Taking and Enforcement of Remedies. (1) Each of the Purchasers hereby acknowledges that, to the extent permitted by applicable law, the remedies provided under the Transaction Documents to the Purchasers are for the benefit of the Purchasers collectively and acting together and not severally and further acknowledges that its rights under the Transaction Documents are to be exercised not severally, but collectively by the Agent upon the decision of the Purchasers; accordingly, notwithstanding any of the provisions contained in any of the Transaction Documents, each of the Purchasers hereby covenants and agrees that it shall not be entitled to take any action with respect to the Transaction Documents, including, without limitation, any acceleration of the indebtedness, liabilities or obligations of the Company or any of its Subsidiaries, but that any such action shall be taken only by the Agent with the prior written agreement of the Purchasers, provided that, notwithstanding the foregoing: (2) in the absence of instructions from the Purchasers and where in the sole opinion of the Agent the exigencies of the situation warrant such action, the Agent may without notice to or consent of the Purchasers take such action on behalf of the Purchasers as it deems appropriate or desirable in the interest of the Purchasers; and (3) the commencement of litigation before any court shall be made in the name of each Purchaser individually unless the laws of the jurisdiction of such court permit such litigation to be commenced in the name of the Agent on behalf of the Purchasers (whether pursuant to a specific power of attorney in favor of the Agent or otherwise) and the Agent agrees to commence such litigation in its name; provided, however, that no litigation shall be commenced in the name of any Purchaser without the prior written consent of such Purchaser; (4) each of the Purchasers hereby further covenants and agrees that upon any such written consent being given by the Purchasers, they shall co-operate fully with the Agent to the extent requested by the Agent in the collective realization, including, without limitation, the appointment of a receiver and manager to act for their collective benefit; and each Purchaser covenants and agrees to do all acts and things to make, execute and deliver all agreements and other instruments, including, without limitation, any instruments necessary to effect any registrations, so as to fully carry out the intent and purpose of this Section 5.19; and each of the Purchasers hereby covenants and agrees that it has not heretofore and shall not seek, take, accept or receive any security for any of the obligations and liabilities of the Company under the Transaction Documents or under any other document, instrument, writing or agreement ancillary thereto other than such security as is provided hereunder and shall not enter into any agreement with the Company or any of its Subsidiaries relating in any manner whatsoever to the transactions contemplated hereunder, unless all of the Purchasers shall at the same time obtain the benefit of any such security or agreement, as the case may be. (5) Notwithstanding any other provision contained in the Transaction Documents, no Purchaser shall be required to be joined as a party to any litigation commenced against the Company or any of its Subsidiaries by the Agent under the Transaction Documents (unless otherwise required by any court of competent jurisdiction) if it elects not to be so joined in which event any such litigation shall not include claims in respect of the rights of such Purchaser against the Company or any of its Subsidiaries under the Transaction Documents until such time as such Purchaser does elect to be so joined; provided that if at the time of such subsequent election it is not possible or practicable for such Purchaser to be so joined, then such Purchaser may commence proceedings in its own name in respect of its rights against the Company or any of its Subsidiaries.
Appears in 4 contracts
Samples: Purchase Agreement (Neah Power Systems, Inc.), Purchase Agreement (Inform Worldwide Holdings Inc), Purchase Agreement (Neah Power Systems, Inc.)
Taking and Enforcement of Remedies. (1) Each of the Purchasers Except as otherwise provided herein, each Lender hereby acknowledges that, to the extent permitted by applicable lawLaw, the rights and remedies provided under the Transaction Documents to the Purchasers Lenders are for the benefit of the Purchasers Lenders collectively and acting together and not severally and further acknowledges that its rights under the Transaction Documents and remedies thereunder are to be exercised not severally, severally but collectively by through the Agent upon the decision of the Purchasers; Lenders (with the required majority or unanimity as herein provided), regardless of whether acceleration of Indebtedness hereunder was made, and accordingly, notwithstanding any of the provisions contained in any of the Transaction Documentsherein, each of the Purchasers Lenders hereby covenants and agrees that it shall will not be entitled to take any action with respect to the Transaction DocumentsCredit Facility, including, without limitation, including any acceleration of the indebtedness, liabilities or obligations of the Company or any of its SubsidiariesIndebtedness thereunder, but that any such action shall will be taken only by the Agent with the prior written agreement direction of the Purchasers, provided that, notwithstanding Lenders (with the required majority or unanimity as herein provided). Notwithstanding the foregoing:
(2) , in the absence of written instructions from the Purchasers Lenders, and where in the sole opinion of the Agent the exigencies of the situation warrant such action, the Agent may without notice to or consent of the Purchasers Lenders take such action on behalf of the Purchasers Lenders as it deems appropriate or desirable in the interest circumstances. Each of the Purchasers; and
(3) the commencement of litigation before any court shall be made in the name of each Purchaser individually unless the laws of the jurisdiction of such court permit such litigation to be commenced in the name of the Agent on behalf of the Purchasers (whether pursuant to a specific power of attorney in favor of the Agent or otherwise) and the Agent agrees to commence such litigation in its name; provided, however, that no litigation shall be commenced in the name of any Purchaser without the prior written consent of such Purchaser;
(4) each of the Purchasers hereby further covenants and agrees that upon any such written consent being given by the Purchasers, they shall co-operate fully with the Agent to the extent requested by the Agent in the collective realization, including, without limitation, the appointment of a receiver and manager to act for their collective benefit; and each Purchaser covenants and agrees to do all acts and things to make, execute and deliver all agreements and other instruments, including, without limitation, any instruments necessary to effect any registrations, so as to fully carry out the intent and purpose of this Section 5.19; and each of the Purchasers Lenders hereby covenants and agrees that it has not heretofore and shall will not seek, take, accept or receive any security for any of the obligations and liabilities Indebtedness of the Company Penn West Parties under the Transaction Documents or under any other document, instrument, writing or agreement ancillary thereto other than such security as is provided hereunder and shall will not enter into any agreement with the Company or any of its Subsidiaries the Parties relating in any manner whatsoever to the transactions contemplated hereunderCredit Facility, unless all of the Purchasers shall Lenders will at the same time obtain the benefit of any such security or agreement, as the case may be.
(5) Notwithstanding any other provision contained in the Transaction Documents, no Purchaser shall be required to be joined as a party to any litigation commenced against the Company or any of its Subsidiaries by the Agent under the Transaction Documents (unless otherwise required by any court of competent jurisdiction) if it elects not to be so joined in which event any such litigation shall not include claims in respect of the rights of such Purchaser against the Company or any of its Subsidiaries under the Transaction Documents until such time as such Purchaser does elect to be so joined; provided that if at the time of such subsequent election it is not possible or practicable for such Purchaser to be so joined, then such Purchaser may commence proceedings in its own name in respect of its rights against the Company or any of its Subsidiaries.
Appears in 4 contracts
Samples: Credit Agreement (Penn West Petroleum Ltd.), Credit Agreement (Penn West Energy Trust), Credit Agreement (Penn West Energy Trust)
Taking and Enforcement of Remedies. (1) Each of the Purchasers Except as otherwise provided herein, each Lender hereby acknowledges that, to the extent permitted by applicable lawLaw, the rights and remedies provided under the Transaction Documents to the Purchasers Lenders are for the benefit of the Purchasers Lenders collectively and acting together and not severally and further acknowledges that its rights under the Transaction Documents and remedies thereunder are to be exercised not severally, severally but collectively by through the Agent upon the decision of the Purchasers; Lenders (with the required unanimity as herein provided), regardless of whether acceleration of Indebtedness hereunder was made, and accordingly, notwithstanding any of the provisions contained in any of the Transaction Documentsherein, each of the Purchasers Lenders hereby covenants and agrees that it shall will not be entitled to take any action with respect to the Transaction DocumentsCredit Facilities, including, without limitation, including any acceleration of the indebtedness, liabilities or obligations of the Company or any of its SubsidiariesIndebtedness thereunder, but that any such action shall will be taken only by the Agent with the prior written agreement direction of the Purchasers, provided that, notwithstanding Lenders (with the required unanimity as herein provided). Notwithstanding the foregoing:
(2) , in the absence of written instructions from the Purchasers Lenders, and where in the sole opinion of the Agent the exigencies of the situation warrant such action, the Agent may without notice to or consent of the Purchasers Lenders take such action on behalf of the Purchasers Lenders as it deems appropriate or desirable in the interest circumstances. Each of the Purchasers; and
(3) the commencement of litigation before any court shall be made in the name of each Purchaser individually unless the laws of the jurisdiction of such court permit such litigation to be commenced in the name of the Agent on behalf of the Purchasers (whether pursuant to a specific power of attorney in favor of the Agent or otherwise) and the Agent agrees to commence such litigation in its name; provided, however, that no litigation shall be commenced in the name of any Purchaser without the prior written consent of such Purchaser;
(4) each of the Purchasers hereby further covenants and agrees that upon any such written consent being given by the Purchasers, they shall co-operate fully with the Agent to the extent requested by the Agent in the collective realization, including, without limitation, the appointment of a receiver and manager to act for their collective benefit; and each Purchaser covenants and agrees to do all acts and things to make, execute and deliver all agreements and other instruments, including, without limitation, any instruments necessary to effect any registrations, so as to fully carry out the intent and purpose of this Section 5.19; and each of the Purchasers Lenders hereby covenants and agrees that it has not heretofore and shall will not seek, take, accept or receive any security for any of the obligations and liabilities Indebtedness of the Company Borrower under the Transaction Documents or under any other document, instrument, writing or agreement ancillary thereto other than such security as is provided hereunder and shall will not enter into any agreement with the Company or any of its Subsidiaries the Parties relating in any manner whatsoever to the transactions contemplated hereunderCredit Facilities, unless all of the Purchasers shall Lenders will at the same time obtain the benefit of any such security or agreement, as the case may be.
(5) Notwithstanding any other provision contained in the Transaction Documents, no Purchaser shall be required to be joined as a party to any litigation commenced against the Company or any of its Subsidiaries by the Agent under the Transaction Documents (unless otherwise required by any court of competent jurisdiction) if it elects not to be so joined in which event any such litigation shall not include claims in respect of the rights of such Purchaser against the Company or any of its Subsidiaries under the Transaction Documents until such time as such Purchaser does elect to be so joined; provided that if at the time of such subsequent election it is not possible or practicable for such Purchaser to be so joined, then such Purchaser may commence proceedings in its own name in respect of its rights against the Company or any of its Subsidiaries.
Appears in 3 contracts
Samples: Credit Agreement (Protective Products of America, Inc.), Credit Agreement (Protective Products of America, Inc.), Credit Agreement (Protective Products of America, Inc.)
Taking and Enforcement of Remedies. (1a) Each of the Purchasers Lenders hereby acknowledges that, to the extent permitted by applicable lawApplicable Law, the remedies provided hereunder or under the Transaction Security Documents to the Purchasers Lenders are for the benefit of the Purchasers Lenders collectively and acting together and not severally and further acknowledges that its rights under the Transaction Documents hereunder and thereunder are to be exercised not severally, but collectively by the Administrative Agent upon the decision of the PurchasersLenders, the Majority Lenders or the Super Majority Lenders, as applicable, regardless of whether declaration or acceleration was made pursuant to Section 10.2; accordingly, notwithstanding any of the provisions contained in any of the Transaction Documentsherein and therein, each of the Purchasers Lenders hereby covenants and agrees that it shall not be entitled to take any action with respect to the Transaction DocumentsFacility, including, without limitation, any declaration or acceleration of the indebtedness, liabilities or obligations of the Company or any of its Subsidiariesunder Section 10.2, but that any such action shall be taken only by the Administrative Agent with the prior written agreement consent of the PurchasersLenders, the Majority Lenders or the Super Majority Lenders, as applicable, provided that, notwithstanding the foregoing:
(2i) in the absence of instructions from the Purchasers Lenders, from the Majority Lenders or from the Super Majority Lenders, as applicable, and where in the sole opinion of the Administrative Agent the exigencies of the situation warrant such action, the Administrative Agent may without notice to or consent of the Purchasers Lenders take such action on behalf of the Purchasers Lenders as it deems appropriate or desirable in the interest of the PurchasersLenders; and
(3ii) the commencement of litigation before any court shall be made in the name of each Purchaser Lender individually unless the laws of the jurisdiction of such court permit such litigation to be commenced in the name of the Administrative Agent on behalf of the Purchasers Lenders (whether pursuant to a specific power of attorney in favor favour of the Administrative Agent or otherwise) and the Administrative Agent agrees to commence such litigation in its name; provided, however, that no litigation shall be commenced in the name of any Purchaser without the prior written consent of such Purchaser;
(4) each of the Purchasers Lenders hereby further covenants and agrees that upon any such written consent being given by the PurchasersLenders, the Majority Lenders or the Super Majority Lenders, as applicable, they shall co-operate fully with the Administrative Agent to the extent requested by the Administrative Agent in the collective realization, realization including, without limitation, the appointment of a receiver and manager to act for their collective benefit; and each Purchaser Lender covenants and agrees to do all acts and things and to make, execute and deliver all agreements and other instruments, including, without limitation, any instruments necessary to effect any registrations, so as to fully carry out the intent and purpose of this Section 5.1911.11; and each of the Purchasers Lenders hereby covenants and agrees that that, other than as provided in this Agreement, it has not heretofore and shall not seek, take, accept or receive any security for any of the obligations and liabilities of the Company under the Transaction Documents Borrowers or any Guarantor hereunder or under any other document, instrument, writing or agreement ancillary thereto other than such security as is provided hereunder hereto and shall not enter into any agreement with the Company or any of its Subsidiaries the parties hereto or thereto relating in any manner whatsoever to the transactions contemplated hereunderFacility, unless all of the Purchasers Lenders shall at the same time obtain the benefit of any such security or agreement, as the case may be.
(5b) Notwithstanding any other provision contained in the Transaction Documentsthis Agreement, no Purchaser Lender shall be required to be joined as a party to any litigation commenced against the Company or any of its Subsidiaries Obligor by the Agent under Administrative Agent, the Transaction Documents Majority Lenders or the Super Majority Lenders, as applicable, hereunder (unless otherwise required by any court of competent jurisdiction) if it elects not to be so joined in which event any such litigation shall not include claims in respect of the rights of such Purchaser Lender against the Company or any of its Subsidiaries under the Transaction Documents Obligors hereunder until such time as such Purchaser Lender does elect to be so joined; provided that if at the time of such subsequent election it is not possible or practicable for such Purchaser Lender to be so joined, then such Purchaser Lender may commence proceedings in its own name in respect of its rights against the Company or any of its SubsidiariesObligors hereunder.
Appears in 3 contracts
Samples: Revolving Term Credit Agreement (Celestica Inc), Revolving Term Credit Agreement (Celestica Inc), Revolving Term Credit Agreement (Celestica Inc)
Taking and Enforcement of Remedies. (1) Each of the Purchasers Except as otherwise provided herein, each Lender hereby acknowledges that, to the extent permitted by applicable lawLaw, the rights and remedies provided under the Transaction Documents to the Purchasers Lenders are for the benefit of the Purchasers Lenders collectively and acting together and not severally and further acknowledges that its rights under the Transaction Documents and remedies thereunder are to be exercised not severally, severally but collectively by through the Agent upon the decision of the Purchasers; Lenders (with the required majority or unanimity as herein provided), regardless of whether acceleration of Indebtedness hereunder was made, and accordingly, notwithstanding any of the provisions contained in any of the Transaction Documentsherein, each of the Purchasers Lenders hereby covenants and agrees that it shall will not be entitled to take any action with respect to the Transaction DocumentsCredit Facility, including, without limitation, including any acceleration of the indebtedness, liabilities or obligations of the Company or any of its SubsidiariesIndebtedness thereunder, but that any such action shall will be taken only by the Agent with the prior written agreement direction of the Purchasers, provided that, notwithstanding Lenders (with the required majority or unanimity as herein provided). Notwithstanding the foregoing:
(2) , in the absence of written instructions from the Purchasers Lenders, and where in the sole opinion of the Agent the exigencies of the situation warrant such action, the Agent may without notice to or consent of the Purchasers Lenders take such action on behalf of the Purchasers Lenders as it deems appropriate or desirable in the interest circumstances. Each of the Purchasers; and
(3) the commencement of litigation before any court shall be made in the name of each Purchaser individually unless the laws of the jurisdiction of such court permit such litigation to be commenced in the name of the Agent on behalf of the Purchasers (whether pursuant to a specific power of attorney in favor of the Agent or otherwise) and the Agent agrees to commence such litigation in its name; provided, however, that no litigation shall be commenced in the name of any Purchaser without the prior written consent of such Purchaser;
(4) each of the Purchasers hereby further covenants and agrees that upon any such written consent being given by the Purchasers, they shall co-operate fully with the Agent to the extent requested by the Agent in the collective realization, including, without limitation, the appointment of a receiver and manager to act for their collective benefit; and each Purchaser covenants and agrees to do all acts and things to make, execute and deliver all agreements and other instruments, including, without limitation, any instruments necessary to effect any registrations, so as to fully carry out the intent and purpose of this Section 5.19; and each of the Purchasers Lenders hereby covenants and agrees that it has not heretofore and shall will not seek, take, accept or receive any security for any of the obligations and liabilities Indebtedness of the Company Enerplus Parties under the Transaction Documents or under any other document, instrument, writing or agreement ancillary thereto other than such security as is provided hereunder and shall will not enter into any agreement with the Company or any of its Subsidiaries the Parties relating in any manner whatsoever to the transactions contemplated hereunderCredit Facility, unless all of the Purchasers shall Lenders will at the same time obtain the benefit of any such security or agreement, as the case may be.
(5) Notwithstanding any other provision contained in the Transaction Documents, no Purchaser shall be required to be joined as a party to any litigation commenced against the Company or any of its Subsidiaries by the Agent under the Transaction Documents (unless otherwise required by any court of competent jurisdiction) if it elects not to be so joined in which event any such litigation shall not include claims in respect of the rights of such Purchaser against the Company or any of its Subsidiaries under the Transaction Documents until such time as such Purchaser does elect to be so joined; provided that if at the time of such subsequent election it is not possible or practicable for such Purchaser to be so joined, then such Purchaser may commence proceedings in its own name in respect of its rights against the Company or any of its Subsidiaries.
Appears in 2 contracts
Samples: Term Credit Agreement (ENERPLUS Corp), Credit Agreement (ENERPLUS Corp)
Taking and Enforcement of Remedies. (1) Each of the Purchasers Except as otherwise provided herein, each Lender hereby acknowledges that, to the extent permitted by applicable lawLaw, the rights and remedies provided under the Transaction Documents to the Purchasers Lenders are for the benefit of the Purchasers Lenders collectively and acting together and not severally and further acknowledges that its rights under the Transaction Documents and remedies thereunder are to be exercised not severally, severally but collectively by through the Agent upon the decision of the Purchasers; Lenders (with the required majority or unanimity as herein provided), regardless of whether acceleration of Obligations hereunder was made, and accordingly, notwithstanding any of the provisions contained in any of the Transaction Documentsherein, each of the Purchasers Lenders hereby covenants and agrees that it shall will not be entitled to take any action with respect to the Transaction DocumentsCredit Facilities, including, without limitation, including any acceleration of the indebtedness, liabilities or obligations of the Company or any of its SubsidiariesObligations thereunder, but that any such action shall will be taken only by the Agent with the prior written agreement direction of the Purchasers, provided that, notwithstanding Lenders (with the required majority or unanimity as herein provided). Notwithstanding the foregoing:
(2) , in the absence of written instructions from the Purchasers Lenders, and where in the sole opinion of the Agent the exigencies of the situation warrant such action, the Agent may without notice to or consent of the Purchasers Lenders take such action on behalf of the Purchasers Lenders as it deems appropriate or desirable in the interest circumstances. Each of the Purchasers; and
(3) the commencement of litigation before any court shall be made in the name of each Purchaser individually unless the laws of the jurisdiction of such court permit such litigation to be commenced in the name of the Agent on behalf of the Purchasers (whether pursuant to a specific power of attorney in favor of the Agent or otherwise) and the Agent agrees to commence such litigation in its name; provided, however, that no litigation shall be commenced in the name of any Purchaser without the prior written consent of such Purchaser;
(4) each of the Purchasers hereby further covenants and agrees that upon any such written consent being given by the Purchasers, they shall co-operate fully with the Agent to the extent requested by the Agent in the collective realization, including, without limitation, the appointment of a receiver and manager to act for their collective benefit; and each Purchaser covenants and agrees to do all acts and things to make, execute and deliver all agreements and other instruments, including, without limitation, any instruments necessary to effect any registrations, so as to fully carry out the intent and purpose of this Section 5.19; and each of the Purchasers Lenders hereby covenants and agrees that it has not heretofore and shall will not seek, take, accept or receive any security for any of the obligations and liabilities Obligations of the Company Loan Parties under the Transaction Documents or under any other document, instrument, writing or agreement ancillary thereto other than such security as is provided hereunder and shall will not enter into any agreement with the Company or any of its Subsidiaries the Parties relating in any manner whatsoever to the transactions contemplated hereundera Credit Facility, unless all of the Purchasers shall Lenders under such Credit Facility will at the same time obtain the benefit of any such security or agreement, as the case may be.
(5) Notwithstanding any other provision contained in the Transaction Documents, no Purchaser shall be required to be joined as a party to any litigation commenced against the Company or any of its Subsidiaries by the Agent under the Transaction Documents (unless otherwise required by any court of competent jurisdiction) if it elects not to be so joined in which event any such litigation shall not include claims in respect of the rights of such Purchaser against the Company or any of its Subsidiaries under the Transaction Documents until such time as such Purchaser does elect to be so joined; provided that if at the time of such subsequent election it is not possible or practicable for such Purchaser to be so joined, then such Purchaser may commence proceedings in its own name in respect of its rights against the Company or any of its Subsidiaries.
Appears in 2 contracts
Samples: Credit Agreement (Obsidian Energy Ltd.), Credit Agreement (Obsidian Energy Ltd.)
Taking and Enforcement of Remedies. (1) Each of the Purchasers Except as otherwise provided herein, each Lender hereby acknowledges that, to the extent permitted by applicable lawLaw, the rights and remedies provided under the Transaction Documents to the Purchasers Lenders are for the benefit of the Purchasers Lenders collectively and acting together and not severally and further acknowledges that its rights under the Transaction Documents and remedies thereunder are to be exercised not severally, severally but collectively by through the Agent upon the decision of the Purchasers; Lenders (with the required majority or unanimity as herein provided), regardless of whether acceleration of Obligations hereunder was made, and accordingly, notwithstanding any of the provisions contained in any of the Transaction Documentsherein, each of the Purchasers Lenders hereby covenants and agrees that it shall will not be entitled to take any action with respect to the Transaction DocumentsCredit Facility, including, without limitation, including any acceleration of the indebtedness, liabilities Obligations or obligations enforcement of the Company or any of its SubsidiariesSecurity, but that any such action shall will be taken only by the Agent with the prior written agreement direction of the Purchasers, Lenders (with the required majority or unanimity as provided that, notwithstanding herein). Notwithstanding the foregoing:
(2) , in the absence of written instructions from the Purchasers Lenders, and where in the sole opinion of the Agent the exigencies of the situation warrant such action, the Agent may without notice to or consent of the Purchasers Lenders take such action on behalf of the Purchasers Lenders as it deems appropriate or desirable in the interest circumstances. Each of the Purchasers; and
(3) the commencement of litigation before any court shall be made in the name of each Purchaser individually unless the laws of the jurisdiction of such court permit such litigation to be commenced in the name of the Agent on behalf of the Purchasers (whether pursuant to a specific power of attorney in favor of the Agent or otherwise) and the Agent agrees to commence such litigation in its name; provided, however, that no litigation shall be commenced in the name of any Purchaser without the prior written consent of such Purchaser;
(4) each of the Purchasers hereby further covenants and agrees that upon any such written consent being given by the Purchasers, they shall co-operate fully with the Agent to the extent requested by the Agent in the collective realization, including, without limitation, the appointment of a receiver and manager to act for their collective benefit; and each Purchaser covenants and agrees to do all acts and things to make, execute and deliver all agreements and other instruments, including, without limitation, any instruments necessary to effect any registrations, so as to fully carry out the intent and purpose of this Section 5.19; and each of the Purchasers Lenders hereby covenants and agrees that it has not heretofore and shall will not seek, take, accept or receive any security for any of the obligations and liabilities Indebtedness of the Company Harvest Parties under the Transaction Documents or under any other document, instrument, writing or agreement ancillary thereto other than such security as is provided hereunder and shall will not enter into any agreement with the Company or any of its Subsidiaries the Parties relating in any manner whatsoever to the transactions contemplated hereunderCredit Facility, unless all of the Purchasers shall Lenders will at the same time obtain the benefit of any such security or agreement, as the case may be.
(5) Notwithstanding any other provision contained in the Transaction Documents, no Purchaser shall be required to be joined as a party to any litigation commenced against the Company or any of its Subsidiaries by the Agent under the Transaction Documents (unless otherwise required by any court of competent jurisdiction) if it elects not to be so joined in which event any such litigation shall not include claims in respect of the rights of such Purchaser against the Company or any of its Subsidiaries under the Transaction Documents until such time as such Purchaser does elect to be so joined; provided that if at the time of such subsequent election it is not possible or practicable for such Purchaser to be so joined, then such Purchaser may commence proceedings in its own name in respect of its rights against the Company or any of its Subsidiaries.
Appears in 2 contracts
Samples: Credit Agreement (Harvest Operations Corp.), Credit Agreement (Harvest Energy Trust)
Taking and Enforcement of Remedies. (1) Each of the Purchasers Except as otherwise provided herein, each Lender hereby acknowledges that, to the extent permitted by applicable lawLaw, the rights and remedies provided under the Transaction Documents to the Purchasers Lenders are for the benefit of the Purchasers Lenders collectively and acting together and not severally and further acknowledges that its rights under the Transaction Documents and remedies thereunder are to be exercised not severally, severally but collectively by through the Agent upon the decision of the Purchasers; Lenders (with the required majority or unanimity as herein provided), regardless of whether acceleration of Obligations hereunder was made, and accordingly, notwithstanding any of the provisions contained in any of the Transaction Documentsherein, each of the Purchasers Lenders hereby covenants and agrees that it shall will not be entitled to take any action with respect to the Transaction DocumentsCredit Facility, including, without limitation, including any acceleration of the indebtedness, liabilities Obligations or obligations enforcement of the Company or any of its SubsidiariesSecurity, but that any such action shall will be taken only by the Agent with the prior written agreement direction of the Purchasers, Lenders (with the required majority or unanimity as provided that, notwithstanding herein). Notwithstanding the foregoing:
(2) , in the absence of written instructions from the Purchasers Lenders, and where in the sole opinion of the Agent the exigencies of the situation warrant such action, the Agent may without notice to or consent of the Purchasers Lenders take such action on behalf of the Purchasers Lenders as it deems appropriate or desirable in the interest of the Purchasers; and
(3) the commencement of litigation before any court shall be made in the name of each Purchaser individually unless the laws of the jurisdiction of such court permit such litigation circumstances. Subject to be commenced in the name of the Agent on behalf of the Purchasers (whether pursuant to a specific power of attorney in favor of the Agent or otherwise) and the Agent agrees to commence such litigation in its name; providedSection 18.5, however, that no litigation shall be commenced in the name of any Purchaser without the prior written consent of such Purchaser;
(4) each of the Purchasers hereby further covenants and agrees that upon any such written consent being given by the Purchasers, they shall co-operate fully with the Agent to the extent requested by the Agent in the collective realization, including, without limitation, the appointment of a receiver and manager to act for their collective benefit; and each Purchaser covenants and agrees to do all acts and things to make, execute and deliver all agreements and other instruments, including, without limitation, any instruments necessary to effect any registrations, so as to fully carry out the intent and purpose of this Section 5.19; and each of the Purchasers Lenders hereby covenants and agrees that it has not heretofore and shall will not seek, take, accept or receive any security for any of the obligations and liabilities Indebtedness of the Company Harvest Parties under the Transaction Documents or under any other document, instrument, writing or agreement ancillary thereto other than such security as is provided hereunder and shall will not enter into any agreement with the Company or any of its Subsidiaries the Parties relating in any manner whatsoever to the transactions contemplated hereunderCredit Facility, unless all of the Purchasers shall Lenders will at the same time obtain the benefit of any such security or agreement, as the case may be.
(5) Notwithstanding any other provision contained in the Transaction Documents, no Purchaser shall be required to be joined as a party to any litigation commenced against the Company or any of its Subsidiaries by the Agent under the Transaction Documents (unless otherwise required by any court of competent jurisdiction) if it elects not to be so joined in which event any such litigation shall not include claims in respect of the rights of such Purchaser against the Company or any of its Subsidiaries under the Transaction Documents until such time as such Purchaser does elect to be so joined; provided that if at the time of such subsequent election it is not possible or practicable for such Purchaser to be so joined, then such Purchaser may commence proceedings in its own name in respect of its rights against the Company or any of its Subsidiaries.
Appears in 2 contracts
Samples: Credit Agreement (Harvest Operations Corp.), Credit Agreement (Harvest Operations Corp.)
Taking and Enforcement of Remedies. (1) Each of the Purchasers hereby acknowledges that, to the extent permitted by applicable law, the remedies provided under the Transaction Security Documents to the Purchasers are for the benefit of the Purchasers collectively and acting together and not severally and further acknowledges that its rights under the Transaction Security Documents are to be exercised not severally, but collectively by the Agent upon the decision of the Purchasers; accordingly, notwithstanding any of the provisions contained in any of the Transaction Documents, each of the Purchasers hereby covenants and agrees that it shall not be entitled to take any action with respect to the Transaction Security Documents, including, without limitation, any acceleration of the indebtedness, liabilities or obligations of the Company or any of its Subsidiaries, but that any such action shall be taken only by the Agent with the prior written agreement of the Purchasers, provided that, notwithstanding the foregoing:
(2) in the absence of instructions from the Purchasers and where in the sole opinion of the Agent the exigencies of the situation warrant such action, the Agent may without notice to or consent of the Purchasers take such action on behalf of the Purchasers as it deems appropriate or desirable in the interest of the Purchasers; and
(3) the commencement of litigation before any court shall be made in the name of each Purchaser individually unless the laws of the jurisdiction of such court permit such litigation to be commenced in the name of the Agent on behalf of the Purchasers (whether pursuant to a specific power of attorney in favor of the Agent or otherwise) and the Agent agrees to commence such litigation in its name; provided, however, that no litigation shall be commenced in the name of any Purchaser without the prior written consent of such Purchaser;
(4) each of the Purchasers hereby further covenants and agrees that upon any such written consent being given by the Purchasers, they shall co-operate fully with the Agent to the extent requested by the Agent in the collective realization, including, without limitation, the appointment of a receiver and manager to act for their collective benefit; and each Purchaser covenants and agrees to do all acts and things to make, execute and deliver all agreements and other instruments, including, without limitation, any instruments necessary to effect any registrations, so as to fully carry out the intent and purpose of this Section 5.19; and each of the Purchasers hereby covenants and agrees that it has not heretofore and shall not seek, take, accept or receive any security for any of the obligations and liabilities of the Company under the Transaction Documents or under any other document, instrument, writing or agreement ancillary thereto other than such security as is provided hereunder and shall not enter into any agreement with the Company or any of its Subsidiaries relating in any manner whatsoever to the transactions contemplated hereunder, unless all of the Purchasers shall at the same time obtain the benefit of any such security or agreement, as the case may be.
(5) Notwithstanding any other provision contained in the Transaction Documents, no Purchaser shall be required to be joined as a party to any litigation commenced against the Company or any of its Subsidiaries by the Agent under the Transaction Documents (unless otherwise required by any court of competent jurisdiction) if it elects not to be so joined in which event any such litigation shall not include claims in respect of the rights of such Purchaser against the Company or any of its Subsidiaries under the Transaction Documents until such time as such Purchaser does elect to be so joined; provided that if at the time of such subsequent election it is not possible or practicable for such Purchaser to be so joined, then such Purchaser may commence proceedings in its own name in respect of its rights against the Company or any of its Subsidiaries.
Appears in 2 contracts
Samples: Securities Purchase Agreement (Shea Development Corp.), Securities Purchase Agreement (United Benefits & Pension Services, Inc.)
Taking and Enforcement of Remedies. (1) 13.12.1 Each of the Purchasers Lenders hereby acknowledges that, to the extent permitted by applicable lawApplicable Law, the remedies provided hereunder and under the Transaction other Loan Documents to the Purchasers Lenders are for the benefit of the Purchasers Lenders collectively and acting together and not severally and further acknowledges that its rights under and the Transaction Documents rights of any Affiliate of such Lender that is a party or counterparty to any Hedging Arrangement hereunder and thereunder are to be exercised not severally, but collectively by the Administrative Agent upon the decision instructions of the Purchasers; accordinglyRequired Lenders. Accordingly, notwithstanding any of the provisions contained herein or therein, except as provided in any of the Transaction DocumentsSection 11.4, each of the Purchasers Lenders (on its own behalf and on behalf of any Affiliate of such Lender that is a party or counterparty to any Hedging Arrangement) hereby covenants and agrees that it shall not be entitled to take any action with respect to the Transaction DocumentsCredit Facilities, including, without limitation, any acceleration election of the indebtedness, liabilities or obligations remedies in respect of the Company or any an Event of its SubsidiariesDefault hereunder, but that any such action shall be taken only by the Administrative Agent with upon the prior written agreement instructions of the Purchasers, Required Lenders as provided that, notwithstanding herein. Notwithstanding the foregoing:
(2) , in the absence of instructions from the Purchasers and where in Required Lenders (or, to the sole opinion extent Section 13.9.3 is applicable, all of the Lenders) where the Administrative Agent has requested instructions and in its sole opinion, acting reasonably, the exigencies of the situation warrant such action, the Administrative Agent may without notice to or consent of the Purchasers Lenders take such action on behalf of the Purchasers Lenders as it deems appropriate or desirable in the interest interests of the Purchasers; and
(3) the commencement of litigation before any court shall be made in the name of each Purchaser individually unless the laws Lenders. Each of the jurisdiction of such court permit such litigation to be commenced in the name of the Agent on behalf of the Purchasers (whether pursuant to a specific power of attorney in favor of the Agent or otherwise) and the Agent agrees to commence such litigation in its name; provided, however, that no litigation shall be commenced in the name of any Purchaser without the prior written consent of such Purchaser;
(4) each of the Purchasers hereby Lenders further covenants and agrees that agrees, that, upon any such written consent instructions being given to the Administrative Agent by the Purchasersrequisite Lenders, they it shall co-operate cooperate fully with the Administrative Agent to the extent requested by the Administrative Agent in the any collective realization, including, without limitation, the appointment of a receiver and manager to act for their collective benefit; and each Purchaser action. Each Lender covenants and agrees to do all acts and things and to make, execute and deliver all agreements and other instruments, including, without limitation, any instruments necessary to effect any registrations, so as to fully carry out the intent and purpose purposes of this Section 5.19; and each of the Purchasers 13.12.1.
13.12.2 Each Lender hereby covenants and agrees that it has not heretofore sought, taken, accepted or received and shall not hereafter seek, take, accept or receive any security for any of the obligations and liabilities of the Company Borrower hereunder or under the Transaction other Loan Documents or under any other document, instrument, writing or agreement ancillary hereto or thereto other than such security as is provided hereunder or thereunder and shall not enter into any agreement with the Company or any of its Subsidiaries the parties hereto or thereto relating in any manner whatsoever to the transactions contemplated hereunderCredit Facilities, unless all of the Purchasers Lenders shall at the same time obtain the benefit of any such security or agreement, as the case may be.
(5) Notwithstanding any other provision contained in the Transaction Documents, no Purchaser shall be required to be joined as a party to any litigation commenced against the Company or any of its Subsidiaries by the Agent under the Transaction Documents (unless otherwise required by any court of competent jurisdiction) if it elects not to be so joined in which event any such litigation shall not include claims in respect of the rights of such Purchaser against the Company or any of its Subsidiaries under the Transaction Documents until such time as such Purchaser does elect to be so joined; provided that if at the time of such subsequent election it is not possible or practicable for such Purchaser to be so joined, then such Purchaser may commence proceedings in its own name in respect of its rights against the Company or any of its Subsidiaries.
Appears in 1 contract
Taking and Enforcement of Remedies. (1) Each of the Purchasers Lenders hereby acknowledges that, to the extent permitted by applicable law, the remedies provided under the Transaction Documents hereunder to the Purchasers Lenders are for the benefit of the Purchasers Lenders collectively and acting together and not severally and further acknowledges that its rights under the Transaction Documents hereunder are to be exercised not severally, but collectively by the Agent upon the decision of the Purchasers; accordingly, notwithstanding Majority of the Lenders regardless of whether acceleration was made pursuant to Section 11.2. Notwithstanding any of the provisions contained in any of the Transaction Documentsherein, each of the Purchasers Lenders hereby covenants and agrees that it shall not be entitled to individually take any action with respect to the Transaction Documentsany Document, including, without limitation, including any acceleration Acceleration under Section 11.2 and any enforcement of the indebtedness, liabilities or obligations of the Company or any of its SubsidiariesSecurity, but that any such action shall be taken only by the Agent with the prior written agreement or instructions of the Purchasers, Majority of the Lenders; provided that, notwithstanding the foregoing:
, if (2i) the Agent, having been adequately indemnified against costs and expenses of so doing by the Lenders, shall fail to carry out any such instructions of a Majority of the Lenders, any Lender may do so on behalf of all Lenders and shall, in so doing, be entitled to the benefit of all protections given the Agent hereunder or elsewhere, and (ii) in the absence of instructions from the Purchasers Majority of the Lenders and where in the sole opinion of the Agent the exigencies of the situation warrant such action, the Agent may without notice to or consent of the Purchasers Lenders or any of them take such action on behalf of the Purchasers Lenders as it deems appropriate or desirable in the interest interests of the Purchasers; and
(3) the commencement of litigation before any court shall be made in the name of each Purchaser individually unless the laws Lenders. Each of the jurisdiction of such court permit such litigation to be commenced in the name of the Agent on behalf of the Purchasers (whether pursuant to a specific power of attorney in favor of the Agent or otherwise) and the Agent agrees to commence such litigation in its name; provided, however, that no litigation shall be commenced in the name of any Purchaser without the prior written consent of such Purchaser;
(4) each of the Purchasers Lenders hereby further covenants and agrees that upon any such written consent being given by the PurchasersMajority of the Lenders, they or upon a Lender or the Agent taking action as aforesaid, it shall co-operate cooperate fully with such Lender or the Agent to the extent requested by such Lender or the Agent in the collective realizationrealization including and, including, without limitationif applicable, the appointment of a receiver, or receiver and manager to act for their collective benefit; and each Purchaser . Each Lender covenants and agrees to do all acts and things and to make, execute and deliver all agreements and other instruments, including, without limitation, including any instruments necessary to effect any registrations, so as to fully carry out the intent and purpose of this Section 5.19Section; and each of the Purchasers Lenders hereby covenants and agrees that that, subject to Section 5.9, Section 9.2(b), Section 14.4 and Section 14.14, it has not heretofore and shall not seek, take, accept or receive any security for any of the obligations and liabilities of the Company under the Transaction Documents Borrowers hereunder or under any other document, instrument, writing or agreement ancillary thereto other than such security as is provided hereunder hereto and shall not enter into any agreement with the Company or any of its Subsidiaries the parties hereto or thereto relating in any manner whatsoever to the transactions contemplated hereunderCredit Facilities, unless all of the Purchasers Lenders shall at the same time obtain the benefit of any such security or agreement. With respect to any enforcement, as realization or the case may be.
(5) Notwithstanding taking of any other provision contained in rights or remedies to enforce the Transaction Documentsrights of the Lenders hereunder, no Purchaser the Agent shall be required a trustee for each Lender, and all monies received from time to be joined as a party to any litigation commenced against the Company or any of its Subsidiaries time by the Agent under the Transaction Documents (unless otherwise required by any court of competent jurisdiction) if it elects not to be so joined in which event any such litigation shall not include claims in respect of the rights foregoing shall be held in trust and shall be trust assets within the meaning of applicable bankruptcy or insolvency legislation and shall be considered for the purposes of such Purchaser against legislation to be held separate and apart from the Company or any other assets of the Agent, and each Lender shall be entitled to their Rateable Portion of such monies. In its capacity as trustee, the Agent shall be obliged to exercise only the degree of care it would exercise in the conduct and management of its Subsidiaries under the Transaction Documents until such time as such Purchaser does elect to be so joined; provided that if at the time of such subsequent election it is not possible own business and in accordance with its usual practice concurrently employed or practicable hereafter instituted for such Purchaser to be so joined, then such Purchaser may commence proceedings in its own name in respect of its rights against the Company or any of its Subsidiariesother substantial commercial loans.
Appears in 1 contract
Taking and Enforcement of Remedies. (1) Each of the Purchasers Except as otherwise provided herein, each Lender hereby acknowledges that, to the extent permitted by applicable lawLaw, the rights and remedies provided under the Transaction Documents to the Purchasers Lenders are for the benefit of the Purchasers Lenders collectively and acting together and not severally and further acknowledges that its rights under the Transaction Documents and remedies thereunder are to be exercised not severally, severally but collectively by through the Agent upon the decision of the Purchasers; Lenders (with the required majority or unanimity as herein provided), regardless of whether acceleration of Obligations hereunder was made, and accordingly, notwithstanding any of the provisions contained in any of the Transaction Documentsherein, each of the Purchasers Lenders hereby covenants and agrees that it shall will not be entitled to take any action with respect to the Transaction DocumentsCredit Facilities, including, without limitation, including any acceleration of the indebtedness, liabilities or obligations of the Company or any of its SubsidiariesObligations thereunder, but that any such action shall will be taken only by the Agent with the prior written agreement direction of the Purchasers, provided that, notwithstanding Lenders (with the required majority or unanimity as herein provided). Notwithstanding the foregoing:
(2) , in the absence of written instructions from the Purchasers Lenders, and where in the sole opinion of the Agent the exigencies of the situation warrant such action, the Agent may without notice to or consent of the Purchasers Lenders take such action on behalf of the Purchasers Lenders as it deems appropriate or desirable in the interest circumstances. Each of the Purchasers; and
(3) the commencement of litigation before any court shall be made in the name of each Purchaser individually unless the laws of the jurisdiction of such court permit such litigation to be commenced in the name of the Agent on behalf of the Purchasers (whether pursuant to a specific power of attorney in favor of the Agent or otherwise) and the Agent agrees to commence such litigation in its name; provided, however, that no litigation shall be commenced in the name of any Purchaser without the prior written consent of such Purchaser;
(4) each of the Purchasers hereby further covenants and agrees that upon any such written consent being given by the Purchasers, they shall co-operate fully with the Agent to the extent requested by the Agent in the collective realization, including, without limitation, the appointment of a receiver and manager to act for their collective benefit; and each Purchaser covenants and agrees to do all acts and things to make, execute and deliver all agreements and other instruments, including, without limitation, any instruments necessary to effect any registrations, so as to fully carry out the intent and purpose of this Section 5.19; and each of the Purchasers Lenders hereby covenants and agrees that it has not heretofore and shall will not seek, take, accept or receive any security for any of the obligations and liabilities Obligations of the Company Borrower under the Transaction Documents or under any other document, instrument, writing or agreement ancillary thereto other than such security as is provided hereunder and shall will not enter into any agreement with the Company or any of its Subsidiaries the Parties relating in any manner whatsoever to the transactions contemplated hereunderCredit Facilities, unless all of the Purchasers shall Lenders will at the same time obtain the benefit of any such security or agreement, as the case may be.
(5) Notwithstanding any other provision contained in the Transaction Documents, no Purchaser shall be required to be joined as a party to any litigation commenced against the Company or any of its Subsidiaries by the Agent under the Transaction Documents (unless otherwise required by any court of competent jurisdiction) if it elects not to be so joined in which event any such litigation shall not include claims in respect of the rights of such Purchaser against the Company or any of its Subsidiaries under the Transaction Documents until such time as such Purchaser does elect to be so joined; provided that if at the time of such subsequent election it is not possible or practicable for such Purchaser to be so joined, then such Purchaser may commence proceedings in its own name in respect of its rights against the Company or any of its Subsidiaries.be.
Appears in 1 contract
Samples: Credit Agreement
Taking and Enforcement of Remedies. (1) Each of the Purchasers Except as otherwise provided herein, each Lender hereby acknowledges that, to the extent permitted by applicable lawLaw, the rights and remedies provided under the Transaction Documents to the Purchasers Lenders are for the benefit of the Purchasers Lenders collectively and acting together and not severally and further acknowledges that its rights under the Transaction Documents and remedies thereunder are to be exercised not severally, severally but collectively by through the Agent upon the decision of the Purchasers; Lenders (with the required majority or unanimity as herein provided), regardless of whether acceleration of Obligations hereunder was made, and accordingly, notwithstanding any of the provisions contained in any of the Transaction Documentsherein, each of the Purchasers Lenders hereby covenants and agrees that it shall will not be entitled to take any action with respect to the Transaction DocumentsCredit Facilities, including, without limitation, including any acceleration of the indebtedness, liabilities or obligations of the Company or any of its SubsidiariesObligations thereunder, but that any such action shall will be taken only by the Agent with the prior written agreement direction of the Purchasers, provided that, notwithstanding Lenders (with the required majority or unanimity as herein provided). Notwithstanding the foregoing:
(2) , in the absence of written instructions from the Purchasers Lenders, and where in the sole opinion of the Agent the exigencies of the situation warrant such action, the Agent may without notice to or consent of the Purchasers Lenders take such action on behalf of the Purchasers Lenders as it deems appropriate or desirable in the interest circumstances. Each of the Purchasers; and
(3) the commencement of litigation before any court shall be made in the name of each Purchaser individually unless the laws of the jurisdiction of such court permit such litigation to be commenced in the name of the Agent on behalf of the Purchasers (whether pursuant to a specific power of attorney in favor of the Agent or otherwise) and the Agent agrees to commence such litigation in its name; provided, however, that no litigation shall be commenced in the name of any Purchaser without the prior written consent of such Purchaser;
(4) each of the Purchasers hereby further covenants and agrees that upon any such written consent being given by the Purchasers, they shall co-operate fully with the Agent to the extent requested by the Agent in the collective realization, including, without limitation, the appointment of a receiver and manager to act for their collective benefit; and each Purchaser covenants and agrees to do all acts and things to make, execute and deliver all agreements and other instruments, including, without limitation, any instruments necessary to effect any registrations, so as to fully carry out the intent and purpose of this Section 5.19; and each of the Purchasers Lenders hereby covenants and agrees that it has not heretofore and shall will not seek, take, accept or receive any security for any of the obligations and liabilities Obligations of the Company Loan Parties under the Transaction Documents or under any other document, instrument, writing or agreement ancillary thereto other than such security as is provided hereunder and shall will not enter into any agreement with the Company or any of its Subsidiaries the Parties relating in any manner whatsoever to the transactions contemplated hereunderCredit Facilities, unless all of the Purchasers shall Lenders under the Credit Facility will at the same time obtain the benefit of any such security or agreement, as the case may be.
(5) Notwithstanding any other provision contained in the Transaction Documents, no Purchaser shall be required to be joined as a party to any litigation commenced against the Company or any of its Subsidiaries by the Agent under the Transaction Documents (unless otherwise required by any court of competent jurisdiction) if it elects not to be so joined in which event any such litigation shall not include claims in respect of the rights of such Purchaser against the Company or any of its Subsidiaries under the Transaction Documents until such time as such Purchaser does elect to be so joined; provided that if at the time of such subsequent election it is not possible or practicable for such Purchaser to be so joined, then such Purchaser may commence proceedings in its own name in respect of its rights against the Company or any of its Subsidiaries.
Appears in 1 contract
Samples: Credit Agreement
Taking and Enforcement of Remedies. (1) Each of the Purchasers Lenders hereby acknowledges that, to the extent permitted by applicable law, the remedies provided under the Transaction Documents hereunder to the Purchasers Lenders are for the benefit of the Purchasers Lenders collectively and acting together and not severally and further acknowledges that its rights under the Transaction Documents hereunder are to be exercised not severally, but collectively by the Agent upon the decision of the Purchasers; accordingly, notwithstanding Majority of the Lenders regardless of whether acceleration was made pursuant to Section 12.2. Notwithstanding any of the provisions contained in any of the Transaction Documentsherein, each of the Purchasers Lenders hereby covenants and agrees that it shall not be entitled to individually take any action with respect to the Transaction Documentsany Credit Facility, including, without limitation, including any acceleration of the indebtedness, liabilities or obligations of the Company or any of its Subsidiariesunder Section 12.2, but that any such action shall be taken only by the Agent with the prior written agreement or instructions of the Purchasers, Majority of the Lenders; provided that, notwithstanding the foregoing:
, if (2i) the Agent, having been adequately indemnified against costs and expenses of so doing by the Lenders, shall fail to carry out any such instructions of a Majority of the Lenders, any Lender may do so on behalf of all Lenders and shall, in so doing, be entitled to the benefit of all protections given the Agent hereunder or elsewhere, and (ii) in the absence of instructions from the Purchasers Majority of the Lenders and where in the sole opinion of the Agent the exigencies of the situation warrant such action, the Agent may without notice to or consent of the Purchasers Lenders or any of them take such action on behalf of the Purchasers Lenders as it deems appropriate or desirable in the interest interests of the Purchasers; and
(3) the commencement of litigation before any court shall be made in the name of each Purchaser individually unless the laws Lenders. Each of the jurisdiction of such court permit such litigation to be commenced in the name of the Agent on behalf of the Purchasers (whether pursuant to a specific power of attorney in favor of the Agent or otherwise) and the Agent agrees to commence such litigation in its name; provided, however, that no litigation shall be commenced in the name of any Purchaser without the prior written consent of such Purchaser;
(4) each of the Purchasers Lenders hereby further covenants and agrees that upon any such written consent being given by the PurchasersMajority of the Lenders, they or upon a Lender or the Agent taking action as aforesaid, it shall co-operate cooperate fully with the Lender or the Agent to the extent requested by the Lender or the Agent in the collective realizationrealization including and, including, without limitationif applicable, the appointment of a receiver, or receiver and manager to act for their collective benefit; and each Purchaser . Each Lender covenants and agrees to do all acts and things and to make, execute and deliver all agreements and other instruments, including, without limitation, including any instruments necessary to effect any registrations, so as to fully carry out the intent and purpose of this Section 5.19Section; and each of the Purchasers Lenders hereby covenants and agrees that that, subject to Section 5.7, Section 10.2(b), Section 15.4 and Section 15.14, it has not heretofore and shall not seek, take, accept or receive any security for any of the obligations and liabilities of the Company under the Transaction Documents Borrowers hereunder or under any other document, instrument, writing or agreement ancillary thereto other than such security as is provided hereunder hereto and shall not enter into any agreement with the Company or any of its Subsidiaries the parties hereto or thereto relating in any manner whatsoever to the transactions contemplated hereunderCredit Facilities, unless all of the Purchasers Lenders shall at the same time obtain the benefit of any such security or agreement. With respect to any enforcement, as realization or the case may be.
(5) Notwithstanding taking of any other provision contained in rights or remedies to enforce the Transaction Documentsrights of the Lenders hereunder, no Purchaser the Agent shall be required a trustee for each Lender, and all monies received from time to be joined as a party to any litigation commenced against the Company or any of its Subsidiaries time by the Agent under the Transaction Documents (unless otherwise required by any court of competent jurisdiction) if it elects not to be so joined in which event any such litigation shall not include claims in respect of the rights foregoing shall be held in trust and shall be trust assets within the meaning of applicable bankruptcy or insolvency legislation and shall be considered for the purposes of such Purchaser against legislation to be held separate and apart from the Company or any other assets of the Agent, and each Lender shall be entitled to their Rateable Portion of such monies. In its capacity as trustee, the Agent shall be obliged to exercise only the degree of care it would exercise in the conduct and management of its Subsidiaries under the Transaction Documents until such time as such Purchaser does elect to be so joined; provided that if at the time of such subsequent election it is not possible own business and in accordance with its usual practice concurrently employed or practicable hereafter instituted for such Purchaser to be so joined, then such Purchaser may commence proceedings in its own name in respect of its rights against the Company or any of its Subsidiariesother substantial commercial loans.
Appears in 1 contract
Taking and Enforcement of Remedies. (1) Each of the Purchasers Except as otherwise provided herein, each Lender hereby acknowledges that, to the extent permitted by applicable lawLaw, the rights and remedies provided under the Transaction Documents to the Purchasers Lenders are for the benefit of the Purchasers Lenders collectively and acting together and not severally and further acknowledges that its rights under the Transaction Documents and remedies thereunder are to be exercised not severally, severally but collectively by through the Agent upon the decision of the Purchasers; Lenders (with the required majority or unanimity as herein provided), regardless of whether acceleration of Obligations hereunder was made, and accordingly, notwithstanding any of the provisions contained in any of the Transaction Documentsherein, each of the Purchasers Lenders hereby covenants and agrees that it shall will not be entitled to take any action with respect to the Transaction DocumentsCredit Facility, including, without limitation, including any acceleration of the indebtedness, liabilities Obligations or obligations enforcement of the Company or any of its SubsidiariesUnsecured Guarantee, but that any such action shall will be taken only by the Agent with the prior written agreement direction of the Purchasers, Lenders (with the required majority or unanimity as provided that, notwithstanding herein). Notwithstanding the foregoing:
(2) , in the absence of written instructions from the Purchasers Lenders, and where in the sole opinion of the Agent the exigencies of the situation warrant such action, the Agent may without notice to or consent of the Purchasers Lenders take such action on behalf of the Purchasers Lenders as it deems appropriate or desirable in the interest circumstances. Each of the Purchasers; and
(3) the commencement of litigation before any court shall be made in the name of each Purchaser individually unless the laws of the jurisdiction of such court permit such litigation to be commenced in the name of the Agent on behalf of the Purchasers (whether pursuant to a specific power of attorney in favor of the Agent or otherwise) and the Agent agrees to commence such litigation in its name; provided, however, that no litigation shall be commenced in the name of any Purchaser without the prior written consent of such Purchaser;
(4) each of the Purchasers hereby further covenants and agrees that upon any such written consent being given by the Purchasers, they shall co-operate fully with the Agent to the extent requested by the Agent in the collective realization, including, without limitation, the appointment of a receiver and manager to act for their collective benefit; and each Purchaser covenants and agrees to do all acts and things to make, execute and deliver all agreements and other instruments, including, without limitation, any instruments necessary to effect any registrations, so as to fully carry out the intent and purpose of this Section 5.19; and each of the Purchasers Lenders hereby covenants and agrees that it has not heretofore and shall will not seek, take, accept or receive any security for any of the obligations and liabilities Indebtedness of the Company Harvest Parties under the Transaction Documents or under any other document, instrument, writing or agreement ancillary thereto other than such security as is provided hereunder and shall will not enter into any agreement with the Company or any of its Subsidiaries the Parties relating in any manner whatsoever to the transactions contemplated hereunderCredit Facility, unless all of the Purchasers shall Lenders will at the same time obtain the benefit of any such security or agreement, as the case may be.
(5) Notwithstanding any other provision contained in the Transaction Documents, no Purchaser shall be required to be joined as a party to any litigation commenced against the Company or any of its Subsidiaries by the Agent under the Transaction Documents (unless otherwise required by any court of competent jurisdiction) if it elects not to be so joined in which event any such litigation shall not include claims in respect of the rights of such Purchaser against the Company or any of its Subsidiaries under the Transaction Documents until such time as such Purchaser does elect to be so joined; provided that if at the time of such subsequent election it is not possible or practicable for such Purchaser to be so joined, then such Purchaser may commence proceedings in its own name in respect of its rights against the Company or any of its Subsidiaries.
Appears in 1 contract
Taking and Enforcement of Remedies. (1a) Each of the Purchasers Lenders hereby acknowledges that, to the extent permitted by applicable lawApplicable Law, the remedies provided under the Transaction Documents hereunder to the Purchasers Lenders are for the benefit of the Purchasers Lenders collectively and acting together and not severally and further acknowledges that its rights under the Transaction Documents hereunder are to be exercised not severally, but collectively by the Administrative Agent upon the decision of the PurchasersLenders regardless of whether declaration or acceleration was made pursuant to Section 8.2; accordingly, notwithstanding any of the provisions contained in any of the Transaction Documentsherein, each of the Purchasers Lenders hereby covenants and agrees that it shall not be entitled to take any action with respect to the Transaction DocumentsFacility, including, without limitation, any declaration -71- or acceleration of the indebtedness, liabilities or obligations of the Company or any of its Subsidiariesunder Section 8.2, but that any such action shall be taken only by the Administrative Agent with the prior written agreement consent of the PurchasersLenders or the Majority Lenders, as applicable, provided that, notwithstanding the foregoing:
(2i) in the absence of instructions from the Purchasers Lenders or from the Majority Lenders, as applicable, and where in the sole opinion of the Administrative Agent the exigencies of the situation warrant such action, the Administrative Agent may without notice to or consent of the Purchasers Lenders take such action on behalf of the Purchasers Lenders as it deems appropriate or desirable in the interest of the PurchasersLenders; and
(3ii) the commencement of litigation before any court shall be made in the name of each Purchaser Lender individually unless the laws of the jurisdiction of such court permit such litigation to be commenced in the name of the Administrative Agent on behalf of the Purchasers Lenders (whether pursuant to a specific power of attorney in favor favour of the Administrative Agent or otherwise) and the Administrative Agent agrees to commence such litigation in its name; provided, however, that no litigation shall be commenced in the name of any Purchaser without the prior written consent of such Purchaser;
(4) each of the Purchasers Lenders hereby further covenants and agrees that upon any such written consent being given by the PurchasersLenders or the Majority Lenders, as applicable, they shall co-operate fully with the Administrative Agent to the extent requested by the Administrative Agent in the collective realization, realization including, without limitation, the appointment of a receiver and manager to act for their collective benefit; and each Purchaser Lender covenants and agrees to do all acts and things and to make, execute and deliver all agreements and other instruments, including, without limitation, any instruments necessary to effect any registrations, so as to fully carry out the intent and purpose of this Section 5.199.11; and each of the Purchasers Lenders hereby covenants and agrees that it has not heretofore and shall not seek, take, accept or receive any security for any of the obligations and liabilities of the Company under the Transaction Documents Borrowers or any Guarantor hereunder or under any other document, instrument, writing or agreement ancillary thereto other than such security as is provided hereunder hereto and shall not enter into any agreement with the Company or any of its Subsidiaries the parties hereto or thereto relating in any manner whatsoever to the transactions contemplated hereunderFacility, unless all of the Purchasers Lenders shall at the same time obtain the benefit of any such security or agreement, as the case may be.
(5b) Notwithstanding any other provision contained in the Transaction Documentsthis Agreement, no Purchaser Lender shall be required to be joined as a party to any litigation commenced against the Company Borrowers or any of its Subsidiaries Guarantor by the Administrative Agent under or the Transaction Documents Majority Lenders hereunder (unless otherwise required by any court of competent jurisdiction) if it elects not to be so joined in which event any such litigation shall not include claims in respect of the rights of such Purchaser Lender against the Company or any of its Subsidiaries under Borrowers and the Transaction Documents Guarantors hereunder until such time as such Purchaser Lender does elect to be so joined; provided that if at the time of such subsequent election it is not possible or practicable for such Purchaser Lender to be so joined, then such Purchaser Lender may commence proceedings in its own name in respect of its rights against the Company or any of its SubsidiariesBorrowers and the Guarantors hereunder.
Appears in 1 contract
Samples: Four Year Revolving Term Credit Agreement (Celestica Inc)
Taking and Enforcement of Remedies. (1) Each of the Purchasers Except as otherwise provided herein, each Lender hereby acknowledges that, to the extent permitted by applicable lawLaw, the rights and remedies provided under the Transaction Loan Documents to the Purchasers Lenders are for the benefit of the Purchasers Lenders collectively and acting together and not severally and further acknowledges that its rights under the Transaction Documents and remedies thereunder are to be exercised not severally, severally but collectively by through the Agent upon the decision of the Purchasers; Lenders (with the required majority or unanimity as herein provided), regardless of whether acceleration of Obligations hereunder was made, and accordingly, notwithstanding any of the provisions contained in any of the Transaction Documentsherein, each of the Purchasers Lenders hereby covenants and agrees that it shall will not be entitled to take any action with respect to the Transaction DocumentsCredit Facilities, including, without limitation, including any acceleration of the indebtedness, liabilities or obligations of the Company or any of its SubsidiariesObligations thereunder, but that any such action shall will be taken only by the Agent with the prior written agreement direction of the Purchasers, provided that, notwithstanding Lenders (with the required majority or unanimity as herein provided). Notwithstanding the foregoing:
(2) , in the absence of written instructions from the Purchasers Lenders, and where in the sole opinion of the Agent the exigencies of the situation warrant such action, the Agent may without notice to or consent of the Purchasers Lenders take such action on behalf of the Purchasers Lenders as it deems appropriate or desirable in the interest circumstances. Each of the Purchasers; and
(3) the commencement of litigation before any court shall be made in the name of each Purchaser individually unless the laws of the jurisdiction of such court permit such litigation to be commenced in the name of the Agent on behalf of the Purchasers (whether pursuant to a specific power of attorney in favor of the Agent or otherwise) and the Agent agrees to commence such litigation in its name; provided, however, that no litigation shall be commenced in the name of any Purchaser without the prior written consent of such Purchaser;
(4) each of the Purchasers hereby further covenants and agrees that upon any such written consent being given by the Purchasers, they shall co-operate fully with the Agent to the extent requested by the Agent in the collective realization, including, without limitation, the appointment of a receiver and manager to act for their collective benefit; and each Purchaser covenants and agrees to do all acts and things to make, execute and deliver all agreements and other instruments, including, without limitation, any instruments necessary to effect any registrations, so as to fully carry out the intent and purpose of this Section 5.19; and each of the Purchasers Lenders hereby covenants and agrees that it has not heretofore and shall will not seek, take, accept or receive any security for any of the obligations and liabilities Obligations of the Company Loan Parties under the Transaction Loan Documents or under any other document, instrument, writing or agreement ancillary thereto other than such security as is provided hereunder and shall will not enter into any agreement with the Company or any of its Subsidiaries the Parties relating in any manner whatsoever to the transactions contemplated hereunderCredit Facilities, unless all of the Purchasers shall Lenders will at the same time obtain the benefit of any such security or agreement, as the case may be.
(5) Notwithstanding any other provision contained in the Transaction Documents, no Purchaser shall be required to be joined as a party to any litigation commenced against the Company or any of its Subsidiaries by the Agent under the Transaction Documents (unless otherwise required by any court of competent jurisdiction) if it elects not to be so joined in which event any such litigation shall not include claims in respect of the rights of such Purchaser against the Company or any of its Subsidiaries under the Transaction Documents until such time as such Purchaser does elect to be so joined; provided that if at the time of such subsequent election it is not possible or practicable for such Purchaser to be so joined, then such Purchaser may commence proceedings in its own name in respect of its rights against the Company or any of its Subsidiaries.
Appears in 1 contract
Taking and Enforcement of Remedies. (1) Each of the Purchasers hereby acknowledges that, to the extent permitted by applicable law, the remedies provided under the Transaction Security Documents to the Purchasers are for the benefit of the Purchasers collectively and acting together and not severally and further acknowledges that its rights under the Transaction Security Documents are to be exercised not severally, but collectively by the Agent upon the decision of the Purchasers; accordingly, notwithstanding any of the provisions contained in any of the Transaction Documents, each of the Purchasers hereby NYC01_84139423_7 covenants and agrees that it shall not be entitled to take any action with respect to the Transaction Security Documents, including, without limitation, any acceleration of the indebtedness, liabilities or obligations of the Company or any of its Subsidiaries, but that any such action shall be taken only by the Agent with the prior written agreement of the Purchasers, provided that, notwithstanding the foregoing:
(2) in the absence of instructions from the Purchasers and where in the sole opinion of the Agent the exigencies of the situation warrant such action, the Agent may without notice to or consent of the Purchasers take such action on behalf of the Purchasers as it deems appropriate or desirable in the interest of the Purchasers; and
(3) the commencement of litigation before any court shall be made in the name of each Purchaser individually unless the laws of the jurisdiction of such court permit such litigation to be commenced in the name of the Agent on behalf of the Purchasers (whether pursuant to a specific power of attorney in favor of the Agent or otherwise) and the Agent agrees to commence such litigation in its name; provided, however, that no litigation shall be commenced in the name of any Purchaser without the prior written consent of such Purchaser;
(4) each of the Purchasers hereby further covenants and agrees that upon any such written consent being given by the Purchasers, they shall co-operate fully with the Agent to the extent requested by the Agent in the collective realization, including, without limitation, the appointment of a receiver and manager to act for their collective benefit; and each Purchaser covenants and agrees to do all acts and things to make, execute and deliver all agreements and other instruments, including, without limitation, any instruments necessary to effect any registrations, so as to fully carry out the intent and purpose of this Section 5.19; and each of the Purchasers hereby covenants and agrees that it has not heretofore and shall not seek, take, accept or receive any security for any of the obligations and liabilities of the Company under the Transaction Documents or under any other document, instrument, writing or agreement ancillary thereto other than such security as is provided hereunder and shall not enter into any agreement with the Company or any of its Subsidiaries relating in any manner whatsoever to the transactions contemplated hereunder, unless all of the Purchasers shall at the same time obtain the benefit of any such security or agreement, as the case may be.
(5) Notwithstanding any other provision contained in the Transaction Documents, no Purchaser shall be required to be joined as a party to any litigation commenced against the Company or any of its Subsidiaries by the Agent under the Transaction Documents (unless otherwise required by any court of competent jurisdiction) if it elects not to be so joined in which event any such litigation shall not include claims in respect of the rights of such Purchaser against the Company or any of its Subsidiaries under the Transaction Documents until such time as such Purchaser does elect to be so joined; provided that if at the time of such subsequent election it is not possible or practicable for such Purchaser to be so joined, then such Purchaser may commence proceedings in its own name in respect of its rights against the Company or any of its Subsidiaries.
Appears in 1 contract
Taking and Enforcement of Remedies. (1a) Each of the Purchasers Lenders hereby acknowledges that, to the extent permitted by applicable lawApplicable Law, the remedies provided hereunder or under the Transaction Security Documents to the Purchasers Lenders are for the benefit of the Purchasers Lenders collectively and acting together and not severally and further acknowledges that its rights under the Transaction Documents hereunder and thereunder are to be exercised not severally, but collectively by the Administrative Agent upon the decision of the PurchasersLenders, the Majority Lenders or the Super Majority Lenders, as applicable, regardless of whether declaration or acceleration was made pursuant to Section 10.2; accordingly, notwithstanding any of the provisions contained in any of the Transaction Documentsherein and therein, each of the Purchasers Lenders hereby covenants and agrees that it shall not be entitled to take any action with respect to the Transaction DocumentsFacilities, including, without limitation, any declaration or acceleration of the indebtedness, liabilities or obligations of the Company or any of its Subsidiariesunder Section 10.2, but that any such action shall be taken only by the Administrative Agent with the prior written agreement consent of the PurchasersLenders, the Majority Lenders or the Super Majority Lenders, as applicable, provided that, notwithstanding the foregoing:
(2i) in the absence of instructions from the Purchasers Lenders, from the Majority Lenders or from the Super Majority Lenders, as applicable, and where in the sole opinion of the Administrative Agent the exigencies of the situation warrant such action, the Administrative Agent may without notice to or consent of the Purchasers Lenders take such action on behalf of the Purchasers Lenders as it deems appropriate or desirable in the interest of the PurchasersLenders; and
(3ii) the commencement of litigation before any court shall be made in the name of each Purchaser Lender individually unless the laws of the jurisdiction of such court permit such litigation to be commenced in the name of the Administrative Agent on behalf of the Purchasers Lenders (whether pursuant to a specific power of attorney in favor favour of the Administrative Agent or otherwise) and the Administrative Agent agrees to commence such litigation in its name; provided, however, that no litigation shall be commenced in the name of any Purchaser without the prior written consent of such Purchaser;
(4) each of the Purchasers Lenders hereby further covenants and agrees that upon any such written consent being given by the PurchasersLenders, the Majority Lenders or the Super Majority Lenders, as applicable, they shall co-operate fully with the Administrative Agent to the extent requested by the Administrative Agent in the collective realization, realization including, without limitation, the appointment of a receiver and manager to act for their collective benefit; and each Purchaser Lender covenants and agrees to do all acts and things and to make, execute and deliver all agreements and other instruments, including, without limitation, any instruments necessary to effect any registrations, so as to fully carry out the intent and purpose of this Section 5.1911.11; and each of the Purchasers Lenders hereby covenants and agrees that that, other than as provided in this Agreement, it has not heretofore and shall not seek, take, accept or receive any security for any of the obligations and liabilities of the Company under the Transaction Documents Borrowers or any Guarantor hereunder or under any other document, instrument, writing or agreement ancillary thereto other than such security as is provided hereunder hereto and shall not enter into any agreement with the Company or any of its Subsidiaries the parties hereto or thereto relating in any manner whatsoever to the transactions contemplated hereunderFacilities, unless all of the Purchasers Lenders shall at the same time obtain the benefit of any such security or agreement, as the case may be.
(5b) Notwithstanding any other provision contained in the Transaction Documentsthis Agreement, no Purchaser Lender shall be required to be joined as a party to any litigation commenced against the Company or any of its Subsidiaries Obligor by the Agent under Administrative Agent, the Transaction Documents Majority Lenders or the Super Majority Lenders, as applicable, hereunder (unless otherwise required by any court of competent jurisdiction) if it elects not to be so joined in which event any such litigation shall not include claims in respect of the rights of such Purchaser Lender against the Company or any of its Subsidiaries under the Transaction Documents Obligors hereunder until such time as such Purchaser Lender does elect to be so joined; provided that if at the time of such subsequent election it is not possible or practicable for such Purchaser Lender to be so joined, then such Purchaser Lender may commence proceedings in its own name in respect of its rights against the Company or any of its SubsidiariesObligors hereunder.
Appears in 1 contract
Samples: Credit Agreement (Celestica Inc)
Taking and Enforcement of Remedies. (1) Each of the Purchasers Lenders hereby acknowledges that, to the extent permitted by applicable lawApplicable Law, the remedies provided under the Transaction Documents hereunder to the Purchasers Lenders are for the benefit of the Purchasers Lenders collectively and acting together and not severally and further acknowledges that its rights under the Transaction Documents hereunder are to be exercised not severally, but collectively by the Administrative Agent upon the decision of the Purchasers; accordingly, notwithstanding Majority Lenders regardless of whether acceleration was made pursuant to Section 10.1(r). Notwithstanding any of the provisions contained in any of the Transaction Documentsherein, each of the Purchasers Lenders hereby covenants and agrees that it shall not be entitled to individually take any action with respect to the Transaction DocumentsCredit Facility, including, without limitation, any acceleration of the indebtedness, liabilities or obligations of the Company or any of its Subsidiariesunder Section 10.1(r), but that any such action shall be taken only by the Administrative Agent with the prior written agreement or instructions of the Purchasers, Majority Lenders; provided that, notwithstanding the foregoing, if:
(2a) the Administrative Agent, having been adequately indemnified against costs and expenses of so doing by the Lenders, shall, for 10 days after such agreement or instructions and the provision of such indemnity, have neglected or refused to carry out any such instructions of the Majority Lenders, any Lender may do so on behalf of all Lenders and shall, in so doing, be entitled to the benefit of all protections given the Administrative Agent hereunder or elsewhere; and
(b) in the absence of instructions from the Purchasers Majority Lenders and where where, in the sole opinion of the Agent Administrative Agent, the exigencies of the situation warrant such action, the Administrative Agent may may, without notice to or consent of the Purchasers Lenders or any of them, take such action on behalf of the Purchasers Lenders as it deems appropriate or desirable in the interest interests of the Purchasers; and
(3) the commencement of litigation before any court shall be made in the name of each Purchaser individually unless the laws Lenders. Each of the jurisdiction of such court permit such litigation to be commenced in the name of the Agent on behalf of the Purchasers (whether pursuant to a specific power of attorney in favor of the Agent or otherwise) and the Agent agrees to commence such litigation in its name; provided, however, that no litigation shall be commenced in the name of any Purchaser without the prior written consent of such Purchaser;
(4) each of the Purchasers Lenders hereby further covenants and agrees that upon any such written consent being given by the PurchasersMajority Lenders, they or upon a Lender or the Administrative Agent taking action as aforesaid, it shall co-operate cooperate fully with the Lender or the Administrative Agent to the extent requested by the Lender or the Administrative Agent in the collective realization, realization including, without limitation, and, if applicable, the appointment of a receiver or receiver and manager to act for their collective benefit; and each Purchaser . Each Lender covenants and agrees to do all acts and things and to make, execute and deliver all agreements and other instruments, including, without limitation, any instruments necessary to effect any registrations, so as to fully carry out the intent and purpose of this Section 5.19; 13.11, and each of the Purchasers Lenders hereby covenants and agrees that that, subject to Section 13.4 and Section 9.2(b), it has not heretofore and shall not seek, take, accept or receive any security for any of the obligations and liabilities of the Company under the Transaction Documents Borrower hereunder or under any other document, instrument, writing or agreement ancillary thereto other than such security as is provided hereunder hereto and shall not enter into any agreement with the Company or any of its Subsidiaries the parties hereto or thereto relating in any manner whatsoever to the transactions contemplated hereunderCredit Facility, unless all of the Purchasers Lenders shall at the same time obtain the benefit of any such security or agreement. With respect to any enforcement, as realization or the case may be.
(5) Notwithstanding taking of any other provision contained in rights or remedies to enforce the Transaction Documentsrights of the Lenders hereunder, no Purchaser the Administrative Agent shall be required a trustee for each Lender, and all monies received from time to be joined as a party to any litigation commenced against the Company or any of its Subsidiaries time by the Administrative Agent under the Transaction Documents (unless otherwise required by any court of competent jurisdiction) if it elects not to be so joined in which event any such litigation shall not include claims in respect of the rights foregoing shall be held in trust and shall be trust assets within the meaning of applicable bankruptcy or insolvency legislation and shall be considered for the purposes of such Purchaser against legislation to be held separate and apart from the Company other assets of the Administrative Agent, and, subject to Section 10.6, each Lender shall be entitled to such Lender's Proportion of such monies. Each Lender shall make such payments and adjustments as are necessary or any appropriate to give effect to the foregoing. In its capacity as trustee, the Administrative Agent shall be obliged to exercise only the degree of care it would exercise in the conduct and management of its Subsidiaries under the Transaction Documents until such time as such Purchaser does elect to be so joined; provided that if at the time of such subsequent election it is not possible own business and in accordance with its usual practice concurrently employed or practicable hereafter instituted for such Purchaser to be so joined, then such Purchaser may commence proceedings in its own name in respect of its rights against the Company or any of its Subsidiariesother substantial commercial loans.
Appears in 1 contract
Samples: Credit Agreement (Keyspan Corp)
Taking and Enforcement of Remedies. (1) Each of the Purchasers hereby acknowledges that, to the extent permitted by applicable law, the remedies provided under the Transaction Security Documents to the Purchasers are for the benefit of the Purchasers collectively and acting together and not severally and further acknowledges that its rights under the Transaction Security Documents are to be exercised not severally, but collectively by the Agent upon the decision of the Purchasers; accordingly, notwithstanding any of the provisions contained in any of the Transaction Documents, each of the Purchasers hereby covenants and agrees that it shall not be entitled to take any action with respect to the Transaction Security Documents, including, without limitation, any acceleration of the indebtedness, liabilities or obligations of the Company or any of its Subsidiaries, but that any such action shall be taken only by the Agent with the prior written agreement of the Purchasers, provided that, notwithstanding the foregoing:
(2) in the absence of instructions from the Purchasers and where in the sole opinion of the Agent the exigencies of the situation warrant such action, the Agent may without notice to or consent of the Purchasers take such action on behalf of the Purchasers as it deems appropriate or desirable in the interest of the Purchasers; and
(3) the commencement of litigation before any court shall be made in the name of each Purchaser individually unless the laws of the jurisdiction of such court permit such litigation to be commenced in the name of the Agent on behalf of the Purchasers (whether pursuant to a specific power of attorney in favor of the Agent or otherwise) and the Agent agrees to commence such litigation in its name; provided, however, that no litigation shall be commenced in the name of any Purchaser without the prior written consent of such Purchaser;
(4) each of the Purchasers hereby further covenants and agrees that upon any such written consent being given by the Purchasers, they shall co-operate fully with the Agent to the extent requested by the Agent in the collective realization, including, without limitation, the appointment of a receiver and manager to act for their collective benefit; and each Purchaser covenants and agrees to do all acts and things to make, execute and deliver all agreements and other instruments, including, without limitation, any instruments necessary to effect any registrations, so as to fully carry out the intent and purpose of this Section 5.195.20; and each of the Purchasers hereby covenants and agrees that it has not heretofore and shall not seek, take, accept or receive any security for any of the obligations and liabilities of the Company under the Transaction Documents or under any other document, instrument, writing or agreement ancillary thereto other than such security as is provided hereunder and shall not enter into any agreement with the Company or any of its Subsidiaries relating in any manner whatsoever to the transactions contemplated hereunder, unless all of the Purchasers shall at the same time obtain the benefit of any such security or agreement, as the case may be.
(5) Notwithstanding any other provision contained in the Transaction Documents, no Purchaser shall be required to be joined as a party to any litigation commenced against the Company or any of its Subsidiaries by the Agent under the Transaction Documents (unless otherwise required by any court of competent jurisdiction) if it elects not to be so joined in which event any such litigation shall not include claims in respect of the rights of such Purchaser against the Company or any of its Subsidiaries under the Transaction Documents until such time as such Purchaser does elect to be so joined; provided that if at the time of such subsequent election it is not possible or practicable for such Purchaser to be so joined, then such Purchaser may commence proceedings in its own name in respect of its rights against the Company or any of its Subsidiaries.
Appears in 1 contract
Taking and Enforcement of Remedies. (1) Each of the Purchasers hereby acknowledges that, to the extent permitted by applicable law, the remedies provided under the Transaction Documents to the Purchasers are for the benefit of the Purchasers collectively and acting together and not severally and further acknowledges that its rights under the Transaction Documents are to be exercised not severally, but collectively by the Agent upon the decision of the Purchasers; accordingly, notwithstanding any of the provisions contained in any of the Transaction Documents, each of the Purchasers hereby covenants and agrees that it shall not be entitled to take any action with respect to the Transaction Documents, including, without limitation, any acceleration of the indebtedness, liabilities or obligations of the Company or any of its SubsidiariesCompany, but that any such action shall be taken only by the Agent with the prior written agreement of the Purchasers, provided that, notwithstanding the foregoing:
(2) in the absence of instructions from the Purchasers and where in the sole opinion of the Agent the exigencies of the situation warrant such action, the Agent may without notice to or consent of the Purchasers take such action on behalf of the Purchasers as it deems appropriate or desirable in the interest of the Purchasers; and
(3) the commencement of litigation before any court shall be made in the name of each Purchaser individually unless the laws of the jurisdiction of such court permit such litigation to be commenced in the name of the Agent on behalf of the Purchasers (whether pursuant to a specific power of attorney in favor of the Agent or otherwise) and the Agent agrees to commence such litigation in its name; provided, however, that no litigation shall be commenced in the name of any Purchaser without the prior written consent of such Purchaser;
(4) each of the Purchasers hereby further covenants and agrees that upon any such written consent being given by the Purchasers, they shall co-operate fully with the Agent to the extent requested by the Agent in the collective realization, including, without limitation, the appointment of a receiver and manager to act for their collective benefit; and each Purchaser covenants and agrees to do all acts and things to make, execute and deliver all agreements and other instruments, including, without limitation, any instruments necessary to effect any registrations, so as to fully carry out the intent and purpose of this Section 5.1912; and each of the Purchasers hereby covenants and agrees that it has not heretofore and shall not seek, take, accept or receive any security for any of the obligations and liabilities of the Company under the Transaction Documents or under any other document, instrument, writing or agreement ancillary thereto other than such security as is provided hereunder and shall not enter into any agreement with the Company or any of its Subsidiaries relating in any manner whatsoever to the transactions contemplated hereunder, unless all of the Purchasers shall at the same time obtain the benefit of any such security or agreement, as the case may be.
(5) Notwithstanding any other provision contained in the Transaction Documents, no Purchaser shall be required to be joined as a party to any litigation commenced against the Company or any of its Subsidiaries by the Agent under the Transaction Documents (unless otherwise required by any court of competent jurisdiction) if it elects not to be so joined in which event any such litigation shall not include claims in respect of the rights of such Purchaser against the Company or any of its Subsidiaries under the Transaction Documents until such time as such Purchaser does elect to be so joined; provided that if at the time of such subsequent election it is not possible or practicable for such Purchaser to be so joined, then such Purchaser may commence proceedings in its own name in respect of its rights against the Company or any of its SubsidiariesCompany.
Appears in 1 contract
Samples: Purchase Agreement (Marshall Holdings International, Inc.)
Taking and Enforcement of Remedies. (1a) Each of the Purchasers Lenders hereby acknowledges that, to the extent permitted by applicable lawApplicable Law, the remedies provided under the Transaction Documents hereunder to the Purchasers Lenders are for the benefit of the Purchasers Lenders collectively and acting together and not severally and further acknowledges that its rights under the Transaction Documents hereunder are to be exercised not severally, but collectively by the Administrative Agent upon the decision of the PurchasersLenders regardless of whether declaration or acceleration was made pursuant to Section 8.2; accordingly, notwithstanding any of the provisions contained in any of the Transaction Documentsherein, each of the Purchasers Lenders hereby covenants and agrees that it shall not be entitled to take any action with respect to the Transaction DocumentsFacility, including, without limitation, any declaration or acceleration of the indebtedness, liabilities or obligations of the Company or any of its Subsidiariesunder Section 8.2, but that any such action shall be taken only by the Administrative Agent with the prior written agreement consent of the PurchasersLenders or the Majority Lenders, as applicable, provided that, notwithstanding the foregoing:
(2i) in the absence of instructions from the Purchasers Lenders or from the Majority Lenders, as applicable, and where in the sole opinion of the Administrative Agent the exigencies of the situation warrant such action, the Administrative Agent may without notice to or consent of the Purchasers Lenders take such action on behalf of the Purchasers Lenders as it deems appropriate or desirable in the interest of the PurchasersLenders; and
(3ii) the commencement of litigation before any court shall be made in the name of each Purchaser Lender individually unless the laws of the jurisdiction of such court permit such litigation to be commenced in the name of the Administrative Agent on behalf of the Purchasers Lenders (whether pursuant to a specific power of attorney in favor favour of the Administrative Agent or otherwise) and the Administrative Agent agrees to commence such litigation in its name; provided, however, that no litigation shall be commenced in the name of any Purchaser without the prior written consent of such Purchaser;
(4) each of the Purchasers Lenders hereby further covenants and agrees that upon any such written consent being given by the PurchasersLenders or the Majority Lenders, as applicable, they shall co-operate fully with the Administrative Agent to the extent requested by the Administrative Agent in the collective realization, realization including, without limitation, the appointment of a receiver and manager to act for their collective benefit; and each Purchaser Lender covenants and agrees to do all acts and things and to make, execute and deliver all agreements and other instruments, including, without limitation, any instruments necessary to effect any registrations, so as to fully carry out the intent and purpose of this Section 5.199.11; and each of the Purchasers Lenders hereby covenants and agrees that it has not heretofore and shall not seek, take, accept or receive any security for any of the obligations and liabilities of the Company under the Transaction Documents Borrowers or any Guarantor hereunder or under any other document, instrument, writing or agreement ancillary thereto other than such security as is provided hereunder hereto and shall not enter into any agreement with the Company or any of its Subsidiaries the parties hereto or thereto relating in any manner whatsoever to the transactions contemplated hereunderFacility, unless all of the Purchasers Lenders shall at the same time obtain the benefit of any such security or agreement, as the case may be.
(5b) Notwithstanding any other provision contained in the Transaction Documentsthis Agreement, no Purchaser Lender shall be required to be joined as a party to any litigation commenced against the Company Borrowers or any of its Subsidiaries Guarantor by the Administrative Agent under or the Transaction Documents Majority Lenders hereunder (unless otherwise required by any court of competent jurisdiction) if it elects not to be so joined in which event any such litigation shall not include claims in respect of the rights of such Purchaser Lender against the Company or any of its Subsidiaries under Borrowers and the Transaction Documents Guarantors hereunder until such time as such Purchaser Lender does elect to be so joined; provided that if at the time of such subsequent election it is not possible or practicable for such Purchaser Lender to be so joined, then such Purchaser Lender may commence proceedings in its own name in respect of its rights against the Company or any of its SubsidiariesBorrowers and the Guarantors hereunder.
Appears in 1 contract
Taking and Enforcement of Remedies. (1a) Each of the Purchasers Holders hereby acknowledges that, to the extent permitted by applicable lawLaws, the remedies provided under the Transaction Documents hereunder to the Purchasers Holders are for the benefit of the Purchasers Holders collectively and acting together and not severally and further acknowledges that its rights under the Transaction Documents hereunder are to be exercised not severally, but collectively by the Agent acting upon the decision direction of the Purchasers; accordingly, notwithstanding Majority Holders regardless of whether any Obligations is accelerated pursuant to Section 12.2. Notwithstanding any of the provisions contained in any of the Transaction Documentsherein, each of the Purchasers Holders hereby covenants and agrees that it shall not be entitled to individually take any action with respect to the Transaction Documentsaction, including, without limitation, including any acceleration exercise of the indebtedness, liabilities or obligations of the Company or any of its Subsidiariesremedies under Section 12.2, but that any such action shall be taken only by the Agent with the prior written agreement or instructions of the Purchasers, Majority Holders; provided that, notwithstanding the foregoing:
, if (2i) the Agent, having been adequately indemnified against costs and expenses of so doing by the Holders, shall fail to carry out any such instructions of the Majority Holders, any Holder may do so on behalf of all Holders and shall, in so doing, be entitled to the benefit of all protections given the Agent hereunder or elsewhere, and (ii) in the absence of instructions from the Purchasers Majority Holders and where in the sole opinion of the Agent the exigencies of the situation warrant such action, the Agent may may, but shall not be obligated, without notice to or consent of the Purchasers Holders or any of them take such action on behalf of the Purchasers Holders as it deems appropriate or desirable in the interest interests of the Purchasers; and
(3) the commencement of litigation before any court shall be made in the name of each Purchaser individually unless the laws Holders. Each of the jurisdiction of such court permit such litigation to be commenced in the name of the Agent on behalf of the Purchasers (whether pursuant to a specific power of attorney in favor of the Agent or otherwise) and the Agent agrees to commence such litigation in its name; provided, however, that no litigation shall be commenced in the name of any Purchaser without the prior written consent of such Purchaser;
(4) each of the Purchasers Holders hereby further covenants and agrees that upon any such written consent being given by the PurchasersMajority Holders, they or upon a Holder or the Agent taking action as aforesaid, it shall co-operate cooperate fully with the Holder or the Agent to the extent requested by the Holder or the Agent in the collective realizationrealization including and, including, without limitationif applicable, the appointment of a receiver, or receiver and manager to act for their collective benefit; and each Purchaser . Each Holder covenants and agrees to do all acts and things and to make, execute and deliver all agreements and other instruments, including, without limitation, including any instruments necessary to effect any registrations, so as to fully carry out the intent and purpose of this Section 5.19Section; and each of the Purchasers Holders hereby covenants and agrees that subject to Sections 3.7, 9.2, 14.4 and 15.16, it has not heretofore and it shall not seek, take, accept or receive any security for any of the obligations and liabilities Obligations of the Company under the Transaction Documents Issuer hereunder or under any other document, instrument, writing or agreement ancillary thereto other than such security as is provided hereunder hereto and shall not enter into any agreement with the Company or any of its Subsidiaries the parties hereto or thereto relating in any manner whatsoever to the Notes and the transactions contemplated hereunderpursuant to the Note Documents, unless all of the Purchasers Holders shall at the same time obtain the benefit of any such security or agreement, as the case may be.
(5b) Notwithstanding any other provision contained in the Transaction Documents, no Purchaser shall be required to be joined as a party With respect to any litigation commenced against enforcement, realization or the Company taking of any rights or any remedies to enforce the rights of its Subsidiaries the Holders hereunder, all monies received from time to time by the Agent under the Transaction Documents (unless otherwise required by any court of competent jurisdiction) if it elects not to be so joined in which event any such litigation shall not include claims in respect of the rights foregoing shall be held separate and apart from the other assets of the Agent, and the Holders shall be entitled to their pro rata shares of such Purchaser against monies (according to the Company or any Obligations then owing to each of its Subsidiaries under them) in accordance with the Transaction Documents until such time as such Purchaser does elect to be so joined; provided that if at the time provisions of such subsequent election it is not possible or practicable for such Purchaser to be so joined, then such Purchaser may commence proceedings in its own name in respect of its rights against the Company or any of its Subsidiariesthis Agreement.
Appears in 1 contract
Samples: Note Purchase Agreement (Bellatrix Exploration Ltd.)
Taking and Enforcement of Remedies. (1) 13.12.1 Each of the Purchasers Lenders hereby acknowledges that, to the extent permitted by applicable lawApplicable Law, the remedies provided hereunder and under the Transaction other Loan Documents to the Purchasers Lenders are for the benefit of the Purchasers Lenders collectively and acting together and not severally and further acknowledges that its rights under and the Transaction Documents rights of any Affiliate of such Lender that is a party or counterparty to any Hedging Arrangement hereunder and thereunder are to be exercised not severally, but collectively by the Administrative Agent upon the decision instructions of the Purchasers; accordinglyRequired Lenders. Accordingly, notwithstanding any of the provisions contained herein or therein, except as provided in any of the Transaction DocumentsSection 11.4, each of the Purchasers Lenders (on its own behalf and on behalf of any Affiliate of such Lender that is a party or counterparty to any Hedging Arrangement) hereby covenants and agrees that it shall not be entitled to take any action with respect to the Transaction Documents, including, without limitation, any acceleration of the indebtedness, liabilities or obligations of the Company or any of its Subsidiaries, but that any such action shall be taken only by the Agent with the prior written agreement of the Purchasers, provided that, notwithstanding the foregoing:action
(2) in the absence of instructions from the Purchasers and where in the sole opinion of the Agent the exigencies of the situation warrant such action, the Agent may without notice to or consent of the Purchasers take such action on behalf of the Purchasers as it deems appropriate or desirable in the interest of the Purchasers; and
(3) the commencement of litigation before any court shall be made in the name of each Purchaser individually unless the laws of the jurisdiction of such court permit such litigation to be commenced in the name of the Agent on behalf of the Purchasers (whether pursuant to a specific power of attorney in favor of the Agent or otherwise) and the Agent agrees to commence such litigation in its name; provided, however, that no litigation shall be commenced in the name of any Purchaser without the prior written consent of such Purchaser;
(4) each of the Purchasers hereby further covenants and agrees that upon any such written consent being given by the Purchasers, they shall co-operate fully with the Agent to the extent requested by the Agent in the collective realization, including, without limitation, the appointment of a receiver and manager to act for their collective benefit; and each Purchaser covenants and agrees to do all acts and things to make, execute and deliver all agreements and other instruments, including, without limitation, any instruments necessary to effect any registrations, so as to fully carry out the intent and purpose of this Section 5.19; and each of the Purchasers 13.12.2 Each Lender hereby covenants and agrees that it has not heretofore sought, taken, accepted or received and shall not hereafter seek, take, accept or receive any security for any of the obligations and liabilities of the Company Borrower hereunder or under the Transaction other Loan Documents or under any other document, instrument, writing or agreement ancillary hereto or thereto other than such security as is provided hereunder or thereunder and shall not enter into any agreement with the Company or any of its Subsidiaries the parties hereto or thereto relating in any manner whatsoever to the transactions contemplated hereunderCredit Facilities, unless all of the Purchasers Lenders shall at the same time obtain the benefit of any such security or agreement, as the case may be.
(5) Notwithstanding any other provision contained in the Transaction Documents, no Purchaser shall be required to be joined as a party to any litigation commenced against the Company or any of its Subsidiaries by the Agent under the Transaction Documents (unless otherwise required by any court of competent jurisdiction) if it elects not to be so joined in which event any such litigation shall not include claims in respect of the rights of such Purchaser against the Company or any of its Subsidiaries under the Transaction Documents until such time as such Purchaser does elect to be so joined; provided that if at the time of such subsequent election it is not possible or practicable for such Purchaser to be so joined, then such Purchaser may commence proceedings in its own name in respect of its rights against the Company or any of its Subsidiaries.
Appears in 1 contract
Taking and Enforcement of Remedies. (1) Each of the Purchasers Except as otherwise provided herein, each Lender hereby acknowledges that, to the extent permitted by applicable lawLaw, the rights and remedies provided under the Transaction Documents to the Purchasers Lenders are for the benefit of the Purchasers Lenders collectively and acting together and not severally and further acknowledges that its rights under the Transaction Documents and remedies thereunder are to be exercised not severally, severally but collectively by through the Agent upon the decision of the Purchasers; Lenders (with the required majority or unanimity as herein provided), regardless of whether acceleration of Obligations hereunder was made, and accordingly, notwithstanding any of the provisions contained in any of the Transaction Documentsherein, each of the Purchasers Lenders hereby covenants and agrees that it shall will not be entitled to take any action with respect to the Transaction DocumentsTerm Facility, including, without limitation, including any acceleration of the indebtedness, liabilities or obligations of the Company or any of its SubsidiariesObligations thereunder, but that any such action shall will be taken only by the Agent with the prior written agreement direction of the Purchasers, provided that, notwithstanding Lenders (with the required majority or unanimity as herein provided). Notwithstanding the foregoing:
(2) , in the absence of written instructions from the Purchasers Lenders, and where in the sole opinion of the Agent the exigencies of the situation warrant such action, the Agent may without notice to or consent of the Purchasers Lenders take such action on behalf of the Purchasers Lenders as it deems appropriate or desirable in the interest circumstances. Each of the Purchasers; and
(3) the commencement of litigation before any court shall be made in the name of each Purchaser individually unless the laws of the jurisdiction of such court permit such litigation to be commenced in the name of the Agent on behalf of the Purchasers (whether pursuant to a specific power of attorney in favor of the Agent or otherwise) and the Agent agrees to commence such litigation in its name; provided, however, that no litigation shall be commenced in the name of any Purchaser without the prior written consent of such Purchaser;
(4) each of the Purchasers hereby further covenants and agrees that upon any such written consent being given by the Purchasers, they shall co-operate fully with the Agent to the extent requested by the Agent in the collective realization, including, without limitation, the appointment of a receiver and manager to act for their collective benefit; and each Purchaser covenants and agrees to do all acts and things to make, execute and deliver all agreements and other instruments, including, without limitation, any instruments necessary to effect any registrations, so as to fully carry out the intent and purpose of this Section 5.19; and each of the Purchasers Lenders hereby covenants and agrees that it has not heretofore and shall will not seek, take, accept or receive any security for any of the obligations and liabilities Obligations of the Company Borrower under the Transaction Documents or under any other document, instrument, writing or agreement ancillary thereto other than such security as is provided hereunder and shall will not enter into any agreement with the Company or any of its Subsidiaries the Parties relating in any manner whatsoever to the transactions contemplated hereunderTerm Facility, unless all of the Purchasers shall Lenders will at the same time obtain the benefit of any such security or agreement, as the case may be.
(5) Notwithstanding any other provision contained in the Transaction Documents, no Purchaser shall be required to be joined as a party to any litigation commenced against the Company or any of its Subsidiaries by the Agent under the Transaction Documents (unless otherwise required by any court of competent jurisdiction) if it elects not to be so joined in which event any such litigation shall not include claims in respect of the rights of such Purchaser against the Company or any of its Subsidiaries under the Transaction Documents until such time as such Purchaser does elect to be so joined; provided that if at the time of such subsequent election it is not possible or practicable for such Purchaser to be so joined, then such Purchaser may commence proceedings in its own name in respect of its rights against the Company or any of its Subsidiaries.be.
Appears in 1 contract
Samples: Credit Agreement
Taking and Enforcement of Remedies. (1a) Each of the Purchasers Lenders hereby acknowledges that, to the extent permitted by applicable lawApplicable Law, the remedies provided under the Transaction Documents hereunder to the Purchasers Lenders are for the benefit of the Purchasers Lenders collectively and acting together and not severally and further acknowledges that its rights under the Transaction Documents hereunder are to be exercised not severally, but collectively by the Administrative Agent upon the decision of the PurchasersLenders or the Majority Lenders, as applicable, regardless of whether declaration or acceleration was made pursuant to Section 10.2; accordingly, notwithstanding any of the provisions contained in any of the Transaction Documentsherein, each of the Purchasers Lenders hereby covenants and agrees that it shall not be entitled to take any action with respect to the Transaction DocumentsFacility, including, without limitation, any declaration or acceleration of the indebtedness, liabilities or obligations of the Company or any of its Subsidiariesunder Section 10.2, but that any such action shall be taken only by the Administrative Agent with the prior written agreement consent of the PurchasersLenders or the Majority Lenders, as applicable, provided that, notwithstanding the foregoing:
(2i) in the absence of instructions from the Purchasers Lenders or from the Majority Lenders, as applicable, and where in the sole opinion of the Administrative Agent the exigencies of the situation warrant such action, the Administrative Agent may without notice to or consent of the Purchasers Lenders take such action on behalf of the Purchasers Lenders as it deems appropriate or desirable in the interest of the PurchasersLenders; and
(3ii) the commencement of litigation before any court shall be made in the name of each Purchaser Lender individually unless the laws of the jurisdiction of such court permit such litigation to be commenced in the name of the Administrative Agent on behalf of the Purchasers Lenders (whether pursuant to a specific power of attorney in favor favour of the Administrative Agent or otherwise) and the Administrative Agent agrees to commence such litigation in its name; provided, however, that no litigation shall be commenced in the name of any Purchaser without the prior written consent of such Purchaser;
(4) each of the Purchasers Lenders hereby further covenants and agrees that upon any such written consent being given by the PurchasersLenders or the Majority Lenders, as applicable, they shall co-operate fully with the Administrative Agent to the extent requested by the Administrative Agent in the collective realization, realization including, without limitation, the appointment of a receiver and manager to act for their collective benefit; and each Purchaser Lender covenants and agrees to do all acts and things and to make, execute and deliver all agreements and other instruments, including, without limitation, any instruments necessary to effect any registrations, so as to fully carry out the intent and purpose of this Section 5.1911.11; and each of the Purchasers Lenders hereby covenants and agrees that it has not heretofore and shall not seek, take, accept or receive any security for any of the obligations and liabilities of the Company under the Transaction Documents Borrowers or any Guarantor hereunder or under any other document, instrument, writing or agreement ancillary thereto other than such security as is provided hereunder hereto and shall not enter into any agreement with the Company or any of its Subsidiaries the parties hereto or thereto relating in any manner whatsoever to the transactions contemplated hereunderFacility, unless all of the Purchasers Lenders shall at the same time obtain the benefit of any such security or agreement, as the case may be.
(5b) Notwithstanding any other provision contained in the Transaction Documentsthis Agreement, no Purchaser Lender shall be required to be joined as a party to any litigation commenced against the Company Borrowers or any of its Subsidiaries Guarantor by the Administrative Agent under or the Transaction Documents Majority Lenders hereunder (unless otherwise required by any court of competent jurisdiction) if it elects not to be so joined in which event any such litigation shall not include claims in respect of the rights of such Purchaser Lender against the Company or any of its Subsidiaries under Borrowers and the Transaction Documents Guarantors hereunder until such time as such Purchaser Lender does elect to be so joined; provided that if at the time of such subsequent election it is not possible or practicable for such Purchaser Lender to be so joined, then such Purchaser Lender may commence proceedings in its own name in respect of its rights against the Company or any of its SubsidiariesBorrowers and the Guarantors hereunder.
Appears in 1 contract
Taking and Enforcement of Remedies. (1) Each of the Purchasers Lenders hereby acknowledges that, to the extent permitted by applicable law, the remedies provided under the Transaction Documents hereunder to the Purchasers Lenders are for the benefit of the Purchasers Lenders collectively and acting together and not severally and further acknowledges that its rights under the Transaction Documents hereunder are to be exercised not severally, but collectively by the Agent upon the decision of the Purchasers; accordingly, notwithstanding Majority of the Lenders regardless of whether acceleration was made pursuant to Section 12.2. Notwithstanding any of the provisions contained in any of the Transaction Documentsherein, each of the Purchasers Lenders hereby covenants and agrees that it shall not be entitled to individually take any action with respect to the Transaction Documentsany Document, including, without limitation, including any acceleration Acceleration under Section 12.2 and any enforcement of the indebtedness, liabilities or obligations of the Company or any of its SubsidiariesSecurity, but that any such action shall be taken only by the Agent with the prior written agreement or instructions of the Purchasers, Majority of the Lenders; provided that, notwithstanding the foregoing:
, if (2i) the Agent, having been adequately indemnified against costs and expenses of so doing by the Lenders, shall fail to carry out any such instructions of a Majority of the Lenders, any Lender may do so on behalf of all Lenders and shall, in so doing, be entitled to the benefit of all protections given the Agent hereunder or elsewhere, and (ii) in the absence of instructions from the Purchasers Majority of the Lenders and where in the sole opinion of the Agent the exigencies of the situation warrant such action, the Agent may without notice to or consent of the Purchasers Lenders or any of them take such action on behalf of the Purchasers Lenders as it deems appropriate or desirable in the interest interests of the Purchasers; and
(3) the commencement of litigation before any court shall be made in the name of each Purchaser individually unless the laws Lenders. Each of the jurisdiction of such court permit such litigation to be commenced in the name of the Agent on behalf of the Purchasers (whether pursuant to a specific power of attorney in favor of the Agent or otherwise) and the Agent agrees to commence such litigation in its name; provided, however, that no litigation shall be commenced in the name of any Purchaser without the prior written consent of such Purchaser;
(4) each of the Purchasers Lenders hereby further covenants and agrees that upon any such written consent being given by the PurchasersMajority of the Lenders, they or upon a Lender or the Agent taking action as aforesaid, it shall co-operate cooperate fully with such Lender or the Agent to the extent requested by such Lender or the Agent in the collective realizationrealization including and, including, without limitationif applicable, the appointment of a receiver, or receiver and manager to act for their collective benefit; and each Purchaser . Each Lender covenants and agrees to do all acts and things and to make, execute and deliver all agreements and other instruments, including, without limitation, including any instruments necessary to effect any registrations, so as to fully carry out the intent and purpose of this Section 5.19Section; and each of the Purchasers Lenders hereby covenants and agrees that that, subject to Section 5.7, Section 10.2(b), Section 15.4 and Section 15.14, it has not heretofore and shall not seek, take, accept or receive any security for any of the obligations and liabilities of the Company under the Transaction Documents Borrowers hereunder or under any other document, instrument, writing or agreement ancillary thereto other than such security as is provided hereunder hereto and shall not enter into any agreement with the Company or any of its Subsidiaries the parties hereto or thereto relating in any manner whatsoever to the transactions contemplated hereunderCredit Facilities, unless all of the Purchasers Lenders shall at the same time obtain the benefit of any such security or agreement. With respect to any enforcement, as realization or the case may be.
(5) Notwithstanding taking of any other provision contained in rights or remedies to enforce the Transaction Documentsrights of the Lenders hereunder, no Purchaser the Agent shall be required a trustee for each Lender, and all monies received from time to be joined as a party to any litigation commenced against the Company or any of its Subsidiaries time by the Agent under the Transaction Documents (unless otherwise required by any court of competent jurisdiction) if it elects not to be so joined in which event any such litigation shall not include claims in respect of the rights foregoing shall be held in trust and shall be trust assets within the meaning of applicable bankruptcy or insolvency legislation and shall be considered for the purposes of such Purchaser against legislation to be held separate and apart from the Company or any other assets of the Agent, and each Lender shall be entitled to their Rateable Portion of such monies. In its capacity as trustee, the Agent shall be obliged to exercise only the degree of care it would exercise in the conduct and management of its Subsidiaries under the Transaction Documents until such time as such Purchaser does elect to be so joined; provided that if at the time of such subsequent election it is not possible own business and in accordance with its usual practice concurrently employed or practicable hereafter instituted for such Purchaser to be so joined, then such Purchaser may commence proceedings in its own name in respect of its rights against the Company or any of its Subsidiariesother substantial commercial loans.
Appears in 1 contract
Taking and Enforcement of Remedies. (1a) Each of the Purchasers Lenders hereby acknowledges that, to the extent permitted by applicable lawApplicable Law, the remedies provided under the Transaction Documents hereunder to the Purchasers Lenders are for the benefit of the Purchasers Lenders collectively and acting together and not severally and further acknowledges that its rights under the Transaction Documents hereunder are to be exercised not severally, but collectively by the Agent upon the decision of the PurchasersLenders regardless of whether declaration or acceleration was made pursuant to Section 10.2; accordingly, notwithstanding any of the provisions contained in any of the Transaction Documentsherein, each of the Purchasers Lenders hereby covenants and agrees that it shall not be entitled to take any action with respect to the Transaction DocumentsFacility, including, without limitation, any declaration or acceleration of the indebtedness, liabilities or obligations of the Company or any of its Subsidiariesunder Section 10.2, but that any such action shall be taken only by the Administrative Agent with the prior written agreement consent of the PurchasersLenders or the Majority Lenders, as applicable, provided that, notwithstanding the foregoing:
(2i) in the absence of instructions from the Purchasers Lenders or the Majority Lenders, as applicable, and where in the sole opinion of the Administrative Agent the exigencies of the situation warrant such action, the Administrative Agent may without notice to or consent of the Purchasers Lenders take such action on behalf of the Purchasers Lenders as it deems appropriate or desirable in the interest of the PurchasersLenders; and
(3ii) the commencement of litigation before any court shall be made in the name of each Purchaser Lender individually unless the laws of the jurisdiction of such court permit such litigation to be commenced in the name of the Administrative Agent on behalf of the Purchasers Lenders (whether pursuant to a specific power of attorney in favor favour of the Administrative Agent or otherwise) and the Agent agrees to commence such litigation in its name; provided, however, that no litigation shall be commenced in the name of any Purchaser without the prior written consent of such Purchaser;
(4) each of the Purchasers Lenders hereby further covenants and agrees that upon any such written consent being given by the PurchasersLenders, they shall co-operate fully with the Administrative Agent to the extent requested by the Administrative Agent in the collective realization, realization including, without limitation, the appointment of a receiver and manager to act for their collective benefit; and each Purchaser Lender covenants and agrees to do all acts and things and to make, execute and deliver all agreements and other instruments, including, without limitation, any instruments necessary to effect any registrations, so as to fully carry out the intent and purpose of this Section 5.1911.11; and each of the Purchasers Lenders hereby covenants and agrees that it has not heretofore and shall not seek, take, accept or receive any security for any of the obligations and liabilities of the Company under the Transaction Documents Borrowers or any Guarantor hereunder or under any other document, instrument, writing or agreement ancillary thereto other than such security as is provided hereunder hereto and shall not enter into any agreement with the Company or any of its Subsidiaries the parties hereto or thereto relating in any manner whatsoever to the transactions contemplated hereunderFacility, unless all of the Purchasers Lenders shall at the same time obtain the benefit of any such security or agreement, as the case may be.
(5b) Notwithstanding any other provision contained in the Transaction Documentsthis Agreement, no Purchaser Lender shall be required to be joined as a party to any litigation commenced against the Company Borrowers or any of its Subsidiaries Guarantor by an Agent or the Agent under the Transaction Documents Majority Lenders hereunder (unless otherwise required by any court of competent jurisdiction) if it elects not to be so joined in which event any such litigation shall not include claims in respect of the rights of such Purchaser Lender against the Company or any of its Subsidiaries under Borrowers and the Transaction Documents Guarantors hereunder until such time as such Purchaser Lender does elect to be so joined; provided that if at the time of such subsequent election it is not possible or practicable for such Purchaser Lender to be so joined, then such Purchaser Lender may commence proceedings in its own name in respect of its rights against the Company or any of its SubsidiariesBorrowers and the Guarantors hereunder.
Appears in 1 contract
Samples: Credit Agreement (Celestica Inc)
Taking and Enforcement of Remedies. (1a) Each of the Purchasers Lenders hereby acknowledges that, to the extent permitted by applicable lawApplicable Law, the remedies provided hereunder or under the Transaction Security Documents to the Purchasers Lenders are for the benefit of the Purchasers Lenders collectively and acting together and not severally and further acknowledges that its rights under the Transaction Documents hereunder and thereunder are to be exercised not severally, but collectively by the Administrative Agent upon the decision of the PurchasersLenders, the Majority Lenders or the Super Majority Lenders, as applicable, regardless of whether declaration or acceleration was made pursuant to Section 10.2; accordingly, notwithstanding any of the provisions contained in any of the Transaction Documentsherein and therein, each of the Purchasers Lenders hereby covenants and agrees that it shall not be entitled to take any action with respect to the Transaction DocumentsFacility, including, without limitation, any declaration or acceleration of the indebtedness, liabilities or obligations of the Company or any of its Subsidiariesunder Section 10.2, but that any such action shall be taken only by the Administrative Agent with the prior written agreement consent of the PurchasersLenders, the Majority Lenders or the Super Majority Lenders, as applicable, provided that, notwithstanding the foregoing:
(2i) in the absence of instructions from the Purchasers Lenders, from the Majority Lenders or from the Super Majority Lenders, as applicable, and where in the sole opinion of the Administrative Agent the exigencies of the situation warrant such action, the Administrative Agent may without notice to or consent of the Purchasers Lenders take such action on behalf of the Purchasers Lenders as it deems appropriate or desirable in the interest of the PurchasersLenders; and
(3ii) the commencement of litigation before any court shall be made in the name of each Purchaser Lender individually unless the laws of the jurisdiction of such court permit such litigation to be commenced in the name of the Administrative Agent on behalf of the Purchasers Lenders (whether pursuant to a specific power of attorney in favor favour of the Administrative Agent or otherwise) and the Administrative Agent agrees to commence such litigation in its name; provided, however, that no litigation shall be commenced in the name of any Purchaser without the prior written consent of such Purchaser;
(4) each of the Purchasers Lenders hereby further covenants and agrees that upon any such written consent being given by the PurchasersLenders, the Majority Lenders or the Super Majority Lenders, as applicable, they shall co-operate fully with the Administrative Agent to the extent requested by the Administrative Agent in the collective realization, realization including, without limitation, the appointment of a receiver and manager to act for their collective benefit; and each Purchaser Lender covenants and agrees to do all acts and things and to make, execute and deliver all agreements and other instruments, including, without limitation, any instruments necessary to effect any registrations, so as to fully carry out the intent and purpose of this Section 5.19; and each of the Purchasers hereby covenants and agrees that it has not heretofore and shall not seek, take, accept or receive any security for any of the obligations and liabilities of the Company under the Transaction Documents or under any other document, instrument, writing or agreement ancillary thereto other than such security as is provided hereunder and shall not enter into any agreement with the Company or any of its Subsidiaries relating in any manner whatsoever to the transactions contemplated hereunder, unless all of the Purchasers shall at the same time obtain the benefit of any such security or agreement, as the case may be.
(5) Notwithstanding any other provision contained in the Transaction Documents, no Purchaser shall be required to be joined as a party to any litigation commenced against the Company or any of its Subsidiaries by the Agent under the Transaction Documents (unless otherwise required by any court of competent jurisdiction) if it elects not to be so joined in which event any such litigation shall not include claims in respect of the rights of such Purchaser against the Company or any of its Subsidiaries under the Transaction Documents until such time as such Purchaser does elect to be so joined; provided that if at the time of such subsequent election it is not possible or practicable for such Purchaser to be so joined, then such Purchaser may commence proceedings in its own name in respect of its rights against the Company or any of its Subsidiaries.this
Appears in 1 contract
Taking and Enforcement of Remedies. (1) Each of the Purchasers Lenders hereby acknowledges that, to the extent permitted by applicable lawApplicable Law, the remedies provided hereunder and under the Transaction Loan Documents to the Purchasers Lenders are for the benefit of the Purchasers Lenders collectively and acting together and not severally and further acknowledges that its rights under the Transaction Documents hereunder are to be exercised not severally, but collectively by the Agent upon the decision of the Purchasers; accordingly, notwithstanding Majority Lenders. Notwithstanding any of the provisions contained in any of the Transaction Documentsherein, each of the Purchasers Lenders hereby covenants and agrees that it shall not be entitled to take any action with respect to the Transaction DocumentsCredit Facility, including, without limitation, any acceleration election of the indebtedness, liabilities or obligations remedies in respect of the Company or any an Event of its SubsidiariesDefault hereunder, but that any such action shall be taken only by the Agent with the prior written agreement of the Purchasers, Majority Lenders provided that, that notwithstanding the foregoing:
(2) , in the absence of instructions from the Purchasers Majority Lenders (or, to the extent Section 11.08 is applicable, all of the Lenders) and where in the sole opinion of the Agent the exigencies of the situation warrant such action, the Agent may without notice to or consent of the Purchasers Lenders take such action on behalf of the Purchasers Lenders as it deems appropriate or desirable in the interest interests of the Purchasers; and
(3) the commencement of litigation before any court shall be made in the name of each Purchaser individually unless the laws of the jurisdiction of such court permit such litigation to be commenced in the name of the Agent on behalf of the Purchasers (whether pursuant to a specific power of attorney in favor of the Agent or otherwise) and the Agent agrees to commence such litigation in its name; provided, however, that no litigation shall be commenced in the name of any Purchaser without the prior written consent of such Purchaser;
(4) each of the Purchasers hereby further covenants and agrees that upon Lenders. Upon any such written consent being given by the PurchasersMajority Lenders to the Agent, they each Lender shall co-operate cooperate fully with the Agent to the extent requested by the Agent in the collective realization, including, without limitation, the appointment exercise of a receiver and manager to act for their collective benefit; and each Purchaser covenants and agrees to such rights. Each Lender shall do all acts and things to make, execute and deliver all agreements and other instruments, including, without limitation, any instruments necessary to effect any registrations, so as to fully carry out the intent and purpose purposes of this Section 5.19; and each 11.09(a). Each of the Purchasers hereby covenants and agrees that it has not heretofore and Lenders shall not seek, take, accept or receive any security for any of the obligations and liabilities of the Company under the Transaction Documents Borrowers hereunder or under any other document, instrument, writing or agreement ancillary thereto hereto other than such security as is provided hereunder or thereunder and shall not enter into any agreement with the Company or any of its Subsidiaries the parties hereto or thereto relating in any manner whatsoever to the transactions contemplated hereunderCredit Facility, unless all of the Purchasers Lenders shall at the same time obtain the benefit of any such security or agreement, as . Each of the case may be.
(5) Notwithstanding any other provision contained in Lenders and the Transaction Documents, no Purchaser shall be required to be joined as a party to any litigation commenced against Borrowers further covenants and agrees that all proceeds from the Company or any of its Subsidiaries by the Agent under the Transaction Documents (unless otherwise required by any court of competent jurisdiction) if it elects not to be so joined in which event any such litigation shall not include claims in respect exercise of the rights of such Purchaser against and remedies (including, without limitation, all amounts for which the Company or any of its Subsidiaries Agent is entitled to be indemnified under the Transaction Documents until provisions hereof) provided hereunder and under the Loan Documents, to the extent permitted by Applicable Law, are held for the benefit of all of the Lenders and shall be shared among the Lenders in accordance with the provisions of this Agreement and any other agreement the Lenders may enter into (with or without the approval or acknowledgement of the Borrowers). To the extent any Lender receives or is entitled to receive any amount hereunder in excess of the amount of indebtedness owed to it hereunder it shall hold such time as such Purchaser does elect to be so joined; provided that if at excess in trust on behalf of and for the time benefit of such subsequent election it is not possible or practicable for such Purchaser to be so joined, then such Purchaser may commence proceedings in its own name in respect of its rights against the Company or any of its Subsidiariesother Lenders entitled thereto.
Appears in 1 contract
Taking and Enforcement of Remedies. (1a) Each of the Purchasers Lenders hereby acknowledges that, to the extent permitted by applicable lawApplicable Law, the remedies provided under the Transaction Documents hereunder to the Purchasers Lenders are for the benefit of the Purchasers Lenders collectively and acting together and not severally and further acknowledges that its rights under the Transaction Documents hereunder are to be exercised not severally, but collectively by the Administrative Agent upon the decision of the PurchasersLenders regardless of whether declaration or acceleration was made pursuant to Section 10.2; accordingly, notwithstanding any of the provisions contained in any of the Transaction Documentsherein, each of the Purchasers Lenders hereby covenants and agrees that it shall not be entitled to take any action with respect to the Transaction DocumentsFacility, including, without limitation, any declaration or acceleration of the indebtedness, liabilities or obligations of the Company or any of its Subsidiariesunder Section 10.2, but that any such action shall be taken only by the Administrative Agent with the prior written agreement consent of the PurchasersLenders or the Majority Lenders, as applicable, provided that, notwithstanding the foregoing:
(2i) in the absence of instructions from the Purchasers Lenders or from the Majority Lenders, as applicable, and where in the sole opinion of the Administrative Agent the exigencies of the situation warrant such action, the Administrative Agent may without notice to or consent of the Purchasers Lenders take such action on behalf of the Purchasers Lenders as it deems appropriate or desirable in the interest of the PurchasersLenders; and
(3ii) the commencement of litigation before any court shall be made in the name of each Purchaser Lender individually unless the laws of the jurisdiction of such court permit such litigation to be commenced in the name of the Administrative Agent on behalf of the Purchasers Lenders (whether pursuant to a specific power of attorney in favor favour of the Administrative Agent or otherwise) and the Administrative Agent agrees to commence such litigation in its name; provided, however, that no litigation shall be commenced in the name of any Purchaser without the prior written consent of such Purchaser;
(4) each of the Purchasers Lenders hereby further covenants and agrees that upon any such written consent being given by the PurchasersLenders or the Majority Lenders, as applicable, they shall co-operate fully with the Administrative Agent to the extent requested by the Administrative Agent in the collective realization, realization including, without limitation, the appointment of a receiver and manager to act for their collective benefit; and each Purchaser Lender covenants and agrees to do all acts and things and to make, execute and deliver all agreements and other instruments, including, without limitation, any instruments necessary to effect any registrations, so as to fully carry out the intent and purpose of this Section 5.1911.11; and each of the Purchasers Lenders hereby covenants and agrees that it has not heretofore and shall not seek, take, accept or receive any security for any of the obligations and liabilities of the Company under the Transaction Documents Borrowers or any Guarantor hereunder or under any other document, instrument, writing or agreement ancillary thereto other than such security as is provided hereunder hereto and shall not enter into any agreement with the Company or any of its Subsidiaries the parties hereto or thereto relating in any manner whatsoever to the transactions contemplated hereunderFacility, unless all of the Purchasers Lenders shall at the same time obtain the benefit of any such security or agreement, as the case may be.
(5b) Notwithstanding any other provision contained in the Transaction Documentsthis Agreement, no Purchaser Lender shall be required to be joined as a party to any litigation commenced against the Company Borrowers or any of its Subsidiaries Guarantor by the Administrative Agent under or the Transaction Documents Majority Lenders hereunder (unless otherwise required by any court of competent jurisdiction) if it elects not to be so joined in which event any such litigation shall not include claims in respect of the rights of such Purchaser Lender against the Company or any of its Subsidiaries under Borrowers and the Transaction Documents Guarantors hereunder until such time as such Purchaser Lender does elect to be so joined; provided that if at the time of such subsequent election it is not possible or practicable for such Purchaser Lender to be so joined, then such Purchaser Lender may commence proceedings in its own name in respect of its rights against the Company or any of its SubsidiariesBorrowers and the Guarantors hereunder.
Appears in 1 contract
Taking and Enforcement of Remedies. (1) Each of the Purchasers Lenders hereby acknowledges that, to the extent permitted by applicable law, the remedies provided under the Transaction Documents hereunder to the Purchasers Lenders are for the benefit of the Purchasers Lenders collectively and acting together and not severally and further acknowledges that its rights under the Transaction Documents hereunder are to be exercised not severally, but collectively by the Agent upon the decision of the Purchasers; accordingly, notwithstanding Majority of the Lenders regardless of whether acceleration was made pursuant to Section 11.2. Notwithstanding any of the provisions contained in any of the Transaction Documentsherein, each of the Purchasers Lenders hereby covenants and agrees that it shall not be entitled to individually take any action with respect to the Transaction Documentsany Credit Facility, including, without limitation, including any acceleration of the indebtedness, liabilities or obligations of the Company or any of its Subsidiariesunder Section 11.2, but that any such action shall be taken only by the Agent with the prior written agreement or instructions of the Purchasers, Majority of the Lenders; provided that, notwithstanding the foregoing:
, if (2i) the Agent, having been adequately indemnified against costs and expenses of so doing by the Lenders, shall fail to carry out any such instructions of a Majority of the Lenders, any Lender may do so on behalf of all Lenders and shall, in so doing, be entitled to the benefit of all protections given the Agent hereunder or elsewhere, and (ii) in the absence of instructions from the Purchasers Majority of the Lenders and where in the sole opinion of the Agent the exigencies of the situation warrant such action, the Agent may without notice to or consent of the Purchasers Lenders or any of them take such action on behalf of the Purchasers Lenders as it deems appropriate or desirable in the interest interests of the Purchasers; and
(3) the commencement of litigation before any court shall be made in the name of each Purchaser individually unless the laws Lenders. Each of the jurisdiction of such court permit such litigation to be commenced in the name of the Agent on behalf of the Purchasers (whether pursuant to a specific power of attorney in favor of the Agent or otherwise) and the Agent agrees to commence such litigation in its name; provided, however, that no litigation shall be commenced in the name of any Purchaser without the prior written consent of such Purchaser;
(4) each of the Purchasers Lenders hereby further covenants and agrees that upon any such written consent being given by the PurchasersMajority of the Lenders, they or upon a Lender or the Agent taking action as aforesaid, it shall co-operate cooperate fully with the Lender or the Agent to the extent requested by the Lender or the Agent in the collective realizationrealization including and, including, without limitationif applicable, the appointment of a receiver, interim receiver or receiver and manager to act for their collective benefit; and each Purchaser . Each Lender covenants and agrees to do all acts and things and to make, execute and deliver all agreements and other instruments, including, without limitation, including any instruments necessary to effect any registrations, so as to fully carry out the intent and purpose of this Section 5.19Section; and each of the Purchasers Lenders hereby covenants and agrees that that, subject to Section 5.8, Section 9.2(b), Section 14.4 and Section 14.14, it has not heretofore and shall not seek, take, accept or receive any security for any of the obligations and liabilities of the Company under the Transaction Documents Borrower hereunder or under any other document, instrument, writing or agreement ancillary thereto other than such security as is provided hereunder hereto and shall not enter into any agreement with the Company or any of its Subsidiaries the parties hereto or thereto relating in any manner whatsoever to the transactions contemplated hereunderCredit Facilities, unless all of the Purchasers Lenders shall at the same time obtain the benefit of any such security or agreement. With respect to any enforcement, as realization or the case may be.
(5) Notwithstanding taking of any other provision contained in rights or remedies to enforce the Transaction Documentsrights of the Lenders hereunder, no Purchaser the Agent shall be required a trustee for each Lender, and all monies received from time to be joined as a party to any litigation commenced against the Company or any of its Subsidiaries time by the Agent under the Transaction Documents (unless otherwise required by any court of competent jurisdiction) if it elects not to be so joined in which event any such litigation shall not include claims in respect of the rights foregoing shall be held in trust and shall be trust assets within the meaning of applicable bankruptcy or insolvency legislation and shall be considered for the purposes of such Purchaser against legislation to be held separate and apart from the Company or any other assets of the Agent, and each Lender shall be entitled to their Rateable Portion of such monies. In its capacity as trustee, the Agent shall be obliged to exercise only the degree of care it would exercise in the conduct and management of its Subsidiaries under the Transaction Documents until such time as such Purchaser does elect to be so joined; provided that if at the time of such subsequent election it is not possible own business and in accordance with its usual practice concurrently employed or practicable hereafter instituted for such Purchaser to be so joined, then such Purchaser may commence proceedings in its own name in respect of its rights against the Company or any of its Subsidiariesother substantial commercial loans.
Appears in 1 contract
Taking and Enforcement of Remedies. (1) Each of the Purchasers Lenders hereby acknowledges that, to the extent permitted by applicable law, the remedies provided under the Transaction Documents hereunder to the Purchasers Lenders are for the benefit of the Purchasers Lenders collectively and acting together and not severally and further acknowledges that its rights under the Transaction Documents hereunder are to be exercised not severally, but collectively by the Agent upon the decision of the Purchasers; accordingly, notwithstanding Majority of the Lenders regardless of whether acceleration was made pursuant to Section 10.2. Notwithstanding any of the provisions contained in any of the Transaction Documentsherein, each of the Purchasers Lenders hereby covenants and agrees that it shall not be entitled to individually take any action with respect to the Transaction DocumentsCredit Facility, including, without limitation, any acceleration of the indebtedness, liabilities or obligations of the Company or any of its Subsidiariesunder Section 10.2, but that any such action shall be taken only by the Agent with the prior written agreement or instructions of the Purchasers, Majority of the Lenders; provided that, notwithstanding the foregoing:
, if (2i) the Agent, having been adequately indemnified against costs and expenses of so doing by the Lenders, shall fail to carry out any such instructions of a Majority of the Lenders, any Lender may do so on behalf of all Lenders and shall, in so doing, be entitled to the benefit of all protections given the Agent hereunder or elsewhere, and (ii) in the absence of instructions from the Purchasers Majority of the Lenders and where in the sole opinion of the Agent the exigencies of the situation warrant such action, the Agent may without notice to or consent of the Purchasers Lenders or any of them take such action on behalf of the Purchasers Lenders as it deems appropriate or desirable in the interest interests of the Purchasers; and
(3) the commencement of litigation before any court shall be made in the name of each Purchaser individually unless the laws Lenders. Each of the jurisdiction of such court permit such litigation to be commenced in the name of the Agent on behalf of the Purchasers (whether pursuant to a specific power of attorney in favor of the Agent or otherwise) and the Agent agrees to commence such litigation in its name; provided, however, that no litigation shall be commenced in the name of any Purchaser without the prior written consent of such Purchaser;
(4) each of the Purchasers Lenders hereby further covenants and agrees that upon any such written consent being given by the PurchasersMajority of the Lenders, they or upon a Lender or the Agent taking action as aforesaid, it shall co-operate cooperate fully with the Lender or the Agent to the extent requested by the Lender or the Agent in the collective realization, realization including, without limitation, and, if applicable, the appointment of a receiver, or receiver and manager to act for their collective benefit; and each Purchaser . Each Lender covenants and agrees to do all acts and things and to make, execute and deliver all agreements and other instruments, including, without limitation, any instruments necessary to effect any registrations, so as to fully carry out the intent and purpose of this Section 5.19Section; and each of the Purchasers Lenders hereby covenants and agrees that that, subject to Section 5.7, Section 13.4 and Section 9.2(a) it has not heretofore and shall not seek, take, accept or receive any security for any of the obligations and liabilities of the Company under the Transaction Documents Borrower hereunder or under any other document, instrument, writing or agreement ancillary thereto other than such security as is provided hereunder hereto and shall not enter into any agreement with the Company or any of its Subsidiaries the parties hereto or thereto relating in any manner whatsoever to the transactions contemplated hereunderCredit Facility, unless all of the Purchasers Lenders shall at the same time obtain the benefit of any such security or agreement. With respect to any enforcement, as realization or the case may be.
(5) Notwithstanding taking of any other provision contained in rights or remedies to enforce the Transaction Documentsrights of the Lenders hereunder, no Purchaser the Agent shall be required a trustee for each Lender, and all monies received from time to be joined as a party to any litigation commenced against the Company or any of its Subsidiaries time by the Agent under the Transaction Documents (unless otherwise required by any court of competent jurisdiction) if it elects not to be so joined in which event any such litigation shall not include claims in respect of the rights foregoing shall be held in trust and shall be trust assets within the meaning of applicable bankruptcy or insolvency legislation and shall be considered for the purposes of such Purchaser against legislation to be held separate and apart from the Company or any other assets of the Agent, and each Lender shall be entitled to their Rateable Portion of such monies. In its capacity as trustee, the Agent shall be obliged to exercise only the degree of care it would exercise in the conduct and management of its Subsidiaries under the Transaction Documents until such time as such Purchaser does elect to be so joined; provided that if at the time of such subsequent election it is not possible own business and in accordance with its usual practice concurrently employed or practicable hereafter instituted for such Purchaser to be so joined, then such Purchaser may commence proceedings in its own name in respect of its rights against the Company or any of its Subsidiariesother substantial commercial loans.
Appears in 1 contract
Samples: Credit Agreement (Enbridge Inc)
Taking and Enforcement of Remedies. (1) Each of the Purchasers Lenders hereby acknowledges that, to the extent permitted by applicable law, the remedies provided under the Transaction Documents hereunder to the Purchasers Lenders are for the benefit of the Purchasers Lenders collectively and acting together and not severally and further acknowledges that its rights under the Transaction Documents hereunder are to be exercised not severally, but collectively by the applicable Agent upon the decision of the Purchasers; accordingly, notwithstanding Majority of the Lenders regardless of whether acceleration was made pursuant to Section 11.2. Notwithstanding any of the provisions contained in any of the Transaction Documentsherein, each of the Purchasers Lenders hereby covenants and agrees that it shall not be entitled to individually take any action with respect to the Transaction Documentsa Credit Facility, including, without limitation, including any acceleration of the indebtedness, liabilities or obligations of the Company or any of its Subsidiariesunder Section 11.2, but that any such action shall be taken only by the applicable Agent with the prior written agreement or instructions of the Purchasers, Majority of the Lenders; provided that, notwithstanding the foregoing:
, if (2i) the applicable Agent, having been adequately indemnified against costs and expenses of so doing by the Lenders, shall fail to carry out any such instructions of a Majority of the Lenders, any Lender may do so on behalf of all Lenders and shall, in so doing, be entitled to the benefit of all protections given the applicable Agents hereunder or elsewhere, and (ii) in the absence of instructions from the Purchasers Majority of the Lenders and where in the sole opinion of the applicable Agent the exigencies of the situation warrant such action, the applicable Agent may without notice to or consent of the Purchasers Lenders or any of them take such action on behalf of the Purchasers Lenders as it deems appropriate or desirable in the interest interests of the Purchasers; and
(3) the commencement of litigation before any court shall be made in the name of each Purchaser individually unless the laws Lenders. Each of the jurisdiction of such court permit such litigation to be commenced in the name of the Agent on behalf of the Purchasers (whether pursuant to a specific power of attorney in favor of the Agent or otherwise) and the Agent agrees to commence such litigation in its name; provided, however, that no litigation shall be commenced in the name of any Purchaser without the prior written consent of such Purchaser;
(4) each of the Purchasers Lenders hereby further covenants and agrees that upon any such written consent being given by the PurchasersMajority of the Lenders, they or upon a Lender or the applicable Agent taking action as aforesaid, it shall co-operate cooperate fully with the Lender or the applicable Agent to the extent requested by the Lender or the applicable Agent in the collective realizationrealization including and, including, without limitationif applicable, the appointment of a receiver, or receiver and manager to act for their collective benefit; and each Purchaser . Each Lender covenants and agrees to do all acts and things and to make, execute and deliver all agreements and other instruments, including, without limitation, including any instruments necessary to effect any registrations, so as to fully carry out the intent and purpose of this Section 5.19Section; and each of the Purchasers Lenders hereby covenants and agrees that that, subject to Section 5.11, Section 14.4 and Section 10.2(b) it has not heretofore and shall not seek, take, accept or receive any security for any of the obligations and liabilities of the Company under the Transaction Documents Borrowers hereunder or under any other document, instrument, writing or agreement ancillary thereto other than such security as is provided hereunder hereto and shall not enter into any agreement with the Company or any of its Subsidiaries the parties hereto or thereto relating in any manner whatsoever to the transactions contemplated hereunderCredit Facilities, unless all of the Purchasers Lenders shall at the same time obtain the benefit of any such security or agreement. With respect to any enforcement, as realization or the case may be.
(5) Notwithstanding taking of any other provision contained in rights or remedies to enforce the Transaction Documentsrights of the Lenders hereunder, no Purchaser the applicable Agent shall be required a trustee for each Lender, and all monies received from time to be joined as a party to any litigation commenced against the Company or any of its Subsidiaries time by the applicable Agent under the Transaction Documents (unless otherwise required by any court of competent jurisdiction) if it elects not to be so joined in which event any such litigation shall not include claims in respect of the rights foregoing shall be held in trust and shall be trust assets within the meaning of applicable bankruptcy or insolvency legislation and shall be considered for the purposes of such Purchaser against legislation to be held separate and apart from the Company or any other assets of the applicable Agent, and each Lender shall be entitled to their Rateable Portion of such monies. In its capacity as trustee, the applicable Agent shall be obliged to exercise only the degree of care it would exercise in the conduct and management of its Subsidiaries under the Transaction Documents until such time as such Purchaser does elect to be so joined; provided that if at the time of such subsequent election it is not possible own business and in accordance with its usual practice concurrently employed or practicable hereafter instituted for such Purchaser to be so joined, then such Purchaser may commence proceedings in its own name in respect of its rights against the Company or any of its Subsidiariesother substantial commercial loans.
Appears in 1 contract
Samples: Credit Agreement (Nexen Inc)
Taking and Enforcement of Remedies. (1a) Each of the Purchasers Lenders hereby acknowledges that, to the extent permitted by applicable lawApplicable Law, the remedies provided under the Transaction Documents hereunder to the Purchasers Lenders are for the benefit of the Purchasers Lenders collectively and acting together and not severally and further acknowledges that its rights under the Transaction Documents hereunder are to be exercised not severally, but collectively by the Administrative Agent upon the decision of the PurchasersLenders regardless of whether declaration or acceleration was made pursuant to Section 10.2; accordingly, notwithstanding any of the provisions contained in any of the Transaction Documentsherein, each of the Purchasers Lenders hereby covenants and agrees that it shall not be entitled to take any action with respect to the Transaction DocumentsFacility, including, without limitation, any declaration or acceleration of the indebtedness, liabilities or obligations of the Company or any of its Subsidiariesunder Section 10.2, but that any such action shall be taken only by the Administrative Agent with the prior written agreement consent of the PurchasersLenders or the Majority Lenders, as applicable, provided that, notwithstanding the foregoing:
(2i) in the absence of instructions from the Purchasers Lenders or from the Majority Lenders, as applicable, and where in the sole opinion of the Administrative Agent the exigencies of the situation warrant such action, the Administrative Agent may without notice to or consent of the Purchasers Lenders take such action on behalf of the Purchasers Lenders as it deems appropriate or desirable in the interest of the PurchasersLenders; and
(3ii) the commencement of litigation before any court shall be made in the name of each Purchaser Lender individually unless the laws of the jurisdiction of such court permit such litigation to be commenced in the name of the Administrative Agent on behalf of the Purchasers Lenders (whether pursuant to a specific power of attorney in favor favour of the Administrative Agent or otherwise) and the Agent agrees to commence such litigation in its name; provided, however, that no litigation shall be commenced in the name of any Purchaser without the prior written consent of such Purchaser;
(4) each of the Purchasers Lenders hereby further covenants and agrees that upon any such written consent being given by the PurchasersLenders or the Majority Lenders, as applicable, they shall co-operate fully with the Administrative Agent to the extent requested by the Administrative Agent in the collective realization, realization including, without limitation, the appointment of a receiver and manager to act for their collective benefit; and each Purchaser Lender covenants and agrees to do all acts and things and to make, execute and deliver all agreements and other instruments, including, without limitation, any instruments necessary to effect any registrations, so as to fully carry out the intent and purpose of this Section 5.1911.11; and each of the Purchasers Lenders hereby covenants and agrees that it has not heretofore and shall not seek, take, accept or receive any security for any of the obligations and liabilities of the Company under the Transaction Documents Borrowers or any Guarantor hereunder or under any other document, instrument, writing or agreement ancillary thereto other than such security as is provided hereunder hereto and shall not enter into any agreement with the Company or any of its Subsidiaries the parties hereto or thereto relating in any manner whatsoever to the transactions contemplated hereunderFacility, unless all of the Purchasers Lenders shall at the same time obtain the benefit of any such security or agreement, as the case may be.
(5b) Notwithstanding any other provision contained in the Transaction Documentsthis Agreement, no Purchaser Lender shall be required to be joined as a party to any litigation commenced against the Company Borrowers or any of its Subsidiaries Guarantor by an Agent or the Agent under the Transaction Documents Majority Lenders hereunder (unless otherwise required by any court of competent jurisdiction) if it elects not to be so joined in which event any such litigation shall not include claims in respect of the rights of such Purchaser Lender against the Company or any of its Subsidiaries under Borrowers and the Transaction Documents Guarantors hereunder until such time as such Purchaser Lender does elect to be so joined; provided that if at the time of such subsequent election it is not possible or practicable for such Purchaser Lender to be so joined, then such Purchaser Lender may commence proceedings in its own name in respect of its rights against the Company or any of its SubsidiariesBorrowers and the Guarantors hereunder.
Appears in 1 contract
Taking and Enforcement of Remedies. (1) Each of the Purchasers Investors hereby acknowledges that, to the extent permitted by applicable law, the remedies provided under the Transaction Loan Documents to the Purchasers Investors are for the benefit of the Purchasers Investors collectively and acting together and not severally and further acknowledges that its rights under the Transaction Loan Documents are to be exercised not severally, but collectively by the Agent upon the decision of the PurchasersInvestors; accordingly, notwithstanding any of the provisions contained in any of the Transaction Loan Documents, each of the Purchasers Investors hereby covenants and agrees that it shall not be entitled to take any action with respect to the Transaction Loan Documents, including, without limitation, any acceleration of the indebtedness, liabilities or obligations of the Company or any of its SubsidiariesCompany, but that any such action shall be taken only by the Agent with the prior written agreement consent of the PurchasersInvestors, provided that, notwithstanding the foregoing:
(2i) in the absence of instructions from the Purchasers and where in the sole opinion of the Agent the exigencies of the situation warrant such actionInvestors, the Agent may without notice to or consent of the Purchasers Investors take such action on behalf of the Purchasers Investors as it deems appropriate or desirable in the interest of the Purchasers; andInvestors;
(3ii) the commencement of litigation before any court shall be made in the name of each Purchaser Investor individually unless the laws of the jurisdiction of such court permit such litigation to be commenced in the name of the Agent on behalf of the Purchasers Investors (whether pursuant to a specific power of attorney in favor of the Agent or otherwise) and the Agent agrees to commence such litigation in its name; provided, however, that no litigation shall be commenced in the name of any Purchaser Investor without the prior written consent of such Purchaser;Investor; and
(4iii) each of the Purchasers Investors hereby further covenants and agrees that upon any such written consent being given by the PurchasersInvestors, they shall co-operate fully with the Agent to the extent requested by the Agent in the collective realization, including, without limitation, the appointment of a receiver and manager to act for their collective benefit; and each Purchaser Investor covenants and agrees to do all acts and things to make, execute and deliver all agreements and other instruments, including, without limitation, any instruments necessary to effect any registrations, so as to fully carry out the intent and purpose of this Section 5.19Section; and each of the Purchasers Investors hereby covenants and agrees that it has not heretofore and shall not seek, take, accept or receive any security for any of the obligations and liabilities of the Company under the Transaction Loan Documents or under any other document, instrument, writing or agreement ancillary thereto other than such security as is provided hereunder and shall not enter into any agreement with the Company or any of its Subsidiaries relating in any manner whatsoever to the transactions contemplated hereunder, unless all of the Purchasers Investors shall at the same time obtain the benefit of any such security or agreement, as the case may be.
(5) . Notwithstanding any other provision contained in the Transaction Loan Documents, no Purchaser Investor shall be required to be joined as a party to any litigation commenced against the Company or any of its Subsidiaries by the Agent under the Transaction Loan Documents (unless otherwise required by any court of competent jurisdiction) if it elects not to be so joined in which event any such litigation shall not include claims in respect of the rights of such Purchaser Investor against the Company or any of its Subsidiaries under the Transaction Loan Documents until such time as such Purchaser Investor does elect to be so joined; provided that if at the time of such subsequent election it is not possible or practicable for such Purchaser Investor to be so joined, then such Purchaser Investor may commence proceedings in its own name in respect of its rights against the Company or any of its SubsidiariesCompany.
Appears in 1 contract
Samples: Securities Purchase Agreement (Neah Power Systems, Inc.)
Taking and Enforcement of Remedies. (1a) Each of the Purchasers Lenders hereby acknowledges that, to the extent permitted by applicable law, the remedies provided under the Transaction Documents hereunder to the Purchasers Lenders are for the benefit of the Purchasers Lenders collectively and acting together and not severally and further acknowledges that its rights under the Transaction Documents hereunder are to be exercised not severally, but collectively by the Agent upon the decision Lenders. Each of the Purchasers; accordingly, notwithstanding any of the provisions contained in any of the Transaction Documents, each of the Purchasers Lenders hereby covenants and agrees that it shall not be entitled to individually take any enforcement action with respect to the Transaction Documents, including, without limitation, any acceleration of the indebtedness, liabilities or obligations of the Company or any of its Subsidiaries, Subordinated Debt Facilities but that any such action shall be taken only by the Agent with the prior written agreement both of the Purchasers, provided that, notwithstanding the foregoing:Lenders acting together.
(2b) Notwithstanding anything to the contrary contained in the absence of instructions from the Purchasers and where in the sole opinion this Agreement, any Lender which holds 25% or more of the Agent the exigencies outstanding aggregate principal amount of the situation warrant such Aggregate Obligations at the relevant time may require that the Obligations be accelerated after the occurrence and during the continuance of an Event of Default pursuant to Section 9.2 and require the Lenders to take joint enforcement action, the Agent may without notice to or consent . Each of the Purchasers take such action on behalf of the Purchasers as it deems appropriate or desirable in the interest of the Purchasers; and
(3) the commencement of litigation before any court shall be made in the name of each Purchaser individually unless the laws of the jurisdiction of such court permit such litigation to be commenced in the name of the Agent on behalf of the Purchasers (whether pursuant to a specific power of attorney in favor of the Agent or otherwise) and the Agent agrees to commence such litigation in its name; provided, however, that no litigation shall be commenced in the name of any Purchaser without the prior written consent of such Purchaser;
(4) each of the Purchasers Lenders hereby further covenants and agrees that upon any such written consent being given by the Purchasers, they it shall co-operate cooperate fully with the Agent other Lender to the extent requested by the Agent other Lender in the collective realization, including, without limitation, the appointment of a receiver and manager to act for their collective benefit; and each Purchaser . LEGAL_CAL: 11257721.13
(c) Each Lender covenants and agrees to do all acts and things and to make, execute and deliver all agreements and other instruments, including, without limitation, including any instruments necessary to effect any registrations, so as to fully carry out the intent and purpose of this Section 5.1911.4; and each of the Purchasers Lenders hereby covenants and agrees that it has not heretofore and shall not seek, take, accept or receive any security for any of the obligations and liabilities of the Company under the Transaction Documents Borrower hereunder or under any other document, instrument, writing or agreement ancillary thereto hereto other than such security as is provided hereunder contemplated under the Processing Agreements and shall not enter into any agreement with the Company or any of its Subsidiaries the parties hereto or thereto relating in any manner whatsoever to the transactions contemplated hereunderSubordinated Debt Facilities, unless all both of the Purchasers Lenders shall at the same time obtain the benefit of any such security or agreement, as the case may be.
(5) Notwithstanding any other provision contained in the Transaction Documents, no Purchaser shall be required to be joined as a party to any litigation commenced against the Company or any of its Subsidiaries by the Agent under the Transaction Documents (unless otherwise required by any court of competent jurisdiction) if it elects not to be so joined in which event any such litigation shall not include claims in respect of the rights of such Purchaser against the Company or any of its Subsidiaries under the Transaction Documents until such time as such Purchaser does elect to be so joined; provided that if at the time of such subsequent election it is not possible or practicable for such Purchaser to be so joined, then such Purchaser may commence proceedings in its own name in respect of its rights against the Company or any of its Subsidiaries.
Appears in 1 contract
Samples: Subordinated Debt Agreement
