior Priority Debt Parties shall not be so released if such sale, transfer or other disposition is not permitted under the terms of any Junior Priority Debt Document. Upon delivery to a Junior Second Priority Representative of an Officer’s Certificate stating that any such termination and release of Liens securing the Senior Obligations has become effective (or shall become effective concurrently with such termination and release of the Liens granted to the Junior Second Priority Debt Secured Parties and the Junior Second Priority Representatives) and any necessary or proper instruments of termination or release prepared by the Borrower or any other Grantor, such Junior Second Priority Representative will promptly execute, deliver or acknowledge, at the Borrower’s or the other Grantor’s sole cost and expenseexpense and without any representation or warranty, such instruments to evidence such termination and release of the Liens. Nothing in this Section 5.01(a) will be deemed to affect any agreement of a Junior Priority Representative, for itself and on behalf of the Junior Priority Debt Parties under its Junior Priority Debt Facility, to release the Liens on the Junior Priority Collateral as set forth in the relevant Junior Priority Debt Documents.
(b) Each Junior Second Priority Representative, for itself and on behalf of each Junior Second Priority Debt Secured Party under its Junior Second Priority Debt Facility, hereby irrevocably constitutes and appoints the Designated Senior Representative and any officer or agent of the Designated Senior Representative, with full power of substitution, as its true and lawful attorney-in-fact with full irrevocable power and authority in the place and stead of such Junior Second Priority Representative or such Junior Second Priority Debt Secured Party or in the Designated Senior Representative’s own name, from time to time in the Designated Senior Representative’s discretion, for the purpose of carrying out the terms of Section 5.01(a), to take any and all appropriate action and to execute any and all documents and instruments that may be necessary or desirable to accomplish the purposes of Section 5.01(a), including any termination statements, endorsements or other instruments of transfer or release.
(c) Unless and until the Discharge of Senior Obligations has occurred, each Second Priority Representative, for itself and on behalf of each Second Priority Secured Party under its Second Priority Debt Facility, hereby consents to the application, whether prior to or after an event of default under any Senior Priority Debt Document of Proceeds of Shared Collateral to the repayment of Senior Obligations pursuant to the Senior Priority Debt Documents, provided that nothing in this Section 5.01(c) shall be construed to prevent or impair the rights of the Second Priority Representatives or the Second Priority Secured Parties to receive Proceeds in connection with the Second Priority Debt Obligations not otherwise in contravention of this Agreement.
(d) Notwithstanding anything to the contrary in any Junior Second Priority Collateral Document, in the event the terms of a Senior Priority Collateral Document and a Junior Second Priority Collateral Document each require any Grantor (i) to make payment in respect of any item of Shared Collateral, (ii) to deliver or afford control over any item of Shared Collateral to, or deposit any item of Shared Collateral with, (iii) to register ownership of any item of Shared Collateral in the name of or make an assignment of ownership of any Shared Collateral or the rights thereunder to, (iv) cause any securities intermediary, commodity intermediary or other Person acting in a similar capacity to agree to comply, in respect of any item of Shared Collateral, with instructions or orders from, or to treat, in respect of any item of Shared Collateral, as the entitlement holder, (v) hold any item of Shared Collateral in trust for (to the extent such item of Shared Collateral cannot be held in trust for multiple parties under applicable lawLaw), (vi) obtain the agreement of a bailee or other third party to hold any item of Shared Collateral for the benefit of or subject to the control of or, in respect of any item of Shared Collateral, to follow the instructions of or (vii) obtain the agreement of a landlord with respect to access to leased premises where any item of Shared Collateral is located or waivers or subordination of rights with respect to any item of Shared Collateral in favor of, in any case, both the Designated Senior Representative and any Junior Second Priority Representative or Junior Second Priority Debt Secured Party, such Grantor may, until the applicable Discharge of Senior Obligations has occurred, comply with such requirement under the applicable Junior Second Priority Collateral Document as it relates to such Shared Collateral by taking any of the actions set forth above only with respect to, or in favor of, the Designated Senior Representative.
Appears in 1 contract
Releases. (a) Each Junior Priority Representative, for itself and on behalf of each Junior Priority Debt Secured Party under its Junior Priority Debt Facility, agrees that, in the event of a sale, transfer or other disposition of any specified item of Shared Collateral (including all or substantially all of the equity interests of any subsidiary of the Borrower) other than a release granted upon or following the Discharge of Senior Obligations), the Liens granted to the Junior Priority Representatives and the Junior Priority Debt Secured Parties upon such Shared Collateral to secure Junior Priority Debt Obligations shall terminate and be released, automatically and without any further action, concurrently with the termination and release of all Liens granted upon such Shared Collateral to secure Senior Obligations; provided that, in the case of any such sale, transfer or other disposition of Shared Collateral (other than any sale, transfer or other disposition in connection with the enforcement or exercise of any rights or remedies with respect to the Shared Collateral), the Liens granted to the Junior Priority Representatives and the Junior Priority Debt Parties shall not be so released if such sale, transfer or other disposition is not permitted under the terms of any Junior Priority Debt Document. Upon delivery to a Junior Priority Representative of an Officer’s Certificate stating that any such termination and release of Liens securing the Senior Obligations has become effective (or shall become effective concurrently with such termination and release of the Liens granted to the Junior Priority Debt Secured Parties and the Junior Priority Representatives) and any necessary or proper instruments of termination or release prepared by the Borrower or any other Grantor, such Junior Priority Representative will promptly execute, deliver or acknowledge, at the Borrower’s or the other Grantor’s sole cost and expense, such instruments to evidence such termination and release of the Liens. Nothing in this Section 5.01(a) will be deemed to affect any agreement of a Junior Priority Representative, for itself and on behalf of the Junior Priority Debt Secured Parties under its Junior Priority Debt Facility, to release the Liens on the Junior Priority Collateral as set forth in the relevant Junior Priority Debt Documents.
(b) Each Junior Priority Representative, for itself and on behalf of each Junior Priority Debt Secured Party under its Junior Priority Debt Facility, hereby irrevocably constitutes and appoints the Designated each Senior Representative and any officer or agent of the Designated each Senior Representative, with full power of substitution, as its true and lawful attorney-in-fact with full irrevocable power and authority in the place and stead of such Junior Priority Representative or such Junior Priority Debt Secured Party or in the Designated such Senior Representative’s own name, from time to time in the Designated such Senior Representative’s discretion, for the purpose of carrying out the terms of Section 5.01(a), to take any and all appropriate action and to execute any and all documents and instruments that may be necessary or desirable to accomplish the purposes of Section 5.01(a), including any termination statements, endorsements or other instruments of transfer or release.
(c) Unless and until the Discharge of Senior Obligations has occurred, each Junior Representative, for itself and on behalf of each Junior Secured Party under its Junior Debt Facility, hereby consents to the application, whether prior to or after an event of default under any Senior Debt Document of proceeds of Shared Collateral to the repayment of Senior Obligations pursuant to the Senior Debt Documents, provided that nothing in this Section 5.01(c) shall be construed to prevent or impair the rights of the Junior Representatives or the Junior Secured Parties to receive proceeds in connection with the Junior Obligations not otherwise in contravention of this Agreement.
(d) Notwithstanding anything to the contrary in any Junior Priority Collateral Document, in the event the terms of a Senior Collateral Document and a Junior Priority Collateral Document each require any Grantor (i) to make payment in respect of any item of Shared Collateral, (ii) to deliver or afford control over any item of Shared Collateral to, or deposit any item of Shared Collateral with, (iii) to register ownership of any item of Shared Collateral in the name of or make an assignment of ownership of any Shared Collateral or the rights thereunder to, (iv) cause any securities intermediary, commodity intermediary or other Person acting in a similar capacity to agree to comply, in respect of any item of Shared Collateral, with instructions or orders from, or to treat, in respect of any item of Shared Collateral, as the entitlement holder, (v) hold any item of Shared Collateral in trust for (to the extent such item of Shared Collateral cannot be held in trust for multiple parties under applicable law), (vi) obtain the agreement of a bailee or other third party to hold any item of Shared Collateral for the benefit of or subject to the control of or, in respect of any item of Shared Collateral, to follow the instructions of or (vii) obtain the agreement of a landlord with respect to access to leased premises where any item of Shared Collateral is located or waivers or subordination of rights with respect to any item of Shared Collateral in favor of, in any case, both the any Designated Senior Representative and any Junior Priority Representative or Junior Priority Debt Secured Party, such Grantor may, until the applicable Discharge of Senior Obligations has occurred, comply with such requirement under the applicable Junior Priority Collateral Document as it relates to such Shared Collateral by taking any of the actions set forth above only with respect to, or in favor of, the Designated Senior Representative.
Appears in 1 contract
Samples: Credit Agreement (OneStream, Inc.)
Releases. (a) Each Junior Second Priority Representative, for itself and on behalf of each Junior Second Priority Debt Party under its Junior Second Priority Debt Facility, agrees that: (1) if in connection with any exercise of any Senior Representatives’ rights or remedies in respect of the Shared Collateral, in each case prior to the Discharge of Senior Obligations, such Senior Representative, for itself or on behalf of any of the Senior Secured Parties, releases any of its Liens on any part of the Shared Collateral or such Senior Representative, for itself or on behalf of any of the Senior Secured Parties releases any Grantor from its obligations under its guaranty of the Senior Debt Obligations, then the Liens, if any, of each Second Priority Representative, for itself or for the benefit of the Second Priority Debt Parties, on such Shared Collateral, and the obligations of such Grantor under its guaranty of the Second Priority Debt Obligations, shall be automatically, unconditionally and simultaneously released, (2) if in connection with any exercise of any Senior Representatives’ remedies, in each case prior to the Discharge of Senior Obligations, the equity interests of any Person are foreclosed upon or otherwise disposed of and such Senior Representative releases its Lien on the property or assets of such Person then the Liens of each Second Priority Representative with respect to the property or assets of such Person will be automatically released to the same extent as the Liens of such Senior Representative and (3) in the event of a sale, transfer or other disposition of any specified item of Shared Collateral (including all or substantially all of the equity interests of any subsidiary of the a Borrower) other than a release granted upon or following the Discharge of Senior Obligations, the Liens granted to the Junior Second Priority Representatives and the Junior Second Priority Debt Parties upon such Shared Collateral to secure Junior Second Priority Debt Obligations shall terminate and be releasedreleased and any Grantor released from its obligations under its Guarantee of Senior Obligations released by a Senior Representative shall be released under its Guarantee of Second Priority Debt Obligations, automatically and without any further action, concurrently with the termination and release of all Liens granted upon such Shared Collateral to secure Senior Obligations; provided that, in the case of clause (3), the Liens granted to the Second Priority Representatives and the Second Priority Debt Parties shall not be so released if an Event of Default (as defined under any Second Priority Debt Document) has occurred and is continuing; and provided that, in the case of each of clauses (1), (2) and (3), the Second Priority Liens on such Shared Collateral shall attach to (and shall remain subject and subordinate to all Senior Liens securing Senior Obligations) any Proceeds of a sale, transfer or other disposition of Shared Collateral (other than any sale, transfer or other disposition in connection with the enforcement or exercise equity interests of any rights or remedies with respect Person not paid to the Shared Collateral), Senior Secured Parties or that remain after the Liens granted to the Junior Priority Representatives and the Junior Priority Debt Parties shall not be so released if such sale, transfer or other disposition is not permitted under the terms Discharge of any Junior Priority Debt DocumentSenior Obligations. Upon Promptly upon delivery to a Junior Second Priority Representative of an Officer’s Certificate a certificate from a Senior Representative or Grantor stating that any such termination and release of Liens securing the Senior Priority Debt Obligations has become effective (will occur, each Second Priority Representative, for itself or shall become effective concurrently with such termination and release on behalf of the Liens granted to the Junior any Second Priority Debt Parties represented by it, shall execute and the Junior Priority Representatives) and any necessary or proper instruments of termination or release prepared by the Borrower or any other Grantor, such Junior Priority Representative will promptly execute, deliver or acknowledgedeliver, at the Borrower’s or the other Grantor’s sole cost and expenseexpense and without any representation or warranty, to the Senior Representatives or such instruments to evidence Grantor such termination statements, releases and release other documents (including documents which are corresponding second lien versions of termination statements, releases and other documents that the First Lien Collateral Agent delivers under the First Lien Credit Agreement to the extent applicable) so as to confirm the foregoing releases referred to in clauses (1), (2), and (3) of the Liensfirst sentence of this clause (a) when such releases occur. Nothing in this Section 5.01(a) will be deemed to affect any agreement of a Junior Second Priority Representative, for itself and on behalf of the Junior Second Priority Debt Parties under its Junior Second Priority Debt Facility, to release the Liens on the Junior Second Priority Collateral as set forth in the relevant Junior Second Priority Debt Documents.
(b) Each Junior Second Priority Representative, for itself and on behalf of each Junior Second Priority Debt Party under its Junior Second Priority Debt FacilityFacility and until the Discharge of Senior Obligations has occurred (but subject to Section 5.06), hereby irrevocably constitutes and appoints the Designated Senior Representative and any officer or agent of the Designated Senior Representative, with full power of substitution, as its true and lawful attorney-in-fact with full irrevocable power and authority in the place and stead of such Junior Second Priority Representative or such Junior Second Priority Debt Party or in the Designated Senior Representative’s own name, from time to time in the Designated Senior Representative’s discretion, for the purpose of carrying out the terms of Section 5.01(a), to take any and all appropriate action and to execute any and all documents and instruments that may be necessary or desirable to accomplish the purposes of Section 5.01(a), including any termination statements, endorsements or other instruments of transfer or release.
(c) Unless and until the Discharge of Senior Obligations has occurred, each Second Priority Representative, for itself and on behalf of each Second Priority Debt Party under its Second Priority Debt Facility, hereby consents to the application, whether prior to or after an event of default under any Senior Debt Document, of Proceeds to the repayment of Senior Obligations pursuant to the Senior Debt Documents; provided that nothing in this Section 5.01(c) shall be construed to prevent or impair the rights of the Second Priority Representatives or the Second Priority Debt Parties to receive Proceeds in connection with the Second Priority Debt Obligations not otherwise in contravention of this Agreement.
(d) Notwithstanding anything to the contrary in any Junior Second Priority Collateral Document, in the event the terms of a Senior Collateral Document and a Junior Second Priority Collateral Document each require any Grantor (i) to make payment in respect of any item of Shared Collateral, (ii) to deliver or afford control over any item of Shared Collateral to, or deposit any item of Shared Collateral with, (iii) to register ownership of any item of Shared Collateral in the name of or make an assignment of ownership of any Shared Collateral or the rights thereunder to, (iv) cause any securities intermediary, commodity intermediary or other Person acting in a similar capacity to agree to comply, in respect of any item of Shared Collateral, with instructions or orders from, or to treat, in respect of any item of Shared Collateral, as the entitlement holder, (v) hold any item of Shared Collateral in trust for (to the extent such item of Shared Collateral cannot be held in trust for multiple parties under applicable law), (vi) obtain the agreement of a bailee or other third party to hold any item of Shared Collateral for the benefit of or subject to the control of or, in respect of any item of Shared Collateral, to follow the instructions of or (vii) obtain the agreement of a landlord with respect to access to leased premises where any item of Shared Collateral is located or waivers or subordination of rights with respect to any item of Shared Collateral in favor of, in any case, both the Designated Senior Representative and any Junior Second Priority Representative or Junior Second Priority Debt Party, such Grantor may, until the applicable Discharge of Senior Obligations has occurred, comply with such requirement under the applicable Junior Second Priority Collateral Document as it relates to such Shared Collateral by taking any of the actions set forth above only with respect to, or in favor of, the Designated Senior Representative. Until the Discharge of Senior Obligations occurs, to the extent that any Senior Representative or Senior Secured Parties (A) have released any Lien on Shared Collateral or any Grantor from its obligation under its guaranty and any such Liens or guaranty are later reinstated or (B) obtain any new liens or additional guarantees from any Grantor, then each Second Priority Representative, for itself and for the Second Priority Debt Parties represented by it, shall be granted a Lien on any such Shared Collateral, subject to the lien subordination provisions of this Agreement, and each Second Priority Representative, for itself and for the Second Priority Debt Parties represented by it, shall be granted an additional guaranty, as the case may be.
Appears in 1 contract
Samples: First Lien/Second Lien Intercreditor Agreement (Cloud Peak Energy Inc.)
Releases. (a) Each Junior Second Priority Representative, for itself and on behalf of each Junior Second Priority Debt Party under its Junior Second Priority Debt Facility, agrees that, in the event of a sale, transfer or other disposition of any specified item of Shared Collateral (including all or substantially all of the equity interests of any subsidiary of the BorrowerBorrower and the assets and property of any such Subsidiary constituting Shared Collateral) (i) in connection with the exercise of remedies in respect of Collateral or (ii) if not in connection with the exercise of remedies in respect of the Collateral, so long as an Event of Default (as defined in and under any Second Priority Debt Document) has not occurred and is continuing unless such sale, transfer or other than a release granted upon or following disposition is permitted by the Discharge terms of Senior Obligationsthe Second Priority Debt Documents, the Liens granted to the Junior Second Priority Representatives and the Junior Second Priority Debt Parties upon such Shared Collateral to secure Junior Second Priority Debt Obligations shall terminate and be released, automatically and without any further action, concurrently with the termination and release of all Liens granted upon such Shared Collateral to secure Senior Obligations; provided that, in the case of any such sale, transfer or other disposition of Shared Collateral (other than any sale, transfer or other disposition in connection with the enforcement or exercise of any rights or remedies with respect to the Shared Collateral), the Liens granted to the Junior Priority Representatives and the Junior Priority Debt Parties shall not be so released if such sale, transfer or other disposition is not permitted under the terms of any Junior Priority Debt Document. Upon delivery to a Junior Second Priority Representative of an Officer’s Certificate stating that any such termination and release of Liens securing the Senior Obligations has become effective (or shall become effective concurrently with such termination and release of the Liens granted to the Junior Second Priority Debt Parties and the Junior Second Priority Representatives) and any necessary or proper instruments of termination or release prepared by the Borrower or any other Grantor, such Junior Second Priority Representative will promptly execute, deliver or acknowledge, at the Borrower’s or the other Grantor’s sole cost and expense, such instruments to evidence such termination and release of the Liens. Nothing in this Section 5.01(a) will be deemed to affect any agreement of a Junior Second Priority Representative, for itself and on behalf of the Junior Second Priority Debt Parties under its Junior Second Priority Debt Facility, to release the Liens on the Junior Second Priority Collateral as set forth in the relevant Junior Second Priority Debt Documents.
(b) Each Junior Second Priority Representative, for itself and on behalf of each Junior Second Priority Debt Party under its Junior Second Priority Debt Facility, hereby irrevocably constitutes and appoints the Designated Senior Representative and any officer or agent of the Designated Senior Representative, with full power of substitution, as its true and lawful attorney-in-fact with full irrevocable power and authority in the place and stead of such Junior Second Priority Representative or such Junior Second Priority Debt Party or in the Designated Senior Representative’s own name, from time to time in the Designated Senior Representative’s discretion, for the purpose of carrying out the terms of Section 5.01(a), to take any and all appropriate action and to execute any and all documents and instruments that may be necessary or desirable to accomplish the purposes of Section 5.01(a), including any termination statements, endorsements or other instruments of transfer or release.
(c) Unless and until the Discharge of Senior Obligations has occurred, each Second Priority Representative, for itself and on behalf of each Second Priority Debt Party under its Second Priority Debt Facility, hereby consents to the application, whether prior to or after an event of default under any Senior Debt Document of proceeds of Shared Collateral to the repayment of Senior Obligations pursuant to the Senior Debt Documents, provided that nothing in this Section 5.01(c) shall be construed to prevent or impair the rights of the Second Priority Representatives or the Second Priority Debt Parties to receive proceeds in connection with the Second Priority Debt Obligations not otherwise in contravention of this Agreement.
(d) Notwithstanding anything to the contrary in any Junior Second Priority Collateral Document, in the event the terms of a Senior Collateral Document and a Junior Second Priority Collateral Document each require any Grantor (i) to make payment in respect of any item of Shared Collateral, (ii) to deliver or afford control over any item of Shared Collateral to, or deposit any item of Shared Collateral with, (iii) to register ownership of any item of Shared Collateral in the name of or make an assignment of ownership of any Shared Collateral or the rights thereunder to, (iv) cause any securities intermediary, commodity intermediary or other Person acting in a similar capacity to agree to comply, in respect of any item of Shared Collateral, with instructions or orders from, or to treat, in respect of any item of Shared Collateral, as the entitlement holder, (v) hold any item of Shared Collateral in trust for (to the extent such item of Shared Collateral cannot be held in trust for multiple parties under applicable law), (vi) obtain the agreement of a bailee or other third party to hold any item of Shared Collateral for the benefit of or subject to the control of or, in respect of any item of Shared Collateral, to follow the instructions of or (vii) obtain the agreement of a landlord with respect to access to leased premises where any item of Shared Collateral is located or waivers or subordination of rights with respect to any item of Shared Collateral in favor of, in any case, both the Designated Senior Representative and any Junior Second Priority Representative or Junior Second Priority Debt Party, such Grantor may, until the applicable Discharge of Senior Obligations has occurred, comply with such requirement under the applicable Junior Second Priority Collateral Document as it relates to such Shared Collateral by taking any of the actions set forth above only with respect to, or in favor of, the Designated Senior Representative.
Appears in 1 contract
Releases. (a) Each Junior Priority RepresentativeThe Company shall have the right to optionally prepay Revolving Loans in whole at any time and in part at any time so long as no Default, for itself Early Amortization Event or Event of Default has occurred and on behalf of each Junior Priority Debt Party under its Junior Priority Debt Facility, agrees that, in the event of is continuing or will result therefrom. In connection with any such prepayment or a sale, transfer or other disposition of any specified item of Shared Collateral (including all or substantially all of the equity interests of any subsidiary of the Borrower) other than a release granted upon or following the Discharge of Senior ObligationsPermitted Asset Sale, the Liens granted to the Junior Priority Representatives and the Junior Priority Debt Parties upon such Shared Collateral to secure Junior Priority Debt Obligations shall terminate and be released, automatically and without Company may request a Release in connection therewith at any further action, concurrently with the termination and release of all Liens granted upon such Shared Collateral to secure Senior Obligations; provided that, in the case of any such sale, transfer or other disposition of Shared Collateral (other than any sale, transfer or other disposition time but only in connection with the enforcement a Whole Loan Sale, Securitization Transaction or exercise of any rights or remedies with respect a Permitted Asset Sale, in each case subject to the Shared Collateral), the Liens granted to the Junior Priority Representatives and the Junior Priority Debt Parties shall not be so released if such sale, transfer or other disposition is not permitted under the terms of this Section 2.6. The Company may request a Release on any Junior Priority Debt Document. Upon delivery to Business Day (a Junior Priority Representative of an Officer’s Certificate stating that any such termination and release of Liens securing the Senior Obligations has become effective (or shall become effective concurrently with such termination and release of the Liens granted “Release Date”) by delivering to the Junior Priority Debt Parties Administrative Agent and the Junior Priority RepresentativesCollateral Agent by not later than 3:00 p.m. New York City time at least two (2) and any necessary or proper instruments of termination or release prepared by Business Days prior to the Borrower or any other Grantorrequested Release Date, such Junior Priority Representative will promptly execute, deliver or acknowledge, at the Borrower’s or the other Grantor’s sole cost and expense, such instruments to evidence such termination and release of the Liens. Nothing in this Section 5.01(a) will be deemed to affect any agreement of a Junior Priority Representative, for itself and on behalf of the Junior Priority Debt Parties under its Junior Priority Debt Facility, to release the Liens on the Junior Priority Collateral as set forth written notice substantially in the relevant Junior Priority Debt Documents.
form of Exhibit I (ba “Release Notice”) Each Junior Priority Representative(which Release Notice the Administrative Agent shall promptly make available to the Lenders in accordance with its customary practice). In connection with (A) any prepayment, for itself and on behalf of each Junior Priority Debt Party under its Junior Priority Debt Facility, hereby irrevocably constitutes and appoints the Designated Senior Representative and or (B) any officer or agent of the Designated Senior Representative, Release made in accordance with full power of substitution, as its true and lawful attorney-in-fact with full irrevocable power and authority in the place and stead of such Junior Priority Representative or such Junior Priority Debt Party or in the Designated Senior Representative’s own name, from time to time in the Designated Senior Representative’s discretion, for the purpose of carrying out the terms of this Section 5.01(a2.6, the Company may elect to reduce the Revolving Commitments, pro rata based on each Lender’s Pro Rata Share (each such election, a “Commitment Reduction” and each such amount, a “Commitment Reduction Amount”) and such Commitment Reduction shall be effective upon the date of such prepayment or the related Release on the Release Date, as applicable. Each Release Notice shall be irrevocable and effective upon receipt; provided further that if such Release Notice is delivered more than two Business Days prior to the requested Release Date, it shall be revocable, without penalty, through the close of business on the Business Day preceding such second prior Business Day. By not later than 3:00 p.m. New York City time at least one Business Day prior to the requested Release Date, the Company shall deliver to the Administrative Agent and the Collateral Agent, a written notice substantially in the form of Exhibit J (a “Release Letter”) (which document the Administrative Agent shall promptly make available to the Lenders in accordance with its customary practice), to take any confirming the Release Date and all appropriate action and to execute any and all documents and instruments that may be necessary or desirable to accomplish the purposes of Section 5.01(a), including any termination statements, endorsements or other instruments of transfer or release.
(c) Notwithstanding anything setting forth certain information related to the contrary in any Junior Priority Collateral Documentdistribution of funds on such Release Date and, in the event the terms of a Senior Collateral Document and a Junior Priority Collateral Document each require any Grantor (i) to make payment in respect of any item of Shared Collateral, (ii) to deliver or afford control over any item of Shared Collateral to, or deposit any item of Shared Collateral with, (iii) to register ownership of any item of Shared Collateral in the name of or make an assignment of ownership of any Shared Collateral or the rights thereunder to, (iv) cause any securities intermediary, commodity intermediary or other Person acting in a similar capacity to agree to comply, in respect of any item of Shared Collateral, with instructions or orders from, or to treat, in respect of any item of Shared Collateral, as the entitlement holder, (v) hold any item of Shared Collateral in trust for (to the extent such item of Shared Collateral cannot be held in trust for multiple parties under applicable law), (vi) obtain the agreement of a bailee or other third party to hold any item of Shared Collateral for the benefit of or subject to the control of or, in respect of any item of Shared Collateral, to follow the instructions of or (vii) obtain the agreement of a landlord with respect to access to leased premises where any item of Shared Collateral is located or waivers or subordination of rights with respect to any item of Shared Collateral in favor of, in any case, both the Designated Senior Representative and any Junior Priority Representative or Junior Priority Debt Party, such Grantor may, until the applicable Discharge of Senior Obligations has occurred, comply with such requirement under the applicable Junior Priority Collateral Document as it relates to such Shared Collateral by taking any of the actions set forth above only with respect to, or in favor ofif applicable, the Designated Senior RepresentativeRelease of certain Receivables. Company will select no less than a pro rata share (by Outstanding Principal Balance) of Delinquent Receivables for any such Release.
Appears in 1 contract
Releases. (a) Each Junior If in connection with the exercise of any Senior Priority RepresentativeCollateral Agent’s remedies in respect of any Collateral as provided for in Section 3.1, such Senior Priority Collateral Agent, for itself and or on behalf of each any of the applicable Senior Priority Claimholders, releases any of its Liens on any part of the Collateral, then the Liens, if any, of the Junior Priority Debt Party under its Collateral Agent, for itself or for the benefit of the Junior Priority Debt FacilityClaimholders, agrees thaton the Collateral sold or disposed of in connection with such exercise, shall be automatically, unconditionally and simultaneously released. The Junior Priority Collateral Agent, for itself or on behalf of the Junior Priority Claimholders, promptly shall execute and deliver to the Senior Priority Collateral Agents or such Grantor such termination statements, financing change statements, releases and other documents as the Senior Priority Collateral Agents or such Grantor may reasonably request to effectively confirm such release.
(b) If in the event of a connection with any sale, lease, exchange, transfer or other disposition of any specified item of Shared Collateral (including all or substantially all of the equity interests of any subsidiary of the Borrowercollectively, a “Disposition”) other than a release granted upon or following the Discharge of Senior Obligations, the Liens granted to the Junior Priority Representatives and the Junior Priority Debt Parties upon such Shared Collateral to secure Junior Priority Debt Obligations shall terminate and be released, automatically and without any further action, concurrently with the termination and release of all Liens granted upon such Shared Collateral to secure Senior Obligations; provided that, in the case of any such sale, transfer or other disposition of Shared Collateral (other than any sale, transfer or other disposition in connection with the enforcement or exercise of any rights or remedies with respect to the Shared Collateral), the Liens granted to the Junior Priority Representatives and the Junior Priority Debt Parties shall not be so released if such sale, transfer or other disposition is not permitted under the terms of any Junior Priority Debt Document. Upon delivery to a Junior Priority Representative of an Officer’s Certificate stating that any such termination and release of Liens securing the Senior Obligations has become effective Priority Documents (or shall become effective concurrently other than in connection with such termination and release the exercise of the Liens granted to the Junior respective Senior Priority Debt Parties Collateral Agent’s rights and the Junior Priority Representatives) and any necessary or proper instruments of termination or release prepared by the Borrower or any other Grantor, such Junior Priority Representative will promptly execute, deliver or acknowledge, at the Borrower’s or the other Grantor’s sole cost and expense, such instruments to evidence such termination and release remedies in respect of the Liens. Nothing Collateral as provided for in this Section 5.01(a3.1), each Senior Priority Collateral Agent, for itself or on behalf of any of the relevant Senior Priority Claimholders, releases any of its Liens on any part of the Collateral, in each case other than (A) will be deemed to affect any agreement in connection with the Discharge of Senior Priority Obligations or (B) after the occurrence and during the continuance of a Junior Priority RepresentativeDefault, then the Liens, if any, of the Junior Priority Collateral Agent, for itself or for the benefit of the Junior Priority Claimholders, on such Collateral shall be automatically, unconditionally and simultaneously released. The Junior Priority Collateral Agent, each for itself and on behalf of any Junior Priority Claimholders, as the case may be, promptly shall execute and deliver to each Senior Priority Collateral Agent or such Grantor such termination statements, financing change statements, releases and other documents as the Senior Priority Collateral Agents or such Grantor may reasonably request to effectively confirm such release.
(c) Until the Discharge of Senior Priority Obligations shall occur, the Junior Priority Collateral Agent, for itself and on behalf of the Junior Priority Debt Parties under its Junior Priority Debt Facility, to release the Liens on the Junior Priority Collateral as set forth in the relevant Junior Priority Debt Documents.
(b) Each Junior Priority Representative, for itself and on behalf of each Junior Priority Debt Party under its Junior Priority Debt FacilityClaimholders, hereby irrevocably constitutes and appoints the Designated each Senior Representative Priority Collateral Agent and any officer or agent of the Designated each Senior RepresentativePriority Collateral Agent, with full power of substitution, as its true and lawful attorney-in-fact with full irrevocable power and authority in the place and stead of such the Junior Priority Representative Collateral Agent or such Junior Priority Debt Party holder or in the Designated Senior RepresentativeJunior Priority Collateral Agent’s own name, from time to time in the Designated thesuch Senior RepresentativePriority Collateral Agent’s discretion, for the purpose of carrying out the terms of this Section 5.01(a)5.1, to take any and all appropriate action and to execute any and all documents and instruments that which may be necessary or desirable to accomplish the purposes of this Section 5.01(a)5.1, including any termination statements, endorsements or other instruments of transfer or release.
(c) Notwithstanding anything to the contrary in any . The Junior Priority Collateral Document, in the event the terms of a Senior Collateral Document and a Junior Priority Collateral Document each require any Grantor (i) to make payment in respect of any item of Shared Collateral, (ii) to deliver or afford control over any item of Shared Collateral to, or deposit any item of Shared Collateral with, (iii) to register ownership of any item of Shared Collateral in the name of or make an assignment of ownership of any Shared Collateral or the rights thereunder to, (iv) cause any securities intermediary, commodity intermediary or other Person acting in a similar capacity to agree to comply, in respect of any item of Shared Collateral, with instructions or orders from, or to treat, in respect of any item of Shared Collateral, as the entitlement holder, (v) hold any item of Shared Collateral in trust for (to the extent such item of Shared Collateral cannot be held in trust for multiple parties under applicable law), (vi) obtain the agreement of a bailee or other third party to hold any item of Shared Collateral for the benefit of or subject to the control of or, in respect of any item of Shared Collateral, to follow the instructions of or (vii) obtain the agreement of a landlord with respect to access to leased premises where any item of Shared Collateral is located or waivers or subordination of rights Agent shall have no liability with respect to any item action taken by any other Collateral Agent or any officer or agent of Shared the other Collateral in favor of, in any case, both Agent pursuant to such appointment.
(d) Until the Designated Senior Representative and any Junior Priority Representative or Junior Priority Debt Party, such Grantor may, until the applicable Discharge of Senior Priority Obligations has occurredshall occur, comply with to the extent that each Senior Priority Collateral Agent or the Senior Priority Claimholders (i) have released any Lien on Collateral and such requirement under Lien is later reinstated or (ii) obtain any new Liens from any Grantor, then the applicable Junior Priority Collateral Document as it relates Agent, for itself and for the Junior Priority Claimholders shall be granted a Lien on any such Collateral, subject to such Shared Collateral by taking any the lien priority provisions of the actions set forth above only with respect to, or in favor of, the Designated Senior Representativethis Agreement.
Appears in 1 contract
Releases. (a) Each Junior Priority Representative, for itself and on behalf of each Junior Priority Debt Party under its Junior Priority Debt Facility, agrees that, in the event of a sale, transfer or other disposition of any specified item of Shared Collateral (including all or substantially all of the equity interests Stock and Stock Equivalent of any subsidiary Subsidiary of the Borrower) (i) in connection with the exercise of Secured Creditor Remedies by the Designated Senior Representative in respect of such Shared Collateral following and during the continuation of an Event of Default under the Senior Debt Documents or (ii) if not in connection with the exercise of Secured Creditor Remedies by the Designated Senior Representative in respect of such Shared Collateral, so long as such sale, transfer or other than disposition is (x) permitted by the terms of the Junior Priority Debt Documents or (y) made with the consent of the Designated Senior Representative at a release granted upon or following time when an Event of Default (as defined in the Discharge of applicable Senior ObligationsDebt Document) is continuing, the Liens granted to the Junior Priority Representatives and the Junior Priority Debt Parties upon such Shared Collateral to secure Junior Priority Debt Obligations shall (whether or not any Insolvency or Liquidation Proceeding is pending at such time) terminate and be released, immediately and automatically and without any further actionaction by any Person, concurrently with the termination and release of all Liens granted upon such Shared Collateral to secure Senior Obligations; provided that, in the case of any such sale, transfer or other disposition of Shared Collateral (other than any sale, transfer or other disposition in connection with the enforcement or exercise of any rights or remedies with respect to the Shared Collateral), the Liens granted to the Junior Priority Representatives and the Junior Priority Debt Parties shall not be so released if such sale, transfer or other disposition is not permitted under the terms of any Junior Priority Debt Document. Upon delivery to a Junior Priority Representative of an Officer’s Certificate stating that any such termination and release of Liens securing the Senior Obligations has become effective (or shall become effective concurrently with such termination and release of the Liens granted to the Junior Priority Debt Parties and the Junior Priority Representatives) and any necessary or proper instruments of termination or release prepared by the Borrower or any other Grantor, such Junior Priority Representative will promptly execute, deliver or acknowledge, at the Borrower’s or the other Grantor’s sole cost and expense, such instruments to evidence such termination and release of the Liens. Nothing in this Section 5.01(a) will be deemed to affect any agreement of a Junior Priority Representative, for itself and on behalf of the Junior Priority Debt Parties under its Junior Priority Debt Facility, to release the Liens on the Junior Priority Collateral as set forth in the relevant Junior Priority Debt Documents.
(b) Each Junior Priority Representative, for itself and on behalf of each Junior Priority Debt Party under its Junior Priority Debt Facility, hereby irrevocably constitutes and appoints the Designated Senior Representative and any officer or agent of the Designated Senior Representative, with full power of substitution, as its true and lawful attorney-in-fact with full irrevocable power and authority in the place and stead of such Junior Priority Representative or such Junior Priority Debt Party or in the Designated Senior Representative’s own name, from time to time in the Designated Senior Representative’s discretion, for the purpose of carrying out the terms of Section 5.01(a), to take any and all appropriate action and to execute any and all documents and instruments that may be necessary or desirable to accomplish the purposes of Section 5.01(a), including any termination statements, endorsements or other instruments of transfer or release.
(c) Notwithstanding anything to the contrary in any Junior Priority Collateral Document, in the event the terms of a Senior Collateral Document and a Junior Priority Collateral Document each require any Grantor (i) to make payment in respect of any item of Shared Collateral, (ii) to deliver or afford control over any item of Shared Collateral to, or deposit any item of Shared Collateral with, (iii) to register ownership of any item of Shared Collateral in the name of or make an assignment of ownership of any Shared Collateral or the rights thereunder to, (iv) cause any securities intermediary, commodity intermediary or other Person acting in a similar capacity to agree to comply, in respect of any item of Shared Collateral, with instructions or orders from, or to treat, in respect of any item of Shared Collateral, as the entitlement holder, (v) hold any item of Shared Collateral in trust for (to the extent such item of Shared Collateral cannot be held in trust for multiple parties under applicable law), (vi) obtain the agreement of a bailee or other third party to hold any item of Shared Collateral for the benefit of or subject to the control of or, in respect of any item of Shared Collateral, to follow the instructions of or (vii) obtain the agreement of a landlord with respect to access to leased premises where any item of Shared Collateral is located or waivers or subordination of rights with respect to any item of Shared Collateral in favor of, in any case, both the Designated Senior Representative and any Junior Priority Representative or Junior Priority Debt Party, such Grantor may, until the applicable Discharge of Senior Obligations has occurred, comply with such requirement under the applicable Junior Priority Collateral Document as it relates to such Shared Collateral by taking any of the actions set forth above only with respect to, or in favor of, the Designated Senior Representative.
Appears in 1 contract
Releases. (a) Each Junior Priority Representative, for itself and on behalf of each Junior Priority Debt Secured Party under its Junior Priority Debt Facility, agrees that, in the event of a sale, transfer or other disposition of any specified item of Shared Collateral (including all or substantially all of the equity interests of any subsidiary of the Borrower) (i) in connection with the exercise of remedies in respect of Shared Collateral by a Senior Representative or (ii) if not in connection with the exercise of remedies in respect of Shared Collateral by a Senior Representative, so long as such sale, transfer or other than a release granted upon or following disposition is permitted by the Discharge terms of the Junior Debt Documents and the Senior ObligationsDebt Documents, the Liens granted to the Junior Priority Representatives and the Junior Priority Debt Secured Parties upon such Shared Collateral (but such Liens shall not be deemed to be so released on the Proceeds thereof that were not applied to the payment of Senior Obligations) to secure Junior Priority Debt Obligations shall terminate and be released, automatically and without any further action, concurrently with or to the same extent as the termination and release of all Liens granted upon such Shared Collateral to secure Senior Obligations; provided that, in the case of any such sale, transfer or other disposition of Shared Collateral (other than any sale, transfer or other disposition in connection with the enforcement or exercise of any rights or remedies with respect to the Shared Collateral), the Liens granted to the Junior Priority Representatives and the Junior Priority Debt Parties shall not be so released if such sale, transfer or other disposition is not permitted under the terms of any Junior Priority Debt Document. Upon delivery to a Junior Priority Representative of an Officer’s Certificate stating that any such termination and release of Liens securing the Senior Obligations has become effective (or shall become effective concurrently with such termination and release of the Liens granted to the Junior Priority Debt Secured Parties and the Junior Priority Representatives) and any necessary or proper instruments of termination or release prepared by the Borrower or any other Grantor, such Junior Priority Representative will promptly execute, deliver or acknowledge, at the Borrower’s or the other Grantor’s sole cost and expense, such instruments to evidence such termination and release of the Liens. Nothing in this Section 5.01(a) will be deemed to affect any agreement of a Junior Priority Representative, for itself and on behalf of the Junior Priority Debt Secured Parties under its Junior Priority Debt Facility, to release the Liens on the Junior Priority Collateral as set forth in the relevant Junior Priority Debt Documents.
(b) Each Junior Priority Representative, for itself and on behalf of each Junior Priority Debt Secured Party under its Junior Priority Debt Facility, hereby irrevocably constitutes and appoints the Designated each Senior Representative and any officer or agent of the Designated each Senior Representative, with full power of substitution, as its true and lawful attorney-in-fact with full irrevocable power and authority in the place and stead of such Junior Priority Representative or such Junior Priority Debt Secured Party or in the Designated such Senior Representative’s own name, from time to time in the Designated such Senior Representative’s discretion, for the purpose of carrying out the terms of Section 5.01(a), to take any and all appropriate action and to execute any and all documents and instruments that may be necessary or desirable to accomplish the purposes of Section 5.01(a), including any termination statements, endorsements or other instruments of transfer or release.
(c) Unless and until the Discharge of Senior Obligations has occurred, each Junior Representative, for itself and on behalf of each Junior Secured Party under its Junior Debt Facility, hereby consents to the application, whether prior to or after an event of default under any Senior Debt Document of proceeds of Shared Collateral to the repayment of Senior Obligations pursuant to the Senior Debt Documents; provided that nothing in this Section 5.01(c) shall be construed to prevent or impair the rights of the Junior Representatives or the Junior Secured Parties to receive proceeds in connection with the Junior Obligations not otherwise in contravention of this Agreement.
(d) Notwithstanding anything to the contrary in any Junior Priority Collateral Document, in the event the terms of a Senior Collateral Document and a Junior Priority Collateral Document each require any Grantor to (i) to make payment in respect of any item of Shared Collateral, (ii) to deliver or afford control over any item of Shared Collateral to, or deposit any item of Shared Collateral with, (iii) to register ownership of any item of Shared Collateral in the name of or make an assignment of ownership of any Shared Collateral or the rights thereunder to, (iv) cause any securities intermediary, commodity intermediary or other Person acting in a similar capacity to agree to comply, in respect of any item of Shared Collateral, with instructions or orders from, or to treat, in respect of any item of Shared Collateral, as the entitlement holder, (v) hold any item of Shared Collateral in trust for (to the extent such item of Shared Collateral cannot be held in trust for multiple parties under applicable law), (vi) obtain the agreement of a bailee or other third party to hold any item of Shared Collateral for the benefit of or subject to the control of or, in respect of any item of Shared Collateral, to follow the instructions of or (vii) obtain the agreement of a landlord with respect to access to leased premises where any item of Shared Collateral is located or waivers or subordination of rights with respect to any item of Shared Collateral in favor of, in any case, both the any Designated Senior Representative and any Junior Priority Representative or Junior Priority Debt Secured Party, such Grantor may, until the applicable Discharge of Senior Obligations has occurred, comply with such requirement under the applicable Junior Priority Collateral Document as it relates to such Shared Collateral by taking any of the actions set forth above only with respect to, or in favor of, the Designated Senior Representative.
Appears in 1 contract
Samples: First Lien/Second Lien Intercreditor Agreement (Amc Entertainment Holdings, Inc.)
Releases. (a) Each Subject to the penultimate sentence of this Section 5.01(a), each Junior Priority Representative, for itself and on behalf of each Junior Priority Debt Party under its Junior Priority Debt Facility, agrees that, in the event of a sale, transfer or other disposition of any specified item of Shared Collateral (including all or substantially all of the equity interests of any subsidiary of the BorrowerBorrowers) other than (a release granted upon or following the Discharge of Senior Obligations“Disposition”), the Liens granted to the Junior Priority Representatives and the Junior Priority Debt Parties upon such Shared Collateral to secure Junior Priority Debt Obligations shall terminate and or shall be released, automatically and without any further action, concurrently with the termination and or release of all Liens granted upon such Shared Collateral to secure Senior Obligations; , provided that, in that the case parties’ respective Liens shall attach to the net proceeds of any such sale, transfer or other disposition of Shared Collateral (other than any sale, transfer or other disposition in connection Disposition with the enforcement or exercise of any rights or remedies with respect same Lien priorities as provided in this Agreement to the Shared Collateral), extent such proceeds are not otherwise utilized to permanently reduce the Liens granted to the Junior Priority Representatives and the Junior Priority Debt Parties shall not be so released if such sale, transfer or other disposition is not permitted under the terms of any Junior Priority Debt DocumentSenior Obligations. Upon delivery to a Junior Priority Representative of an Officer’s Certificate stating that any such termination and or release of Liens securing the Senior Obligations has become effective (or shall become effective concurrently with such termination and or release of the Liens granted to the Junior Priority Debt Parties and the Junior Priority Representatives) and any necessary or proper instruments of termination or release prepared by the Borrower Borrowers or any other Grantor, such Junior Priority Representative will promptly execute, deliver or acknowledge, at the Borrower’s Borrowers’ or the other Grantor’s sole cost and expense, such instruments to evidence such termination and or release of the Liens; provided, however that such Officer’s Certificate shall not be required for any termination or release in connection with the exercise of remedies following an event of default. Nothing in this Section 5.01(a) will be deemed to (x) affect any agreement of a Junior Priority Representative, for itself and on behalf of the Junior Priority Debt Parties under its Junior Priority Debt Facility, to release the Liens on the Junior Priority Collateral as set forth in the relevant Junior Priority Debt Documents or (y) except in the case of a Disposition in connection with the exercise of secured creditors’ rights and remedies, require the release of Liens granted upon such Shared Collateral to secure Junior Priority Debt Obligations if such Disposition is not permitted under the terms of the Junior Priority Debt Documents. If in connection with any enforcement action or other exercise of rights and remedies by any Senior Representative, in each case, prior to a Discharge of Senior Obligations, the equity interests of any Person are foreclosed upon or otherwise disposed of and such Senior Representative releases its Lien on the property or assets of such Person, then the liens of each Junior Representative and Junior Priority Debt Parties will be released to the same extent as the Liens of such Senior Representative and Senior Secured Parties are released.
(b) Each Junior Priority Representative, for itself and on behalf of each Junior Priority Debt Party under its Junior Priority Debt Facility, hereby irrevocably constitutes and appoints the Designated Senior Representative and any officer or agent of the Designated Senior Representative, with full power of substitution, as its true and lawful attorney-in-fact with full irrevocable power and authority in the place and stead of such Junior Priority Representative or such Junior Priority Debt Party or in the Designated Senior Representative’s own name, from time to time in the Designated Senior Representative’s discretion, for the purpose of carrying out the terms of Section 5.01(a), to take any and all appropriate action and to execute any and all documents and instruments that may be necessary or desirable to accomplish the purposes of Section 5.01(a), including any termination statements, endorsements or other instruments of transfer or release.
(c) Notwithstanding Unless and until the Discharge of Senior Obligations has occurred, each Junior Representative, for itself and on behalf of each Junior Priority Debt Party under its Junior Priority Debt Facility, hereby consents to the application, whether prior to or after an event of default under any Senior Debt Document of Proceeds of Shared Collateral to the repayment of Senior Obligations pursuant to the Senior Debt Documents, provided that nothing in this Section 5.01(c) shall be construed to prevent or impair the rights of the Junior Representatives or the Junior Priority Debt Parties to receive proceeds in connection with the Junior Priority Debt Obligations not otherwise in contravention of this Agreement.
(d) Subject to Sections 5.06(a) and 5.06(f), notwithstanding anything to the contrary in any Junior Priority Collateral Document, in the event the terms of a Senior Collateral Document and a Junior Priority Collateral Document each require any Grantor to (i) to make payment in respect of any item of Shared CollateralCollateral to, (ii) to deliver or afford control over any item of Shared Collateral to, or deposit any item of Shared Collateral with, (iii) to register ownership of any item of Shared Collateral in the name of or make an assignment of ownership of any Shared Collateral or the rights thereunder to, (iv) cause any securities intermediary, commodity intermediary or other Person acting in a similar capacity to agree to comply, in respect of any item of Shared Collateral, with instructions or orders from, or to treat, in respect of any item of Shared Collateral, as the entitlement holder, (v) hold any item of Shared Collateral in trust for (to the extent such item of Shared Collateral cannot be held in trust for multiple parties under applicable law), (vi) obtain the agreement of a bailee or other third party to hold any item of Shared Collateral for the benefit of or subject to the control of or, in respect of any item of Shared Collateral, to follow the instructions of or (vii) obtain the agreement of a landlord with respect to access to leased premises where any item of Shared Collateral is located or waivers or subordination of rights with respect to any item of Shared Collateral in favor of, in any case, both the Designated any Senior Representative or Senior Secured Party and any Junior Priority Representative or Junior Priority Debt Party, such Grantor may, until the applicable Discharge of Senior Obligations has occurred, comply with such requirement under the applicable Junior Priority Collateral Document as it relates to such Shared Collateral by taking any of the actions set forth above only with respect to, or in favor of, the Designated Senior Representative.
Appears in 1 contract
Samples: Credit Agreement (W R Grace & Co)
Releases. (a) Each Junior Priority RepresentativeIf, for itself and on behalf of each Junior Priority Debt Party under its Junior Priority Debt Facility, agrees that, in the event of a sale, transfer or other disposition of any specified item of Shared Collateral (including all or substantially all of the equity interests of any subsidiary of the Borrower) other than a release granted upon or following the Discharge of Senior Obligations, the Liens granted to the Junior Priority Representatives and the Junior Priority Debt Parties upon such Shared Collateral to secure Junior Priority Debt Obligations shall terminate and be released, automatically and without any further action, concurrently with the termination and release of all Liens granted upon such Shared Collateral to secure Senior Obligations; provided that, in the case of any such sale, transfer or other disposition of Shared Collateral (other than any sale, transfer or other disposition in connection with the enforcement Exercise of Secured Creditor Remedies by ABL Agent as provided for in Section 3, irrespective of whether an ABL Default or exercise a Notes Default has occurred and is continuing, ABL Agent releases any of its Liens on any part of the ABL Priority Collateral, then the Liens of Notes Agent on such ABL Priority Collateral shall be automatically, unconditionally, and simultaneously released so long as all proceeds therefrom are applied to permanently repay the ABL Obligations and the then outstanding commitments to extend credit under the ABL Credit Agreement are terminated; provided, however, that any proceeds remaining after the Discharge of ABL Obligations shall be subject to the Liens of the Notes Claimholders. Notes Agent, for itself or on behalf of any rights such Notes Claimholders, promptly shall execute and deliver to ABL Agent such termination or remedies amendment statements, releases, and other documents as ABL Agent may request in writing to effectively confirm such release, without the consent or direction of any other Notes Claimholders.
(b) If, in connection with respect the Exercise of Secured Creditor Remedies by Notes Agent as provided for in Section 3, irrespective of whether an ABL Default or a Notes Default has occurred and is continuing, Notes Agent releases any of its Liens on any part of the Notes Priority Collateral, then the Liens of ABL Agent on such Notes Priority Collateral shall be automatically, unconditionally, and simultaneously released so long as all proceeds therefrom are applied to permanently repay, repurchase or otherwise retire the Notes Obligations; provided, however, that any proceeds remaining after the Discharge of Notes Obligations shall be subject to the Shared Collateral)Liens of the ABL Claimholders. ABL Agent, for itself or on behalf of any such ABL Claimholders, promptly shall execute and deliver to Notes Agent such termination or amendment statements, releases, and other documents as Notes Agent may request in writing to effectively confirm such release, without the Liens granted to the Junior consent or direction of any other ABL Claimholders.
(c) If, in connection with any Disposition of any ABL Priority Representatives and the Junior Priority Debt Parties shall not be so released if such sale, transfer or other disposition is not Collateral permitted under the terms of the ABL Loan Documents and the Notes Documents as in effect at the time of such Disposition, ABL Agent, for itself or on behalf of any Junior ABL Claimholders, releases any of its Liens on the portion of the ABL Priority Debt DocumentCollateral that is the subject of such Disposition, other than (i) in connection with the Discharge of ABL Obligations, or (ii) after the occurrence and during the continuance of any Notes Default, then the Liens of Notes Agent on such Collateral shall be automatically, unconditionally, and simultaneously released. Upon delivery Notes Agent, for itself or on behalf of any such Notes Claimholders, promptly shall execute and deliver to a Junior ABL Agent such termination or amendment statements, releases, and other documents as ABL Agent may request in writing to effectively confirm such release, without the consent or direction of any other Notes Claimholders.
(d) If, in connection with any Disposition of any Notes Priority Representative Collateral permitted under the terms of an Officer’s Certificate stating the Notes Documents and the ABL Loan Documents as in effect at the time of such Disposition, Notes Agent, for itself or on behalf of any Notes Claimholders, releases any of its Liens on the portion of the Notes Priority Collateral that is the subject of such Disposition, other than (i) in connection with the Discharge of Notes Obligations, or (ii) after the occurrence and during the continuance of any ABL Default, then the Liens of ABL Agent on such Collateral shall be automatically, unconditionally, and simultaneously released. ABL Agent, for itself or on behalf of any such ABL Claimholders, promptly shall execute and deliver to Notes Agent such termination or amendment statements, releases, and other documents as Notes Agent may request to effectively confirm such release, without the consent or direction of any other ABL Claimholders.
(e) In the event that any Collateral that would be ABL Priority Collateral is no longer Collateral pursuant to the effects of clause (8) of the definition of “Excluded Assets” in the Indenture (or any comparable provision in any successor Notes Document), such Collateral shall automatically be deemed not to be Notes Collateral under the Notes Collateral Documents. Notes Agent, for itself or on behalf of any such Notes Claimholders, promptly shall execute and deliver to the Grantors such termination or amendment statements, releases, and release of Liens securing the Senior Obligations has become effective (or shall become effective concurrently with other documents as any Grantor may request to effectively confirm such termination and release of the Liens granted to the Junior Priority Debt Parties and the Junior Priority Representatives) and any necessary or proper instruments of termination or release prepared by the Borrower or any other Grantor, such Junior Priority Representative will promptly execute, deliver or acknowledgerelease, at the Borrower’s or the other Grantor’s sole cost and expense, such instruments to evidence such termination and release expense of the Liens. Nothing in this Section 5.01(aGrantors and without the consent or direction of any other Notes Claimholders.
(f) will be deemed ABL Agent, with respect to affect any agreement of a Junior the Notes Priority RepresentativeCollateral, for itself and on behalf of the Junior Priority Debt Parties under its Junior Priority Debt Facility, to release the Liens on the Junior Priority Collateral as set forth in the relevant Junior Priority Debt Documents.
(b) Each Junior Priority Representative, for itself and on behalf of each Junior Priority Debt Party under its Junior Priority Debt FacilityABL Claimholders, hereby irrevocably constitutes and appoints the Designated Senior Representative Notes Agent with respect to such Notes Priority Collateral and any officer or agent of the Designated Senior RepresentativeNotes Agent, with full power of substitution, as its true and lawful attorney-in-fact with full irrevocable power and authority in the place and stead of such Junior Priority Representative or such Junior Priority Debt Party ABL Agent or in the Designated Senior RepresentativeABL Agent’s own name, from time to time in the Designated Senior RepresentativeNotes Agent’s discretiondiscretion exercised in good faith, for the purpose of carrying out the terms of this Section 5.01(a)5.1, to take any and all appropriate action and to execute any and all documents and instruments that which may be necessary or desirable to accomplish the purposes of this Section 5.01(a)5.1, including any termination statements, endorsements or other instruments of transfer or release.
(cg) Notwithstanding anything Notes Agent, with respect to the contrary in any Junior ABL Priority Collateral, on behalf of the Notes Claimholders, hereby irrevocably constitutes and appoints ABL Agent with respect to such ABL Priority Collateral Documentand any officer or agent of ABL Agent, with full power of substitution, as its true and lawful attorney-in-fact with full irrevocable power and authority in the event place and stead of Notes Agent or in Notes Agent’s own name, from time to time in ABL Agent’s discretion exercised in good faith, for the purpose of carrying out the terms of a Senior Collateral Document this Section 5.1, to take any and a Junior Priority Collateral Document each require all appropriate action and to execute any Grantor (i) and all documents and instruments which may be necessary to make payment in respect accomplish the purposes of this Section 5.1, including any item of Shared Collateral, (ii) to deliver or afford control over any item of Shared Collateral to, or deposit any item of Shared Collateral with, (iii) to register ownership of any item of Shared Collateral in the name of or make an assignment of ownership of any Shared Collateral or the rights thereunder to, (iv) cause any securities intermediary, commodity intermediary endorsements or other Person acting in a similar capacity to agree to comply, in respect instruments of any item of Shared Collateral, with instructions transfer or orders from, or to treat, in respect of any item of Shared Collateral, as the entitlement holder, (v) hold any item of Shared Collateral in trust for (to the extent such item of Shared Collateral cannot be held in trust for multiple parties under applicable law), (vi) obtain the agreement of a bailee or other third party to hold any item of Shared Collateral for the benefit of or subject to the control of or, in respect of any item of Shared Collateral, to follow the instructions of or (vii) obtain the agreement of a landlord with respect to access to leased premises where any item of Shared Collateral is located or waivers or subordination of rights with respect to any item of Shared Collateral in favor of, in any case, both the Designated Senior Representative and any Junior Priority Representative or Junior Priority Debt Party, such Grantor may, until the applicable Discharge of Senior Obligations has occurred, comply with such requirement under the applicable Junior Priority Collateral Document as it relates to such Shared Collateral by taking any of the actions set forth above only with respect to, or in favor of, the Designated Senior Representativerelease.
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Releases. (a) Each Junior Subject to Article VI, each Second Priority Representative, for itself and on behalf of each Junior Second Priority Debt Party under its Junior Second Priority Debt Facility, agrees that, if in the event of a connection with (i) any sale, transfer or other disposition of any specified item of Shared Collateral by any Grantor (including all other than in connection with any enforcement or substantially all exercise of rights or remedies with respect to the Shared Collateral or any Insolvency or Liquidation Proceeding which shall be governed by clause (ii)) permitted under the terms of the equity interests Senior Debt Documents or consented to by the holders of any subsidiary Senior Obligations under the Senior Debt Documents and permitted under the terms of the Borrower) Second Priority Debt Documents or consented to by the holders of Second Priority Debt Obligations (other than a release granted upon or following (A) in connection with the Discharge of Senior Obligations, Obligations or (B) after the Liens granted to occurrence and during the Junior Priority Representatives and continuance of any Event of Default under the Junior Second Priority Debt Parties upon such Shared Collateral to secure Junior Priority Debt Obligations shall terminate and be released, automatically and without any further action, concurrently with the termination and release of all Liens granted upon such Shared Collateral to secure Senior Obligations; provided that, in the case of any such sale, transfer Documents) or other disposition of Shared Collateral (other than any sale, transfer or other disposition in connection with ii) the enforcement or exercise of any rights or remedies with respect to the Shared Collateral)Collateral or any Insolvency or Liquidation Proceeding, including any sale, transfer or other disposition of Collateral so long as net proceeds of any such Collateral are applied to reduce permanently the Liens granted to Senior Obligations and so long as the Junior Priority Representatives and the Junior Second Priority Debt Parties shall not be so released if retain a Lien on the proceeds of any such sale, transfer or other disposition is of Collateral in connection with any exercise of remedies by the Senior Secured Parties (to the extent that such proceeds are not permitted under applied to the terms Senior Obligations), the Designated Senior Representative, for itself and on behalf of the other Senior Secured Parties releases any of the Senior Liens on the Shared Collateral (a “Release”), then the Liens (other than the Lien on the proceeds thereof to the extent provided above in this sentence) on such Shared Collateral securing any Second Priority Debt Obligations shall be automatically, unconditionally and simultaneously released, and each Second Priority Representative shall, for itself and on behalf of the other applicable Second Priority Class Debt Parties, promptly execute and deliver to the Designated Senior Representative and the applicable Grantors such termination statements, releases and other documents as the Designated Senior Representative or any applicable Grantor may reasonably request to effectively confirm such Release. Similarly, if the equity interests of any Junior Person are foreclosed upon or otherwise disposed of pursuant to clause (i) or (ii) above and in connection therewith the Designated Senior Representative releases the Senior Liens on the property or assets of such Person or releases such Person from its guarantee of Senior Obligations, then the Second Priority Lien on such property or assets of such Person and such Person’s guarantee of Second Priority Debt Document. Upon delivery to a Junior Priority Representative of an Officer’s Certificate stating that any such termination and release of Liens securing the Senior Obligations has become effective (or shall become effective concurrently with such termination and release of the Liens granted be automatically released to the Junior Priority Debt Parties and the Junior Priority Representatives) and any necessary or proper instruments of termination or release prepared by the Borrower or any other Grantor, such Junior Priority Representative will promptly execute, deliver or acknowledge, at the Borrower’s or the other Grantor’s sole cost and expense, such instruments to evidence such termination and release of the Lienssame extent. Nothing in this Section 5.01(a) will be deemed to affect any agreement of a Junior Second Priority Representative, for itself and on behalf of the Junior Second Priority Debt Parties under its Junior Second Priority Debt Facility, to release the Liens on the Junior Second Priority Collateral as set forth in the relevant Junior Second Priority Debt Documents.
(b) Each Junior Second Priority Representative, for itself and on behalf of each Junior Second Priority Debt Party under its Junior Second Priority Debt Facility, hereby irrevocably constitutes and appoints the Designated Senior Representative and any officer or agent of the Designated Senior Representative, with full power of substitution, as its true and lawful attorney-in-fact with full irrevocable power and authority in the place and stead of such Junior Second Priority Representative or such Junior Second Priority Debt Party or in the Designated Senior Representative’s own name, from time to time in the Designated Senior Representative’s discretion, for the purpose of carrying out the terms of Section 5.01(a), to take any and all appropriate action and to execute any and all documents and instruments that may be necessary or desirable to accomplish the purposes of Section 5.01(a), including any termination statements, endorsements or other instruments of transfer or release.
(c) Unless and until the Discharge of Senior Obligations has occurred, each Second Priority Representative, for itself and on behalf of each Second Priority Debt Party under its Second Priority Debt Facility, hereby consents to the application, whether prior to or after an Event of Default (as defined in any Senior Debt Document) of Proceeds of Shared Collateral released in accordance with this Section 5.01 to the repayment of Senior Obligations pursuant to the Senior Debt Documents, provided that nothing in this Section 5.01(c) shall be construed to prevent or impair the rights of the Second Priority Representatives or the Second Priority Debt Parties to receive Proceeds in connection with the Second Priority Debt Obligations not otherwise in contravention of this Agreement.
(d) Notwithstanding anything to the contrary in any Junior Second Priority Collateral Document, in the event the terms of a Senior Collateral Document and a Junior Second Priority Collateral Document each require any Grantor to (i) to make payment in respect of any item of Shared Collateral, (ii) to deliver or afford control over any item of Shared Collateral to, or deposit any item of Shared Collateral with, (iii) to register ownership of any item of Shared Collateral in the name of or make an assignment of ownership of any Shared Collateral or the rights thereunder to, (iv) cause any securities intermediary, commodity intermediary or other Person acting in a similar capacity to agree to comply, in respect of any item of Shared Collateral, with instructions or orders from, or to treat, in respect of any item of Shared Collateral, as the entitlement holder, (v) hold any item of Shared Collateral in trust for (to the extent such item of Shared Collateral cannot be held in trust for multiple parties under applicable law), (vi) obtain the agreement of a bailee or other third party to hold any item of Shared Collateral for the benefit of or subject to the control of or, in respect of any item of Shared Collateral, to follow the instructions of or (vii) obtain the agreement of a landlord with respect to access to leased premises where any item of Shared Collateral is located or waivers or subordination of rights with respect to any item of Shared Collateral in favor of, in any case, both the Designated Senior Representative and any Junior Second Priority Representative or Junior Second Priority Debt Party, such Grantor may, until the applicable Discharge of Senior Obligations has occurred, comply with such requirement under the applicable Junior Second Priority Collateral Document as it relates to such Shared Collateral by taking any of the actions set forth above only with respect to, or in favor of, the Designated Senior Representative.
Appears in 1 contract
Samples: Term Loan Intercreditor Agreement (99 Cents Only Stores LLC)
Releases. (a) Each Junior Second Priority Representative, for itself and on behalf of each Junior Second Priority Debt Party under its Junior Second Priority Debt Facility, agrees that, in the event of a sale, transfer or other disposition of any specified item of Shared Collateral (including all or substantially all of the equity interests of any subsidiary of the Parent Borrower) other than a release granted upon or following the Discharge of Senior Obligations), the Liens granted to the Junior Second Priority Representatives and the Junior Second Priority Debt Parties upon such Shared Collateral to secure Junior Second Priority Debt Obligations shall terminate and be released, automatically and without any further action, concurrently with the termination and release of all Liens granted upon such Shared Collateral to secure Senior Obligations; provided that, in the case of any such sale, transfer or other disposition of Shared Collateral (other than any sale, transfer or other disposition in connection with the enforcement or exercise of any rights or remedies with respect to the Shared Collateral), the Liens granted to the Junior Priority Representatives and the Junior Priority Debt Parties shall not be so released if such sale, transfer or other disposition is not permitted under the terms of any Junior Priority Debt Document. Upon delivery to a Junior Second Priority Representative of an Officer’s Certificate stating that any such termination and release of Liens securing the Senior Obligations has become effective (or shall become effective concurrently with such termination and release of the Liens granted to the Junior Second Priority Debt Parties and the Junior Second Priority Representatives) and any necessary or proper instruments of termination or release prepared by the Parent Borrower or any other Grantor, such Junior Second Priority Representative will promptly execute, deliver or acknowledge, at the Parent Borrower’s or the other Grantor’s sole cost and expense, such instruments to evidence such termination and release of the Liens. Nothing in this Section 5.01(a) will be deemed to affect any agreement of a Junior Second Priority Representative, for itself and on behalf of the Junior Second Priority Debt Parties under its Junior Second Priority Debt Facility, to release the Liens on the Junior Second Priority Collateral as set forth in the relevant Junior Second Priority Debt Documents.
(b) Each Junior Second Priority Representative, for itself and on behalf of each Junior Second Priority Debt Party under its Junior Second Priority Debt Facility, hereby irrevocably constitutes and appoints the Designated Senior Representative and any officer or agent of the Designated Senior Representative, with full power of substitution, as its true and lawful attorney-in-fact with full irrevocable power and authority in the place and stead of such Junior Second Priority Representative or such Junior Second Priority Debt Party or in the Designated Senior Representative’s own name, from time to time in the Designated Senior Representative’s discretion, for the purpose of carrying out the terms of Section 5.01(a), to take any and all appropriate action and to execute any and all documents and instruments that may be necessary or desirable to accomplish the purposes of Section 5.01(a), including any termination statements, endorsements or other instruments of transfer or release.
(c) Unless and until the Discharge of Senior Obligations has occurred, each Second Priority Representative, for itself and on behalf of each Second Priority Debt Party under its Second Priority Debt Facility, hereby consents to the application, whether prior to or after an event of default under any Senior Debt Document of proceeds of Shared Collateral to the repayment of Senior Obligations pursuant to the Senior Debt Documents, provided that nothing in this Section 5.01(c) shall be construed to prevent or impair the rights of the Second Priority Representatives or the Second Priority Debt Parties to receive proceeds in connection with the Second Priority Debt Obligations not otherwise in contravention of this Agreement.
(d) Notwithstanding anything to the contrary in any Junior Second Priority Collateral Document, in the event the terms of a Senior Collateral Document and a Junior Second Priority Collateral Document each require any Grantor (i) to make payment in respect of any item of Shared Collateral, (ii) to deliver or afford control over any item of Shared Collateral to, or deposit any item of Shared Collateral with, (iii) to register ownership of any item of Shared Collateral in the name of or make an assignment of ownership of any Shared Collateral or the rights thereunder to, (iv) cause any securities intermediary, commodity intermediary or other Person acting in a similar capacity to agree to comply, in respect of any item of Shared Collateral, with instructions or orders from, or to treat, in respect of any item of Shared Collateral, as the entitlement holder, (v) hold any item of Shared Collateral in trust for (to the extent such item of Shared Collateral cannot be held in trust for multiple parties under applicable law), (vi) obtain the agreement of a bailee or other third party to hold any item of Shared Collateral for the benefit of or subject to the control of or, in respect of any item of Shared Collateral, to follow the instructions of or (vii) obtain the agreement of a landlord with respect to access to leased premises where any item of Shared Collateral is located or waivers or subordination of rights with respect to any item of Shared Collateral in favor of, in any case, both the Designated Senior Representative and any Junior Second Priority Representative or Junior Second Priority Debt Party, such Grantor may, until the applicable Discharge of Senior Obligations has occurred, comply with such requirement under the applicable Junior Second Priority Collateral Document as it relates to such Shared Collateral by taking any of the actions set forth above only with respect to, or in favor of, the Designated Senior Representative.
Appears in 1 contract
Releases. (a) Each Junior Second Priority Representative, for itself and on behalf of each Junior Second Priority Debt Party under its Junior Second Priority Debt Facility, agrees that, in the event of a sale, transfer or other disposition of any specified item of Shared Collateral (including all or substantially all of the equity interests of any subsidiary of the Borrower) other than a release granted upon or following the Discharge of Senior Obligations), the Liens granted to the Junior Second Priority Representatives and the Junior Second Priority Debt Parties upon such Shared Collateral to secure Junior Second Priority Debt Obligations shall terminate and be released, automatically and without any further action, concurrently with the termination and release of all Liens granted upon such Shared Collateral to secure Senior Obligations; provided that, in the case of any such sale, transfer or other disposition of Shared Collateral (other than any sale, transfer or other disposition in connection with the enforcement or exercise of any rights or remedies with respect to the Shared Collateral), the Liens granted to the Junior Priority Representatives and the Junior Priority Debt Parties shall not be so released if such sale, transfer or other disposition is not permitted under the terms of any Junior Priority Debt Document. Upon delivery to a Junior Second Priority Representative of an Officer’s Certificate stating that any such termination and release of Liens securing the Senior Obligations has become effective (or shall become effective concurrently with such termination and release of the Liens granted to the Junior Second Priority Debt Parties and the Junior Second Priority Representatives) and any necessary or proper instruments of termination or release prepared by the Borrower or any other Grantor, such Junior Second Priority Representative will promptly execute, deliver or acknowledge, at the Borrower’s or the other Grantor’s sole cost and expense, such instruments to evidence such termination and release of the Liens. Nothing in this Section 5.01(a) will be deemed to affect any agreement of a Junior Second Priority Representative, for itself and on behalf of the Junior Second Priority Debt Parties under its Junior Second Priority Debt Facility, to release the Liens on the Junior Second Priority Collateral as set forth in the relevant Junior Second Priority Debt Documents.
(b) Each Junior Second Priority Representative, for itself and on behalf of each Junior Second Priority Debt Party under its Junior Second Priority Debt Facility, hereby irrevocably constitutes and appoints the Designated Senior Representative and any officer or agent of the Designated Senior Representative, with full power of substitution, as its true and lawful attorney-in-fact with full irrevocable power and authority in the place and stead of such Junior Second Priority Representative or such Junior Second Priority Debt Party or in the Designated Senior Representative’s own name, from time to time in the Designated Senior Representative’s discretion, for the purpose of carrying out the terms of Section 5.01(a), to take any and all appropriate action and to execute any and all documents and instruments that may be necessary or desirable to accomplish the purposes of Section 5.01(a), including any termination statements, endorsements or other instruments of transfer or release.
(c) Unless and until the Discharge of Senior Obligations has occurred, each Second Priority Representative, for itself and on behalf of each Second Priority Debt Party under its Second Priority Debt Facility, hereby consents to the application, whether prior to or after an event of default under any Senior Debt Document of proceeds of Shared Collateral to the repayment of Senior Obligations pursuant to the Senior Debt Documents, provided that nothing in this Section 5.01(c) shall be construed to prevent or impair the rights of the Second Priority Representatives or the Second Priority Debt Parties to receive proceeds in connection with the Second Priority Debt Obligations not otherwise in contravention of this Agreement.
(d) Notwithstanding anything to the contrary in any Junior Second Priority Collateral Document, in the event the terms of a Senior Collateral Document and a Junior Second Priority Collateral Document each require any Grantor (i) to make payment in respect of any item of Shared CollateralCollateral to, (ii) to deliver or afford control over any item of Shared Collateral to, or deposit any item of Shared Collateral with, (iii) to register ownership of any item of Shared Collateral in the name of or make an assignment of ownership of any Shared Collateral or the rights thereunder to, (iv) cause any securities intermediary, commodity intermediary or other Person acting in a similar capacity to agree to comply, in respect of any item of Shared Collateral, with instructions or orders from, or to treat, in respect of any item of Shared Collateral, as the entitlement holder, (v) hold any item of Shared Collateral in trust for (to the extent such item of Shared Collateral cannot be held in trust for multiple parties under applicable law), (vi) obtain the agreement of a bailee or other third party to hold any item of Shared Collateral for the benefit of or subject to the control of or, in respect of any item of Shared Collateral, to follow the instructions of or (vii) obtain the agreement of a landlord with respect to access to leased premises where any item of Shared Collateral is located or waivers or subordination of rights with respect to any item of Shared Collateral in favor of, in any case, both the Designated Senior Representative and any Junior Second Priority Representative or Junior Second Priority Debt Party, such Grantor may, until the applicable Discharge of Senior Obligations has occurred, comply with such requirement under the applicable Junior Second Priority Collateral Document as it relates to such Shared Collateral by taking any of the actions set forth above only with respect to, or in favor of, the Designated Senior Representative.
Appears in 1 contract
Releases. (a) Each Junior Second Priority Representative, for itself and on behalf of each Junior Second Priority Debt Party under its Junior Second Priority Debt Facility, agrees that, in the event of a sale, transfer or other disposition of any specified item of Shared Collateral (including all or substantially all of the equity interests of any subsidiary of the BorrowerCompany) in connection with (i) the exercise of remedies in respect of Collateral or (ii) any sale, transfer or other than a release granted upon disposition that is permitted under the Second Priority Debt Documents as in effect on the date hereof or following the Discharge of Senior Obligationssubsequently permitted thereunder, the Liens granted to the Junior Second Priority Representatives and the Junior Second Priority Debt Parties upon such Shared Collateral to secure Junior Second Priority Debt Obligations shall terminate and be released, automatically and without any further action, concurrently with the termination and release of all Liens granted upon such Shared Collateral to secure Senior Obligations; provided that, in the case of any such sale, transfer or other disposition of Shared Collateral (other than any sale, transfer or other disposition in connection with the enforcement or exercise of any rights or remedies with respect to the Shared Collateral), the Liens granted to the Junior Priority Representatives and the Junior Priority Debt Parties shall not be so released if such sale, transfer or other disposition is not permitted under the terms of any Junior Priority Debt Document. Upon delivery to a Junior Second Priority Representative of an Officer’s Certificate stating that any such termination and release of Liens securing the Senior Obligations has become effective (or shall become effective concurrently with such termination and release of the Liens granted to the Junior Second Priority Debt Parties and the Junior Second Priority Representatives) and any necessary or proper instruments of termination or release prepared by the Borrower Company or any other Grantor, such Junior Second Priority Representative will promptly execute, deliver or acknowledge, at the BorrowerCompany’s or the other Grantor’s sole cost and expense, such instruments to evidence such termination and release of the Liens. Nothing in this Section 5.01(a) will be deemed to affect any agreement of a Junior Second Priority Representative, for itself and on behalf of the Junior Second Priority Debt Parties under its Junior Second Priority Debt Facility, to release the Liens on the Junior Second Priority Collateral as set forth in the relevant Junior Second Priority Debt Documents.
(b) Each Junior Priority Representative, for itself and on behalf of each Junior Priority Debt Party under its Junior Priority Debt Facility, hereby irrevocably constitutes and appoints the Designated Senior Representative and any officer or agent of the Designated Senior Representative, with full power of substitution, as its true and lawful attorney-in-fact with full irrevocable power and authority in the place and stead of such Junior Priority Representative or such Junior Priority Debt Party or in the Designated Senior Representative’s own name, from time to time in the Designated Senior Representative’s discretion, for the purpose of carrying out the terms of Section 5.01(a), to take any and all appropriate action and to execute any and all documents and instruments that may be necessary or desirable to accomplish the purposes of Section 5.01(a), including any termination statements, endorsements or other instruments of transfer or release.
(c) Notwithstanding anything to the contrary in any Junior Priority Collateral Document, in the event the terms of a Senior Collateral Document and a Junior Priority Collateral Document each require any Grantor (i) to make payment in respect of any item of Shared Collateral, (ii) to deliver or afford control over any item of Shared Collateral to, or deposit any item of Shared Collateral with, (iii) to register ownership of any item of Shared Collateral in the name of or make an assignment of ownership of any Shared Collateral or the rights thereunder to, (iv) cause any securities intermediary, commodity intermediary or other Person acting in a similar capacity to agree to comply, in respect of any item of Shared Collateral, with instructions or orders from, or to treat, in respect of any item of Shared Collateral, as the entitlement holder, (v) hold any item of Shared Collateral in trust for (to the extent such item of Shared Collateral cannot be held in trust for multiple parties under applicable law), (vi) obtain the agreement of a bailee or other third party to hold any item of Shared Collateral for the benefit of or subject to the control of or, in respect of any item of Shared Collateral, to follow the instructions of or (vii) obtain the agreement of a landlord with respect to access to leased premises where any item of Shared Collateral is located or waivers or subordination of rights with respect to any item of Shared Collateral in favor of, in any case, both the Designated Senior Representative and any Junior Priority Representative or Junior Priority Debt Party, such Grantor may, until the applicable Discharge of Senior Obligations has occurred, comply with such requirement under the applicable Junior Priority Collateral Document as it relates to such Shared Collateral by taking any of the actions set forth above only with respect to, or in favor of, the Designated Senior Representative.
Appears in 1 contract
Samples: Second Lien Credit Agreement (Quicksilver Resources Inc)
Releases. (a) Each Junior Priority Representative, for itself and on behalf of each Junior Priority Debt Secured Party under its Junior Priority Debt Facility, agrees that, in the event of a sale, transfer or other disposition of any specified item of Shared Collateral (including all or substantially all of the equity interests of any subsidiary of the Borrower) other than a release granted upon or following the Discharge of Senior Obligations), the Liens granted to the Junior Priority Representatives and the Junior Priority Debt Secured Parties upon such Shared Collateral to secure Junior Priority Debt Obligations shall terminate and be released, automatically and without any further action, concurrently with the termination and release of all Liens granted upon such Shared Collateral to secure Senior Obligations; provided that, in the case of any such sale, transfer or other disposition of Shared Collateral (other than any saletransfer, transfer or other disposition in connection with the enforcement or exercise of any rights or remedies by the Senior Secured Parties with respect to the Shared Collateral), the Liens granted Proceeds thereof are (i) applied in accordance with Section 4.01 and (ii) subject to the Junior Priority Representatives priorities set forth herein and to the Junior Priority Debt Parties shall not be so released if such sale, transfer or other disposition is not permitted under the terms provisions of any Junior Priority Debt DocumentSection 5.01(c). Upon delivery to a Junior Priority Representative of an Officer’s Certificate stating that any such termination and release of Liens securing the Senior Obligations has become effective (or shall become effective concurrently with such termination and release of the Liens granted to the Junior Priority Debt Secured Parties and the Junior Priority Representatives) and any necessary or proper instruments of termination or release prepared by the a Borrower or any other Grantor, such Junior Priority Representative will promptly execute, deliver or acknowledge, at the either Borrower’s or the any other Grantor’s sole cost and expense, such instruments to evidence such termination and release of the Liens. Nothing in this Section 5.01(a) will be deemed to affect any agreement of a Junior Priority Representative, for itself and on behalf of the Junior Priority Debt Secured Parties under its Junior Priority Debt Facility, to release the Liens on the Junior Priority Collateral as set forth in the relevant Junior Priority Debt Documents.
(b) Each Junior Priority Representative, for itself and on behalf of each Junior Priority Debt Secured Party under its Junior Priority Debt Facility, hereby irrevocably constitutes and appoints the Designated each Senior Representative and any officer or agent of the Designated each Senior Representative, with full power of substitution, as its true and lawful attorney-in-fact with full irrevocable power and authority in the place and stead of such Junior Priority Representative or such Junior Priority Debt Secured Party or in the Designated such Senior Representative’s own name, from time to time in the Designated such Senior Representative’s discretion, for the purpose of carrying out the terms of Section 5.01(a), to take any and all appropriate action and to execute any and all documents and instruments that may be necessary or desirable to accomplish the purposes of Section 5.01(a), including any termination statements, endorsements or other instruments of transfer or release.
(c) Unless and until the Discharge of Senior Obligations has occurred, each Junior Representative, for itself and on behalf of each Junior Secured Party under its Junior Debt Facility, hereby consents to the application, whether prior to or after an Event of Default (under any Senior Debt Document), of Proceeds of Shared Collateral to the repayment of Senior Obligations pursuant to the Senior Debt Documents; provided that nothing in this Section 5.01(c) shall be construed to prevent or impair the rights of the Junior Representatives or the Junior Secured Parties to receive Proceeds in connection with the Junior Obligations not otherwise in contravention of this Agreement.
(d) Notwithstanding anything to the contrary in any Junior Priority Collateral Document, in the event the terms of a Senior Collateral Document and a Junior Priority Collateral Document each require any Grantor (i) to make payment in respect of any item of Shared Collateral, (ii) to deliver or afford control over any item of Shared Collateral to, or deposit any item of Shared Collateral with, (iii) to register ownership of any item of Shared Collateral in the name of or make an assignment of ownership of any Shared Collateral or the rights thereunder to, (iv) cause any securities intermediary, commodity intermediary or other Person acting in a similar capacity to agree to comply, in respect of any item of Shared Collateral, with instructions or orders from, or to treat, in respect of any item of Shared Collateral, as the entitlement holder, (v) hold any item of Shared Collateral in trust for (to the extent such item of Shared Collateral cannot be held in trust for multiple parties under applicable law), (vi) obtain the agreement of a bailee or other third party to hold any item of Shared Collateral for the benefit of or subject to the control of or, in respect of any item of Shared Collateral, to follow the instructions of of, or (vii) obtain the agreement of a landlord with respect to access to leased premises where any item of Shared Collateral is located or waivers or subordination of rights with respect to any item of Shared Collateral in favor of, in any case, both the Designated Senior Representative and any Junior Priority Representative or any Junior Priority Debt Secured Party, such Grantor may, until the applicable Discharge of Senior Obligations has occurred, comply with such requirement under the applicable Junior Priority Collateral Document as it relates to such Shared Collateral by taking any of the actions set forth above only with respect to, or in favor of, the Designated Senior Representative.
Appears in 1 contract
Samples: Credit Agreement (Walter Investment Management Corp)
Releases. (a) Each If the Senior Lenders release any of their Liens on any part of the Common Collateral in connection with the sale, lease, exchange, transfer or other disposition thereof or in connection with any restructuring of the indebtedness of the Borrower or Holdings, the Liens, if any, of the Junior Priority RepresentativeLenders shall be automatically, for itself unconditionally and on behalf of simultaneously released and each Junior Priority Debt Party under its Lender shall execute and deliver to the Administrative Agent or the Borrower such termination statements, releases and other documents as the Administrative Agent or the Borrower may request to effectively confirm such release. Notwithstanding the foregoing, the Lien granted to the Junior Priority Debt FacilityLender shall, agrees thatsubject to all of the provisions of this Agreement, continue in the event proceeds of a any sale, lease, exchange or other disposition of the Common Collateral if such proceeds are not applied to the Senior Loan Claims.
(b) At the request of the Senior Lenders, each Junior Lender agrees to assist and facilitate any sale, lease, exchange, transfer or other disposition of the Common Collateral, whether by foreclosure or otherwise. Each Junior Lender hereby waives any specified item of Shared Collateral (including and all rights it may have to object to the manner in which the Administrative Agent or substantially all of the equity interests of any subsidiary of Senior Lenders seek to enforce or collect the Borrower) other than a release granted upon Senior Loan Claims or following the Discharge of Senior Obligations, the Liens granted in any of the Collateral, including waiving any right based on any duty to the Junior Priority Representatives and the Junior Priority Debt Parties upon such Shared Collateral to secure Junior Priority Debt Obligations shall terminate and be released, automatically and without any further action, concurrently with the termination and release of all Liens granted upon such Shared Collateral to secure Senior Obligations; provided that, in the case of conduct any such sale, transfer or other disposition of Shared Collateral (other than any salelease, exchange, transfer or other disposition in connection with the enforcement or exercise of any rights or remedies with respect to the Shared Collateral), the Liens granted to the Junior Priority Representatives and the Junior Priority Debt Parties shall not be so released if such sale, transfer or other disposition is not permitted under the terms of any Junior Priority Debt Document. Upon delivery to a Junior Priority Representative of an Officer’s Certificate stating that any such termination and release of Liens securing the Senior Obligations has become effective (or shall become effective concurrently with such termination and release of the Liens granted to the Junior Priority Debt Parties and the Junior Priority Representatives) and any necessary or proper instruments of termination or release prepared by the Borrower or any other Grantor, such Junior Priority Representative will promptly execute, deliver or acknowledge, at the Borrower’s or the other Grantor’s sole cost and expense, such instruments to evidence such termination and release of the Liens. Nothing in this Section 5.01(a) will be deemed to affect any agreement of a Junior Priority Representative, for itself and on behalf of the Junior Priority Debt Parties under its Junior Priority Debt Facility, to release the Liens on the Junior Priority Collateral as set forth in the relevant Junior Priority Debt Documentscommercially reasonable manner.
(bc) In furtherance of the foregoing, the Junior Lenders, on the date hereof and from time to time, have executed and delivered or will execute and deliver to the Administrative Agent undated UCC termination statements in respect of all of the Common Collateral in such number and such jurisdictions as determined by the Administrative Agent. Each Junior Priority Representative, for itself and on behalf of each Junior Priority Debt Party under its Junior Priority Debt Facility, Lender hereby irrevocably constitutes and appoints the Designated Senior Representative and any officer or agent of the Designated Senior Representative, with full power of substitution, as Administrative Agent its true and lawful attorney-in-fact with full irrevocable power and authority authorizes the Administrative Agent to complete the UCC termination statements and file them in the place and stead of such Junior Priority Representative or such Junior Priority Debt Party or in the Designated Senior Representative’s own name, from time order to time in the Designated Senior Representative’s discretion, for the purpose of carrying carry out the terms of Section 5.01(a), to take any and all appropriate action and to execute any and all documents and instruments that may be necessary or desirable to accomplish the purposes of this Section 5.01(a), including any termination statements, endorsements or other instruments of transfer or release6.1. This appointment and authorization is coupled with an interest and is irrevocable.
(c) Notwithstanding anything to the contrary in any Junior Priority Collateral Document, in the event the terms of a Senior Collateral Document and a Junior Priority Collateral Document each require any Grantor (i) to make payment in respect of any item of Shared Collateral, (ii) to deliver or afford control over any item of Shared Collateral to, or deposit any item of Shared Collateral with, (iii) to register ownership of any item of Shared Collateral in the name of or make an assignment of ownership of any Shared Collateral or the rights thereunder to, (iv) cause any securities intermediary, commodity intermediary or other Person acting in a similar capacity to agree to comply, in respect of any item of Shared Collateral, with instructions or orders from, or to treat, in respect of any item of Shared Collateral, as the entitlement holder, (v) hold any item of Shared Collateral in trust for (to the extent such item of Shared Collateral cannot be held in trust for multiple parties under applicable law), (vi) obtain the agreement of a bailee or other third party to hold any item of Shared Collateral for the benefit of or subject to the control of or, in respect of any item of Shared Collateral, to follow the instructions of or (vii) obtain the agreement of a landlord with respect to access to leased premises where any item of Shared Collateral is located or waivers or subordination of rights with respect to any item of Shared Collateral in favor of, in any case, both the Designated Senior Representative and any Junior Priority Representative or Junior Priority Debt Party, such Grantor may, until the applicable Discharge of Senior Obligations has occurred, comply with such requirement under the applicable Junior Priority Collateral Document as it relates to such Shared Collateral by taking any of the actions set forth above only with respect to, or in favor of, the Designated Senior Representative.
Appears in 1 contract
Releases. (a) Each Junior Second Priority Representative, for itself and on behalf of each Junior Second Priority Debt Party under its Junior Second Priority Debt Facility, agrees that, in the event of a sale, transfer or other disposition of any specified item of Shared Collateral (including all or substantially all of the equity interests of any subsidiary Subsidiary of the Borrower) other than a release granted upon or following the Discharge of Senior ObligationsCompany), the Liens granted to the Junior Second Priority Representatives and the Junior Second Priority Debt Parties upon such Shared Collateral (excluding any portion of the Proceeds of such Shared Collateral remaining after the Discharge of First Lien Obligations occurs) to secure Junior Second Priority Debt Obligations shall terminate and be released, automatically and without any further action, concurrently with the termination and release of all Liens granted upon such Shared Collateral to secure Senior Obligations; provided that, in the case of any such sale, transfer or other disposition of Shared Collateral (other than any sale, transfer or other disposition in connection with the enforcement or exercise of any rights or remedies with respect to the Shared Collateral), the Liens granted to the Junior Priority Representatives and the Junior Priority Debt Parties shall not be so released if such sale, transfer or other disposition is not permitted under the terms of any Junior Priority Debt Document. Upon delivery to a Junior Second Priority Representative of a certificate of an officer of the Company (an “Officer’s Certificate Certificate”) stating that any such termination and release of Liens securing the Senior Obligations has become effective (or shall become effective concurrently with such termination and release of the Liens granted to the Junior Second Priority Debt Parties and the Junior Second Priority Representatives) and any necessary or proper forms of instruments of termination or release prepared delivered by the Borrower Company or any other Grantor, such Junior Second Priority Representative will promptly execute, deliver or acknowledge, at the BorrowerCompany’s or the other Grantor’s sole cost and expense, such instruments to evidence such termination and release of the Liens; provided, however, that such Officer’s Certificate shall not be required for any termination or release in connection with the exercise of remedies following an event of default under any Senior Debt Document. Nothing in this Section 5.01(a) will be deemed to affect any agreement of a Junior Second Priority Representative, for itself and on behalf of the Junior Second Priority Debt Parties under its Junior Second Priority Debt Facility, to release the Liens on the Junior Second Priority Collateral as set forth in the relevant Junior Second Priority Debt Documents.
(b) Each Junior Second Priority Representative, for itself and on behalf of each Junior Second Priority Debt Party under its Junior Second Priority Debt Facility, hereby irrevocably constitutes and appoints the Designated Senior Representative and any officer or agent of the Designated Senior Representative, with full power of substitution, as its true and lawful attorney-in-fact with full irrevocable power and authority in the place and stead of such Junior Second Priority Representative or such Junior Second Priority Debt Party or in the Designated Senior Representative’s own name, from time to time in the Designated Senior Representative’s discretion, for the purpose of carrying out the terms of Section 5.01(a), to take any and all appropriate action and to execute any and all documents and instruments that may be necessary or desirable to accomplish the purposes of Section 5.01(a), including any termination statements, endorsements or other instruments of transfer or release.
(c) Unless and until the Discharge of Senior Obligations has occurred, each Second Priority Representative, for itself and on behalf of each Second Priority Debt Party under its Second Priority Debt Facility, hereby consents to the application, whether prior to or after an event of default under any Senior Debt Document of Proceeds of Shared Collateral to the repayment of Senior Obligations pursuant to the Senior Debt Documents, provided that nothing in this Section 5.01(c) shall be construed to prevent or impair the rights of the Second Priority Representatives or the Second Priority Debt Parties to receive Proceeds of the Shared Collateral for the repayment of Second Priority Debt Obligations not otherwise in contravention of this Agreement.
(d) Notwithstanding anything to the contrary in any Junior Second Priority Collateral Document, in the event the terms of a Senior Collateral Document and a Junior Second Priority Collateral Document each require any Grantor to (i) to make payment in respect of any item of Shared Collateral, (ii) to deliver or afford control over any item of Shared Collateral to, or deposit any item of Shared Collateral with, (iii) to register ownership of any item of Shared Collateral in the name of or make an assignment of ownership of any Shared Collateral or the rights thereunder to, (iv) cause any securities intermediary, commodity intermediary or other Person acting in a similar capacity to agree to comply, in respect of any item of Shared Collateral, with instructions or orders from, or to treat, in respect of any item of Shared Collateral, as the entitlement holder, (v) hold any item of Shared Collateral in trust for (to the extent such item of Shared Collateral cannot be held in trust for multiple parties under applicable law), (vi) obtain the agreement of a bailee or other third party to hold any item of Shared Collateral for the benefit of or subject to the control of or, in respect of any item of Shared Collateral, to follow the instructions of or (vii) obtain the agreement of a landlord with respect to access to leased premises where any item of Shared Collateral is located or waivers or subordination of rights with respect to any item of Shared Collateral in favor of, in any case, both the Designated Senior Representative and any Junior Second Priority Representative or Junior Second Priority Debt Party, such Grantor may, until the applicable Discharge of Senior Obligations with respect to which such requirement relates has occurred, comply with such requirement under the applicable Junior Second Priority Collateral Document as it relates to such Shared Collateral by taking any of the actions set forth above only with respect to, or in favor of, the Designated Senior Representative.
Appears in 1 contract
Samples: Intercreditor Agreement (Alliance One International, Inc.)
Releases. (aA) Each Junior Priority RepresentativeSubject to compliance by PNM with the payment required by Paragraph 5 of this Agreement, the Navajo Nation hereby releases, acquits and discharges PNM from any and all trespass claims, demands, warranties, debts, liabilities, damages, obligations, costs, attorneys' fees, expenses, liens, actions and causes of action, resulting from failure by PNM to have had valid rights to use, operate or develop, on or before the effective date of this Agreement, the real property subject to the Nine Mile Tap right-of-way consented to pursuant to Paragraph 2 of this Agreement and the Deza Bluff Microwave Communication Tower lease entered into pursuant to Paragraph 3 of this Agreement, from any rental obligations under the San Xxxx Diversion Xxxx Lease arising prior to the effective date of this Agreement, and from PNM's obligations to pay consideration for itself the use of the FW Line and WW Line through the current terms of the respective rights-of-way for said lines.
(B) PNM hereby releases, acquits and discharges the Navajo Nation from any and all claims, demands, warranties, debts, liabilities, damages, obligations, costs, attorneys' fees, expenses, liens, actions and causes of action, resulting from or relating to PNM's failure to have had valid rights to use, operate or develop, on behalf or before the effective date of each Junior Priority Debt Party this Agreement, the real property subject to the Nine Mile Tap right-of-way consented to pursuant to Paragraph 2 of this Agreement and the Deza Bluff Microwave Communication Tower lease entered into pursuant to Paragraph 3 of this Agreement, PNM's rental obligations under its Junior Priority Debt Facilitythe San Xxxx Diversion Xxxx Lease arising prior to the effective date of this Agreement, agrees that, and PNM's obligations to pay consideration for the use of the FW Line and WW Line through the current terms of the respective rights-of-way for said lines.
(C) Nothing contained in the event of this Paragraph shall be construed to constitute a sale, transfer or other disposition release by either party of any specified item of Shared Collateral (including all or substantially all of the equity interests following:
1) Any liability of PNM for damage to real or personal property owned by the Navajo Nation for which PNM is or becomes liable under any applicable federal, state or Navajo Nation law;
2) Any liability of PNM for use, operation or development of any subsidiary of the Borrower) Navajo Nation-owned lands other than a release granted upon those which are the subject of this Agreement;
3) Any obligation or following the Discharge liability of Senior Obligations, the Liens granted to the Junior Priority Representatives and the Junior Priority Debt Parties upon such Shared Collateral to secure Junior Priority Debt Obligations shall terminate and be released, automatically and without any further action, concurrently with the termination and release of all Liens granted upon such Shared Collateral to secure Senior Obligations; either party provided that, in the case of any such sale, transfer or other disposition of Shared Collateral (other than any sale, transfer or other disposition in connection with the enforcement or exercise of any rights or remedies with respect to the Shared Collateral), the Liens granted to the Junior Priority Representatives and the Junior Priority Debt Parties shall not be so released if such sale, transfer or other disposition is not permitted for under the terms of any Junior Priority Debt Document. Upon delivery to a Junior Priority Representative of an Officer’s Certificate stating that any such termination and release of Liens securing the Senior Obligations has become effective (or shall become effective concurrently with such termination and release conditions of the Liens granted Nine Mile Tap right-of-way consented to pursuant to Paragraph 2 of this Agreement, the Junior Priority Debt Parties and Deza Bluff Microwave Communication Tower lease entered into pursuant to Paragraph 3 of this Agreement, the Junior Priority Representatives) and any necessary San Xxxx Diversion Xxxx Lease, as amended pursuant to Paragraph 3 of this Agreement, or proper instruments of termination or release prepared by the Borrower or under any other Grantorexisting right-of-way, such Junior Priority Representative will promptly executelease, deliver or acknowledge, at the Borrower’s or the other Grantor’s sole cost and expense, such instruments to evidence such termination and release of the Liens. Nothing in this Section 5.01(a) will be deemed to affect any agreement of a Junior Priority Representative, for itself and on behalf of the Junior Priority Debt Parties under its Junior Priority Debt Facility, to release the Liens on the Junior Priority Collateral as set forth in the relevant Junior Priority Debt Documents.
(b) Each Junior Priority Representative, for itself and on behalf of each Junior Priority Debt Party under its Junior Priority Debt Facility, hereby irrevocably constitutes and appoints the Designated Senior Representative and any officer or agent of the Designated Senior Representative, with full power of substitution, as its true and lawful attorney-in-fact with full irrevocable power and authority in the place and stead of such Junior Priority Representative or such Junior Priority Debt Party or in the Designated Senior Representative’s own name, from time to time in the Designated Senior Representative’s discretion, for the purpose of carrying out the terms of Section 5.01(a), to take any and all appropriate action and to execute any and all documents and instruments that may be necessary or desirable to accomplish the purposes of Section 5.01(a), including any termination statements, endorsements contract or other instruments agreement between the Navajo Nation and PNM; or
4) Any obligation or liability of transfer or releaseeither party arising after the effective date of this Agreement.
(c) Notwithstanding anything to the contrary in any Junior Priority Collateral Document, in the event the terms of a Senior Collateral Document and a Junior Priority Collateral Document each require any Grantor (i) to make payment in respect of any item of Shared Collateral, (ii) to deliver or afford control over any item of Shared Collateral to, or deposit any item of Shared Collateral with, (iii) to register ownership of any item of Shared Collateral in the name of or make an assignment of ownership of any Shared Collateral or the rights thereunder to, (iv) cause any securities intermediary, commodity intermediary or other Person acting in a similar capacity to agree to comply, in respect of any item of Shared Collateral, with instructions or orders from, or to treat, in respect of any item of Shared Collateral, as the entitlement holder, (v) hold any item of Shared Collateral in trust for (to the extent such item of Shared Collateral cannot be held in trust for multiple parties under applicable law), (vi) obtain the agreement of a bailee or other third party to hold any item of Shared Collateral for the benefit of or subject to the control of or, in respect of any item of Shared Collateral, to follow the instructions of or (vii) obtain the agreement of a landlord with respect to access to leased premises where any item of Shared Collateral is located or waivers or subordination of rights with respect to any item of Shared Collateral in favor of, in any case, both the Designated Senior Representative and any Junior Priority Representative or Junior Priority Debt Party, such Grantor may, until the applicable Discharge of Senior Obligations has occurred, comply with such requirement under the applicable Junior Priority Collateral Document as it relates to such Shared Collateral by taking any of the actions set forth above only with respect to, or in favor of, the Designated Senior Representative.
Appears in 1 contract
Samples: Memorandum of Agreement (Public Service Co of New Mexico)
Releases. (a) Each Junior Second Priority Representative, for itself and on behalf of each Junior Second Priority Debt Party under its Junior Second Priority Debt Facility, agrees that, if in the event of a connection with (i) any sale, transfer or other disposition of any specified item of Shared Collateral by any Grantor (including all other than in connection with any enforcement or substantially all exercise of rights or remedies with respect to the Shared Collateral which shall be governed by clause (ii)) permitted under the terms of the equity interests Senior Debt Documents and the Second Priority Documents or consented to by the holders of any subsidiary of Senior Obligations under the Borrower) Senior Debt Documents (other than a release granted upon or following in connection with the Discharge of Senior Obligations, the Liens granted to the Junior Priority Representatives ) and the Junior holders of the Second Priority Debt Parties upon such Shared Collateral to secure Junior Priority Debt Obligations shall terminate and be released, automatically and without any further action, concurrently with the termination and release of all Liens granted upon such Shared Collateral to secure Senior Obligations; provided that, in the case of any such sale, transfer or other disposition of Shared Collateral (other than any sale, transfer or other disposition in connection with ii) the enforcement or exercise of any rights or remedies with respect to the Shared Collateral), the Liens granted to the Junior Priority Representatives and the Junior Priority Debt Parties shall not be so released if such including any sale, transfer or other disposition of Shared Collateral, the Designated Senior Representative, for itself and on behalf of the other Senior Secured Parties releases any of the Senior Liens on the Shared Collateral (a “Release”), then the Liens on such Shared Collateral securing any Second Priority Debt Obligations shall (whether or not any Insolvency or Liquidation Proceeding is not permitted under pending at such time) be automatically, unconditionally and simultaneously released without further action, and each Second Priority Representative shall, for itself and on behalf of the terms other applicable Second Priority Class Debt Parties, promptly execute and deliver to the Designated Senior Representative and the applicable Grantors such termination statements, releases and other documents as the Designated Senior Representative or any applicable Grantor may reasonably request to effectively confirm such Release. Similarly, if the equity interests of any Junior Person are foreclosed upon or otherwise disposed of pursuant to clause (i) or (ii) above and in connection therewith the Designated Senior Representative releases the Senior Liens on the property or assets of such Person or releases such Person from its guarantee of Senior Obligations, then the Second Priority Lien on such property or assets of such Person and such Person’s guarantee of Second Priority Debt Document. Upon delivery to a Junior Priority Representative of an Officer’s Certificate stating that any such termination and release of Liens securing the Senior Obligations has become effective (or shall become effective concurrently with such termination and release of the Liens granted be automatically released to the Junior Priority Debt Parties and the Junior Priority Representatives) and any necessary or proper instruments of termination or release prepared by the Borrower or any other Grantor, such Junior Priority Representative will promptly execute, deliver or acknowledge, at the Borrower’s or the other Grantor’s sole cost and expense, such instruments to evidence such termination and release of the Lienssame extent. Nothing in this Section 5.01(a) will be deemed to affect any agreement of a Junior Second Priority Representative, for itself and on behalf of the Junior Second Priority Debt Parties under its Junior Second Priority Debt Facility, to release the Liens on the Junior Second Priority Collateral as set forth in the relevant Junior Second Priority Debt Documents.
(b) Each Junior Priority Representative, for itself and on behalf of each Junior Priority Debt Party under its Junior Priority Debt Facility, hereby irrevocably constitutes and appoints the Designated Senior Representative and any officer or agent of the Designated Senior Representative, with full power of substitution, as its true and lawful attorney-in-fact with full irrevocable power and authority in the place and stead of such Junior Priority Representative or such Junior Priority Debt Party or in the Designated Senior Representative’s own name, from time to time in the Designated Senior Representative’s discretion, for the purpose of carrying out the terms of Section 5.01(a), to take any and all appropriate action and to execute any and all documents and instruments that may be necessary or desirable to accomplish the purposes of Section 5.01(a), including any termination statements, endorsements or other instruments of transfer or release.
(c) Notwithstanding anything to the contrary in any Junior Priority Collateral Document, in the event the terms of a Senior Collateral Document and a Junior Priority Collateral Document each require any Grantor (i) to make payment in respect of any item of Shared Collateral, (ii) to deliver or afford control over any item of Shared Collateral to, or deposit any item of Shared Collateral with, (iii) to register ownership of any item of Shared Collateral in the name of or make an assignment of ownership of any Shared Collateral or the rights thereunder to, (iv) cause any securities intermediary, commodity intermediary or other Person acting in a similar capacity to agree to comply, in respect of any item of Shared Collateral, with instructions or orders from, or to treat, in respect of any item of Shared Collateral, as the entitlement holder, (v) hold any item of Shared Collateral in trust for (to the extent such item of Shared Collateral cannot be held in trust for multiple parties under applicable law), (vi) obtain the agreement of a bailee or other third party to hold any item of Shared Collateral for the benefit of or subject to the control of or, in respect of any item of Shared Collateral, to follow the instructions of or (vii) obtain the agreement of a landlord with respect to access to leased premises where any item of Shared Collateral is located or waivers or subordination of rights with respect to any item of Shared Collateral in favor of, in any case, both the Designated Senior Representative and any Junior Priority Representative or Junior Priority Debt Party, such Grantor may, until the applicable Discharge of Senior Obligations has occurred, comply with such requirement under the applicable Junior Priority Collateral Document as it relates to such Shared Collateral by taking any of the actions set forth above only with respect to, or in favor of, the Designated Senior Representative.
Appears in 1 contract
Releases. (a) Each Junior Priority Representative, for itself and on behalf of each Junior Priority Debt Party under its Junior Priority Debt Facility, agrees that, in the event of a sale, transfer or other disposition of any specified item of Shared Collateral (including all or substantially all of the equity interests of any subsidiary of the Borrower) (i) in connection with the exercise of remedies in respect of Collateral or (ii) if not in connection with the exercise of remedies in respect of the Collateral, so long as an Event of Default (as defined in and under any Junior Priority Debt Document) has not occurred and is continuing and such sale, transfer or other than a release granted upon or following disposition is permitted by the Discharge terms of Senior Obligationsthe Junior Priority Debt Documents, the Liens granted to the Junior Priority Representatives and the Junior Priority Debt Parties upon such Shared Collateral to secure Junior Priority Debt Obligations shall terminate and be released, automatically and without any further action, concurrently with the termination and release of all Liens granted upon such Shared Collateral to secure Senior Obligations; provided that, in the case of any such sale, transfer or other disposition of Shared Collateral (other than any sale, transfer or other disposition in connection with the enforcement or exercise of any rights or remedies with respect to the Shared Collateral), the Liens granted to the Junior Priority Representatives and the Junior Priority Debt Parties shall not be so released if such sale, transfer or other disposition is not permitted under the terms of any Junior Priority Debt Document. Upon delivery to a Junior Priority Representative of an Officer’s Certificate stating that any such termination and release of Liens securing the Senior Obligations has become effective (or shall become effective concurrently with such termination and release of the Liens granted to the Junior Priority Debt Parties and the Junior Priority Representatives) and any necessary or proper instruments of termination or release prepared by the Borrower or any other Grantor, such Junior Priority Representative will promptly execute, deliver or acknowledge, at the Borrower’s or the other Grantor’s sole cost and expense, such instruments to evidence such termination and release of the Liens. Nothing in this Section 5.01(a) will be deemed to affect any agreement of a Junior Priority Representative, for itself and on behalf of the Junior Priority Debt Parties under its Junior Priority Debt Facility, to release the Liens on the Junior Priority Collateral as set forth in the relevant Junior Priority Debt Documents.
. (b) Each Junior Priority Representative, for itself and on behalf of each Junior Priority Debt Party under its Junior Priority Debt Facility, hereby irrevocably constitutes and appoints the Designated Senior Representative and any officer or agent of the Designated Senior Representative, with full power of substitution, as its true and lawful attorney-in-fact with full irrevocable power and authority in the place and stead of such Junior Priority Representative or such Junior Priority Debt Party or in the Designated Senior Representative’s own name, from time to time in the Designated Senior Representative’s discretion, for the purpose of carrying out the terms of Section 5.01(a), to take any and all appropriate action and to execute any and all documents and instruments that may be necessary or desirable to accomplish the purposes of Section 5.01(a), including any termination statements, endorsements or other instruments of transfer or release.
(c) Notwithstanding anything to the contrary in any Junior Priority Collateral Document, in the event the terms of a Senior Collateral Document and a Junior Priority Collateral Document each require any Grantor (i) to make payment in respect of any item of Shared Collateral, (ii) to deliver or afford control over any item of Shared Collateral to, or deposit any item of Shared Collateral with, (iii) to register ownership of any item of Shared Collateral in the name of or make an assignment of ownership of any Shared Collateral or the rights thereunder to, (iv) cause any securities intermediary, commodity intermediary or other Person acting in a similar capacity to agree to comply, in respect of any item of Shared Collateral, with instructions or orders from, or to treat, in respect of any item of Shared Collateral, as the entitlement holder, (v) hold any item of Shared Collateral in trust for (to the extent such item of Shared Collateral cannot be held in trust for multiple parties under applicable law), (vi) obtain the agreement of a bailee or other third party to hold any item of Shared Collateral for the benefit of or subject to the control of or, in respect of any item of Shared Collateral, to follow the instructions of or (vii) obtain the agreement of a landlord with respect to access to leased premises where any item of Shared Collateral is located or waivers or subordination of rights with respect to any item of Shared Collateral in favor of, in any case, both the Designated Senior Representative and any Junior Priority Representative or Junior Priority Debt Party, such Grantor may, until the applicable Discharge of Senior Obligations has occurred, comply with such requirement under the applicable Junior Priority Collateral Document as it relates to such Shared Collateral by taking any of the actions set forth above only with respect to, or in favor of, the Designated Senior Representative.
Appears in 1 contract
Samples: Credit Agreement (Weight Watchers International Inc)
Releases. (a) Each Junior Second Priority Representative, for itself and on behalf of each Junior Second Priority Debt Secured Party under its Junior Second Priority Debt Facility, hereby agrees that, in the event of a sale, transfer or other disposition Disposition of any specified item of Shared Collateral (including all or substantially all of the equity interests of the Borrower or any subsidiary of the Borrower) (i) in connection with the exercise of remedies by the Designated Senior Priority Representative in respect of Collateral or (ii) if not in connection with the exercise of remedies by the Designated Senior Priority Representative in respect of Collateral, so long as such Disposition is permitted by the terms of the Second Priority Debt Documents and, in each case, other than a release granted upon or following in connection with the Discharge of Senior Priority Obligations, the Liens granted to the Junior Second Priority Representatives and the Junior Second Priority Debt Secured Parties upon such Shared Collateral to secure Junior Priority Debt Obligations shall terminate and be released, automatically and without any further action, concurrently with the termination and release of all Liens granted upon such Shared Collateral to secure Senior Priority Obligations; provided that, that such termination and release shall not apply to the Second Priority Representative’s Lien (and the Second Priority Representative shall retain a Lien) in the case proceeds of any such sale, transfer or other disposition of Shared Collateral (other than any sale, transfer or other disposition that are not applied to the Senior Priority Obligations in connection accordance with the enforcement or exercise of any rights or remedies with respect to the Shared Collateral), the Liens granted to the Junior Priority Representatives and the Junior Senior Priority Debt Parties shall not be so released if such sale, transfer Documents or other disposition is not permitted under the terms of any Junior Priority Debt Documentthis Agreement. Upon delivery to a Junior Second Priority Representative of (i) an Officer’s Certificate stating that any such termination and release of Liens securing the Senior Priority Obligations has become effective (or shall become effective concurrently with such termination and release of the Liens granted to the Junior Second Priority Debt Secured Parties and (ii) the Junior Second Priority Representatives) and any necessary or proper instruments of termination or release prepared by Holdings, the Borrower or any other Grantor, such Junior Second Priority Representative will promptly execute, deliver or acknowledge, at Holdings’, the Borrower’s or the other Grantor’s sole cost and expenseexpense and without any representation or warranty, such instruments to evidence such termination and release of the Liens. Nothing in this Section 5.01(a) will clause shall be deemed to affect limit (x) any agreement of a Junior Second Priority Representative, for itself and on behalf of the Junior Second Priority Debt Secured Parties under its Junior Second Priority Debt Facility, to release the Liens on the Junior Second Priority Collateral as set forth in the relevant Junior Second Priority Debt DocumentsDocuments or (y) any of the provisions of Section 6.11 hereof.
(b) Each Junior Second Priority Representative, for itself and on behalf of each Junior Second Priority Debt Secured Party under its Junior Second Priority Debt Facility, hereby irrevocably constitutes and appoints the Designated Senior Priority Representative and any officer or agent of the Designated Senior Priority Representative, with full power of substitution, as its true and lawful attorney-in-fact with full irrevocable power and authority in the place and stead of such Junior Second Priority Representative or such Junior Second Priority Debt Secured Party or in the Designated Senior Priority Representative’s own name, from time to time in the Designated Senior Priority Representative’s discretion, for the purpose of carrying out the terms of Section 5.01(a)) hereof, to take any and all appropriate action and to execute any and all documents and instruments that may be necessary or desirable to accomplish the purposes of Section 5.01(a)) hereof, including any termination statements, endorsements or other instruments of transfer or release.
(c) Unless and until the Discharge of Senior Priority Obligations has occurred, each Second Priority Representative, for itself and on behalf of each Second Priority Secured Party under its Second Priority Debt Facility, hereby consents to the application, whether prior to or after an event of default under any Senior Priority Debt Document, of proceeds of Shared Collateral to the repayment of Senior Priority Obligations pursuant to the Senior Priority Debt Documents; provided that nothing in this Section 5.01(c) shall be construed to prevent or impair the rights of the Second Priority Representatives or the Second Priority Secured Parties to receive proceeds in connection with the Second Priority Obligations not otherwise in contravention of this Agreement.
(d) Notwithstanding anything to the contrary in any Junior Second Priority Collateral Document, in the event the terms of a Senior Collateral Document and a Junior Second Priority Collateral Document each require any Grantor (i) to make payment in respect of any item of Shared Second Priority Collateral, (ii) to deliver or afford control over any item of Shared Second Priority Collateral to, or deposit any item of Shared Second Priority Collateral with, (iii) to register ownership of any item of Shared Second Priority Collateral in the name of or make an assignment of ownership of any Shared Second Priority Collateral or the rights thereunder to, (iv) cause any securities intermediary, commodity intermediary or other Person acting in a similar capacity to agree to comply, in respect of any item of Shared Second Priority Collateral, with instructions or orders from, or to treat, in respect of any item of Shared Second Priority Collateral, as the entitlement holder, (v) hold any item of Shared Second Priority Collateral in trust for (to the extent such item of Shared Second Priority Collateral cannot be held in trust for multiple parties under applicable lawLaw), (vi) obtain the agreement of a bailee or other third party to hold any item of Shared Second Priority Collateral for the benefit of or subject to the control of or, in respect of any item of Shared Second Priority Collateral, to follow the instructions of or (vii) obtain the agreement of a landlord with respect to access to leased premises where any item of Shared Second Priority Collateral is located or waivers or subordination of rights with respect to any item of Shared Second Priority Collateral in favor of, in of any case, both the Designated Senior Representative and any Junior Second Priority Representative or Junior Second Priority Debt Secured Party, such Grantor mayshall, until the applicable Discharge of Senior Priority Obligations has occurred, comply be deemed to have complied with such requirement under the applicable Junior Second Priority Collateral Document as it relates to such Shared Second Priority Collateral by taking any of the actions set forth above only with respect to, in favor of or in favor accordance with the instructions of, the Designated Senior Priority Representative.
Appears in 1 contract
Samples: First Lien/Second Lien Intercreditor Agreement (GMS Inc.)
Releases. (a) Each Junior Second Priority Representative, for itself and on behalf of each Junior Second Priority Debt Party under its Junior Second Priority Debt Facility, agrees that, in the event of a sale, transfer or other disposition of any specified item of Shared Collateral (including all or substantially all of the equity interests of any subsidiary of the BorrowerCompany) other than a release granted upon (i) in connection with the exercise of remedies in respect of Collateral or following (ii) if not in connection with the Discharge exercise of Senior Obligationsremedies in respect of the Collateral, so long as an Event of Default (as defined in and under any Second Priority Debt Document) has not occurred and is continuing, the Liens granted to the Junior Second Priority Representatives and the Junior Second Priority Debt Parties upon such Shared Collateral to secure Junior Second Priority Debt Obligations shall terminate and be released, automatically and without any further action, concurrently with the termination and release of all Liens granted upon such Shared Collateral to secure Senior Obligations; provided that, in the case of any such sale, transfer or other disposition of Shared Collateral (other than any sale, transfer or other disposition in connection with the enforcement or exercise of any rights or remedies with respect to the Shared Collateral), the Liens granted to the Junior Priority Representatives and the Junior Priority Debt Parties shall not be so released if such sale, transfer or other disposition is not permitted under the terms of any Junior Priority Debt Document. Upon delivery to a Junior Second Priority Representative of an Officer’s Certificate stating that any such termination and release of Liens securing the Senior Obligations has become effective (or shall become effective concurrently with such termination and release of the Liens granted to the Junior Second Priority Debt Parties and the Junior Second Priority Representatives) and any necessary or proper instruments of termination or release prepared by the Borrower Company or any other Grantor, such Junior Second Priority Representative will promptly execute, deliver or acknowledge, at the BorrowerCompany’s or the other Grantor’s sole cost and expense, such instruments to evidence such termination and release of the Liens. Nothing in this Section 5.01(a) will be deemed to affect any agreement of a Junior Second Priority Representative, for itself and on behalf of the Junior Second Priority Debt Parties under its Junior Second Priority Debt Facility, to release the Liens on the Junior Second Priority Collateral as set forth in the relevant Junior Second Priority Debt Documents.
(b) Each Junior Second Priority Representative, for itself and on behalf of each Junior Second Priority Debt Party under its Junior Second Priority Debt Facility, hereby irrevocably constitutes and appoints the Designated Senior Representative and any officer or agent of the Designated Senior Representative, with full power of substitution, as its true and lawful attorney-in-fact with full irrevocable power and authority in the place and stead of such Junior Second Priority Representative or such Junior Second Priority Debt Party or in the Designated Senior Representative’s own name, from time to time in the Designated Senior Representative’s discretion, for the purpose of carrying out the terms of Section 5.01(a), to take any and all appropriate action and to execute any and all documents and instruments that may be necessary or desirable to accomplish the purposes of Section 5.01(a), including any termination statements, endorsements or other instruments of transfer or release.
(c) Unless and until the Discharge of Senior Obligations has occurred, each Second Priority Representative, for itself and on behalf of each Second Priority Debt Party under its Second Priority Debt Facility, hereby consents to the application, whether prior to or after an event of default under any Senior Debt Document of proceeds of Shared Collateral to the repayment of Senior Obligations pursuant to the Senior Debt Documents, provided that nothing in this Section 5.01(c) shall be construed to prevent or impair the rights of the Second Priority Representatives or the Second Priority Debt Parties to receive proceeds in connection with the Second Priority Debt Obligations not otherwise in contravention of this Agreement.
(d) Notwithstanding anything to the contrary in any Junior Second Priority Collateral Document, in the event the terms of a Senior Collateral Document and a Junior Second Priority Collateral Document each require any Grantor (i) to make payment in respect of any item of Shared Collateral, (ii) to deliver or afford control over any item of Shared Collateral to, or deposit any item of Shared Collateral with, (iii) to register ownership of any item of Shared Collateral in the name of or make an assignment of ownership of any Shared Collateral or the rights thereunder to, (iv) cause any securities intermediary, commodity intermediary or other Person acting in a similar capacity to agree to comply, in respect of any item of Shared Collateral, with instructions or orders from, or to treat, in respect of any item of Shared Collateral, as the entitlement holder, (v) hold any item of Shared Collateral in trust for (to the extent such item of Shared Collateral cannot be held in trust for multiple parties under applicable law), (vi) obtain the agreement of a bailee or other third party to hold any item of Shared Collateral for the benefit of or subject to the control of or, in respect of any item of Shared Collateral, to follow the instructions of or (vii) obtain the agreement of a landlord with respect to access to leased premises where any item of Shared Collateral is located or waivers or subordination of rights with respect to any item of Shared Collateral in favor of, in any case, both the Designated Senior Representative and any Junior Second Priority Representative or Junior Second Priority Debt Party, such Grantor may, until the applicable Discharge of Senior Obligations has occurred, comply with such requirement under the applicable Junior Second Priority Collateral Document as it relates to such Shared Collateral by taking any of the actions set forth above only with respect to, or in favor of, the Designated Senior Representative.
Appears in 1 contract
Releases. (a) [Each Junior Second Priority Representative, for itself and on behalf of each Junior Second Priority Debt Party under its Junior Second Priority Debt Facility, agrees that, in the event of a sale, transfer or other disposition of any specified item of Shared Collateral (including all or substantially all of the equity interests of any subsidiary of the Borrower) other than a release granted upon or following the Discharge of Senior Obligations), the Liens granted to the Junior Second Priority Representatives and the Junior Second Priority Debt Parties upon such Shared Collateral to secure Junior Second Priority Debt Obligations shall terminate and be released, automatically and without any further action, concurrently with the termination and release of all Liens granted upon such Shared Collateral to secure Senior Obligations; provided that, in the case of any such sale, transfer or other disposition of Shared Collateral (other than any sale, transfer or other disposition in connection with the enforcement or exercise of any rights or remedies with respect to the Shared Collateral), the Liens granted to the Junior Priority Representatives and the Junior Priority Debt Parties shall not be so released if such sale, transfer or other disposition is not permitted under the terms of any Junior Priority Debt Document. Upon delivery to a Junior Second Priority Representative of an Officer’s Certificate stating that any such termination and release of Liens securing the Senior Obligations has become effective (or shall become effective concurrently with such termination and release of the Liens granted to the Junior Second Priority Debt Parties and the Junior Second Priority Representatives) and any necessary or proper instruments of termination or release prepared by the Borrower or any other Grantor, such Junior Second Priority Representative will promptly execute, deliver or acknowledge, at the Borrower’s or the other Grantor’s sole cost and expense, such instruments to evidence such termination and release of the Liens. Nothing in this Section 5.01(a) will be deemed to affect any agreement of a Junior Second Priority Representative, for itself and on behalf of the Junior Second Priority Debt Parties under its Junior Second Priority Debt Facility, to release the Liens on the Junior Second Priority Collateral as set forth in the relevant Junior Second Priority Debt Documents.Documents.]1
(b) Each Junior Second Priority Representative, for itself and on behalf of each Junior Second Priority Debt Party under its Junior Second Priority Debt Facility, hereby irrevocably constitutes and appoints the Designated Senior Representative and any officer or agent of the Designated Senior Representative, with full power of substitution, as its true and lawful attorney-in-fact with full irrevocable power and authority in the place and stead of such Junior Second Priority Representative or such Junior Second Priority Debt Party or in the Designated Senior Representative’s own name, from time to time in the Designated Senior Representative’s discretion, for the purpose of carrying out the terms of Section 5.01(a), to take any and all appropriate action and to execute any and all documents and instruments that may be necessary or desirable to accomplish the purposes of Section 5.01(a), including any termination statements, endorsements or other instruments of transfer or release.
(c) Unless and until the Discharge of Senior Obligations has occurred, each Second Priority Representative, for itself and on behalf of each Second Priority Debt Party under its Second Priority Debt Facility, hereby consents to the application, whether prior to or after an event of default under any Senior Debt Document of proceeds of Shared Collateral to the repayment of Senior Obligations pursuant to the Senior Debt Documents, provided that nothing in this Section 5.01(c) shall be construed to prevent or impair the rights of the Second Priority Representatives or the Second Priority Debt Parties to receive proceeds in connection with the Second Priority Debt Obligations not otherwise in contravention of this Agreement.
(d) Notwithstanding anything to the contrary in any Junior Second Priority Collateral Document, in the event the terms of a Senior Collateral Document and a Junior Second Priority Collateral Document each require any Grantor (i) to make payment in respect of any item of Shared CollateralCollateral to, (ii) to deliver or afford control over any item of Shared Collateral to, or deposit any item of Shared Collateral with, (iii) to register ownership of any item of Shared Collateral in the name of or make an assignment of ownership of any Shared Collateral or the rights thereunder to, (iv) cause any securities intermediary, commodity intermediary or other Person acting in a similar capacity to agree to comply, in respect of any item of Shared Collateral, with instructions or orders from, or to treat, in respect of any item of Shared Collateral, as the entitlement holder, (v) hold any item 1 This provision shall be applicable only in the event of Shared Collateral the exercise of remedies in trust for (to connection with the extent such item of Shared Collateral cannot be held in trust for multiple parties under applicable law), (vi) obtain the agreement of a bailee or other third party to hold any item of Shared Collateral for the benefit of or subject to the control of or, in respect of any item of Shared Collateral, to follow the instructions of or (vii) obtain the agreement of a landlord with respect to access to leased premises where any item of Shared Collateral is located or waivers or subordination of rights with respect to any item of Shared Collateral in favor of, in any case, both the Designated Senior Representative and any Junior Priority Representative or Junior Priority Debt Party, such Grantor may, until the applicable Discharge enforcement of Senior Obligations has occurred, comply with such requirement under the applicable Junior Priority Collateral Document as it relates to such Shared Collateral by taking any of the actions set forth above only with respect to, or in favor of, the Designated Senior RepresentativeObligations.
Appears in 1 contract
Releases. Subtenant hereby releases the Main Landlord and each Condominium Board and the other Superior Parties with respect to any covered loss (including a claim for negligence, but excluding a claim based upon willful misconduct) which any of the foregoing might otherwise have against the other for loss, damage or destruction with respect to Subtenant’s Property by fire or other covered peril (including rental value or business interruption) occurring during the Term to the extent to which any of the foregoing are insured under a policy containing a waiver of subrogation or permission for waiver. Notwithstanding anything contained in this Sublease to the contrary, neither Main Landlord nor Sublandlord shall be liable to Subtenant in connection with any matter arising from or relating to this Sublease for any consequential, special or indirect damages. The provisions of this Section shall survive the expiration or earlier termination of this Sublease. Subtenant will cause its insurance carriers to include any clauses or endorsements in favor of the Main Landlord and Sublandlord which Sublandlord is required to provide pursuant to the provisions of the Main Lease as follows: (a) Each Junior Priority Representativethe insurance company shall provide Sublandlord with thirty (30) days’ prior notice, for itself and on behalf of each Junior Priority Debt Party under its Junior Priority Debt Facility, agrees that, or ten (10) days’ prior notice in the event of cancellation for nonpayment of premium, before Subtenant’s insurance policy shall be cancelled; (b) Subtenant shall be solely responsible for the payment of premiums therefor notwithstanding that Sublandlord is named as an additional insured with respect to general liability insurance; (c) a sale, transfer or other disposition completed operations endorsement to Subtenant’s commercial general liability insurance; and (d) a stipulated (agreed) valuation endorsement for Subtenant’s “cause of any specified item loss/special form” coverage upon Subtenant’s Property for one hundred percent (100%) of Shared Collateral (including all or substantially all replacement cost. Each of the equity interests of any subsidiary of the Borrower) other than a release granted upon or following the Discharge of Senior ObligationsLandlord, the Liens granted to Condominium, any Superior Party, including the Junior Priority Representatives Public Parties, and the Junior Priority Debt Parties upon such Shared Collateral to secure Junior Priority Debt Obligations shall terminate and be releasedSublandlord, automatically and without any further action, concurrently with the termination and release of all Liens granted upon such Shared Collateral to secure Senior Obligations; provided that, in the case of any such sale, transfer or other disposition of Shared Collateral (other than any sale, transfer or other disposition in connection with the enforcement or exercise of any rights or remedies although named as additional insureds with respect to the Shared Collateral)general liability, nevertheless shall continue to be named as such additional insured under said policies for so long as such policies are in effect for any loss or damages occasioned during the Liens granted Term to the Junior Priority Representatives any of them, their respective agents, employees, contractors, directors, shareholders, partners and the Junior Priority Debt Parties shall not be so released if such sale, transfer principals (disclosed or other disposition is not permitted under the terms of any Junior Priority Debt Document. Upon delivery to a Junior Priority Representative of an Officer’s Certificate stating that any such termination and release of Liens securing the Senior Obligations has become effective (or shall become effective concurrently with such termination and release undisclosed) by reason of the Liens granted to the Junior Priority Debt Parties negligence, acts or omissions of Subtenant, its servants, agents and the Junior Priority Representatives) and any necessary or proper instruments of termination or release prepared by the Borrower or any other Grantor, such Junior Priority Representative will promptly execute, deliver or acknowledge, at the Borrower’s or the other Grantor’s sole cost and expense, such instruments to evidence such termination and release of the Liens. Nothing in this Section 5.01(a) will be deemed to affect any agreement of a Junior Priority Representative, for itself and on behalf of the Junior Priority Debt Parties under its Junior Priority Debt Facility, to release the Liens on the Junior Priority Collateral as set forth in the relevant Junior Priority Debt Documentsemployees.
(b) Each Junior Priority Representative, for itself and on behalf of each Junior Priority Debt Party under its Junior Priority Debt Facility, hereby irrevocably constitutes and appoints the Designated Senior Representative and any officer or agent of the Designated Senior Representative, with full power of substitution, as its true and lawful attorney-in-fact with full irrevocable power and authority in the place and stead of such Junior Priority Representative or such Junior Priority Debt Party or in the Designated Senior Representative’s own name, from time to time in the Designated Senior Representative’s discretion, for the purpose of carrying out the terms of Section 5.01(a), to take any and all appropriate action and to execute any and all documents and instruments that may be necessary or desirable to accomplish the purposes of Section 5.01(a), including any termination statements, endorsements or other instruments of transfer or release.
(c) Notwithstanding anything to the contrary in any Junior Priority Collateral Document, in the event the terms of a Senior Collateral Document and a Junior Priority Collateral Document each require any Grantor (i) to make payment in respect of any item of Shared Collateral, (ii) to deliver or afford control over any item of Shared Collateral to, or deposit any item of Shared Collateral with, (iii) to register ownership of any item of Shared Collateral in the name of or make an assignment of ownership of any Shared Collateral or the rights thereunder to, (iv) cause any securities intermediary, commodity intermediary or other Person acting in a similar capacity to agree to comply, in respect of any item of Shared Collateral, with instructions or orders from, or to treat, in respect of any item of Shared Collateral, as the entitlement holder, (v) hold any item of Shared Collateral in trust for (to the extent such item of Shared Collateral cannot be held in trust for multiple parties under applicable law), (vi) obtain the agreement of a bailee or other third party to hold any item of Shared Collateral for the benefit of or subject to the control of or, in respect of any item of Shared Collateral, to follow the instructions of or (vii) obtain the agreement of a landlord with respect to access to leased premises where any item of Shared Collateral is located or waivers or subordination of rights with respect to any item of Shared Collateral in favor of, in any case, both the Designated Senior Representative and any Junior Priority Representative or Junior Priority Debt Party, such Grantor may, until the applicable Discharge of Senior Obligations has occurred, comply with such requirement under the applicable Junior Priority Collateral Document as it relates to such Shared Collateral by taking any of the actions set forth above only with respect to, or in favor of, the Designated Senior Representative.
Appears in 1 contract
Samples: Sublease (Datadog, Inc.)
Releases. (a) Each Junior Priority RepresentativeOn or prior to the Closing Date, for itself and on behalf of Sellers will cause each Junior Priority Debt Party under its Junior Priority Debt Facility, agrees that, in the event of person or entity possessing a sale, transfer security interest or other disposition lien in any assets of any specified item of Shared Collateral (the Company, to release all such liens and security interests, including all financing statements evidencing same. Sellers will provide all such releases to Purchaser on or substantially all of before the equity interests of any subsidiary of the Borrower) other than Closing Date. 5.5 Confidentiality. Sellers acknowledge and agree that because Purchaser’s Parent is a release granted upon or following the Discharge of Senior Obligationspublic company, the Liens granted to the Junior Priority Representatives and the Junior Priority Debt Parties upon such Shared Collateral to secure Junior Priority Debt Obligations shall terminate and be released, automatically and without any further action, concurrently with the termination and release of all Liens granted upon such Shared Collateral to secure Senior Obligations; provided that, in the case of any such sale, transfer or other disposition of Shared Collateral (other than any sale, transfer or other disposition except in connection with the enforcement or exercise Sellers’ obligations under Sections 5.3 and 5.4, Sellers are required to keep (and will keep) this Agreement and all information relating to this Agreement and the transactions contemplated hereby confidential until it is disclosed by Purchaser’s Parent. Sellers will treat and hold as confidential all of the Confidential Information (as hereinafter defined), refrain from using any rights or remedies of the Confidential Information except in connection with respect this Agreement, and deliver promptly to the Shared Collateral), the Liens granted to the Junior Priority Representatives and the Junior Priority Debt Parties shall not be so released if such sale, transfer Purchaser or other disposition is not permitted under the terms of any Junior Priority Debt Document. Upon delivery to a Junior Priority Representative of an Officer’s Certificate stating that any such termination and release of Liens securing the Senior Obligations has become effective (or shall become effective concurrently with such termination and release of the Liens granted to the Junior Priority Debt Parties and the Junior Priority Representatives) and any necessary or proper instruments of termination or release prepared by the Borrower or any other Grantor, such Junior Priority Representative will promptly execute, deliver or acknowledgedestroy, at the Borrower’s or the other Grantor’s sole cost request and expense, such instruments to evidence such termination and release option of the LiensPurchaser, all tangible embodiments (and all copies) of the Confidential Information which are in his or its possession. Nothing In the event that Sellers are requested or required (by oral question or request for information or documents in any legal proceeding, interrogatory, subpoena, civil investigation demand, or similar process) to disclose any Confidential Information, Sellers will notify the Purchaser promptly of the request or requirement so that the Purchaser may seek an appropriate protective order or waive compliance with the provisions of this Section 5.01(a) will be deemed to affect any agreement of a Junior Priority Representative, for itself and on behalf of the Junior Priority Debt Parties under its Junior Priority Debt Facility, to release the Liens on the Junior Priority Collateral as set forth in the relevant Junior Priority Debt Documents.
(b) Each Junior Priority Representative, for itself and on behalf of each Junior Priority Debt Party under its Junior Priority Debt Facility, hereby irrevocably constitutes and appoints the Designated Senior Representative and any officer or agent of the Designated Senior Representative, with full power of substitution, as its true and lawful attorney-in-fact with full irrevocable power and authority in the place and stead of such Junior Priority Representative or such Junior Priority Debt Party or in the Designated Senior Representative’s own name, from time to time in the Designated Senior Representative’s discretion, for the purpose of carrying out the terms of Section 5.01(a), to take any and all appropriate action and to execute any and all documents and instruments that may be necessary or desirable to accomplish the purposes of Section 5.01(a), including any termination statements, endorsements or other instruments of transfer or release.
(c) Notwithstanding anything to the contrary in any Junior Priority Collateral Document5.5. If, in the event the terms absence of a Senior Collateral Document and a Junior Priority Collateral Document each require any Grantor (i) to make payment in respect of any item of Shared Collateral, (ii) to deliver or afford control over any item of Shared Collateral to, or deposit any item of Shared Collateral with, (iii) to register ownership of any item of Shared Collateral in the name of or make an assignment of ownership of any Shared Collateral protective order or the rights thereunder toreceipt of a waiver hereunder, (iv) cause Sellers are, on the advice of counsel, compelled to disclose any securities intermediaryConfidential Information to any tribunal or else stand liable for contempt, commodity intermediary Sellers may disclose the Confidential Information to the tribunal; provided, however, that the disclosing Seller will use his reasonable best efforts to obtain, at the request of the Purchaser, an order or other Person acting in a similar capacity assurance that confidential treatment will be accorded to agree such portion of the Confidential Information required to comply, in respect of any item of Shared Collateral, with instructions or orders from, or to treat, in respect of any item of Shared Collateral, be disclosed as the entitlement holder, (v) hold Purchaser will designate. As used herein the term “Confidential Information” will mean any item material information concerning the businesses and affairs of Shared Collateral in trust for (the Purchaser that is not generally available to the extent such item of Shared Collateral cannot be held in trust for multiple parties under applicable law), (vi) obtain the agreement of a bailee or other third party to hold any item of Shared Collateral for the benefit of or subject public immediately prior to the control time of or, in respect of any item of Shared Collateral, to follow the instructions of or (vii) obtain the agreement of a landlord with respect to access to leased premises where any item of Shared Collateral is located or waivers or subordination of rights with respect to any item of Shared Collateral in favor of, in any case, both the Designated Senior Representative and any Junior Priority Representative or Junior Priority Debt Party, such Grantor may, until the applicable Discharge of Senior Obligations has occurred, comply with such requirement under the applicable Junior Priority Collateral Document as it relates to such Shared Collateral by taking any of the actions set forth above only with respect to, or in favor of, the Designated Senior Representativedisclosure.
Appears in 1 contract
Samples: Stock Purchase Agreement (First Cash Financial Services Inc)
Releases. (a) Each Junior Second Priority Representative, for itself and on behalf of each Junior Second Priority Debt Party under its Junior Second Priority Debt Facility, agrees that, in the event of a sale, transfer or other disposition of any specified item of Shared Collateral (including all or substantially all of the equity interests of any subsidiary of the BorrowerCompany) other than (a release granted upon or following the Discharge of Senior Obligations“Disposition”), the Liens granted to the Junior Second Priority Representatives and the Junior Second Priority Debt Parties upon such Shared Collateral to secure Junior Second Priority Debt Obligations shall terminate and be released, automatically and without any further action, concurrently with the termination and release of all Liens granted upon such Shared Collateral to secure Senior Obligations; provided that, in the case of any such sale, transfer or other disposition of Shared Collateral (other than any sale, transfer or other disposition in connection with the enforcement or exercise of any rights or remedies with respect to the Shared Collateral), the Liens granted to the Junior Priority Representatives and the Junior Priority Debt Parties shall not be so released if such sale, transfer or other disposition is not permitted under the terms of any Junior Priority Debt Document. Upon delivery to a Junior Second Priority Representative of an Officer’s Certificate stating that any such termination and release of Liens securing the Senior Obligations has become effective (or shall become effective concurrently with such termination and release of the Liens granted to the Junior Second Priority Debt Parties and the Junior Second Priority Representatives) and any necessary or proper instruments of termination or release prepared by the Borrower Company or any other Grantor, such Junior Second Priority Representative will promptly execute, deliver or acknowledge, at the BorrowerCompany’s or the other Grantor’s sole cost and expense, such instruments to evidence such termination and release of the Liens. Nothing in this Section 5.01(a) will be deemed to (x) affect any agreement of a Junior Second Priority Representative, for itself and on behalf of the Junior Second Priority Debt Parties under its Junior Second Priority Debt Facility, to release the Liens on the Junior Second Priority Collateral as set forth in the relevant Junior Second Priority Debt Documents or (y) except in the case of a Disposition in connection with the exercise of secured creditors’ rights and remedies, require the release of Liens granted upon such Shared Collateral to secure Second Priority Debt Obligations if such Disposition is not permitted under the terms of the Second Priority Debt Documents.
(b) Each Junior Second Priority Representative, for itself and on behalf of each Junior Second Priority Debt Party under its Junior Second Priority Debt Facility, hereby irrevocably constitutes and appoints the Designated Senior Representative and any officer or agent of the Designated Senior Representative, with full power of substitution, as its true and lawful attorney-in-fact with full irrevocable power and authority in the place and stead of such Junior Second Priority Representative or such Junior Second Priority Debt Party or in the Designated Senior Representative’s own name, from time to time in the Designated Senior Representative’s discretion, for the purpose of carrying out the terms of Section 5.01(a), to take any and all appropriate action and to execute any and all documents and instruments that may be necessary or desirable to accomplish the purposes of Section 5.01(a), including any termination statements, endorsements or other instruments of transfer or release.
(c) Unless and until the Discharge of Senior Obligations has occurred, each Second Priority Representative, for itself and on behalf of each Second Priority Debt Party under its Second Priority Debt Facility, hereby consents to the application, whether prior to or after an event of default under any Senior Debt Document of proceeds of Shared Collateral to the repayment of Senior Obligations pursuant to the Senior Debt Documents, provided that nothing in this Section 5.01(c) shall be construed to prevent or impair the rights of the Second Priority Representatives or the Second Priority Debt Parties to receive proceeds in connection with the Second Priority Debt Obligations not otherwise in contravention of this Agreement.
(d) Notwithstanding anything to the contrary in any Junior Second Priority Collateral Document, in the event the terms of a Senior Collateral Document and a Junior Second Priority Collateral Document each require any Grantor (i) to make payment in respect of any item of Shared CollateralCollateral to, (ii) to deliver or afford control over any item of Shared Collateral to, or deposit any item of Shared Collateral with, (iii) to register ownership of any item of Shared Collateral in the name of or make an assignment of ownership of any Shared Collateral or the rights thereunder to, (iv) cause any securities intermediary, commodity intermediary or other Person acting in a similar capacity to agree to comply, in respect of any item of Shared Collateral, with instructions or orders from, or to treat, in respect of any item of Shared Collateral, as the entitlement holder, (v) hold any item of Shared Collateral in trust for (to the extent such item of Shared Collateral cannot be held in trust for multiple parties under applicable law), (vi) obtain the agreement of a bailee or other third party to hold any item of Shared Collateral for the benefit of or subject to the control of or, in respect of any item of Shared Collateral, to follow the instructions of or (vii) obtain the agreement of a landlord with respect to access to leased premises where any item of Shared Collateral is located or waivers or subordination of rights with respect to any item of Shared Collateral in favor of, in any case, both the Designated Senior Representative and any Junior Second Priority Representative or Junior Second Priority Debt Party, such Grantor may, until the applicable Discharge of Senior Obligations has occurred, comply with such requirement under the applicable Junior Second Priority Collateral Document as it relates to such Shared Collateral by taking any of the actions set forth above only with respect to, or in favor of, the Designated Senior Representative.
Appears in 1 contract
Samples: Intercreditor Agreement (Endurance International Group Holdings, Inc.)
Releases. (a) Each Junior Second Priority Representative, for itself and on behalf of each Junior Second Priority Debt Party under its Junior Second Priority Debt Facility, agrees that, in the event of a sale, transfer or other disposition of any specified item of Shared Collateral (including all or substantially all of the equity interests of any subsidiary of the BorrowerSubsidiary) other than a release granted upon or following the Discharge of Senior Obligations, the Liens granted to the Junior Second Priority Representatives and the Junior Second Priority Debt Parties upon such Shared Collateral to secure Junior Second Priority Debt Obligations shall terminate and be releasedreleased and any Guarantor released from its obligations under its guaranty of Senior Obligations released by a Senior Representative shall be released under its guaranty of Second Priority Debt Obligations, automatically and without any further action, concurrently with the termination and release of all Liens granted upon such Shared Collateral to secure Senior Obligations or the release of such Grantor under its guaranty of Senor Obligations, as applicable; provided that, in the case of any such sale, transfer or other disposition of Shared Collateral (other than any sale, transfer or other disposition in connection with the enforcement or exercise of any rights or remedies with respect to the Shared Collateral), the Liens granted to the Junior Second Priority Representatives and the Junior Second Priority Debt Parties shall not be so released if such sale, transfer or other disposition is not permitted under the terms of any Junior Second Priority Debt DocumentDocument and, in the case of the release of any Grantor from its guaranty of Second Priority Debt Obligations (other than any release in connection with a sale, transfer or other disposition in connection with the enforcement or exercise of any rights or remedies with respect to equity interests in any Grantor which equity interests constitute Shared Collateral), such guaranty shall not be so released if such release is not permitted under the applicable Second Priority Debt Documents. Upon delivery to a Junior Second Priority Representative of an Officer’s 's Certificate stating that any such termination and release of Liens securing the Senior Obligations has become effective (or shall become effective concurrently with such termination and release of the Liens granted to the Junior Second Priority Debt Parties and the Junior Second Priority Representatives) and any necessary or proper instruments of termination or release prepared by the Borrower or any other Grantor, such Junior Second Priority Representative will promptly execute, deliver or acknowledge, at the Borrower’s 's or the other Grantor’s 's sole cost and expense, such instruments as are reasonably requested to evidence such termination and release of the Liens. Nothing in this Section 5.01(a) will be deemed to affect any agreement of a Junior Second Priority Representative, for itself and on behalf of the Junior Second Priority Debt Parties under its Junior Second Priority Debt Facility, to release the Liens on the Junior Second Priority Collateral as set forth in the relevant Junior Second Priority Debt Documents.
(b) Each Junior Second Priority Representative, for itself and on behalf of each Junior Second Priority Debt Party under its Junior Second Priority Debt Facility, hereby irrevocably constitutes and appoints the Designated Senior Representative and any officer or agent of the Designated Senior Representative, with full power of substitution, as its true and lawful attorney-in-fact with full irrevocable power and authority in the place and stead of such Junior Second Priority Representative or such Junior Second Priority Debt Party or in the Designated Senior Representative’s 's own name, from time to time in the Designated Senior Representative’s 's discretion, for the purpose of carrying out the terms of Section 5.01(a), to take any and all appropriate action and to execute any and all documents and instruments that may be necessary or desirable to accomplish the purposes of Section 5.01(a), including any termination statements, endorsements or other instruments of transfer or release.
(c) Notwithstanding anything to the contrary in any Junior Second Priority Collateral Document, in the event the terms of a Senior Collateral Document and a Junior Second Priority Collateral Document each require any Grantor (i) to make payment in respect of any item of Shared Collateral, (ii) to deliver or afford control over any item of Shared Collateral to, or deposit any item of Shared Collateral with, (iii) to register ownership of any item of Shared Collateral in the name of or make an assignment of ownership of any Shared Collateral or the rights thereunder to, (iv) cause any securities intermediary, commodity intermediary or other Person acting in a similar capacity to agree to comply, in respect of any item of Shared Collateral, with instructions or orders from, or to treat, in respect of any item of Shared Collateral, as the entitlement holder, (v) hold any item of Shared Collateral in trust for (to the extent such item of Shared Collateral cannot be held in trust for multiple parties under applicable law), (vi) obtain the agreement of a bailee or other third party to hold any item of Shared Collateral for the benefit of or subject to the control of or, in respect of any item of Shared Collateral, to follow the instructions of or (vii) obtain the agreement of a landlord with respect to access to leased premises where any item of Shared Collateral is located or waivers or subordination of rights with respect to any item of Shared Collateral in favor of, in any case, both the Designated Senior Representative and any Junior Second Priority Representative or Junior Second Priority Debt Party, such Grantor may, until the applicable Discharge of Senior Obligations has occurred, comply with such requirement under the applicable Junior Second Priority Collateral Document as it relates to such Shared Collateral by taking any of the actions set forth above only with respect to, or in favor of, the Designated Senior Representative.
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Releases. (a) Each Junior Priority Representative, for itself and on behalf of each Junior Priority Debt Party under its Junior Priority Debt Facility, agrees that, Notwithstanding anything to the contrary contained in the event of a saleCredit Agreement, transfer herein or in any other disposition of any specified item of Shared Collateral (including all or substantially all Loan Document, upon request of the equity interests of any subsidiary of the Borrower) other than a release granted upon or following the Discharge of Senior Obligations, the Liens granted to the Junior Priority Representatives and the Junior Priority Debt Parties upon such Shared Collateral to secure Junior Priority Debt Obligations shall terminate and be released, automatically and without any further action, concurrently with the termination and release of all Liens granted upon such Shared Collateral to secure Senior Obligations; provided that, in the case of any such sale, transfer or other disposition of Shared Collateral (other than any sale, transfer or other disposition Borrower in connection with any Disposition of Property permitted by the enforcement Loan Documents, the Administrative Agent shall (without notice to or exercise vote or consent of any rights Lender, or remedies with respect any affiliate of any Lender that is a party to any Specified Hedge Agreement or any other Secured Party) take such actions as shall be required to release the Security Interest in any Collateral being Disposed of in such Disposition, and to release any guarantee obligations of any Person being Disposed of in such Disposition, to the Shared Collateral)extent necessary to permit consummation of such Disposition in accordance with the Loan Documents, provided that the Liens granted Borrower shall have delivered to the Junior Priority Representatives Administrative Agent, at least five (5) Business Days prior to the date of the proposed release, a written request for release identifying the relevant Collateral being Disposed of in such Disposition and the Junior Priority Debt Parties shall not be so released if such sale, transfer or other disposition is not permitted under the terms of any Junior Priority Debt Document. Upon delivery to a Junior Priority Representative of an Officer’s Certificate stating that any such termination and release of Liens securing Disposition in reasonable detail, including the Senior Obligations has become effective (or shall become effective concurrently with such termination and release of date thereof, the Liens granted to the Junior Priority Debt Parties and the Junior Priority Representatives) price thereof and any necessary or proper instruments of termination or release prepared estimated expenses in connection therewith, together with a certification by the Borrower or any other Grantor, stating that such Junior Priority Representative will promptly execute, deliver or acknowledge, at transaction is in compliance with the Borrower’s or Credit Agreement and the other Grantor’s sole cost Loan Documents and expense, that the proceeds of such instruments to evidence such termination and release of the Liens. Nothing in this Section 5.01(a) Disposition will be deemed to affect any agreement of a Junior Priority Representative, for itself applied in accordance with the Credit Agreement and on behalf of the Junior Priority Debt Parties under its Junior Priority Debt Facility, to release the Liens on the Junior Priority Collateral as set forth in the relevant Junior Priority Debt other Loan Documents.
(b) Each Junior Priority Representative, for itself and on behalf of each Junior Priority Debt Party under its Junior Priority Debt Facility, hereby irrevocably constitutes and appoints the Designated Senior Representative and If any officer or agent of the Designated Senior RepresentativeCollateral shall be Disposed of by any Grantor in a transaction permitted by the Credit Agreement, with full power then the Administrative Agent, at the request and sole expense of substitutionsuch Grantor, as shall execute and deliver to such Grantor all releases or other documents reasonably necessary or desirable for the release of the Liens created hereby on such Collateral. At the request and sole expense of the Borrower, a Subsidiary Guarantor shall be released from its true and lawful attorney-in-fact with full irrevocable power and authority obligations hereunder in the place and stead event that all the Capital Stock of such Junior Priority Representative or such Junior Priority Debt Party or Subsidiary Guarantor shall be Disposed of in a transaction permitted by the Designated Senior Representative’s own nameCredit Agreement; provided that the Borrower shall have delivered to the Administrative Agent, from time at least five (5) Business Days prior to time in the Designated Senior Representative’s discretiondate of the proposed release, a written request for release identifying the purpose of carrying out relevant Subsidiary Guarantor and the terms of Section 5.01(a), to take any and all appropriate action and to execute any and all documents and instruments that may be necessary or desirable to accomplish the purposes of Section 5.01(a)Disposition in reasonable detail, including any termination statements, endorsements or other instruments of transfer or release.
(c) Notwithstanding anything to the contrary in any Junior Priority Collateral Document, in the event the terms of a Senior Collateral Document and a Junior Priority Collateral Document each require any Grantor (i) to make payment in respect of any item of Shared Collateral, (ii) to deliver or afford control over any item of Shared Collateral to, or deposit any item of Shared Collateral with, (iii) to register ownership of any item of Shared Collateral in the name of or make an assignment of ownership of any Shared Collateral or the rights thereunder to, (iv) cause any securities intermediary, commodity intermediary or other Person acting in a similar capacity to agree to comply, in respect of any item of Shared Collateral, with instructions or orders from, or to treat, in respect of any item of Shared Collateral, as the entitlement holder, (v) hold any item of Shared Collateral in trust for (to the extent such item of Shared Collateral cannot be held in trust for multiple parties under applicable law), (vi) obtain the agreement of a bailee or other third party to hold any item of Shared Collateral for the benefit of or subject to the control of or, in respect of any item of Shared Collateral, to follow the instructions of or (vii) obtain the agreement of a landlord with respect to access to leased premises where any item of Shared Collateral is located or waivers or subordination of rights with respect to any item of Shared Collateral in favor of, in any case, both the Designated Senior Representative price thereof and any Junior Priority Representative or Junior Priority Debt Partyexpenses in connection therewith, together with a certification by the Borrower stating that such Grantor may, until transaction is in compliance with the applicable Discharge Credit Agreement and the other Loan Documents and that the Proceeds of Senior Obligations has occurred, comply with such requirement under the applicable Junior Priority Collateral Document as it relates to such Shared Collateral by taking any of the actions set forth above only with respect to, or Disposition will be applied in favor of, the Designated Senior Representativeaccordance therewith.
Appears in 1 contract
Samples: Guarantee and Collateral Agreement (Spanish Broadcasting System Inc)
Releases. (a) Each Junior Second Priority Representative, for itself and on behalf of each Junior Second Priority Debt Party under its Junior Second Priority Debt Facility, agrees that, in the event of a sale, transfer or other disposition of any specified item of Shared Collateral (including all or substantially all of the equity interests of any subsidiary of the Borrower) other than a release granted upon or following the Discharge of Senior Obligations), the Liens granted to the Junior Second Priority Representatives and the Junior Second Priority Debt Parties upon such Shared Collateral to secure Junior Second Priority Debt Obligations shall terminate and be released, automatically and without any further action, concurrently with the termination and release of all Liens granted upon such Shared Collateral to secure Senior Obligations; provided that, in the case of any such sale, transfer or other disposition of Shared Collateral (other than any sale, transfer or other disposition in connection with the enforcement or exercise of any rights or remedies with respect to the Shared Collateral), the Liens granted to the Junior Priority Representatives and the Junior Priority Debt Parties shall not be so released if such sale, transfer or other disposition is not permitted under the terms of any Junior Priority Debt Document. Upon delivery to a Junior Second Priority Representative of an Officer’s Certificate stating that any such termination and release of Liens securing the Senior Obligations has become effective (or shall become effective concurrently with such termination and release of the Liens granted to the Junior Second Priority Debt Parties and the Junior Second Priority Representatives) and any necessary or proper instruments of termination or release prepared by the Borrower or any other Grantor, such Junior Second Priority Representative will promptly execute, deliver or acknowledge, at the Borrower’s or the other Grantor’s sole cost and expense, such instruments to evidence such termination and release of the Liens. Nothing in this Section 5.01(a) will be deemed to affect any agreement of a Junior Second Priority Representative, for itself and on behalf of the Junior Second Priority Debt Parties under its Junior Second Priority Debt Facility, to release the Liens on the Junior Second Priority Collateral as set forth in the relevant Junior Second Priority Debt Documents.
(b) Each Junior Second Priority Representative, for itself and on behalf of each Junior Second Priority Debt Party under its Junior Second Priority Debt Facility, hereby irrevocably constitutes and appoints the Designated Senior Representative and any officer or agent of the Designated Senior Representative, with full power of substitution, as its true and lawful attorney-in-fact with full irrevocable power and authority in the place and stead of such Junior Second Priority Representative or such Junior Second Priority Debt Party or in the Designated Senior Representative’s own name, from time to time in the Designated Senior Representative’s discretion, for the purpose of carrying out the terms of Section 5.01(a), to take any and all appropriate action and to execute any and all documents and instruments that may be necessary or desirable to accomplish the purposes of Section 5.01(a), including any termination statements, endorsements or other instruments of transfer or release.
(c) Unless and until the Discharge of Senior Obligations has occurred, each Second Priority Representative, for itself and on behalf of each Second Priority Debt Party under its Second Priority Debt Facility, hereby consents to the application, whether prior to or after an event of default under any Senior Debt Document, of proceeds of Shared Collateral to the repayment of Senior Obligations pursuant to the Senior Debt Documents, provided that nothing in this Section 5.01(c) shall be construed to prevent or impair the rights of the Second Priority Representatives or the Second Priority Debt Parties to receive proceeds in connection with the Second Priority Debt Obligations not otherwise in contravention of this Agreement.
(d) Notwithstanding anything to the contrary in any Junior Second Priority Collateral Document, in the event the terms of a Senior Collateral Document and a Junior Second Priority Collateral Document each require any Grantor (i) to make payment in respect of any item of Shared CollateralCollateral to, (ii) to deliver or afford control over any item of Shared Collateral to, or deposit any item of Shared Collateral with, (iii) to register ownership of any item of Shared Collateral in the name of or make an assignment of ownership of any Shared Collateral or the rights thereunder to, (iv) cause any securities intermediary, commodity intermediary or other Person acting in a similar capacity to agree to comply, in respect of any item of Shared Collateral, with instructions or orders from, or to treat, in respect of any item of Shared Collateral, as the entitlement holder, (v) hold any item of Shared Collateral in trust for (to the extent such item of Shared Collateral cannot be held in trust for multiple parties under applicable law), (vi) obtain the agreement of a bailee or other third party to hold any item of Shared Collateral for the benefit of or subject to the control of or, in respect of any item of Shared Collateral, to follow the instructions of or (vii) obtain the agreement of a landlord with respect to access to leased premises where any item of Shared Collateral is located or waivers or subordination of rights with respect to any item of Shared Collateral in favor of, in any case, both the Designated Senior Representative and any Junior Second Priority Representative or Junior Second Priority Debt Party, such Grantor may, until the applicable Discharge of Senior Obligations has occurred, comply with such requirement under the applicable Junior Second Priority Collateral Document or Senior Collateral Document as it relates to such Shared Collateral by taking any of the actions set forth above only with respect to, or in favor of, the Designated Senior Representative.
Appears in 1 contract
Releases. (a) Each (i) If, in connection with any exercise of remedies or Enforcement (including as provided for in Section 3.1(b) or Section 6.8(a)) by the Prior Lien Agent or any Prior Lien Claimholder with respect to any ABL Priority Collateral, irrespective of whether an ABL Default, Senior Secured Notes Default or Junior Priority RepresentativeSecured Notes Default has occurred and its continuing, for itself and the Prior Lien Agent, on behalf of each Junior Priority Debt Party under its Junior Priority Debt Facility, agrees that, in the event of a sale, transfer or other disposition of any specified item of Shared Collateral (including all or substantially all of the equity interests Prior Lien Claimholders, releases any of its Liens on any subsidiary part of the Borrower) other than a release granted upon ABL Priority Collateral, then the Liens, if any, of the Subordinated Lien Agents, for the benefit of the Subordinated Lien Claimholders, on the ABL Priority Collateral sold or following the Discharge disposed of Senior Obligationsin connection therewith, the Liens granted to the Junior Priority Representatives shall be automatically, unconditionally and the Junior Priority Debt Parties upon such Shared Collateral to secure Junior Priority Debt Obligations shall terminate and be simultaneously released, automatically and without any further action, concurrently with the termination and release of all Liens granted upon such Shared Collateral to secure Senior Obligations; provided that, in to the case extent the Proceeds of any such saleABL Priority Collateral are not applied to reduce Prior Lien Obligations, transfer or other disposition of Shared Collateral (other than any sale, transfer or other disposition in connection the Subordinated Lien Agents shall retain Liens on such Proceeds with the enforcement or exercise of any rights or remedies with respect to the Shared Collateral)respective priorities set forth in Section 2.1. Each Subordinated Lien Agent, the Liens granted to the Junior Priority Representatives and the Junior Priority Debt Parties shall not be so released if such sale, transfer or other disposition is not permitted under the terms of any Junior Priority Debt Document. Upon delivery to a Junior Priority Representative of an Officer’s Certificate stating that any such termination and release of Liens securing the Senior Obligations has become effective (or shall become effective concurrently with such termination and release of the Liens granted to the Junior Priority Debt Parties and the Junior Priority Representatives) and any necessary or proper instruments of termination or release prepared by the Borrower or any other Grantor, such Junior Priority Representative will promptly execute, deliver or acknowledge, at the Borrower’s or the other Grantor’s sole cost and expense, such instruments to evidence such termination and release of the Liens. Nothing in this Section 5.01(a) will be deemed to affect any agreement of a Junior Priority Representative, for itself and on behalf of the Junior Priority Debt Parties under its Junior Priority Debt Facilityapplicable Subordinated Lien Claimholders, promptly shall execute and deliver to release the Liens on the Junior Priority Collateral as set forth in the relevant Junior Priority Debt Documents.
(b) Each Junior Priority Representative, for itself and on behalf of each Junior Priority Debt Party under its Junior Priority Debt Facility, hereby irrevocably constitutes and appoints the Designated Senior Representative and any officer or agent of the Designated Senior Representative, with full power of substitution, as its true and lawful attorney-in-fact with full irrevocable power and authority in the place and stead of Prior Lien Agent such Junior Priority Representative or such Junior Priority Debt Party or in the Designated Senior Representative’s own name, from time to time in the Designated Senior Representative’s discretion, for the purpose of carrying out the terms of Section 5.01(a), to take any and all appropriate action and to execute any and all documents and instruments that may be necessary or desirable to accomplish the purposes of Section 5.01(a), including any termination statements, endorsements or releases and other instruments of transfer or documents as the Prior Lien Agent may request in writing to effectively confirm such release.
(cii) Notwithstanding anything to the contrary in any Junior Priority Collateral DocumentIf, in connection with any exercise of remedies or Enforcement (including as provided for in Sections 3.2(b) or Section 6.8(b)) by the event the terms Prior Lien Agent or any Prior Lien Claimholder with respect to any Senior Secured Notes Priority Collateral, irrespective of whether a Senior Collateral Document Secured Notes Default, ABL Default or Junior Secured Notes Default has occurred and a Junior Priority Collateral Document each require any Grantor (i) to make payment in respect its continuing, the Prior Lien Agent, on behalf of any item of Shared the Prior Lien Claimholders, releases any of its Liens on any part of the Senior Secured Notes Priority Collateral, (ii) to deliver or afford control over any item then the Liens, if any, of Shared Collateral toeach Subordinated Lien Agent, or deposit any item of Shared Collateral with, (iii) to register ownership of any item of Shared Collateral in the name of or make an assignment of ownership of any Shared Collateral or the rights thereunder to, (iv) cause any securities intermediary, commodity intermediary or other Person acting in a similar capacity to agree to comply, in respect of any item of Shared Collateral, with instructions or orders from, or to treat, in respect of any item of Shared Collateral, as the entitlement holder, (v) hold any item of Shared Collateral in trust for (to the extent such item of Shared Collateral cannot be held in trust for multiple parties under applicable law), (vi) obtain the agreement of a bailee or other third party to hold any item of Shared Collateral for the benefit of the Subordinated Lien Claimholders, on the Senior Secured Notes Priority Collateral sold or subject disposed of in connection therewith, shall be automatically, unconditionally and simultaneously released; provided, further, that, to the control extent the Proceeds of orsuch Senior Secured Notes Priority Collateral are not applied to reduce Prior Lien Obligations, the Subordinated Lien Agents shall retain Liens on such Proceeds with the respective priorities set forth in respect Section 2.1. Each Subordinated Lien Agent, on behalf of any item of Shared Collateral, to follow the instructions of or (vii) obtain the agreement of a landlord with respect to access to leased premises where any item of Shared Collateral is located or waivers or subordination of rights with respect to any item of Shared Collateral in favor of, in any case, both the Designated Senior Representative and any Junior Priority Representative or Junior Priority Debt Party, such Grantor may, until the applicable Discharge of Senior Obligations has occurredSubordinated Lien Claimholders, comply with promptly shall execute and deliver to the Prior Lien Agent such requirement under termination statements, releases and other documents as the applicable Junior Priority Collateral Document as it relates Prior Lien Agent may request in writing to effectively confirm such Shared Collateral by taking any of the actions set forth above only with respect to, or in favor of, the Designated Senior Representativerelease.
Appears in 1 contract
Releases. (a) Each Junior Priority Representative, for itself and on behalf of each Junior Priority Debt Party under its Junior Priority Debt Facility, agrees that, in the event of a sale, transfer or other disposition of any specified item of Shared Collateral (including all or substantially all of the equity interests of any subsidiary Subsidiary) (i) in connection with the exercise of remedies in respect of Collateral or (ii) if not in connection with the Borrowerexercise of remedies in respect of Collateral, so long as an Event of Default (as defined in and under any Junior Lien Debt Document) other than a release granted upon or following the Discharge of Senior Obligationshas not occurred and is continuing, the Liens granted to the Junior Priority Representatives and the Junior Priority Debt Parties upon such Shared Collateral to secure Junior Priority Debt Obligations shall terminate and be released, automatically and without any further action, concurrently with the termination and release of all Liens granted upon such Shared Collateral to secure Senior Obligations; provided that, in the case of any such sale, transfer or other disposition of Shared Collateral (other than any sale, transfer or other disposition in connection with the enforcement or exercise of any rights or remedies with respect to the Shared Collateral), the Liens granted to the Junior Priority Representatives and the Junior Priority Debt Parties shall not be so released if such sale, transfer or other disposition is not permitted under the terms of any Junior Priority Debt Document. Upon delivery to a Junior Priority Representative of an Officer’s Certificate stating that any such termination and release of Liens securing the Senior Obligations has become effective (or shall become effective concurrently with such termination and release of the Liens granted to the Junior Priority Debt Parties and the Junior Priority Representatives) and any necessary or proper instruments of termination or release prepared by the Borrower or any other Grantor, such Junior Priority Representative will promptly execute, deliver or acknowledge, at the Borrower’s or the other Grantor’s sole cost and expense, such instruments to evidence such termination and release of the Liens. Nothing in this Section 5.01(a) will be deemed to affect any agreement of a Junior Priority Representative, for itself and on behalf of the Junior Priority Debt Parties under its Junior Priority Debt Facility, to release the Liens on the Junior Priority Collateral as set forth in the relevant Junior Priority Debt Documents.
(b) Each Junior Priority Representative, for itself and on behalf of each Junior Priority Debt Party under its Junior Priority Debt Facility, hereby irrevocably constitutes and appoints the Designated Senior Representative and any officer or agent of the Designated Senior Representative, with full power of substitution, as its true and lawful attorney-in-fact with full irrevocable power and authority in the place and stead of such Junior Priority Representative or such Junior Priority Debt Party or in the Designated Senior Representative’s own name, from time to time in the Designated Senior Representative’s discretion, for the purpose of carrying out the terms of Section 5.01(a), to take any and all appropriate action and to execute any and all documents and instruments that may be necessary or desirable to accomplish the purposes of Section 5.01(a), including any termination statements, endorsements or other instruments of transfer or release.
(c) Unless and until the Discharge of Senior Obligations has occurred, each Junior Priority Representative, for itself and on behalf of each Junior Priority Debt Party under its Junior Priority Debt Facility, hereby consents to the application, whether prior to or after an event of default under any Senior Debt Document, of proceeds of Shared Collateral to the repayment of Senior Obligations pursuant to the Senior Debt Documents, provided that nothing in this Section 5.01(c) shall be construed to prevent or impair the rights of the Junior Priority Representatives or the Junior Priority Debt Parties to receive proceeds in connection with the Junior Priority Debt Obligations not otherwise in contravention of this Agreement.
(d) Notwithstanding anything to the contrary in any Junior Priority Collateral Document, in the event the terms of a Senior Collateral Document and a Junior Priority Collateral Document each require any Grantor (i) to make payment in respect of any item of Shared Collateral, (ii) to deliver or afford control over any item of Shared Collateral to, or deposit any item of Shared Collateral with, (iii) to register ownership of any item of Shared Collateral in the name of or make an assignment of ownership of any Shared Collateral or the rights thereunder to, (iv) cause any securities intermediary, commodity intermediary or other Person person acting in a similar capacity to agree to comply, in respect of any item of Shared Collateral, with instructions or orders from, or to treat, in respect of any item of Shared Collateral, as the entitlement holder, (v) hold any item of Shared Collateral in trust for (to the extent such item of Shared Collateral cannot be held in trust for multiple parties under applicable law), ) or (vi) obtain the agreement of a bailee or other third party to hold any item of Shared Collateral for the benefit of or subject to the control of or, in respect of any item of Shared Collateral, to follow the instructions of or (vii) obtain the agreement of a landlord with respect to access to leased premises where any item of Shared Collateral is located or waivers or subordination of rights with respect to any item of Shared Collateral in favor of, in any case, both the Designated Senior Representative and any Junior Priority Representative or Junior Priority Debt Party, such Grantor may, until the applicable Discharge of Senior Obligations has occurred, comply with such requirement under the applicable Junior Priority Collateral Document as it relates to such Shared Collateral by taking any of the actions set forth above only with respect to, or in favor of, the Designated Senior Representative.
Appears in 1 contract
Samples: Credit Agreement (Costar Group Inc)
Releases. (a) Each Junior Second Priority Representative, for itself and on behalf of each Junior Second Priority Debt Party under its Junior Second Priority Debt Facility, agrees that, in the event of a sale, transfer or other disposition of any specified item of Shared Collateral (including all or substantially all of the equity interests of any subsidiary of the Borrower) other than a release granted upon or following the Discharge of Senior Obligations, the Liens granted to the Junior Second Priority Representatives and the Junior Second Priority Debt Parties upon such Shared Collateral to secure Junior Second Priority Debt Obligations shall terminate and be released, automatically and without any further action, concurrently with the termination and release of all Liens granted upon such Shared Collateral to secure Senior Obligations; provided that, in the case of any such sale, transfer or other disposition of Shared Collateral (other than any sale, transfer or other disposition in connection with the enforcement or exercise of any rights or remedies with respect to the Shared Collateral), the Liens granted to the Junior Priority Representatives and the Junior Priority Debt Parties shall not be so released if such sale, transfer or other disposition is not permitted under the terms of any Junior Priority Debt Document. Upon delivery to a Junior Second Priority Representative of an Officer’s 's Certificate stating that any such termination and release of Liens securing the Senior Obligations has become effective (or shall become effective concurrently with such termination and release of the Liens granted to the Junior Second Priority Debt Parties and the Junior Second Priority Representatives) and any necessary or proper instruments of termination or release prepared by the Borrower or any other Grantor, such Junior Second Priority Representative will promptly execute, deliver or acknowledge, at the Borrower’s 's or the other Grantor’s 's sole cost and expense, such instruments to evidence such termination and release of the Liens. Nothing in this Section 5.01(a) will be deemed to affect any agreement of a Junior Second Priority Representative, for itself and on behalf of the Junior Second Priority Debt Parties under its Junior Second Priority Debt Facility, to release the Liens on the Junior Second Priority Collateral as set forth in the relevant Junior Second Priority Debt Documents.
(b) Each Junior Second Priority Representative, for itself and on behalf of each Junior Second Priority Debt Party under its Junior Second Priority Debt Facility, hereby irrevocably constitutes and appoints the Designated Senior Representative and any officer or agent of the Designated Senior Representative, with full power of substitution, as its true and lawful attorney-in-fact with full irrevocable power and authority in the place and stead of such Junior Second Priority Representative or such Junior Second Priority Debt Party or in the Designated Senior Representative’s 's own name, from time to time in the Designated Senior Representative’s 's discretion, for the purpose of carrying out the terms of Section 5.01(a), to take any and all appropriate action and to execute any and all documents and instruments that may be necessary or desirable to accomplish the purposes of Section 5.01(a), including any termination statements, endorsements or other instruments of transfer or release.
(c) Unless and until the Discharge of Senior Obligations has occurred, each Second Priority Representative, for itself and on behalf of each Second Priority Debt Party under its Second Priority Debt Facility, hereby consents to the application, whether prior to or after an event of default under any Senior Debt Document of proceeds of Shared Collateral to the repayment of Senior Obligations pursuant to the Senior Debt Documents, provided that nothing in this Section 5.01(c) shall be construed to prevent or impair the rights of the Second Priority Repre- 31447057_4 32101176_5 NEWYORK 8661362 (2K) sentatives or the Second Priority Debt Parties to receive proceeds in connection with the Second Priority Debt Obligations not otherwise in contravention of this Agreement.
(d) Notwithstanding anything to the contrary in any Junior Second Priority Collateral Document, in the event the terms of a Senior Collateral Document and a Junior Second Priority Collateral Document each require any Grantor (i) to make payment in respect of any item of Shared Collateral, (ii) to deliver or afford control over any item of Shared Collateral to, or deposit any item of Shared Collateral with, (iii) to register ownership of any item of Shared Collateral in the name of or make an assignment of ownership of any Shared Collateral or the rights thereunder to, (iv) cause any securities intermediary, commodity intermediary or other Person acting in a similar capacity to agree to comply, in respect of any item of Shared Collateral, with instructions or orders from, or to treat, in respect of any item of Shared Collateral, as the entitlement holder, (v) hold any item of Shared Collateral in trust for (to the extent such item of Shared Collateral cannot be held in trust for multiple parties under applicable law), (vi) obtain the agreement of a bailee or other third party to hold any item of Shared Collateral for the benefit of or subject to the control of or, in respect of any item of Shared Collateral, to follow the instructions of or (vii) obtain the agreement of a landlord with respect to access to leased premises where any item of Shared Collateral is located or waivers or subordination of rights with respect to any item of Shared Collateral in favor of, in any case, both the Designated Senior Representative and any Junior Second Priority Representative or Junior Second Priority Debt Party, such Grantor may, until the applicable Discharge of Senior Obligations has occurred, comply with such requirement under the applicable Junior Second Priority Collateral Document as it relates to such Shared Collateral by taking any of the actions set forth above only with respect to, or in favor of, the Designated Senior Representative.
Appears in 1 contract
Releases. (a) Each Junior Priority Representative, for itself and on behalf of each Junior Priority Debt Party under its Junior Priority Debt Facility, agrees that, that (i) (x) if in the event of a sale, transfer or other disposition of any specified item of Shared Collateral (including all or substantially all of the equity interests of any subsidiary of the Borrower) other than a release granted upon or following the Discharge of Senior Obligations, the Liens granted to the Junior Priority Representatives and the Junior Priority Debt Parties upon such Shared Collateral to secure Junior Priority Debt Obligations shall terminate and be released, automatically and without any further action, concurrently connection with the termination and release of all Liens granted upon such Shared Collateral to secure Senior Obligations; provided that, in the case of any such sale, transfer or other disposition of Shared Collateral (other than any sale, transfer or other disposition or release of any Shared Collateral by any Grantor (other than in connection with any enforcement or exercise of rights or remedies with respect to the Shared Collateral which shall be governed by clause (ii)) not prohibited under the terms of the Senior Debt Documents or consented to by the holders of Senior Obligations under the Senior Debt Documents (other than in connection with the Discharge of Senior Obligations) or (y) if the Senior Liens on any Shared Collateral have been or are being otherwise released by the Senior Representative, for itself and on behalf of the other Senior Secured Parties, in connection with a Subsidiary that is released from its guarantee under the Senior Debt Documents and the Junior Priority Debt Documents (in each case, pursuant to, and in accordance with, the Senior Debt Documents and the Junior Priority Debt Documents) or (ii) if in connection with the enforcement or exercise of any rights or remedies with respect to the Shared Collateral), the Liens granted to the Junior Priority Representatives and the Junior Priority Debt Parties shall not be so released if such including any sale, transfer or other disposition is not permitted under of Collateral, the terms Senior Representative, for itself and on behalf of the other Senior Secured Parties releases any of the Senior Liens on the Shared Collateral (a “Release”), then the Liens on such Shared Collateral securing any Junior Priority Debt Document. Upon delivery to a Obligations shall (whether or not any Insolvency or Liquidation Proceeding is pending at such time) be automatically, unconditionally and simultaneously released without further action, and each Junior Priority Representative shall, for itself and on behalf of an Officer’s Certificate stating that any the other applicable Junior Priority Class Debt Parties, promptly execute and deliver to the Senior Representative and the applicable Grantors such termination statements, releases and release of Liens securing other documents as the Senior Obligations has become effective (or shall become effective concurrently with such termination and release of the Liens granted to the Junior Priority Debt Parties and the Junior Priority Representatives) and any necessary or proper instruments of termination or release prepared by the Borrower Representative or any other Grantor, applicable Grantor may reasonably request at such Junior Priority Representative will promptly execute, deliver or acknowledge, at the Borrower’s or the other Grantor’s sole cost and expenseexpense to effectively confirm such Release. Similarly, if the equity interests of any Person are foreclosed upon or otherwise disposed of or released pursuant to clause (i) or (ii) above and in connection therewith the Senior Representative releases the Senior Liens on the property or assets of such instruments Person or releases such Person from its guarantee of Senior Obligations, then the Junior Priority Lien on such property or assets of such Person and such Person’s guarantee of Junior Priority Debt Obligations shall be automatically released to evidence such termination and release of the Lienssame extent. Nothing in this Section 5.01(a) will be deemed to affect any agreement of a Junior Priority Representative, for itself and on behalf of the Junior Priority Debt Parties under its Junior Priority Debt Facility, to release the Liens on the Junior Priority Collateral as set forth in the relevant Junior Priority Debt Documents.
(b) Each Junior Priority Representative, for itself and on behalf of each Junior Priority Debt Party under its Junior Priority Debt Facility, hereby irrevocably constitutes and appoints the Designated Senior Representative and any officer or agent of the Designated Senior Representative, with full power of substitution, as its true and lawful attorney-in-fact with full irrevocable power and authority in the place and stead of such Junior Priority Representative or such Junior Priority Debt Party or in the Designated Senior Representative’s own name, from time to time in the Designated Senior Representative’s discretion, for the purpose of carrying out the terms of Section 5.01(a), to take any and all appropriate action and to execute any and all documents and instruments that may be necessary or desirable to accomplish the purposes of Section 5.01(a), including any termination statements, endorsements or other instruments of transfer or release. The Senior Representative xxxxxx agrees to take action reasonably requested by the Grantors, at the Grantors’ sole cost and expense, to carry out the terms of this Section 5.01(b) or to accomplish the purposes of Section 5.01(a).
(c) Unless and until the Discharge of Senior Obligations has occurred, each Junior Priority Representative, for itself and on behalf of each Junior Priority Debt Party under its Junior Priority Debt Facility, hereby consents to the application, whether prior to or after an Event of Default (as defined in any Senior Debt Document) of Proceeds of Shared Collateral to the repayment of Senior Obligations pursuant to the Senior Debt Documents, provided that nothing in this Section 5.01(c) shall be construed to prevent or impair the rights of the Junior Priority Representatives or the Junior Priority Debt Parties to receive Proceeds in connection with the Junior Priority Debt Obligations not otherwise in contravention of this Agreement.
(d) Notwithstanding anything to the contrary in any Junior Priority Collateral Document, in the event the terms of a Senior Collateral Document and a Junior Priority Collateral Document each require any Grantor to (i) to make payment in respect of any item of Shared Collateral, (ii) to deliver or afford control over any item of Shared Collateral to, or deposit any item of Shared Collateral with, (iii) to register ownership of any item of Shared Collateral in the name of or make an assignment of ownership of any Shared Collateral or the rights thereunder to, (iv) cause any securities intermediary, commodity intermediary or other Person acting in a similar capacity to agree to comply, in respect of any item of Shared Collateral, with instructions or orders from, or to treat, in respect of any item of Shared Collateral, as the entitlement holder, (v) hold any item of Shared Collateral in trust for (to the extent such item of Shared Collateral cannot be held in trust for multiple parties under applicable law), (vi) obtain the agreement of a bailee or other third party to hold any item of Shared Collateral for the benefit of or subject to the control of or, in respect of any item of Shared Collateral, to follow the instructions of or (vii) obtain the agreement of a landlord with respect to access to leased premises where any item of Shared Collateral is located or waivers or subordination of rights with respect to any item of Shared Collateral in favor of, in any case, both the Designated Senior Representative and any Junior Priority Representative or Junior Priority Debt Party, such Grantor may, until the applicable Discharge of Senior Obligations has occurred, comply with such requirement under the applicable Junior Priority Collateral Document as it relates to such Shared Collateral by taking any of the actions set forth above only with respect to, or in favor of, the Designated Senior Representative; provided, notwithstanding anything to the contrary, any action or compliance with respect to the foregoing by any Grantor shall not cause a default or event of default to exist under any Senior Debt Document or any Junior Priority Debt Document.
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Samples: Indenture (Liveperson Inc)
Releases. (a) Each Junior Second Priority Representative, for itself and on behalf of each Junior Second Priority Debt Party under its Junior Second Priority Debt Facility, agrees that, in the event of a sale, transfer or other disposition of any specified item of Shared Collateral (including all or substantially all of the equity interests of any subsidiary of the BorrowerCompany) other than a release granted upon (i) in connection with the exercise of remedies in respect of Collateral or following (ii) if not in connection with the Discharge exercise of Senior Obligationsremedies in respect of the Collateral, so long as an Event of Default (as defined in and under any Second Lien Debt Document) has not occurred and is continuing, the Liens granted to the Junior Second Priority Representatives and the Junior Second Priority Debt Parties upon such Shared Collateral to secure Junior Second Priority Debt Obligations shall terminate and be released, automatically and without any further action, concurrently with the termination and release of all Liens granted upon such Shared Collateral to secure Senior Obligations; provided that, in the case of any such sale, transfer or other disposition of Shared Collateral (other than any sale, transfer or other disposition in connection with the enforcement or exercise of any rights or remedies with respect to the Shared Collateral), the Liens granted to the Junior Priority Representatives and the Junior Priority Debt Parties shall not be so released if such sale, transfer or other disposition is not permitted under the terms of any Junior Priority Debt Document. Upon delivery to a Junior Second Priority Representative of an Officer’s Certificate stating that any such termination and release of Liens securing the Senior Obligations has become effective (or shall become effective concurrently with such termination and release of the Liens granted to the Junior Second Priority Debt Parties and the Junior Second Priority Representatives) and any necessary or proper instruments of termination or release prepared by the Borrower Company or any other Grantor, such Junior Second Priority Representative will promptly execute, deliver or acknowledge, at the BorrowerCompany’s or the other Grantor’s sole cost and expense, such instruments to evidence such termination and release of the Liens. Nothing in this Section 5.01(a) will be deemed to affect any agreement of a Junior Second Priority Representative, for itself and on behalf of the Junior Second Priority Debt Parties under its Junior Second Priority Debt Facility, to release the Liens on the Junior Second Priority Collateral as set forth in the relevant Junior Second Priority Debt Documents.
(b) Each Junior Second Priority Representative, for itself and on behalf of each Junior Second Priority Debt Party under its Junior Second Priority Debt Facility, hereby irrevocably constitutes and appoints the Designated Senior Representative and any officer or agent of the Designated Senior Representative, with full power of substitution, as its true and lawful attorney-in-fact with full irrevocable power and authority in the place and stead of such Junior Second Priority Representative or such Junior Second Priority Debt Party or in the Designated Senior Representative’s own name, from time to time in the Designated Senior Representative’s discretion, for the purpose of carrying out the terms of Section 5.01(a), to take any and all appropriate action and to execute any and all documents and instruments that may be necessary or desirable to accomplish the purposes of Section 5.01(a), including any termination statements, endorsements or other instruments of transfer or release.
(c) Unless and until the Discharge of Senior Obligations has occurred, each Second Priority Representative, for itself and on behalf of each Second Priority Debt Party under its Second Priority Debt Facility, hereby consents to the application, whether prior to or after an event of default under any Senior Debt Document of proceeds of Shared Collateral to the repayment of Senior Obligations pursuant to the Senior Debt Documents, provided that nothing in this Section 5.01(c) shall be construed to prevent or impair the rights of the Second Priority Representatives or the Second Priority Debt Parties to receive proceeds in connection with the Second Priority Debt Obligations not otherwise in contravention of this Agreement.
(d) Notwithstanding anything to the contrary in any Junior Second Priority Collateral Document, in the event the terms of a Senior Collateral Document and a Junior Second Priority Collateral Document each require any Grantor (i) to make payment in respect of any item of Shared Collateral, (ii) to deliver or afford control over any item of Shared Collateral to, or deposit any item of Shared Collateral with, (iii) to register ownership of any item of Shared Collateral in the name of or make an assignment of ownership of any Shared Collateral or the rights thereunder to, (iv) cause any securities intermediary, commodity intermediary or other Person acting in a similar capacity to agree to comply, in respect of any item of Shared Collateral, with instructions or orders from, or to treat, in respect of any item of Shared Collateral, as the entitlement holder, (v) hold any item of Shared Collateral in trust for (to the extent such item of Shared Collateral cannot be held in trust for multiple parties under applicable law), (vi) obtain the agreement of a bailee or other third party to hold any item of Shared Collateral for the benefit of or subject to the control of or, in respect of any item of Shared Collateral, to follow the instructions of or (vii) obtain the agreement of a landlord with respect to access to leased premises where any item of Shared Collateral is located or waivers or subordination of rights with respect to any item of Shared Collateral in favor of, in any case, both the Designated Senior Representative and any Junior Second Priority Representative or Junior Second Priority Debt Party, such Grantor may, until the applicable Discharge of Senior Obligations has occurred, comply with such requirement under the applicable Junior Second Priority Collateral Document as it relates to such Shared Collateral by taking any of the actions set forth above only with respect to, or in favor of, the Designated Senior Representative.
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Releases. (a) Each Junior Second Priority Representative, for itself and on behalf of each Junior Second Priority Debt Party under its Junior Second Priority Debt Facility, agrees that, in the event of a sale, transfer or other disposition of any specified item of Shared Collateral (including all or substantially all of the equity interests of any subsidiary of the Borrower), (i) in connection with the exercise of remedies in respect of Collateral by a Senior Representative or (ii) if not in connection with the exercise of remedies in respect of Collateral by a Senior Representative, so long as such sale or other disposition is permitted by the terms of the Second Priority Debt Documents and the Senior Debt Documents and, in the case of this clause (ii) other than a release granted upon or following in connection with the Discharge of Senior Obligations, the Liens granted to the Junior Second Priority Representatives and the Junior Second Priority Debt Parties upon such Shared Collateral to secure Junior Second Priority Debt Obligations (but not on the Proceeds thereof that were not applied to the payment of Senior Obligations) shall terminate and be released, automatically and without any further action, concurrently with the termination and release of all Liens granted upon such Shared Collateral to secure Senior Obligations; provided that, in the case of any such sale, transfer or other disposition of Shared Collateral (other than any sale, transfer or other disposition in connection with the enforcement or exercise of any rights or remedies with respect to the Shared Collateral), the Liens granted to the Junior Priority Representatives and the Junior Priority Debt Parties shall not be so released if such sale, transfer or other disposition is not permitted under the terms of any Junior Priority Debt Document. Upon delivery to a Junior Second Priority Representative of an Officer’s Certificate stating that any such termination and release of Liens securing the Senior Obligations has become effective (or shall become effective concurrently with such termination and release of the Liens granted to the Junior Second Priority Debt Parties and the Junior Second Priority Representatives) and any necessary or proper instruments of termination or release prepared by the Borrower or any other Grantor, such Junior Second Priority Representative will promptly execute, deliver or acknowledge, at the Borrower’s or the other Grantor’s sole cost and expense, such instruments to evidence such termination and release of the Liens. Nothing in this Section 5.01(a) will be deemed to affect any agreement of a Junior Second Priority Representative, for itself and on behalf of the Junior Second Priority Debt Parties under its Junior Second Priority Debt Facility, to release the Liens on the Junior Second Priority Collateral as set forth in the relevant Junior Second Priority Debt Documents.
(b) Each Junior Second Priority Representative, for itself and on behalf of each Junior Second Priority Debt Party under its Junior Second Priority Debt Facility, hereby irrevocably constitutes and appoints the Designated Senior Representative and any officer or agent of the Designated Senior Representative, with full power of substitution, as its true and lawful attorney-in-fact with full irrevocable power and authority in the place and stead of such Junior Second Priority Representative or such Junior Second Priority Debt Party or in the Designated Senior Representative’s own name, from time to time in the Designated Senior Representative’s discretion, for the purpose of carrying out the terms of Section 5.01(a), to take any and all appropriate action and to execute any and all documents and instruments that may be necessary or desirable to accomplish the purposes of Section 5.01(a), including any termination statements, endorsements or other instruments of transfer or release.
(c) Unless and until the Discharge of Senior Obligations has occurred, each Second Priority Representative, for itself and on behalf of each Second Priority Debt Party under its Second Priority Debt Facility, hereby consents to the application, whether prior to or after an event of default under any Senior Debt Document of proceeds of Shared Collateral to the repayment of Senior Obligations pursuant to the Senior Debt Documents, provided that nothing in this Section 5.01(c) shall be construed to prevent or impair the rights of the Second Priority Representatives or the Second Priority Debt Parties to receive proceeds in connection with the Second Priority Debt Obligations not otherwise in contravention of this Agreement.
(d) Notwithstanding anything to the contrary in any Junior Second Priority Collateral Document, in the event the terms of a Senior Collateral Document and a Junior Second Priority Collateral Document each require any Grantor (i) to make payment in respect of any item of Shared CollateralCollateral to, (ii) to deliver or afford control over any item of Shared Collateral to, or deposit any item of Shared Collateral with, (iii) to register ownership of any item of Shared Collateral in the name of or make an assignment of ownership of any Shared Collateral or the rights thereunder to, (iv) cause any securities intermediary, commodity intermediary or other Person acting in a similar capacity to agree to comply, in respect of any item of Shared Collateral, with instructions or orders from, or to treat, in respect of any item of Shared Collateral, as the entitlement holder, (v) hold any item of Shared Collateral in trust for (to the extent such item of Shared Collateral cannot be held in trust for multiple parties under applicable law), (vi) obtain the agreement of a bailee or other third party to hold any item of Shared Collateral for the benefit of or subject to the control of or, in respect of any item of Shared Collateral, to follow the instructions of or (vii) obtain the agreement of a landlord with respect to access to leased premises where any item of Shared Collateral is located or waivers or subordination of rights with respect to any item of Shared Collateral in favor of, in any case, both the Designated Senior Representative and any Junior Second Priority Representative or Junior Second Priority Debt Party, such Grantor may, until the applicable Discharge of Senior Obligations has occurred, comply with such requirement under the applicable Junior Second Priority Collateral Document as it relates to such Shared Collateral by taking any of the actions set forth above only with respect to, or in favor of, the Designated Senior Representative.
Appears in 1 contract
Releases. (a) If in connection with any Enforcement Action by any First Lien Representative or any First Lien Collateral Agent or any other exercise of any First Lien Representative’s or any First Lien Collateral Agent’s remedies in respect of the Collateral, in each case prior to the Discharge of First Lien Obligations, such First Lien Collateral Agent, for itself or on behalf of any of the First Lien Claimholders represented by it, releases any of its Liens on any part of the Collateral or such First Lien Representative, for itself or on behalf of any of the First Lien Claimholders represented by it, releases any Grantor (other than the Company) from its obligations under its guaranty of the First Lien Obligations, then the Liens, if any, of each Second Lien Collateral Agent, for itself or for the benefit of the Second Lien Claimholders, on such Collateral, and the obligations of such Grantor under its guaranty of the Second Lien Obligations, shall be automatically, unconditionally and simultaneously released. If in connection with any Enforcement Action or other exercise of rights and remedies by any First Lien Representative or any First Lien Collateral Agent, in each case prior to the Discharge of First Lien Obligations, the equity interests of any Person are foreclosed upon or otherwise disposed of and such First Lien Collateral Agent releases its Lien on the property or assets of such Person then the Liens of each Second Lien Collateral Agent with respect to the property or assets of such Person will be automatically released to the same extent as the Liens of such First Lien Collateral Agent. Each Junior Priority Second Lien Representative and each Second Lien Collateral Agent, for itself or on behalf of any Second Lien Claimholder represented by it, shall promptly execute and deliver to the First Lien Representatives, First Lien Collateral Agents or such Grantor such termination statements, releases and other documents as any First Lien Representative, First Lien Collateral Agent or such Grantor may request to effectively confirm the foregoing releases.
(b) If in connection with any sale, lease, exchange, transfer or other disposition of any Collateral by any Grantor (collectively, a “Disposition”) permitted under the terms of the First Lien Loan Documents and the terms of the Second Lien Loan Documents (other than in connection with an Enforcement Action or other exercise of any First Lien Representative’s and/or First Lien Collateral Agent’s remedies in respect of the Collateral, which shall be governed by Section 5.1(a)), any First Lien Collateral Agent, for itself or on behalf of any First Lien Claimholder represented by it, releases any of its Liens on any part of the Collateral, or any First Lien Representative, for itself or on behalf of any First Lien Claimholder represented by it, releases any Grantor from its obligations under its guaranty of the First Lien Obligations, in each case other than (A) in connection with, or following, the Discharge of First Lien Obligations or (B) after the occurrence and during the continuance of any Event of Default under (and as defined in) any Second Lien Loan Document, then the Liens, if any, of each Second Lien Collateral Agent, for itself or for the benefit of the Second Lien Claimholders represented by it, on such Collateral, and the obligations of such Grantor under its guaranty of the Second Lien Obligations, shall be automatically, unconditionally and simultaneously released. Each Second Lien Representative and each Second Lien Collateral Agent, for itself and on behalf of each Junior Priority Debt Party under its Junior Priority Debt Facilityother Second Lien Claimholder represented by it, agrees thatshall promptly execute and deliver to the First Lien Representatives, in the event of a saleFirst Lien Collateral Agents or such Grantor such termination statements, transfer releases and other documents as any First Lien Representative, First Lien Collateral Agent or other disposition of any specified item of Shared Collateral such Grantor may request to effectively confirm such release.
(including all or substantially all of the equity interests of any subsidiary of the Borrowerc) other than a release granted upon or following Until the Discharge of Senior ObligationsFirst Lien Obligations occurs, the Liens granted to the Junior Priority Representatives each Second Lien Representative and the Junior Priority Debt Parties upon such Shared each Second Lien Collateral to secure Junior Priority Debt Obligations shall terminate and be released, automatically and without any further action, concurrently with the termination and release of all Liens granted upon such Shared Collateral to secure Senior Obligations; provided that, in the case of any such sale, transfer or other disposition of Shared Collateral (other than any sale, transfer or other disposition in connection with the enforcement or exercise of any rights or remedies with respect to the Shared Collateral), the Liens granted to the Junior Priority Representatives and the Junior Priority Debt Parties shall not be so released if such sale, transfer or other disposition is not permitted under the terms of any Junior Priority Debt Document. Upon delivery to a Junior Priority Representative of an Officer’s Certificate stating that any such termination and release of Liens securing the Senior Obligations has become effective (or shall become effective concurrently with such termination and release of the Liens granted to the Junior Priority Debt Parties and the Junior Priority Representatives) and any necessary or proper instruments of termination or release prepared by the Borrower or any other Grantor, such Junior Priority Representative will promptly execute, deliver or acknowledge, at the Borrower’s or the other Grantor’s sole cost and expense, such instruments to evidence such termination and release of the Liens. Nothing in this Section 5.01(a) will be deemed to affect any agreement of a Junior Priority Representative, for itself and on behalf of the Junior Priority Debt Parties under its Junior Priority Debt Facility, to release the Liens on the Junior Priority Collateral as set forth in the relevant Junior Priority Debt Documents.
(b) Each Junior Priority RepresentativeAgent, for itself and on behalf of each Junior Priority Debt Party under its Junior Priority Debt Facilityother Second Lien Claimholder represented by it, hereby irrevocably constitutes and appoints the Designated Senior Representative First Lien Collateral Agent and any officer or agent of the Designated Senior RepresentativeFirst Lien Collateral Agent, with full power of substitution, as its true and lawful attorney-in-fact with full irrevocable power and authority in the place and stead of such Junior Priority Representative or Second Lien Representative, such Junior Priority Debt Party Second Lien Collateral Agent and such Second Lien Claimholders or in the Designated Senior RepresentativeFirst Lien Collateral Agent’s own name, from time to time in the Designated Senior RepresentativeFirst Lien Collateral Agent’s discretion, for the purpose of carrying out the terms of this Section 5.01(a)5.1, to take any and all appropriate action and to execute any and all documents and instruments that which may be necessary or desirable to accomplish the purposes of this Section 5.01(a)5.1, including any termination statements, endorsements or other instruments of transfer or release. This power is coupled with an interest and is irrevocable until the Discharge of First Lien Obligations.
(cd) Notwithstanding anything Until the Discharge of First Lien Obligations occurs, to the contrary in extent that any Junior Priority First Lien Collateral DocumentAgent, in the event the terms of a Senior Collateral Document and a Junior Priority Collateral Document each require any Grantor First Lien Representative or any First Lien Claimholder (i) to make payment in respect of has released any item of Shared Collateral, Lien on Collateral or any Grantor from its obligation under its guarantee and any such Liens or guarantee are later reinstated or (ii) to deliver obtains any new Liens or afford control over additional guarantees from any item of Shared Grantor, then each Second Lien Collateral toAgent, or deposit for itself and for the Second Lien Claimholders represented by it, shall be granted a Lien on any item of Shared such Collateral with, (iii) to register ownership of any item of Shared Collateral in the name of or make an assignment of ownership of any Shared Collateral or the rights thereunder to, (iv) cause any securities intermediary, commodity intermediary or other Person acting in a similar capacity to agree to comply, in respect of any item of Shared Collateral, with instructions or orders from, or to treat, in respect of any item of Shared Collateral, as the entitlement holder, (v) hold any item of Shared Collateral in trust for (except to the extent such item of Shared Collateral cannot be held in trust for multiple parties under applicable law), (vi) obtain the agreement of Lien represents a bailee or other third party to hold any item of Shared Collateral for the benefit of or subject to the control of or, in respect of any item of Shared Collateral, to follow the instructions of or (vii) obtain the agreement of a landlord Second Lien Declined Lien with respect to access the Second Lien Debt represented by such Second Lien Collateral Agent), subject to leased premises where any item of Shared Collateral is located or waivers or subordination of rights with respect to any item of Shared Collateral in favor ofthis Agreement, in any caseand each Second Lien Representative, both for itself and for the Designated Senior Representative and any Junior Priority Representative or Junior Priority Debt PartySecond Lien Claimholders represented by it, such Grantor mayshall be granted an additional guarantee, until as the applicable Discharge of Senior Obligations has occurred, comply with such requirement under the applicable Junior Priority Collateral Document as it relates to such Shared Collateral by taking any of the actions set forth above only with respect to, or in favor of, the Designated Senior Representativecase may be.
Appears in 1 contract
Samples: First Lien/Second Lien Intercreditor Agreement (Franchise Group, Inc.)
Releases. (a) Each Junior Second Priority Representative, for itself and on behalf of each Junior Second Priority Debt Party under its Junior Second Priority Debt Facility, agrees that, if in the event of a connection with (i) any sale, transfer or other disposition of any specified item of Shared Collateral (including all or substantially all of the equity interests of by any subsidiary of the Borrower) other than a release granted upon or following the Discharge of Senior Obligations, the Liens granted to the Junior Priority Representatives and the Junior Priority Debt Parties upon such Shared Collateral to secure Junior Priority Debt Obligations shall terminate and be released, automatically and without any further action, concurrently with the termination and release of all Liens granted upon such Shared Collateral to secure Senior Obligations; provided that, in the case of any such sale, transfer or other disposition of Shared Collateral Grantor (other than any sale, transfer or other disposition in connection with any enforcement or exercise of rights or remedies with respect to the Shared Collateral which shall be governed by clause (ii)) permitted under the terms of the Senior Debt Documents or consented to by the holders of Senior Obligations under the Senior Debt Documents (other than after the occurrence and during the continuance of any Event of Default under the Second Priority Debt Documents) or (ii) the enforcement or exercise of any rights or remedies with respect to the Shared Collateral)Collateral by a Senior Secured Party, the Liens granted to the Junior Priority Representatives and the Junior Priority Debt Parties shall not be so released if such including any sale, transfer or other disposition is not permitted under the terms of Shared Collateral so long as net proceeds of any Junior such Shared Collateral are applied to reduce permanently the Senior Obligations, the Designated Senior Representative, for itself and on behalf of the other Senior Secured Parties releases any of the Senior Liens on any of the Shared Collateral (a “Release”), then the Liens on such Shared Collateral securing any Second Priority Debt Document. Upon delivery to a Junior Obligations shall be automatically, unconditionally and simultaneously released, and each Second Priority Representative of an Officer’s Certificate stating that any such termination shall, for itself and release of Liens securing the Senior Obligations has become effective (or shall become effective concurrently with such termination and release on behalf of the Liens granted to the Junior other applicable Second Priority Class Debt Parties and the Junior Priority Representatives) and any necessary or proper instruments of termination or release prepared by the Borrower or any other Grantor, such Junior Priority Representative will promptly execute, deliver or acknowledge, at the Borrower’s or the other Grantor’s sole cost and expenseexpense of the Grantors, such instruments promptly execute and deliver to evidence the Designated Senior Representative and the applicable Grantors such termination statements, releases and release other documents as the Designated Senior Representative or any applicable Grantor may reasonably request to effectively confirm such Release. Similarly, if the equity interests of any Person are foreclosed upon or otherwise disposed of pursuant to clause (i) or (ii) above and in connection therewith the LiensDesignated Senior Representative releases the Senior Liens on the Shared Collateral of such Person or releases such Person from its guarantee of Senior Obligations, then the Second Priority Lien on such property or assets of such Person and such Person’s guarantee of Second Priority Debt Obligations shall be automatically released to the same extent. Nothing in this Section 5.01(a) will be deemed to affect any agreement of a Junior Second Priority Representative, for itself and on behalf of the Junior Second Priority Debt Parties under its Junior Second Priority Debt Facility, to release the Liens on the Junior Second Priority Collateral or to release any Person from its guarantee of Second Priority Debt Obligations as set forth in the relevant Junior Second Priority Debt Documents.
(b) Each Junior Second Priority Representative, for itself and on behalf of each Junior Second Priority Debt Party under its Junior Second Priority Debt Facility, hereby irrevocably constitutes and appoints the Designated Senior Representative and any officer or agent of the Designated Senior Representative, with full power of substitution, as its true and lawful attorney-in-fact with full irrevocable power and authority in the place and stead of such Junior Second Priority Representative or such Junior Second Priority Debt Party or in the Designated Senior Representative’s own name, from time to time in the Designated Senior Representative’s discretion, for the purpose of carrying out the terms of Section 5.01(a), to take any and all appropriate action and to execute any and all documents and instruments that may be necessary or desirable to accomplish the purposes of Section 5.01(a), including any termination statements, endorsements or other instruments of transfer or release.
(c) Unless and until the Discharge of Senior Obligations has occurred, each Second Priority Representative, for itself and on behalf of each Second Priority Debt Party under its Second Priority Debt Facility, hereby consents to the application, whether prior to or after an Event of Default (as defined in any Senior Debt Document) of Proceeds of Shared Collateral to the repayment of Senior Obligations pursuant to the Senior Debt Documents, provided that nothing in this Section 5.01(c) shall be construed to prevent or impair the rights of the Second Priority Representatives or the Second Priority Debt Parties to receive Proceeds in connection with the Second Priority Debt Obligations not otherwise in contravention of this Agreement.
(d) Notwithstanding anything to the contrary in any Junior Second Priority Collateral Document, in the event the terms of a Senior Collateral Document and a Junior Second Priority Collateral Document each require any Grantor (i) to make payment in respect of any item of Shared Collateral, (ii) to deliver or afford control over any item of Shared Collateral to, or deposit any item of Shared Collateral with, (iii) to register ownership of any item of Shared Collateral in the name of or make an assignment of ownership of any Shared Collateral or the rights thereunder to, (iv) cause any securities intermediary, commodity intermediary or other Person acting in a similar capacity to agree to comply, in respect of any item of Shared Collateral, with instructions or orders from, or to treat, in respect of any item of Shared Collateral, as the entitlement holder, (v) hold any item of Shared Collateral in trust for (to the extent such item of Shared Collateral cannot be held in trust for multiple parties under applicable law), (vi) obtain the agreement of a bailee or other third party to hold any item of Shared Collateral for the benefit of or subject to the control of or, in respect of any item of Shared Collateral, to follow the instructions of or (vii) obtain the agreement of a landlord with respect to access to leased premises where any item of Shared Collateral is located or waivers or subordination of rights with respect to any item of Shared Collateral in favor of, in any case, both the Designated Senior Representative and any Junior Second Priority Representative or Junior Second Priority Debt Party, such Grantor may, until the applicable Discharge of Senior Obligations has occurred, comply with such requirement under the applicable Junior Second Priority Collateral Document as it relates to such Shared Collateral by taking any of the actions set forth above only with respect to, or in favor of, the Designated Senior Representative.
Appears in 1 contract
Samples: First Lien/Second Lien Intercreditor Agreement (National Vision Holdings, Inc.)
Releases. (a) Each Junior Priority Representative, for itself and on behalf of each Junior Priority Debt Party under its Junior Priority Debt Facility, agrees that, in the event of a sale, transfer or other disposition The Escrow Agreement will provide that releases of any specified item of Shared Collateral (including all or substantially all of the equity interests of any subsidiary Escrow Funds shall be made only in accordance with written instructions that are jointly signed by the Agent and the Buyer Parties, which instructions shall be in a form that complies with the requirements of the BorrowerEscrow Agreement (a “Joint Instruction Letter”) other than a release granted upon or following pursuant to an award, judgment, decision or order rendered pursuant to Section 13.4 and/or the Discharge Escrow Agreement specifying the number of Senior Obligations, Escrow Shares or the Liens granted amount of Escrow Cash to be released from the Junior Priority Representatives Escrow Account and the Junior Priority Debt Parties upon Person or Persons to whom such Shared Collateral to secure Junior Priority Debt Obligations Escrow Shares or Escrow Cash shall terminate and be released, automatically and without any further action, concurrently with the termination and release of all Liens granted upon such Shared Collateral to secure Senior Obligations; provided that, in the case of any such sale, transfer or other disposition of Shared Collateral (other than any sale, transfer or other disposition in connection with the enforcement or exercise of any rights or remedies with respect to the Shared Collateral), the Liens granted to the Junior Priority Representatives and the Junior Priority Debt Parties shall not be so released if such sale, transfer or other disposition is not permitted under the terms of any Junior Priority Debt Document. Upon delivery to a Junior Priority Representative of an Officer’s Certificate stating that any such termination and release of Liens securing the Senior Obligations has become effective (or shall become effective concurrently with such termination and release of the Liens granted to the Junior Priority Debt Parties and the Junior Priority Representatives) and any necessary or proper instruments of termination or release prepared by the Borrower or any other Grantor, such Junior Priority Representative will promptly execute, deliver or acknowledge, at the Borrower’s or the other Grantor’s sole cost and expense, such instruments to evidence such termination and release of the Liens. Nothing in this Section 5.01(a) will be deemed to affect any agreement of a Junior Priority Representative, for itself and on behalf of the Junior Priority Debt Parties under its Junior Priority Debt Facility, to release the Liens on the Junior Priority Collateral as set forth in the relevant Junior Priority Debt Documents.
(b) Each Junior Priority Representative, for itself and on behalf In the event that an Accredited Holder or Accredited Holders become obligated finally to (i) the Buyer Parties under Section 3.2(d) in respect of each Junior Priority Debt any portion of a Final Holders Payment or (ii) any Buyer Indemnified Party under its Junior Priority Debt Facilitythe terms of Article XII in respect of any indemnification obligation and, hereby irrevocably constitutes subject to the limitations on the Accredited Holders’ liability under Article XII and appoints elsewhere in this Agreement, at such time that there are any remaining Escrow Shares in the Designated Senior Representative Escrow Account, then the Agent and any officer Buyer Parties shall execute and deliver a Joint Instruction Letter to the Escrow Agent directing the Escrow Agent to release to the Buyer Parties or agent such Buyer Indemnified Party, as applicable, a number of Escrow Shares (to the extent Escrow Shares then remain in the Escrow Account that are sufficient to satisfy such obligation) determined by dividing (1) the amount required to satisfy such obligation by (2) the Market Price as of the Designated Senior Representativedate such Buyer Indemnified Party was finally determined to be entitled to indemnification with respect to the relevant Claim(s). Subject to Section 12.6, any such release of Escrow Shares from the Escrow Account shall be allocated against the Accredited Holders in proportion to each Accredited Holder’s Accredited Pro Rata Share of the Escrow Shares, except for any such release in respect of any indemnification obligation that relates to the breach of any representation, warranty or covenant made by any particular Accredited Holder in this Agreement, in which case such release shall be allocated solely against such Accredited Holder’s Accredited Pro Rata Share of the Escrow Shares.
(c) In the event that a Non-Accredited Holder or Non-Accredited Holders become obligated finally to (i) the Buyer Parties under Section 3.2(d) in respect of any portion of a Final Holders Payment or (ii) any Buyer Indemnified Party under the terms of Article XII in respect of any indemnification obligation and, subject to the limitations on the Non-Accredited Holders’ liability under Article XII and elsewhere in this Agreement, at such time that there is any remaining Escrow Cash in the Escrow Account, then the Agent and Buyer Parties shall execute and deliver a Joint Instruction Letter to the Escrow Agent directing the Escrow Agent to release (to the extent Escrow Cash then remains in the Escrow Account that is sufficient to satisfy such obligation) the cash amount required to satisfy such obligation. Subject to Section 12.6, any such release of Escrow Cash from the Escrow Account shall be allocated against the Non-Accredited Holders in proportion to each Non-Accredited Holder’s Non-Accredited Pro Rata Share of the Escrow Cash, except for any such release in respect of any indemnification obligation that relates to the breach of any representation, warranty or covenant made by any particular Non-Accredited Holder in this Agreement, in which case such release shall be allocated solely against such Non-Accredited Holder’s Non-Accredited Pro Rata Share of the Escrow Cash.
(d) On the date that is 15 months after the Closing Date, the Agent and the Buyer Parties shall execute and deliver to the Escrow Agent a Joint Instruction Letter instructing the Escrow Agent to release to the Holders all of the Escrow Funds then held in the Escrow Account (except for any Escrow Funds then in the Escrow Account which the Escrow Agent has been validly instructed to release to any Buyer Indemnified Party in accordance with the Escrow Agreement but has not actually released as of such date) less (i) a number of Escrow Shares (valued at the Market Price of such Escrow Shares as of the date that is 15 months after the Closing Date) and (ii) an amount of Escrow Cash, with full power of substitution, an aggregate value equal to the amount set forth in any and all Claim Notices submitted in good faith by any Buyer Indemnified Party prior to such date in accordance with Article XII (so long as its true and lawful attorney-in-fact with full irrevocable power and authority the facts or circumstances alleged to give rise to the claim for indemnification underlying such Claim Notice have been specified in the place and stead reasonable detail) that remain pending as of such Junior Priority Representative or such Junior Priority Debt Party or date. Escrow Funds so released shall be distributed to the Holders in the Designated Senior Representative’s own name, accordance with Section 4.2(f).
(e) Following resolution from time to time of any Claim underlying any Claim Notice for which a reserve of a portion of the Escrow Funds was established pursuant to Section 4.2(d), the Agent and the Buyer Parties shall execute and deliver to the Escrow Agent a Joint Instruction Letter instructing the Escrow Agent to release from the Escrow Account to a Buyer Indemnified Party: (i) a number of Escrow Shares (valued at the Market Price of such Escrow Shares as of the date of the final resolution of such Claim) plus (ii) an amount of Escrow Cash, with an aggregate value equal to such portion of the reserve amount as is appropriate for the resolution of such Claim. During the pendency of a Claim for which such a reserve was established, the Agent and the Buyer Parties shall evaluate the amount of such reserve from time to time as the circumstances of such Claim warrant, and, to the extent the Agent and the Buyer Parties agree (each acting reasonably in relation thereto) that such reserve is then greater than the amount that is reasonably expected to be paid in respect of such Claim, Escrow Funds in an amount equal to such excess shall be released to the Holders and distributed in accordance with Section 4.2(f). Following resolution of all such Claims for which such a reserve was established and the release of Escrow Funds to a Buyer Indemnified Party, if any, pursuant to the two preceding sentences, any Escrow Funds remaining in the Designated Senior RepresentativeEscrow Account that were reserved pending resolution of such Claims (except for any Escrow Funds then in the Escrow Account which the Escrow Agent has been validly instructed to release to any Buyer Indemnified Party in accordance with the Escrow Agreement but has not actually released as of such date) shall be released to the Holders and distributed in accordance with Section 4.2(f).
(f) Escrow Funds released to the Holders pursuant to Section 4.2(d) or Section 4.2(e) shall be distributed as follows:
(i) any Escrow Shares to be released to the Holders shall be released solely to the Accredited Holders in proportion to each Accredited Holder’s discretionAccredited Pro Rata Share of the Escrow Shares and shall give effect to any previous releases of Escrow Shares pursuant to Section 4.2(b) that were allocated to any particular Accredited Holder as contemplated in Section 4.2(b); and
(ii) any Escrow Cash to be released to the Holders shall be released solely to the Non-Accredited Holders in proportion to each Non-Accredited Holder’s Non-Accredited Pro Rata Share of the Escrow Cash and shall give effect to any previous releases of Escrow Cash pursuant to Section 4.2(c) that were allocated to any particular Non-Accredited Holder as contemplated in Section 4.2(c).
(g) If Parent distributes a dividend (whether of cash or shares of Parent Common Stock or other Interests) in respect of any Escrow Share during the period when such Escrow Share is held in the Escrow Account that would otherwise be distributable to the Accredited Holder in whose name such Escrow Share has been issued and for whose account such Escrow Share is being held in the Escrow Account, for the purpose then Parent shall issue such shares of carrying out Parent Common Stock or other Interests to such Accredited Holder in accordance with the terms of this Section 5.01(a)4.2(g) and shall deliver such cash, to take any and all appropriate action and to execute any and all documents and instruments that may be necessary or desirable to accomplish the purposes shares of Section 5.01(a), including any termination statements, endorsements Parent Common Stock or other instruments Interests to the Escrow Agent to be deposited in the Escrow Account to be held for the account of transfer such Accredited Holder. Such cash, shares of Parent Common Stock or releaseother Interests shall be treated in all respects as Escrow Funds hereunder.
(ch) The applicable Accredited Holders in whose name any Escrow Shares have been issued shall have the exclusive right to exercise all voting rights pertaining to such Escrow Shares held in the Escrow Account for the account of such Accredited Holder unless and until such Escrow Shares are distributed from the Escrow Account to a Person other than such Accredited Holder.
(i) In the event of a conflict between the Escrow Agreement and this Agreement, this Agreement shall govern. In the event that any Party receives a release of any Escrow Funds pursuant to the Escrow Agreement to which it is not entitled pursuant to the terms of this Agreement, such Party shall (i) if another party is entitled to such Escrow Funds at that time, transfer such Escrow Funds to such other party, or (ii) if no other party is entitled to such Escrow Funds at that time, deposit such Escrow Funds with the Escrow Agent to be held and released pursuant to the Escrow Agreement.
(j) If either the Agent or any Buyer Party shall fail to timely execute and deliver a Joint Instruction Letter when required under this Agreement, the Agent or the Buyer Parties, as applicable, shall be entitled to seek an order, judgment or decision (in accordance with Section 13.4) that will enable the Escrow Agent to release to the applicable Person or Persons the Escrow Shares to which they are entitled under this Agreement and to seek to recover Losses from the Agent or the Buyer Parties, as applicable, as a result of such failure to comply with this Agreement.
(k) Notwithstanding anything to the contrary in this Article IV, if any Junior Priority Collateral Documentshare certificate representing Escrow Shares is deposited with the Escrow Agent on behalf of any Accredited Holder and such share certificate represents more than the number of Escrow Shares that are to be released and disbursed to any Person in accordance with this Article IV and the Escrow Agreement, in then the event Buyer Parties and the terms of a Senior Collateral Document and a Junior Priority Collateral Document each require any Grantor Agent shall cooperate to: (i) instruct the Escrow Agent to make payment in respect of any item of Shared Collateral, release such share certificate from the Escrow Account; (ii) to deliver or afford control over any item of Shared Collateral to, or deposit any item of Shared Collateral with, cancel such share certificate; and (iii) replace such share certificate with (A) a share certificate representing the number of Escrow Shares to register ownership of any item of Shared Collateral be released and disbursed to such Person, which shall be issued in the name of and delivered to such Person (or make an assignment as may be otherwise directed by such Person and, if such Person is Parent or a Subsidiary of ownership Parent, such Escrow Shares shall be cancelled rather than represented on such replacement share certificate), and (B) a share certificate representing all remaining Escrow Shares that were then or deposit in the Escrow Account on behalf of any Shared Collateral or such Accredited Holder immediately prior to such release and disbursement, which shall be issued in the rights thereunder to, (iv) cause any securities intermediary, commodity intermediary or other Person acting name of the applicable Accredited Holder on whose behalf such Escrow Shares were deposited in a similar capacity to agree to comply, in respect of any item of Shared Collateral, with instructions or orders from, or to treat, in respect of any item of Shared Collateral, as the entitlement holder, (v) hold any item of Shared Collateral in trust for (Escrow Account and shall be delivered to the extent such item of Shared Collateral cannot be held in trust for multiple parties under applicable law), (vi) obtain the agreement of a bailee or other third party Escrow Agent to hold any item of Shared Collateral for in the benefit of or subject to Escrow Account in accordance with this Agreement and the control of or, in respect of any item of Shared Collateral, to follow the instructions of or (vii) obtain the agreement of a landlord with respect to access to leased premises where any item of Shared Collateral is located or waivers or subordination of rights with respect to any item of Shared Collateral in favor of, in any case, both the Designated Senior Representative and any Junior Priority Representative or Junior Priority Debt Party, such Grantor may, until the applicable Discharge of Senior Obligations has occurred, comply with such requirement under the applicable Junior Priority Collateral Document as it relates to such Shared Collateral by taking any of the actions set forth above only with respect to, or in favor of, the Designated Senior RepresentativeEscrow Agreement.
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Releases. (a) Each Subject to the last sentence of this Section 5.01(a), each Junior Priority Representative, for itself and on behalf of each Junior Priority Debt Party under its Junior Priority Debt Facility, agrees that, in the event of a sale, transfer or other disposition of any specified item of Shared Collateral (including all or substantially all of the equity interests of any subsidiary of the BorrowerCompany) other than (a release granted upon or following the Discharge of Senior Obligations“Disposition”), the Liens granted to the Junior Priority Representatives and the Junior Priority Debt Parties upon such Shared Collateral to secure Junior Priority Debt Obligations shall terminate and shall be released, automatically and without any further action, concurrently with the termination and or release of all Liens granted upon such Shared Collateral to secure Senior Obligations; , provided that, in that the case parties’ respective Liens shall attach to the net proceeds of any such sale, transfer or other disposition of Shared Collateral (other than any sale, transfer or other disposition in connection Disposition with the enforcement or exercise of any rights or remedies with respect same Lien priorities as provided in this Agreement to the Shared Collateral), extent such proceeds are not otherwise utilized to permanently reduce the Liens granted to the Junior Priority Representatives and the Junior Priority Debt Parties shall not be so released if such sale, transfer or other disposition is not permitted under the terms of any Junior Priority Debt DocumentSenior Obligations. Upon delivery to a Junior Priority Representative of an Officer’s Certificate stating that any such termination and or release of Liens securing the Senior Obligations has become effective (or shall become effective concurrently with such termination and or release of the Liens granted to the Junior Priority Debt Parties and the Junior Priority Representatives) and any necessary or proper instruments of termination or release prepared by the Borrower Company or any other Grantor, such Junior Priority Representative will promptly execute, deliver or acknowledge, at the BorrowerCompany’s or the other Grantor’s sole cost and expense, such instruments to evidence such termination and or release of the Liens; provided, however that such Officer’s Certificate shall not be required for any termination or release in connection with the exercise of remedies following an Event of Default. Nothing in this Section 5.01(a) will be deemed to (x) affect any agreement of a Junior Priority Representative, for itself and on behalf of the Junior Priority Debt Parties under its Junior Priority Debt Facility, to release the Liens on the Junior Priority Collateral as set forth in the relevant Junior Priority Debt Documents or (y) except in the case of a Disposition in connection with the exercise of secured creditors’ rights and remedies, require the release of Liens granted upon such Shared Collateral to secure Junior Priority Debt Obligations if such Disposition is not permitted under the terms of the Junior Priority Debt Documents.
(b) Each Junior Priority Representative, for itself and on behalf of each Junior Priority Debt Party under its Junior Priority Debt Facility, hereby irrevocably constitutes and appoints the Designated Senior Representative and any officer or agent of the Designated Senior Representative, with full power of substitution, as its true and lawful attorney-in-fact with full irrevocable power and authority in the place and stead of such Junior Priority Representative or such Junior Priority Debt Party or in the Designated Senior Representative’s own name, from time to time in the Designated Senior Representative’s discretion, for the purpose of carrying out the terms of Section 5.01(a), to take any and all appropriate action and to execute any and all documents and instruments that may be necessary or desirable to accomplish the purposes of Section 5.01(a), including any termination statements, endorsements or other instruments of transfer or release.
(c) Notwithstanding Unless and until the Discharge of Senior Obligations has occurred, each Junior Representative, for itself and on behalf of each Junior Priority Debt Party under its Junior Priority Debt Facility, hereby consents to the application, whether prior to or after an event of default under any Senior Debt Document of proceeds of Shared Collateral to the repayment of Senior Obligations pursuant to the Senior Debt Documents, provided that nothing in this Section 5.01(c) shall be construed to prevent or impair the rights of the Junior Representatives or the Junior Priority Debt Parties to receive proceeds in connection with the Junior Priority Debt Obligations not otherwise in contravention of this Agreement.
(d) Subject to Sections 5.06(a) and 5.06(f), notwithstanding anything to the contrary in any Junior Priority Collateral Document, in the event the terms of a Senior Collateral Document and a Junior Priority Collateral Document each require any Grantor to (i) to make payment in respect of any item of Shared CollateralCollateral to, (ii) to deliver or afford control over any item of Shared Collateral to, or deposit any item of Shared Collateral with, (iii) to register ownership of any item of Shared Collateral in the name of or make an assignment of ownership of any Shared Collateral or the rights thereunder to, (iv) cause any securities intermediary, commodity intermediary or other Person acting in a similar capacity to agree to comply, in respect of any item of Shared Collateral, with instructions or orders from, or to treat, in respect of any item of Shared Collateral, as the entitlement holder, (v) hold any item of Shared Collateral in trust for (to the extent such item of Shared Collateral cannot be held in trust for multiple parties under applicable law), (vi) obtain the agreement of a bailee or other third party to hold any item of Shared Collateral for the benefit of or subject to the control of or, in respect of any item of Shared Collateral, to follow the instructions of or (vii) obtain the agreement of a landlord with respect to access to leased premises where any item of Shared Collateral is located or waivers or subordination of rights with respect to any item of Shared Collateral in favor of, in any case, both the Designated any Senior Representative or Senior Secured Party and any Junior Priority Representative or Junior Priority Debt Party, such Grantor may, until the applicable Discharge of Senior Obligations has occurred, comply with such requirement under the applicable Junior Priority Collateral Document as it relates to such Shared Collateral by taking any of the actions set forth above only with respect to, or in favor of, the Designated Senior Representative.
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Releases. (a) Each Junior Priority Representative, for itself and on behalf of each Junior Priority Debt Party under its Junior Priority Debt Facility, agrees that, in the event of a sale, transfer or other disposition of any specified item of Shared Collateral (including all or substantially all of the equity interests of any subsidiary of either of the BorrowerIssuers) other than a release granted upon or following the Discharge of Senior Obligations, the Liens granted to the Junior Priority Representatives and the Junior Priority Debt Parties upon such Shared Collateral to secure Junior Priority Debt Obligations shall terminate and be released, automatically and without any further action, concurrently with the termination and release of all Liens granted upon such Shared Collateral to secure Senior Obligations; provided that, in the case of any such sale, transfer or other disposition of Shared Collateral (other than any sale, transfer or other disposition in connection with the enforcement or exercise of any rights or remedies with respect to the Shared Collateral), the Liens granted to the Junior Priority Representatives and the Junior Priority Debt Parties shall not be so released if such sale, transfer release of Senior Secured Parties’ Liens is granted upon or other disposition is not permitted under following the terms Discharge of any Junior Priority Debt DocumentSenior Obligations. Upon delivery to a Junior Priority Representative of an Officer’s Certificate stating that any such termination and release of Liens securing the Senior Obligations has become effective (or shall become effective concurrently with such termination and release of the Liens granted to the Junior Priority Debt Parties and the Junior Priority Representatives) and any necessary or proper instruments of termination or release prepared by either of the Borrower Issuers or any other Grantor, such Junior Priority Representative will promptly execute, deliver or acknowledge, at the Borrower’s Issuers’ or the other Grantor’s sole cost and expense, such instruments to evidence such termination and release of the Liens. Nothing in this Section 5.01(a) will be deemed to affect any agreement of a Junior Priority Representative, for itself and on behalf of the Junior Priority Debt Parties under its Junior Priority Debt Facility, to release the Liens on the Junior Priority Collateral as set forth in the relevant Junior Priority Debt Documents.
(b) Each Junior Priority Representative, for itself and on behalf of each Junior Priority Debt Party under its Junior Priority Debt Facility, hereby irrevocably constitutes and appoints the Designated Senior Representative and any officer or agent of the Designated Senior Representative, with full power of substitution, as its true and lawful attorney-in-fact with full irrevocable power and authority in the place and stead of such Junior Priority Representative or such Junior Priority Debt Party or in the Designated Senior Representative’s own name, from time to time in the Designated Senior Representative’s discretion, for the purpose of carrying out the terms of Section 5.01(a), to take any and all appropriate action and to execute any and all documents and instruments that may be necessary or desirable to accomplish the purposes of Section 5.01(a), including any termination statements, endorsements or other instruments of transfer or release.
(c) Unless and until the Discharge of Senior Obligations has occurred, each Junior Priority Representative, for itself and on behalf of each Junior Priority Debt Party under its Junior Priority Debt Facility, hereby consents to the application whether prior to or after an event of default under any Senior Debt Document of proceeds of Shared Collateral to the repayment of Senior Obligations pursuant to the Senior Debt Documents, provided that noting in this Section 5.01(c) shall be construed to prevent or impair the rights of the Junior Priority Representatives or the Junior Priority Debt Parties to receive proceeds in connection with the Junior Priority Debt Obligations not otherwise in contravention of this Agreement.
(d) Notwithstanding anything to the contrary in any Junior Priority Collateral Document, in the event the terms of a Senior Collateral Document and a Junior Priority Collateral Document each require any Grantor (i) to make payment in respect of any item of Shared Collateral, (ii) to deliver or afford control over any item of Shared Collateral to, or deposit any item of Shared Collateral with, (iii) to register ownership of any item of Shared Collateral in the name of or make an assignment of ownership of any Shared Collateral or the rights thereunder to, (iv) cause any securities intermediary, commodity intermediary or other Person acting in a similar capacity to agree to comply, in respect of any item of Shared Collateral, with instructions or orders from, or to treat, in respect of any item of Shared Collateral, as the entitlement holder, (v) hold any item of Shared Collateral in trust for (to the extent such item of Shared Collateral cannot be held in trust for multiple parties under applicable law), (vi) obtain the agreement of a bailee or other third party to hold any item of Shared Collateral for the benefit of or subject to the control of or, in respect of any item of Shared Collateral, to follow the instructions of or (vii) obtain the agreement of a landlord with respect to access to leased premises where any item of Shared Collateral is located or waivers or subordination of rights with respect to any item of Shared Collateral in favor of, in any case, both the Designated Senior Representative and any Junior Priority Representative or Junior Priority Debt Party, such Grantor may, until the applicable Discharge of Senior Obligations has occurred, comply with such requirement under the applicable Junior Priority Collateral Document as it relates to such Shared Collateral by taking any of the actions set forth above only with respect to, or in favor of, the Designated Senior Representative.
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Releases. (a) Each Junior Second Priority Representative, for itself and on behalf of each Junior Second Priority Debt Secured Party under its Junior Second Priority Debt Facility, agrees that, in the event of a sale, transfer or other disposition Disposition of any specified item of Shared Collateral (including all or substantially all of the equity interests Equity Interests of the Borrower or any subsidiary Subsidiary of the Borrower) (i) in connection with the exercise of remedies in respect of Collateral by a Designated Senior Representative or (ii) if not in connection with the exercise of remedies in respect of Collateral by the Designated Senior Representative, so long as such Disposition is permitted by the terms of the Senior Priority Debt Documents and, in the case of this clause (ii) other than a release granted upon or following in connection with the Discharge of Senior Obligations, the Liens granted to the Junior Second Priority Representatives and the Junior Second Priority Debt Secured Parties upon such Shared Collateral (but not on the Proceeds thereof that were not applied to the payment of Senior Obligations) to secure Junior Second Priority Debt Obligations shall terminate and be released, automatically and without any further action, concurrently with the termination and release of all Liens granted upon such Shared Collateral to secure Senior Obligations; provided that, in the case of any such sale, transfer or other disposition of Shared Collateral (other than any sale, transfer or other disposition in connection with the enforcement or exercise of any rights or remedies with respect to the Shared Collateral), the Liens granted to the Junior Priority Representatives and the Junior Priority Debt Parties shall not be so released if such sale, transfer or other disposition is not permitted under the terms of any Junior Priority Debt Document. Upon delivery to a Junior Second Priority Representative of an Officer’s Certificate stating that any such termination and release of Liens securing the Senior Obligations has become effective (or shall become effective concurrently with such termination and release of the Liens granted to the Junior Second Priority Debt Secured Parties and the Junior Second Priority Representatives) and any necessary or proper instruments of termination or release prepared by the Borrower or any other Grantor, such Junior Second Priority Representative will promptly execute, deliver or acknowledge, at the Borrower’s or the other Grantor’s sole cost and expenseexpense and without any representation or warranty, such instruments to evidence such termination and release of the Liens. Nothing in this Section 5.01(a) will be deemed to affect any agreement of a Junior Priority Representative, for itself and on behalf of the Junior Priority Debt Parties under its Junior Priority Debt Facility, to release the Liens on the Junior Priority Collateral as set forth in the relevant Junior Priority Debt Documents.
(b) Each Junior Priority Representative, for itself and on behalf of each Junior Priority Debt Party under its Junior Priority Debt Facility, hereby irrevocably constitutes and appoints the Designated Senior Representative and any officer or agent of the Designated Senior Representative, with full power of substitution, as its true and lawful attorney-in-fact with full irrevocable power and authority in the place and stead of such Junior Priority Representative or such Junior Priority Debt Party or in the Designated Senior Representative’s own name, from time to time in the Designated Senior Representative’s discretion, for the purpose of carrying out the terms of Section 5.01(a), to take any and all appropriate action and to execute any and all documents and instruments that may be necessary or desirable to accomplish the purposes of Section 5.01(a), including any termination statements, endorsements or other instruments of transfer or release.
(c) Notwithstanding anything to the contrary in any Junior Priority Collateral Document, in the event the terms of a Senior Collateral Document and a Junior Priority Collateral Document each require any Grantor (i) to make payment in respect of any item of Shared Collateral, (ii) to deliver or afford control over any item of Shared Collateral to, or deposit any item of Shared Collateral with, (iii) to register ownership of any item of Shared Collateral in the name of or make an assignment of ownership of any Shared Collateral or the rights thereunder to, (iv) cause any securities intermediary, commodity intermediary or other Person acting in a similar capacity to agree to comply, in respect of any item of Shared Collateral, with instructions or orders from, or to treat, in respect of any item of Shared Collateral, as the entitlement holder, (v) hold any item of Shared Collateral in trust for (to the extent such item of Shared Collateral cannot be held in trust for multiple parties under applicable law), (vi) obtain the agreement of a bailee or other third party to hold any item of Shared Collateral for the benefit of or subject to the control of or, in respect of any item of Shared Collateral, to follow the instructions of or (vii) obtain the agreement of a landlord with respect to access to leased premises where any item of Shared Collateral is located or waivers or subordination of rights with respect to any item of Shared Collateral in favor of, in any case, both the Designated Senior Representative and any Junior Priority Representative or Junior Priority Debt Party, such Grantor may, until the applicable Discharge of Senior Obligations has occurred, comply with such requirement under the applicable Junior Priority Collateral Document as it relates to such Shared Collateral by taking any of the actions set forth above only with respect to, or in favor of, the Designated Senior Representative.
Appears in 1 contract
Releases. (a) Each Junior Priority If in connection with any Enforcement Action by any Senior Representative, any Senior Collateral Agent (including any Enforcement Action referenced in clause (e) of the definition thereof that is taken by any Grantor with the consent of the applicable Senior Representative or Senior Collateral Agent (or the requisite Senior Claimholders) or any other exercise of any Senior Representative’s or any Senior Collateral Agent’s remedies in respect of the Collateral, in each case prior to the Discharge of Senior Obligations, such Senior Collateral Agent, for itself or on behalf of any of the Senior Claimholders represented by it, releases any of its Liens on any part of the Collateral or such Senior Representative, for itself or on behalf of any of the Senior Claimholders represented by it, releases any Guarantor Subsidiary from its obligations under its guaranty of any of the Senior Obligations, then the Liens, if any, of the Third Lien Collateral Agent, for itself or for the benefit of the Third Lien Claimholders, on such Collateral, and the obligations of such Guarantor Subsidiary under its guaranty of the Third Lien Obligations, shall be automatically, unconditionally and simultaneously released; provided that the net proceeds of the Enforcement Action will be applied to repay the Senior Obligations in accordance with the Senior Loan Documents. If in connection with any Enforcement Action or other exercise of rights and remedies by any Senior Representative or any Senior Collateral Agent, in each case prior to the Discharge of Senior Obligations, the equity interests of any Person are foreclosed upon or otherwise disposed of and such Senior Collateral Agent releases its Lien on the property or assets of such Person then the Liens, if any, of the Third Lien Collateral Agent, for itself or for the benefit of the Third Lien Claimholders, with respect to the property or assets of such Person will be automatically released to the same extent as the Liens of such Senior Collateral Agent. The Third Lien Representative and the Third Lien Collateral Agent, for itself or on behalf of any Third Lien Claimholders represented by it, promptly shall execute and deliver to the Senior Representatives, the Senior Collateral Agents or such Guarantor Subsidiary such termination statements, releases and other documents as the any Senior Representative, any Senior Collateral Agent or such Grantor may request to effectively confirm the foregoing releases.
(b) If in connection with any sale, lease, exchange, transfer or other disposition of any Collateral by any Grantor (collectively, a “Disposition”) permitted under the terms of the Senior Loan Documents and the Third Lien Loan Documents (other than in connection with an Enforcement Action or other exercise of any Senior Representative’s and/or Senior Collateral Agent’s remedies in respect of the Collateral, which shall be governed by Section 6.1(a)), any Senior Collateral Agent, for itself or on behalf of any Senior Claimholder represented by it, releases any of its Liens on any part of the Collateral, or any Senior Representative, for itself or on behalf of any Senior Claimholder represented by it, releases any Guarantor Subsidiary from its obligations under its guaranty of any of the Senior Obligations in each case other than (A) in connection with, or following, the Discharge of Senior Obligations, or (B) after the occurrence and during the continuance of any Event of Default under (and as defined in) any Third Lien Loan Document, then the Liens, if any, of the Third Lien Collateral Agent, for itself or for the benefit of the Third Lien Claimholders represented by it, on such Collateral, and the obligations of such Guarantor Subsidiary under its guaranty of the Third Lien Obligations, shall be automatically, unconditionally and simultaneously released. The Third Lien Representative and the Third Lien Collateral Agent, for itself and on behalf of each Junior Priority Debt Party under its Junior Priority Debt Facilityother Third Lien Claimholder represented by it, agrees thatshall promptly execute and deliver to the Senior Representative, in the event of a saleSenior Collateral Agents or such Guarantor Subsidiary such termination statements, transfer releases and other documents as any Senior Representative, Senior Collateral Agent or other disposition of any specified item of Shared Collateral such Guarantor Subsidiary may request to effectively confirm such release.
(including all or substantially all of the equity interests of any subsidiary of the Borrowerc) other than a release granted upon or following Until the Discharge of Senior ObligationsObligations occurs, the Liens granted to the Junior Priority Representatives Third Lien Representative and the Junior Priority Debt Parties upon such Shared Third Lien Collateral to secure Junior Priority Debt Obligations shall terminate and be released, automatically and without any further action, concurrently with the termination and release of all Liens granted upon such Shared Collateral to secure Senior Obligations; provided that, in the case of any such sale, transfer or other disposition of Shared Collateral (other than any sale, transfer or other disposition in connection with the enforcement or exercise of any rights or remedies with respect to the Shared Collateral), the Liens granted to the Junior Priority Representatives and the Junior Priority Debt Parties shall not be so released if such sale, transfer or other disposition is not permitted under the terms of any Junior Priority Debt Document. Upon delivery to a Junior Priority Representative of an Officer’s Certificate stating that any such termination and release of Liens securing the Senior Obligations has become effective (or shall become effective concurrently with such termination and release of the Liens granted to the Junior Priority Debt Parties and the Junior Priority Representatives) and any necessary or proper instruments of termination or release prepared by the Borrower or any other Grantor, such Junior Priority Representative will promptly execute, deliver or acknowledge, at the Borrower’s or the other Grantor’s sole cost and expense, such instruments to evidence such termination and release of the Liens. Nothing in this Section 5.01(a) will be deemed to affect any agreement of a Junior Priority Representative, for itself and on behalf of the Junior Priority Debt Parties under its Junior Priority Debt Facility, to release the Liens on the Junior Priority Collateral as set forth in the relevant Junior Priority Debt Documents.
(b) Each Junior Priority RepresentativeAgent, for itself and on behalf of each Junior Priority Debt Party under its Junior Priority Debt Facilityother Third Lien Claimholder represented by it, hereby irrevocably constitutes and appoints the Designated Senior Representative Collateral Agent and any officer or agent of the Designated Senior RepresentativeCollateral Agent, with full power of substitution, as its true and lawful attorney-in-fact with full irrevocable power and authority in the place and stead of the Third Lien Representative, the Third Lien Collateral Agent and such Junior Priority Representative or such Junior Priority Debt Party Third Lien Claimholders or in the Designated Senior RepresentativeCollateral Agent’s own name, from time to time in the Designated Senior RepresentativeCollateral Agent’s discretion, for the purpose of carrying out the terms of this Section 5.01(a)6.1, to take any and all appropriate action and to execute any and all documents and instruments that which may be necessary or desirable to accomplish the purposes of this Section 5.01(a)6.1, including any termination statements, endorsements or other instruments of transfer or release. This power is coupled with an interest and is irrevocable until the Discharge of Senior Obligations.
(cd) Notwithstanding anything to Until the contrary in any Junior Priority Collateral Document, in the event the terms of a Senior Collateral Document and a Junior Priority Collateral Document each require any Grantor (i) to make payment in respect of any item of Shared Collateral, (ii) to deliver or afford control over any item of Shared Collateral to, or deposit any item of Shared Collateral with, (iii) to register ownership of any item of Shared Collateral in the name of or make an assignment of ownership of any Shared Collateral or the rights thereunder to, (iv) cause any securities intermediary, commodity intermediary or other Person acting in a similar capacity to agree to comply, in respect of any item of Shared Collateral, with instructions or orders from, or to treat, in respect of any item of Shared Collateral, as the entitlement holder, (v) hold any item of Shared Collateral in trust for (to the extent such item of Shared Collateral cannot be held in trust for multiple parties under applicable law), (vi) obtain the agreement of a bailee or other third party to hold any item of Shared Collateral for the benefit of or subject to the control of or, in respect of any item of Shared Collateral, to follow the instructions of or (vii) obtain the agreement of a landlord with respect to access to leased premises where any item of Shared Collateral is located or waivers or subordination of rights with respect to any item of Shared Collateral in favor of, in any case, both the Designated Senior Representative and any Junior Priority Representative or Junior Priority Debt Party, such Grantor may, until the applicable Discharge of Senior Obligations occurs, to the extent that any Senior Collateral Agent, any Senior Representative or any Senior Claimholder,
(i) has occurredreleased any Lien on Collateral or any Guarantor Subsidiary from its obligation under its guarantee and any such Liens or guarantee are later reinstated or (ii) obtains any new Liens from any Grantor or additional guarantees from any Guarantor Subsidiary, comply with then the Third Lien Collateral Agent, for itself and for the Third Lien Claimholders represented by it, shall be granted a Lien on any such requirement under Collateral, subject to the applicable Junior Priority Collateral Document lien subordination provisions of this Agreement, and each Third Lien Representative, for itself and for the Third Lien Claimholders represented by it, shall be granted an additional guarantee, as it relates to such Shared Collateral by taking any of the actions set forth above only with respect to, or in favor of, the Designated Senior Representativecase may be.
Appears in 1 contract
Samples: Third Lien Subordination and Intercreditor Agreement
Releases. (a) Each Junior Priority Representative, for itself and on behalf of each Junior Priority Debt Secured Party under its Junior Priority Debt Facility, agrees that, in the event of a sale, transfer or other disposition of any specified item of Shared Collateral (including all or substantially all of the equity interests of any subsidiary of Holdings) (i) in connection with the Borrowerexercise of remedies in respect of Shared Collateral by a Senior Representative or (ii) if not in connection with the exercise of remedies in respect of Shared Collateral by a Senior Representative, so long as such sale, transfer or other than a release granted upon or following disposition is permitted by the Discharge terms of the Junior Debt Documents and the Senior ObligationsDebt Documents, the Liens granted to the Junior Priority Representatives and the Junior Priority Debt Secured Parties upon such Shared Collateral (but such Liens shall not be deemed to be so released on the Proceeds thereof that were not applied to the payment of Senior Obligations) to secure Junior Priority Debt Obligations shall terminate and be released, automatically and without any further action, concurrently with or to the same extent as the termination and release of all Liens granted upon such Shared Collateral to secure Senior Obligations; provided that, in the case of any such sale, transfer or other disposition of Shared Collateral (other than any sale, transfer or other disposition in connection with the enforcement or exercise of any rights or remedies with respect to the Shared Collateral), the Liens granted to the Junior Priority Representatives and the Junior Priority Debt Parties shall not be so released if such sale, transfer or other disposition is not permitted under the terms of any Junior Priority Debt Document. Upon delivery to a Junior Priority Representative of an Officer’s Certificate stating that any such termination and release of Liens securing the Senior Obligations has become effective (or shall become effective concurrently with such termination and release of the Liens granted to the Junior Priority Debt Secured Parties and the Junior Priority Representatives) and any necessary or proper instruments of termination or release prepared by the Borrower or any other Grantor, such Junior Priority Representative will promptly execute, deliver or acknowledge, at the Borrower’s or the other Grantor’s sole cost and expense, such instruments to evidence such termination and release of the Liens. Nothing in this Section 5.01(a) will be deemed to affect any agreement of a Junior Priority Representative, for itself and on behalf of the Junior Priority Debt Secured Parties under its Junior Priority Debt Facility, to release the Liens on the Junior Priority Collateral as set forth in the relevant Junior Priority Debt Documents.
(b) Each Junior Priority Representative, for itself and on behalf of each Junior Priority Debt Party under its Junior Priority Debt Facility, hereby irrevocably constitutes and appoints the Designated Senior Representative and any officer or agent of the Designated Senior Representative, with full power of substitution, as its true and lawful attorney-in-fact with full irrevocable power and authority in the place and stead of such Junior Priority Representative or such Junior Priority Debt Party or in the Designated Senior Representative’s own name, from time to time in the Designated Senior Representative’s discretion, for the purpose of carrying out the terms of Section 5.01(a), to take any and all appropriate action and to execute any and all documents and instruments that may be necessary or desirable to accomplish the purposes of Section 5.01(a), including any termination statements, endorsements or other instruments of transfer or release.
(c) Notwithstanding anything to the contrary in any Junior Priority Collateral Document, in the event the terms of a Senior Collateral Document and a Junior Priority Collateral Document each require any Grantor (i) to make payment in respect of any item of Shared Collateral, (ii) to deliver or afford control over any item of Shared Collateral to, or deposit any item of Shared Collateral with, (iii) to register ownership of any item of Shared Collateral in the name of or make an assignment of ownership of any Shared Collateral or the rights thereunder to, (iv) cause any securities intermediary, commodity intermediary or other Person acting in a similar capacity to agree to comply, in respect of any item of Shared Collateral, with instructions or orders from, or to treat, in respect of any item of Shared Collateral, as the entitlement holder, (v) hold any item of Shared Collateral in trust for (to the extent such item of Shared Collateral cannot be held in trust for multiple parties under applicable law), (vi) obtain the agreement of a bailee or other third party to hold any item of Shared Collateral for the benefit of or subject to the control of or, in respect of any item of Shared Collateral, to follow the instructions of or (vii) obtain the agreement of a landlord with respect to access to leased premises where any item of Shared Collateral is located or waivers or subordination of rights with respect to any item of Shared Collateral in favor of, in any case, both the Designated Senior Representative and any Junior Priority Representative or Junior Priority Debt Party, such Grantor may, until the applicable Discharge of Senior Obligations has occurred, comply with such requirement under the applicable Junior Priority Collateral Document as it relates to such Shared Collateral by taking any of the actions set forth above only with respect to, or in favor of, the Designated Senior Representative.
Appears in 1 contract
Samples: Credit Agreement (Amc Entertainment Holdings, Inc.)
Releases. (a) Each Junior If the Senior Agent or any CR Senior Lender releases any Lien on any part of the CR First Priority RepresentativeCollateral in connection with any sale, for itself and on behalf of each Junior Priority Debt Party under its Junior Priority Debt Facilitylease, agrees that, in the event of a saleexchange, transfer or other disposition of any specified item of Shared Collateral (including all or substantially all thereof in accordance with the terms of the equity interests of CR Credit Documents (not involving any subsidiary of the Borrower) other than a release granted upon Remedial Action or following the Discharge of Senior ObligationsGuaranty Action), the Liens granted of the BH/PIK Lenders shall be automatically and unconditionally and simultaneously released [HANDLE TIA ISSUE] and the BH/PIK Lenders shall execute and deliver to PHI and the Senior Agent such termination statements, releases and other documents as the Senior Agent, the CR Senior Lenders or PHI may reasonably request to effectively confirm such release. All such disposition proceeds shall be applied as provided in the CR Senior Credit Agreement. Notwithstanding the foregoing, the Senior Agent shall endeavor to notify the Junior Priority Representatives and the Junior Priority Debt Parties upon Subordinated Trustee of such Shared Collateral to secure Junior Priority Debt Obligations shall terminate and be releasedproposed sale, automatically and without any further actionlease, concurrently with the termination and release of all Liens granted upon such Shared Collateral to secure Senior Obligations; provided that, in the case of any such saleexchange, transfer or other disposition and shall have been provided the opportunity to purchase the Collateral to be sold, leased, exchanged, transferred or otherwise disposed of Shared on terms more favorable to PHI than those offered as aforesaid; PROVIDED, HOWEVER, that neither the Senior Agent nor the CR Senior Lender shall have any liability for a failure to provide such notice and opportunity to purchase.
(b) If the BH Senior Lender releases any Lien on any part of the BH First Priority Collateral (other than in connection with any sale, lease, exchange, transfer or other disposition thereof in connection accordance with the enforcement terms of the BH Senior Credit Documents (not involving any Remedial Action or exercise of any rights or remedies with respect to the Shared CollateralGuaranty Action), the Liens granted to of the Senior Agent, the CR Senior Lenders, the Junior Priority Representatives Subordinated Trustee and the Junior Priority Debt Parties Subordinated Lenders shall not be so automatically and unconditionally and simultaneously released if and the Senior Agent, the CR Senior Lenders, the Junior Subordinated Trustee and the Junior Subordinated Lenders shall execute and deliver to PHI and the BH Senior Lender such termination statements, releases and other documents as the BH Senior Lender or PHI may reasonably request to effectively confirm such release. All such disposition proceeds shall be applied as provided in the BH Senior Credit Agreement. Notwithstanding the foregoing, the BH Senior Lenders shall endeavor to notify the CR Senior Lenders and the Junior Subordinated Trustee of such proposed sale, lease, exchange, transfer or other disposition is not permitted under and shall have been provided the opportunity to purchase the Collateral to be sold, leased, exchanged, transferred or otherwise disposed of on terms of any Junior Priority Debt Document. Upon delivery more favorable to PHI than those offered as aforesaid; PROVIDED, HOWEVER, that the BH Senior Lenders shall have no liability for a Junior Priority Representative of an Officer’s Certificate stating that any failure to provide such termination notice and release of Liens securing the Senior Obligations has become effective (or shall become effective concurrently with such termination and release of the Liens granted opportunity to the Junior Priority Debt Parties and the Junior Priority Representatives) and any necessary or proper instruments of termination or release prepared by the Borrower or any other Grantor, such Junior Priority Representative will promptly execute, deliver or acknowledge, at the Borrower’s or the other Grantor’s sole cost and expense, such instruments to evidence such termination and release of the Liens. Nothing in this Section 5.01(a) will be deemed to affect any agreement of a Junior Priority Representative, for itself and on behalf of the Junior Priority Debt Parties under its Junior Priority Debt Facility, to release the Liens on the Junior Priority Collateral as set forth in the relevant Junior Priority Debt Documentspurchase.
(b) Each Junior Priority Representative, for itself and on behalf of each Junior Priority Debt Party under its Junior Priority Debt Facility, hereby irrevocably constitutes and appoints the Designated Senior Representative and any officer or agent of the Designated Senior Representative, with full power of substitution, as its true and lawful attorney-in-fact with full irrevocable power and authority in the place and stead of such Junior Priority Representative or such Junior Priority Debt Party or in the Designated Senior Representative’s own name, from time to time in the Designated Senior Representative’s discretion, for the purpose of carrying out the terms of Section 5.01(a), to take any and all appropriate action and to execute any and all documents and instruments that may be necessary or desirable to accomplish the purposes of Section 5.01(a), including any termination statements, endorsements or other instruments of transfer or release.
(c) Notwithstanding anything to the contrary in any Junior Priority Collateral Document, in the event the terms of a Senior Collateral Document and a Junior Priority Collateral Document each require any Grantor (i) to make payment in respect of any item of Shared Collateral, (ii) to deliver or afford control over any item of Shared Collateral to, or deposit any item of Shared Collateral with, (iii) to register ownership of any item of Shared Collateral in the name of or make an assignment of ownership of any Shared Collateral or the rights thereunder to, (iv) cause any securities intermediary, commodity intermediary or other Person acting in a similar capacity to agree to comply, in respect of any item of Shared Collateral, with instructions or orders from, or to treat, in respect of any item of Shared Collateral, as the entitlement holder, (v) hold any item of Shared Collateral in trust for (to the extent such item of Shared Collateral cannot be held in trust for multiple parties under applicable law), (vi) obtain the agreement of a bailee or other third party to hold any item of Shared Collateral for the benefit of or subject to the control of or, in respect of any item of Shared Collateral, to follow the instructions of or (vii) obtain the agreement of a landlord with respect to access to leased premises where any item of Shared Collateral is located or waivers or subordination of rights with respect to any item of Shared Collateral in favor of, in any case, both the Designated Senior Representative and any Junior Priority Representative or Junior Priority Debt Party, such Grantor may, until the applicable Discharge of Senior Obligations has occurred, comply with such requirement under the applicable Junior Priority Collateral Document as it relates to such Shared Collateral by taking any of the actions set forth above only with respect to, or in favor of, the Designated Senior Representative.
Appears in 1 contract
Samples: Intercreditor and Subordination Agreement (Planet Hollywood International Inc)
