Bailees for Perfection. (a) The US Revolving Credit Collateral Agent agrees to hold that part of the Collateral that is in its possession or control (or in the possession or control of its agents or bailees) to the extent that possession or control thereof is taken to perfect a Lien thereon under the UCC (such Collateral being the “Pledged Collateral”) as collateral agent for the Revolving Credit Claimholders, and as bailee for the Notes Collateral Agent (such bailment being intended, among other things, to satisfy the requirements of Sections 8-106(d)(3), 8-301(a)(2) and 9-313(c) of the UCC) and any assignee solely for the purpose of perfecting the security interest granted under the Revolving Credit Documents and the Notes Documents, as applicable, subject to the terms and conditions of this Section 5.4. (b) The US Revolving Credit Collateral Agent shall have no obligation whatsoever to the Notes Collateral Agent or to any Notes Claimholder to ensure that the Pledged Collateral is genuine or owned by any of the Grantors or to preserve rights or benefits of any Person except as expressly set forth in this Section 5.4. The duties or responsibilities of the US Revolving Credit Collateral Agent under this Section 5.4 shall be limited solely to holding the Pledged Collateral as bailee in accordance with this Section 5.4 and delivering the Pledged Collateral upon a Discharge of Revolving Credit Obligations, as provided in paragraph (d) below, so that, subject to the terms of this Agreement, until a Discharge of Revolving Credit Obligations, the US Revolving Credit Collateral Agent shall be entitled to deal with the Pledged Collateral or Collateral within its “control” in accordance with the terms of this Agreement and other Revolving Credit Documents (but only to the extent that such Collateral constitutes Revolving Credit Primary Collateral) as if the Liens (if any) of the Notes Collateral Agent did not exist. (c) The Revolving Credit Collateral Agent acting pursuant to this Section 5.4 shall not have by reason of the Revolving Credit Documents, this Agreement or any other document a fiduciary relationship with the Notes Collateral Agent or any Notes Claimholder with respect to such acts. (d) Upon the Discharge of Revolving Credit Obligations, the US Revolving Credit Collateral Agent shall deliver the remaining Pledged Collateral (if any) together with any necessary endorsements, to the Notes Collateral Agent to the extent the Notes Obligations which are secured by such Pledged Collateral remain outstanding (so as to allow the Notes Collateral Agent to obtain possession or control of such Pledged Collateral). The US Revolving Credit Collateral Agent further agrees to take all other action reasonably requested by the Notes Collateral Agent in connection with the Notes Collateral Agent obtaining a first-priority interest in the Collateral or as a court of competent jurisdiction may otherwise direct.
Appears in 4 contracts
Samples: Indenture (Edgen Group Inc.), Credit Agreement (Edgen Group Inc.), Indenture (Edgen Murray II, L.P.)
Bailees for Perfection. (a) The US Revolving Credit Collateral Each Agent agrees to hold that part of the Collateral that is in its possession or control (or in the possession or control of its agents or bailees) to the extent that possession or control thereof is taken to perfect a Lien thereon under the UCC (such Collateral being the “Pledged Collateral”) as collateral agent for the Revolving Credit Claimholders or the Term Loan Claimholders, as the case may be, and as bailee for the Notes Collateral other Agent (such bailment being intended, among other things, to satisfy the requirements of Sections 8-106(d)(3), 8-301(a)(2) and 9-313(c) of the UCC) and any assignee solely for the purpose of perfecting the security interest granted under the Revolving Credit Loan Documents and the Notes Term Loan Documents, as applicablerespectively, subject to the terms and conditions of this Section 5.4.
(b) The US Revolving Credit Collateral Neither Agent shall have no any obligation whatsoever to the Notes Collateral Agent other Agent, to any Revolving Credit Claimholder, or to any Notes Term Loan Claimholder to ensure that the Pledged Collateral is genuine or owned by any of the Grantors or to preserve rights or benefits of any Person except as expressly set forth in this Section 5.4. The duties or responsibilities of the US Revolving Credit Collateral Agent respective Agents under this Section 5.4 shall be limited solely to holding the Pledged Collateral as bailee in accordance with this Section 5.4 and delivering the Pledged Collateral upon a Discharge of Revolving Credit Obligations or Discharge of Term Loan Obligations, as the case may be, as provided in paragraph (d) below.
(c) Neither Agent acting pursuant to this Section 5.4 shall have by reason of the Revolving Credit Loan Documents, the Term Loan Documents, this Agreement or any other document a fiduciary relationship in respect of the other Agent, or any Revolving Credit Claimholders or any Term Loan Claimholders.
(d) Upon the Discharge of Revolving Credit Obligations or the Discharge of Term Loan Obligations, as the case may be, except as otherwise required by applicable law, the Agent under the credit facility which has been discharged shall (i) deliver the remaining Pledged Collateral (if any) together with any necessary endorsements, first, to the other Agent to the extent the other Obligations remain outstanding, and second, to the applicable Grantor to the extent no Revolving Credit Obligations or Term Loan Obligations remain outstanding (in each case, so thatas to allow such Person to obtain possession or control of such Pledged Collateral) and (ii) take all other action reasonably requested by the other Agent in connection with the other Agent obtaining a first-priority security interest in the Revolving Credit Primary Collateral (in the case of the Term Loan Collateral Agent upon the Discharge of the Revolving Credit Obligations) or the Term Loan Primary Collateral (in the case of the Revolving Credit Collateral Agent upon the Discharge of the Term Loan Obligations), as the case may be, to the extent that the other Agent is entitled to a first-priority security interest therein at the expense of such other Agent and subject to such other liens that may have priority over the security interest of such other Agent or as a court of competent jurisdiction may otherwise direct.
(e) Subject to the terms of this Agreement, until a (i) so long as the Discharge of Revolving Credit ObligationsObligations has not occurred, the US Revolving Credit Collateral Agent shall be entitled to deal with the Pledged Collateral or Collateral within its “control” in accordance with the terms of this Agreement and other Revolving Credit Documents (Loan Documents, but only to the extent that such Collateral constitutes Revolving Credit Primary Collateral) , as if the Liens (if any) of the Notes Term Loan Collateral Agent and Term Loan Claimholders did not exist and (ii) so long as the Discharge of Term Loan Obligations has not occurred, the Term Loan Collateral Agent shall be entitled to deal with the Pledged Collateral or Collateral within its “control” in accordance with the terms of this Agreement and other Term Loan Documents, but only to the extent that such Collateral constitutes Term Loan Primary Collateral, as if the Liens of the Revolving Credit Collateral Agent and Revolving Credit Claimholders did not exist.
(cf) The parties hereto acknowledge that certain third parties, including without limitation, landlords, insurance companies, depository institutions and securities and commodities intermediaries (collectively, the “Third Parties”) have executed and delivered in favor of the Revolving Credit Collateral Agent acting and the Term Loan Collateral Agent certain agreements, instruments and other documents (including, without limitation, landlord waivers, insurance endorsements, lockbox agreements and control agreements) (collectively, the “Third Party Agreements”) pursuant to this Section 5.4 shall not have by reason of which, among other things, either the Revolving Credit Documents, this Agreement or any other document a fiduciary relationship with the Notes Collateral Agent or any Notes Claimholder with respect the Term Loan Collateral Agent (such party being referred to as the “Superior Lienholder”) shall be entitled to deliver notices to such acts.
Third Parties, cause such Third Parties to take certain action (dor consent to the taking of such actions) Upon or otherwise exercise rights and remedies under such Third Party Agreements. The parties hereto hereby agree that, until the Discharge of Revolving Credit Obligations, the US Superior Lienholder shall be the Revolving Credit Collateral Agent. Promptly upon the Discharge of Revolving Credit Obligations, the Revolving Credit Collateral Agent shall deliver a written notice to each Third Party stating that the remaining Pledged Collateral (if any) together with any necessary endorsements, to the Notes Term Loan Collateral Agent to is now the extent Superior Lienholder, that the Notes Obligations which are secured by such Pledged Collateral remain outstanding (so as to allow the Notes Collateral Agent to obtain possession or control of such Pledged Collateral). The US Revolving Credit Collateral Agent further agrees is no longer entitled to take all deliver any consents under such Third Party Agreements and such other action reasonably requested information required by the Notes relevant Third Party Agreements necessary to permit the Term Loan Collateral Agent in connection with to exercise any rights or take any action reserved for the Notes Collateral Agent obtaining a first-priority interest in the Collateral or as a court of competent jurisdiction may otherwise directSuperior Lienholder thereunder.
Appears in 3 contracts
Samples: Credit Agreement (J Crew Group Inc), Intercreditor Agreement (J Crew Group Inc), Intercreditor Agreement (J Crew Group Inc)
Bailees for Perfection. (a) The US Revolving Credit Each Collateral Agent agrees to hold that part of the Collateral that is in its possession or control (or in the possession or control of its agents or bailees) to the extent that possession or control thereof is taken to perfect a Lien thereon under the UCC or PPSA, as applicable, (such Collateral being the “Pledged Collateral”) as collateral agent for the Revolving Credit ABL Claimholders or the Fixed Asset Claimholders, as the case may be, and as bailee for the Notes other Collateral Agent Agents (such bailment being intended, among other things, to satisfy the requirements of Sections 8-106(d)(3), 8-301(a)(2) and 9-313(c) of the UCC) and any assignee solely for the purpose of perfecting the security interest granted under the Revolving ABL Credit Documents and the Notes Fixed Asset Documents, as applicablerespectively, subject to the terms and conditions of this Section 5.45.04.
(b) The US Revolving Credit No Collateral Agent shall have no any obligation whatsoever to the Notes other Collateral Agent Agents, to any ABL Claimholder, or to any Notes Fixed Asset Claimholder to ensure that the Pledged Collateral is genuine or owned by any of the Grantors or to preserve rights or benefits of any Person except as expressly set forth in this Section 5.45.04. The duties or responsibilities of the US Revolving Credit respective Collateral Agent Agents under this Section 5.4 5.04 shall be limited solely to holding the Pledged Collateral as bailee in accordance with this Section 5.4 5.04 and delivering the Pledged Collateral upon a an occurrence of the Discharge of Revolving Credit ABL Obligations or Discharge of Fixed Asset Obligations, as the case may be, as provided in paragraph (d) below.
(c) No Collateral Agent acting pursuant to this Section 5.04 shall have by reason of the ABL Credit Documents, the Fixed Asset Documents, this Agreement or any other document a fiduciary relationship in respect of the other Collateral Agent, or any ABL Claimholders or any Fixed Asset Claimholders.
(d) Upon the occurrence of the Discharge of ABL Obligations or the Discharge of Fixed Asset Obligations, as the case may be, the Collateral Agent under the debt facility which has been discharged shall deliver the remaining Pledged Collateral (if any) together with any necessary endorsements and without recourse or warranty, first, to the other Collateral Agent (for the avoidance of doubt, in the case of the Discharge of ABL Obligations, to the Controlling Fixed Asset Collateral Agent) to the extent the other Obligations (other than Contingent Obligations) remain outstanding, and second, to the applicable Grantor to the extent no ABL Obligations or Fixed Asset Obligations, as the case may be, remain outstanding (in each case, so thatas to allow such Person to obtain possession or control of such Pledged Collateral). Each Collateral Agent further agrees, subject to the extent that any other Obligations (other than applicable Contingent Obligations) remain outstanding, to take all other commercially reasonable action as shall be reasonably requested by the other Collateral Agent, at the sole cost and expense of the Credit Parties, to permit such other Collateral Agent to obtain, to the extent required by the applicable ABL Credit Documents or Fixed Asset Documents, for the benefit of the ABL Claimholders or Fixed Asset Claimholders, as applicable, a first-priority interest in the Collateral or as a court of competent jurisdiction may otherwise direct.
(e) Subject to the terms of this Agreement, (i) until a the Discharge of Revolving Credit ObligationsABL Obligations has occurred, the US Revolving Credit ABL Collateral Agent shall be entitled to deal with the Pledged Collateral or Collateral within its “control” in accordance with the terms of this Agreement and other Revolving ABL Credit Documents (Documents, but only to the extent that such Collateral constitutes Revolving Credit Primary ABL Priority Collateral) , as if the Liens (if any) of the Notes Fixed Asset Collateral Agents and Fixed Asset Claimholders did not exist and (ii) until the Discharge of Fixed Asset Obligations has occurred, the Controlling Fixed Asset Collateral Agent shall be entitled to deal with the Pledged Collateral or Collateral within its “control” in accordance with the terms of this Agreement and other Fixed Asset Documents, but only to the extent that such Collateral constitutes Fixed Asset Priority Collateral, as if the Liens of the ABL Collateral Agent and ABL Claimholders did not exist. In furtherance of the foregoing, promptly following the occurrence of the Discharge of ABL Obligations, unless a New Debt Notice in respect of new ABL Credit Documents shall have been delivered as provided in Section 5.05 below, the ABL Collateral Agent hereby agrees to deliver, at the cost and expense of the Credit Parties, to each bank and securities intermediary, if any, that is counterparty to a deposit account control agreement or securities account control agreement, as applicable, written notice as contemplated in such deposit account control agreement or securities account control agreement, as applicable, directing such bank or securities intermediary, as applicable, to comply with the instructions of the Controlling Fixed Asset Collateral Agent, unless the Discharge of Fixed Asset Obligations has occurred (as certified to the ABL Collateral Agent by the Parent), in which case, such deposit account control agreement or securities account control agreement, as the case may be, shall be terminated.
(cf) The Revolving Credit Notwithstanding anything in this Agreement to the contrary:
(i) each of the ABL Collateral Agent, for itself and on behalf of the ABL Claimholders, agrees that any requirement under any ABL Collateral Document that any Grantor deliver any Collateral that constitutes Fixed Asset Priority Collateral to the ABL Collateral Agent, or that requires any Grantor to vest the ABL Collateral Agent acting pursuant with possession or “control” (as defined in the UCC or the PPSA, as applicable) of any Collateral that constitutes Fixed Asset Priority Collateral, in each case, shall be deemed satisfied to this Section 5.4 shall not have by reason the extent that, prior to the occurrence of the Revolving Credit Documents, this Agreement or any other document a fiduciary relationship with the Notes Collateral Agent or any Notes Claimholder with respect to such acts.
(d) Upon the Discharge of Revolving Credit Fixed Asset Obligations (other than Contingent Obligations), such Collateral is delivered to the US Revolving Credit Controlling Fixed Asset Collateral Agents, or the Controlling Fixed Asset Collateral Agents shall have been vested with such possession or (unless, pursuant to the UCC or the PPSA, as applicable, control may be given concurrently to the ABL Collateral Agent and the Controlling Fixed Asset Collateral Agent) “control”, in each case, subject to the provisions of Section 5.04; and
(ii) each of the Fixed Asset Collateral Agents, for itself and on behalf of the applicable Fixed Asset Claimholders, agrees that any requirement under any Fixed Asset Collateral Document that any Grantor deliver any Collateral that constitutes Fixed Asset Priority Collateral to such Fixed Asset Collateral Agent, or that requires any Grantor to vest such Fixed Asset Collateral Agent with possession or “control” (as defined in the UCC or the PPSA, as applicable) of any Collateral that constitutes Fixed Asset Priority Collateral, in each case, shall be deemed satisfied to the extent that, prior to the occurrence of the Discharge of Initial Fixed Asset Obligations (other than Contingent Obligations), such Collateral is delivered to the Controlling Fixed Asset Collateral Agent, or the Controlling Fixed Asset Collateral Agent shall deliver the remaining Pledged Collateral have been vested with such possession or (if any) together with any necessary endorsementsunless, pursuant to the Notes UCC or the PPSA, as applicable), control may be given concurrently to the applicable Fixed Asset Collateral Agent and the Controlling Fixed Asset Collateral Agent) “control”, in each case, subject to the extent the Notes Obligations which are secured by such Pledged Collateral remain outstanding (so as to allow the Notes Collateral Agent to obtain possession or control provisions of such Pledged Collateral). The US Revolving Credit Collateral Agent further agrees to take all other action reasonably requested by the Notes Collateral Agent in connection with the Notes Collateral Agent obtaining a first-priority interest in the Collateral or as a court of competent jurisdiction may otherwise directSection 5.04.
Appears in 2 contracts
Samples: Abl Credit Agreement (Performance Sports Group Ltd.), Term Loan Credit Agreement (Performance Sports Group Ltd.)
Bailees for Perfection. (a) The US Revolving Credit Collateral Agent agrees to hold that part of the Collateral that is in its possession or control (or in the possession or control of its agents or bailees) to the extent that possession or control thereof is taken to perfect a Lien thereon under the UCC (such Collateral being the “Pledged Collateral”) as collateral agent for the Revolving Credit Claimholders, and as bailee for the Notes Collateral Agent (such bailment being intended, among other things, to satisfy the requirements of Sections 8-106(d)(3), 8-301(a)(2) and 9-313(c) of the UCC) and any assignee solely for the purpose of perfecting the security interest granted under the Revolving Credit Documents and the Notes Documents, as applicable, subject to the terms and conditions of this Section 5.4.
(b) The US Revolving Credit Collateral Agent shall have no obligation whatsoever to the Notes Collateral Agent or to any Notes Claimholder to ensure that the Pledged Collateral is genuine or owned by any of the Grantors or to preserve rights or benefits of any Person except as expressly set forth in this Section 5.4. The duties or responsibilities of the US Revolving Credit Collateral Agent under this Section 5.4 shall be limited solely to holding the Pledged Collateral as bailee in accordance with this Section 5.4 and delivering the Pledged Collateral upon a Discharge of Revolving Credit Obligations, as provided in paragraph (d) below, so that, subject to the terms of this Agreement, until a Discharge of Revolving Credit Obligations, the US Revolving Credit Collateral Agent shall be entitled to deal with the Pledged Collateral or Collateral within its “control” in accordance with the terms of this Agreement and other Revolving Credit Documents (but only to the extent that such Collateral constitutes Revolving Credit Primary Collateral) as if the Liens (if any) of the Notes Collateral Agent did not exist.
(c) The Revolving Credit Collateral Agent acting pursuant to this Section 5.4 shall not have by reason of the Revolving Credit Documents, this Agreement or any other document a fiduciary relationship with the Notes Collateral Agent or any Notes Claimholder with respect to such acts.
(d) Upon the Discharge of Revolving Credit Obligations, the US Revolving Credit Collateral Agent shall deliver the remaining Pledged Collateral (if any) together with any necessary endorsements, to the Notes Collateral Agent to the extent the Notes Obligations which are secured by such Pledged Collateral remain outstanding (so as to allow the Notes Collateral Agent to obtain possession or control of such Pledged Collateral). The US Revolving Credit Collateral Agent further agrees to take all other action reasonably requested by the Notes Collateral Agent in connection with the Notes Collateral Agent obtaining a first-priority interest in the Collateral or as a court of competent jurisdiction may otherwise direct.
Appears in 2 contracts
Samples: Intercreditor Agreement (Edgen Group Inc.), Intercreditor Agreement (Edgen Murray II, L.P.)
Bailees for Perfection. (a) The US Revolving Credit Collateral Each Agent agrees to hold that part of the Collateral that is in its possession or control (or in the possession or control of its agents or bailees) to the extent that possession or control thereof is taken to perfect a Lien thereon under the UCC (such Collateral, which shall include without limitation Deposit Accounts and Securities Accounts subject to Account Agreements, and the Collateral held in such Deposit Accounts and Securities Accounts, collectively being the “Pledged Collateral”) (i) in the case of the First Lien Agent, for itself and as the collateral agent for the Revolving Credit ClaimholdersFirst Lien Creditors under the First Lien Documents or, in the case of the Second Lien Agents, for their benefit and as the collateral agent for the Second Lien Creditors under the Second Lien Documents, and (ii) as bailee for the Notes Collateral benefit of or agent on behalf of the other Agent and other Creditors (such bailment and agency being intended, among other things, to satisfy the requirements of Sections 8-106(d)(3301(a)(2), 89-301(a)(2) 313(c), 9-104, 9-105, 9-106 and 9-313(c) 107 of the UCC and to establish “control” within the meaning of Section 9-314 of the UCC) and any assignee solely for the purpose of perfecting the security interest granted under the Revolving Credit First Lien Documents and the Notes Second Lien Documents, as applicablerespectively, subject to the terms and conditions of this Section 5.4.
(b) The US Revolving Credit Collateral Neither Agent shall have no any obligation whatsoever to the Notes Collateral Agent other Agent, to any First Lien Creditor, or to any Notes Claimholder Second Lien Creditor to ensure that the Pledged Collateral is genuine or owned by any of the Grantors applicable Credit Party or to preserve rights or benefits of any Person except as expressly set forth in this Section 5.4. The duties or responsibilities of the US Revolving Credit Collateral Agent respective Agents under this Section 5.4 shall be limited solely to holding the Pledged Collateral as bailee and agent in accordance with this Section 5.4 (including, without limitation, paragraph (e) below) and delivering the Pledged Collateral or proceeds thereof upon a Discharge of Revolving Credit Second Lien Obligations or Discharge of First Lien Obligations, as the case may be, as provided in paragraph (d) below.
(c) Upon the Discharge of First Lien Obligations or the Discharge of Section 5.4 Lien Obligations, as the case may be, the Agent under the credit facility which has been discharged shall deliver the remaining Pledged Collateral (if any) together with any necessary endorsements, first, to the other Agent to the extent the other (First Lien or Second Lien, as applicable) Obligations remain outstanding, and second, to the Borrowers to the extent no First Lien Obligations or Second Lien Obligations remain outstanding (in each case, so thatas to allow such Person to obtain possession or control of such Pledged Collateral). Notwithstanding anything to the contrary contained in this Agreement, any obligation of the Agent under the credit facility which has been discharged to make any delivery to the other Agent under this Section 5.4 or Section 5.5 is subject to (i) the order of any court of competent jurisdiction, or (ii) any automatic stay imposed in connection with any Insolvency Proceeding.
(d) Subject to the terms of this Agreement, until a so long as the Discharge of Revolving Credit ObligationsFirst Lien Obligations has not occurred, the US Revolving Credit Collateral First Lien Agent shall be entitled to deal with the Pledged Collateral or Collateral within its “control” in accordance with the terms of this Agreement and other Revolving Credit Documents First Lien Documents, as if the Liens of the Second Lien Agents and the Second Lien Creditors did not exist (it being understood that the First Lien Agent shall have the sole exclusive right to exercise control under Account Agreements until the Discharge of First Lien Obligations).
(e) In furtherance of this Section 5.4, after the Discharge of the First Lien Obligations has occurred, the First Lien Agent shall cooperate with the Second Lien Agents' efforts to obtain Account Agreements with respect to Deposit Accounts and Securities comprising the Collateral, and to the extent, but only to the extent that such Collateral constitutes Revolving Credit Primary Collateral) as if extent, the Liens (if any) First Lien Agent has the authority to do so under any applicable Account Agreement with respect to any Deposit Account or Securities Account constituting part of the Notes Collateral Collateral, to notify the applicable depositary bank or securities intermediary under such control agreements that the relevant Second Lien Agent did not existis the “lender representative,” “notice agent” or similar party, as applicable, entitled to take action thereunder with respect to each Deposit Account or Securities Account that is subject to an Account Agreement in favor of the First Lien Agent.
(cf) The Revolving Credit Collateral Except as otherwise expressly set forth in this Section 5.4, neither Agent acting pursuant to this Section 5.4 shall not have by reason of the Revolving Credit First Lien Documents, the Second Lien Documents, this Agreement or any other document a fiduciary relationship with in respect of the Notes Collateral Agent other Agent, any First Lien Creditors or any Notes Claimholder with respect to such actsSecond Lien Creditors.
(d) Upon the Discharge of Revolving Credit Obligations, the US Revolving Credit Collateral Agent shall deliver the remaining Pledged Collateral (if any) together with any necessary endorsements, to the Notes Collateral Agent to the extent the Notes Obligations which are secured by such Pledged Collateral remain outstanding (so as to allow the Notes Collateral Agent to obtain possession or control of such Pledged Collateral). The US Revolving Credit Collateral Agent further agrees to take all other action reasonably requested by the Notes Collateral Agent in connection with the Notes Collateral Agent obtaining a first-priority interest in the Collateral or as a court of competent jurisdiction may otherwise direct.
Appears in 2 contracts
Samples: Subordination and Intercreditor Agreement (AgileThought, Inc.), Subordination and Intercreditor Agreement (AgileThought, Inc.)
Bailees for Perfection. (a) The US Revolving Credit Collateral Each Agent agrees to hold that part of the Collateral that is in its possession or control (or in the possession or control of its agents or bailees) to the extent that possession or control thereof is taken to perfect a Lien thereon under the UCC (such Collateral Collateral, which shall include without limitation Account Agreements and Capital Stock, being the “Pledged Collateral”) as (i) in the case of the ABL Agent, the collateral agent for the Revolving Credit ClaimholdersABL Claimholders under the ABL Loan Documents or, in the case of the Notes Agent, the collateral agent for the Note Claimholders under the Note Documents and as (ii) gratuitous bailee for the Notes Collateral benefit of the other Agent (such bailment being intended, among other things, to satisfy the requirements of Sections 8-106(d)(3), 8-301(a)(2) and 9-313(c) of the UCC) and any assignee solely for the purpose of perfecting the security interest granted under the Revolving Credit ABL Loan Documents and the Notes Note Documents, as applicablerespectively, subject to the terms and conditions of this Section 5.4. The Notes Agent and the Note Claimholders hereby appoint the ABL Agent as their gratuitous bailee for the purposes of perfecting their security interest in all Deposit Accounts and Securities Accounts of the Company and the Company Subsidiaries. The ABL Agent hereby accepts such appointment and acknowledges and agrees that it shall act for the benefit of the Notes Agent and the other Note Claimholders under each Account Agreement and that any Proceeds received by the ABL Agent under any Account Agreement shall be applied in accordance with Article IV. In furtherance of the foregoing, each Grantor hereby grants a security interest in the Pledged Collateral to (x) the Note Agent for the benefit of the ABL Claimholders and (y) the ABL Agent for the benefit of the Note Claimholders.
(b) The US Revolving Credit Collateral Neither Agent shall have no any obligation whatsoever to the Notes Collateral Agent other Agent, to any other ABL Claimholder, or to any Notes other Note Claimholder to ensure that the Pledged Collateral is genuine or owned by any of the Grantors or to preserve rights or benefits of any Person except as expressly set forth in this Section 5.4. The duties or responsibilities of the US Revolving Credit Collateral Agent respective Agents under this Section 5.4 shall be limited solely to holding the Pledged Collateral as bailee in accordance with this Section 5.4 and delivering the Pledged Collateral or Proceeds thereof upon a Discharge of Revolving Credit ABL Obligations or Discharge of Note Obligations, as applicable, as provided in paragraph (d) below.
(c) Neither Agent acting pursuant to this Section 5.4 shall have by reason of the ABL Loan Documents, the Note Documents, this Agreement or any other document a fiduciary relationship in respect of the other Agent, any other ABL Claimholder or any other Note Claimholder.
(d) Upon the Discharge of ABL Obligations or the Discharge of Note Obligations, as applicable, the Agent under the ABL Loan Agreement or Note Agreement, as applicable, that has been discharged shall deliver the remaining Pledged Collateral (if any) together with any necessary endorsements, first, to the other Agent to the extent the other Obligations remain outstanding, and second, to the applicable Grantor to the extent the Discharge of ABL Obligations and the Discharge of Note Obligations have occurred (in each case, so thatas to allow such Person to obtain possession or control of such Pledged Collateral) or as otherwise required by law. Each Agent further agrees to take all other action reasonably requested by the other Agent in connection with the other Agent obtaining a first-priority interest in the Collateral or as a court of competent jurisdiction may otherwise direct. Notwithstanding anything to the contrary contained in this Agreement, any obligation of the Agent, which has been discharged, to make any delivery to the other Agent under this Section 5.4(d) or Section 5.5 is subject to (i) the order of any court of competent jurisdiction, or (ii) any automatic stay imposed in connection with any Insolvency or Liquidation Proceeding.
(e) Subject to the terms of this Agreement, until a (i) so long as the Discharge of Revolving Credit ObligationsABL Obligations has not occurred, the US Revolving Credit Collateral ABL Agent shall be entitled to deal with the Pledged Collateral or Collateral within its “control” in accordance with the terms of this Agreement and other Revolving Credit Documents (ABL Loan Documents, but only to the extent that such Collateral constitutes Revolving Credit Primary ABL Priority Collateral) , as if the Liens (if any) of the Notes Agent on behalf of the Note Claimholders did not exist, and (ii) so long as the Discharge of Note Obligations has not occurred, the Notes Agent shall be entitled to deal with the Pledged Collateral or Collateral within its “control” in accordance with the terms of this Agreement and other Note Documents, but only to the extent that such Collateral constitutes Note Priority Collateral, as if the Liens of the ABL Agent on behalf of the ABL Claimholders did not exist.
(c) The Revolving Credit Collateral Agent acting pursuant to this Section 5.4 shall not have by reason of the Revolving Credit Documents, this Agreement or any other document a fiduciary relationship with the Notes Collateral Agent or any Notes Claimholder with respect to such acts.
(d) Upon the Discharge of Revolving Credit Obligations, the US Revolving Credit Collateral Agent shall deliver the remaining Pledged Collateral (if any) together with any necessary endorsements, to the Notes Collateral Agent to the extent the Notes Obligations which are secured by such Pledged Collateral remain outstanding (so as to allow the Notes Collateral Agent to obtain possession or control of such Pledged Collateral). The US Revolving Credit Collateral Agent further agrees to take all other action reasonably requested by the Notes Collateral Agent in connection with the Notes Collateral Agent obtaining a first-priority interest in the Collateral or as a court of competent jurisdiction may otherwise direct.
Appears in 2 contracts
Samples: Intercreditor Agreement, Intercreditor Agreement (Louisiana-Pacific Corp)
Bailees for Perfection. (a) The US Revolving Credit Agent, Collateral Agent agrees Trustee and each Secured Debt Representative, as the case may be, agree to hold that part of the Collateral that is in its possession or control (or in the possession or control of its agents or bailees) to the extent that possession or control thereof is taken to perfect a Lien thereon under the UCC (such Collateral being the “Pledged Collateral”) as collateral agent for the Revolving Credit Claimholders and Secured Debt Claimholders, as the case may be, and as bailee for the Notes Revolving Credit Agent, Collateral Agent Trustee or Secured Debt Representative, as the case may be, (such bailment being intended, among other things, to satisfy the requirements of Sections 8-106(d)(3), 8-301(a)(2) and 9-313(c) of the UCC) and any assignee solely for the purpose of perfecting the security interest granted under the Revolving Credit Loan Documents and the Notes Secured Debt Documents, as applicable, subject to the terms and conditions of this Section 5.4.
(b) The US Revolving Credit Collateral Agent No Person shall have no any obligation whatsoever to the Notes Collateral Agent or to any Notes Claimholder other Person to ensure that the Pledged Collateral is genuine or owned by any of the Grantors or to preserve rights or benefits of any Person except as expressly set forth in this Section 5.4. The duties or responsibilities of the US Revolving Credit Collateral Agent under this Section 5.4 shall be limited solely to holding the Pledged Collateral as bailee in accordance with this Section 5.4 and delivering the Pledged Collateral upon a Discharge of Revolving Credit Obligations or Discharge of Secured Debt Obligations, as the case may be, as provided in paragraph (d) below.
(c) No Person acting pursuant to this Section 5.4 shall have by reason of the Revolving Credit Loan Documents, the Secured Debt Documents, this Agreement, the Collateral Trust Agreement or any other document, a fiduciary relationship with any other Person with respect to such acts.
(d) Upon the Discharge of Revolving Credit Obligations the Revolving Credit Agent shall deliver the remaining Pledged Collateral (if any) together with any necessary endorsements, first, to the Collateral Trustee to the extent the Secured Debt Obligations which are secured by such Pledged Collateral remain outstanding, and second, to the Company (in each case, so thatas to allow such Person to obtain possession or control of such Pledged Collateral). The Revolving Credit Agent further agrees to take all other action reasonably requested by the Collateral Trustee in connection with the Collateral Trustee obtaining a first-priority interest in the Collateral or as a court of competent jurisdiction may otherwise direct.
(e) Upon the Discharge of the Secured Debt Obligations, subject the Collateral Trustee shall deliver the remaining Pledged Collateral (if any) together with any necessary endorsements, first, to the Revolving Credit Agent to the extent any Revolving Credit Obligations which are secured by such Pledged Collateral remain outstanding, and second, to the Company (in each case, so as to allow such Person to obtain possession or control of such Pledged Collateral). The Collateral Trustee further agrees to take all other action reasonably requested by the Revolving Credit Agent in connection with the Revolving Credit Agent obtaining a first-priority interest in the Collateral or as a court of competent jurisdiction may otherwise direct
(f) Subject to the terms of this Agreement, until a (i) so long as the Discharge of Revolving Credit ObligationsObligations has not occurred, the US Revolving Credit Collateral Agent shall be entitled to deal with the Pledged Collateral or Collateral within its “control” in accordance with the terms of this Agreement and other Revolving Credit Documents (Loan Documents, but only to the extent that such Collateral constitutes Revolving Credit Primary Collateral) , as if the Liens (if any) of the Notes Collateral Trustee or Secured Debt Representatives did not exist and (ii) so long as the Discharge of Secured Debt Obligations has not occurred, the Collateral Trustee or any Secured Debt Representative shall be entitled to deal with the Pledged Collateral or Collateral within its “control” in accordance with the terms of this Agreement, the Collateral Trust Agreement and other Secured Debt Documents, but only to the extent that such Collateral constitutes Shared Collateral or Separate Collateral, as if the Liens of the Revolving Credit Agent did not exist.
(c) The Revolving Credit Collateral Agent acting pursuant to this Section 5.4 shall not have by reason of the Revolving Credit Documents, this Agreement or any other document a fiduciary relationship with the Notes Collateral Agent or any Notes Claimholder with respect to such acts.
(d) Upon the Discharge of Revolving Credit Obligations, the US Revolving Credit Collateral Agent shall deliver the remaining Pledged Collateral (if any) together with any necessary endorsements, to the Notes Collateral Agent to the extent the Notes Obligations which are secured by such Pledged Collateral remain outstanding (so as to allow the Notes Collateral Agent to obtain possession or control of such Pledged Collateral). The US Revolving Credit Collateral Agent further agrees to take all other action reasonably requested by the Notes Collateral Agent in connection with the Notes Collateral Agent obtaining a first-priority interest in the Collateral or as a court of competent jurisdiction may otherwise direct.
Appears in 2 contracts
Samples: Intercreditor Agreement (NewPage Energy Services LLC), Intercreditor Agreement (NewPage Holding CORP)
Bailees for Perfection. (a) The US Revolving Credit Collateral Each Agent agrees to hold that part of the Collateral that is in its possession or control (or in the possession or control of its agents or bailees) to the extent that possession or control thereof is taken to perfect a Lien thereon under the UCC (such Collateral Collateral, which shall include, without limitation, Deposit Accounts, Securities Accounts and Capital Stock, being the “Pledged Collateral”) as (i) in the case of the ABL Collateral Agent, the collateral agent for the Revolving Credit ClaimholdersABL Secured Parties under the ABL Documents or, and as bailee in the case of the Term Collateral Agent, the collateral agent for the Notes Collateral Term Loan Secured Parties under the Term Loan Documents and (ii) gratuitous bailee and agent for the benefit and on behalf of the other Agent (such bailment and agency being intended, among other things, to satisfy the requirements of Sections 8-106(d)(3), 8-301(a)(2), 9-104(a) and 9-313(c) of the UCC) and any assignee solely for the purpose of perfecting the security interest granted under the Revolving Credit ABL Documents and the Notes DocumentsTerm Loan Documents (including, as applicablewithout limitation, perfecting by possession, delivery or control), respectively, subject to the terms and conditions of this Section 5.4. The Term Collateral Agent and the Term Loan Secured Parties hereby appoint the ABL Collateral Agent as their agent for the purposes of perfecting their security interest in all Deposit Accounts and Securities Accounts of the Company and the Subsidiaries. The ABL Collateral Agent hereby accepts such appointment and acknowledges and agrees that it shall act for the benefit of the Term Collateral Agent and the other Term Loan Secured Parties under each control agreement and that any Proceeds received by the ABL Collateral Agent under any control agreement shall be applied in accordance with Article IV. In furtherance of the foregoing, each Grantor hereby grants a security interest in the Pledged Collateral to the ABL Collateral Agent for the benefit of the Term Loan Secured Parties.
(b) The US Revolving Credit Collateral Neither Agent shall have no any obligation whatsoever to the Notes Collateral Agent other Agent, to any other ABL Secured Parties, or to any Notes Claimholder other Term Loan Secured Parties to ensure that the Pledged Collateral is genuine or owned by any of the Grantors or to preserve rights or benefits of any Person except as expressly set forth in this Section 5.4. The duties or responsibilities of the US Revolving Credit Collateral Agent respective Agents under this Section 5.4 shall be limited solely to holding the Pledged Collateral as bailee in accordance with this Section 5.4 and delivering the Pledged Collateral or Proceeds thereof upon a Discharge of Revolving Credit ABL Obligations or Discharge of Term Loan Obligations, as applicable, as provided in paragraph (d) below, so that, subject to the terms of this Agreement, until a Discharge of Revolving Credit Obligations, the US Revolving Credit Collateral Agent shall be entitled to deal with the Pledged Collateral or Collateral within its “control” in accordance with the terms of this Agreement and other Revolving Credit Documents (but only to the extent that such Collateral constitutes Revolving Credit Primary Collateral) as if the Liens (if any) of the Notes Collateral Agent did not exist.
(c) The Revolving Credit Collateral Neither Agent acting pursuant to this Section 5.4 shall not have by reason of the Revolving Credit ABL Documents, the Term Loan Documents, this Agreement or any other document a fiduciary relationship with in respect of the Notes Collateral Agent other Agent, any other ABL Secured Parties or any Notes Claimholder other Term Loan Secured Parties. Each of the ABL Secured Parties and the Term Loan Secured Parties hereby waives and releases any claims and liabilities they may have against any such Agent arising pursuant to such Agent’s role as gratuitous bailee with respect to such actsPledged Collateral.
(d) Upon the Discharge of Revolving Credit ABL Obligations or the Discharge of Term Loan Obligations, as applicable, the US Revolving Agent under the ABL Credit Collateral Agent Agreement or Term Loan Documents, as applicable, that have been discharged shall deliver the remaining Pledged Collateral (if any) together with any necessary endorsements, first, to the Notes Collateral other Agent to the extent the Notes other Obligations which are secured by such Pledged Collateral remain outstanding outstanding, and second, to the applicable Grantor to the extent the Discharge of ABL Obligations and the Discharge of Term Loan Obligations have occurred (in each case, so as to allow the Notes Collateral Agent such Person to obtain possession or control of such Pledged Collateral)) or as otherwise required by law. The US Revolving Credit Collateral Each Agent further agrees to take all other action reasonably requested by the Notes Collateral Agent other Agent, at the sole cost and expense of the Grantors, in connection with the Notes Collateral other Agent obtaining a first-priority interest in the Collateral or as a court of competent jurisdiction may otherwise direct. Notwithstanding anything to the contrary contained in this Agreement, any obligation of the Agent, which has been discharged, to make any delivery to the other Agent under this Section 5.4(d) is subject to (i) the order of any court of competent jurisdiction, or (ii) any automatic stay imposed in connection with any Insolvency or Liquidation Proceeding.
Appears in 1 contract
Bailees for Perfection. (a) The US Revolving Credit Senior Priority Collateral Agent agrees to hold that part of the Collateral that is in its possession or control (or in the possession or control of its agents or bailees) to the extent that possession or control thereof is taken to perfect a Lien thereon under the UCC or the PPSA (such Collateral being the “Pledged Collateral”) as collateral agent for the Revolving Credit Claimholders, Junior Priority Claimholders and as bailee for the Notes Junior Priority Collateral Agent (such bailment being intended, among other things, to satisfy the requirements of Sections 8-106(d)(3), 8-301(a)(2) and 9-313(c) of the UCC) and any assignee solely for the purpose of perfecting the security interest granted under the Revolving Credit Documents and the Notes Junior Priority Documents, as applicablerespectively, subject to the terms and conditions of this Section 5.4.
(b) The US Revolving Credit Senior Priority Collateral Agent shall not have no any obligation whatsoever to the Notes Junior Priority Collateral Agent or to any Notes Junior Priority Claimholder to ensure that the Pledged Collateral is genuine or owned by any of the Grantors or to preserve rights or benefits of any Person except as expressly set forth in this Section 5.4. The duties or responsibilities of the US Revolving Credit Senior Priority Collateral Agent under this Section 5.4 shall be limited solely to holding the Pledged Collateral as collateral agent and bailee in accordance with this Section 5.4 and delivering the Pledged Collateral upon a the Discharge of Revolving Credit Obligations, Priming Senior Priority Obligations as provided in paragraph (d) below.
(c) The Senior Priority Collateral Agent shall not have by reason of the Junior Priority Collateral Documents, this Agreement, or any other document, a fiduciary relationship in respect 20 of the Junior Priority Collateral Agent or any Junior Priority Claimholder. Each Junior Priority Collateral Agent and Junior Priority Claimholder hereby waives and releases the Senior Priority Collateral Agent from all claims and liabilities arising pursuant to the Senior Priority Collateral Agent’s roles under this Section 5.4 as collateral agent and bailee with respect to the Pledged Collateral.
(d) Upon the Discharge of Priming Senior Priority Obligations, the Senior Priority Collateral Agent shall deliver the remaining Pledged Collateral (if any) in its possession together with any necessary endorsements and without recourse or warranty, first, to the Junior Priority Collateral Agent, to the extent the Junior Priority Obligations (other than Contingent Obligations) remain outstanding, and second, to the applicable Grantor to the extent no Junior Priority Obligations, as the case may be, remain outstanding (in each case, so thatas to allow such Person to obtain possession or control of such Pledged Collateral). The Senior Priority Collateral Agent further agrees, to the extent that any Junior Priority Obligations (other than applicable Contingent Obligations) remain outstanding, to take all other commercially reasonable action as shall be reasonably requested by the Junior Priority Collateral Agent, at the sole cost and expense of the Credit Parties, to permit the Junior Priority Collateral Agent to obtain, for the benefit of the Junior Priority Claimholders, a first-priority security interest in the Pledged Collateral or as a court of competent jurisdiction may otherwise direct, subject to the terms of the ABL Intercreditor Agreement.
(e) Subject to the terms of this Agreement and the ABL Intercreditor Agreement, until a so long as the Discharge of Revolving Credit ObligationsPriming Senior Priority Obligations has not occurred, the US Revolving Credit Senior Priority Collateral Agent shall be entitled to deal with the Pledged Collateral or Collateral within its “control” in accordance with the terms of this Agreement and other Revolving Credit Documents (but only to the extent that such Collateral constitutes Revolving Credit Primary Collateral) Senior Priority Documents, as if the Liens (if any) of the Notes Junior Priority Collateral Agent and Junior Priority Claimholders did not exist.
(cf) The Revolving Credit Notwithstanding anything in this Agreement to the contrary, the Junior Priority Collateral Agent, for itself and on behalf of the Junior Priority Claimholders, agrees that any requirement under any Junior Priority Collateral Document that any Grantor deliver any Collateral to the Junior Priority Collateral Agent, or that requires any Grantor to vest the Junior Priority Collateral Agent with possession or “control” (as defined in the UCC or in the manner provided for in the PPSA) of any Collateral, in each case, shall be deemed satisfied to the extent that, prior to the Discharge of Priming Senior Priority Obligations, such Collateral is delivered to the Senior Priority Collateral Agent, or the Senior Priority Collateral Agent shall have been vested with such possession or (unless, pursuant to the UCC or the PPSA, as applicable, control may be given concurrently to the Senior Priority Collateral Agent and the Junior Priority Collateral Agent) “control,” in each case, subject to the provisions of this Section 5.4; and (g)The parties hereto further agree that to the extent the Senior Priority Collateral Agent is specified as the lienholder on the certificates of title with respect to any Motor Vehicles (as defined in the Junior Priority Security Agreement) of any Grantor or has “control” over any Deposit Accounts or Securities Accounts of any Grantor pursuant to any control agreement, then (including for the purposes of the applicable state certificate of title laws and any other applicable laws) the Senior Priority Collateral Agent shall act as agent for both the Senior Priority Claimholders and the Junior Priority Claimholders in order to perfect and secure both the Senior Priority Obligations and the Junior Priority Obligations, provided that the priorities as between the rights of the Junior Priority Claimholders and the Senior Priority Claimholders shall be as if there were two separate Liens, subject to the priorities and other terms of this Agreement. In furtherance of the foregoing, (i) the Junior Priority Collateral Agent hereby appoints the Senior Priority Collateral Agent as its collateral agent for the limited purpose of (A) acting as the agent on behalf of the Junior Priority Claimholders with respect to the applicable Motor Vehicles solely for purposes of perfecting the Liens of such parties on such Motor Vehicles and (B) acting as the agent on behalf of the Junior Priority Claimholders with respect to the applicable 21 Deposit Accounts and Securities Accounts solely for purposes of perfecting the Liens of such parties on such Deposit Accounts and Securities Accounts and the amounts contained therein and (ii) in order to secure the prompt payment and performance of the Junior Priority Obligations, each Grantor hereby grants to the Senior Priority Collateral Agent, as agent for the Junior Priority Claimholders, a security interest in all right, title and interest of such Grantor in, to and under all Motor Vehicles and, for purposes hereof and of Section 5.4(a), all Deposit Accounts and Securities Accounts, whether now owned or hereafter acquired by such Grantor. Such grant creates a security interest wholly separate from the security interest in such Motor Vehicles and such Deposit Accounts and Securities Accounts granted to the Senior Priority Collateral Agent in the Senior Priority Documents as security for the Senior Priority Obligations. The duties or responsibilities of the Senior Priority Collateral Agent under this Section 5.4(g) shall be limited solely to holding (either itself or through its appointment of a custodian or agent) a Lien on such Motor Vehicles, Deposit Accounts and Securities Accounts (and releasing such Lien), as applicable, as agent in accordance with this Section 5.4(g). 5.5. When Discharge of Priming Senior Priority Obligations and Discharge of Junior Priority Obligations Deemed to Not Have Occurred. If, at any time substantially concurrently with or after the Discharge of Priming Senior Priority Obligations or the Discharge of Junior Priority Obligations, the Borrower enters into any Refinancing of any Senior Priority Obligation or Junior Priority Obligation, as the case may be, which Refinancing is permitted by both the Senior Priority Documents and the Junior Priority Documents, in each case, to the extent such documents will remain in effect following such Refinancing, then such Discharge of Priming Senior Priority Obligations or Discharge of Junior Priority Obligations, shall automatically be deemed not to have occurred for all purposes of this Agreement (other than with respect to any actions taken pursuant to this Section 5.4 shall not have by reason Agreement as a result of the Revolving Credit occurrence of such Discharge of Priming Senior Priority Obligations or Discharge of Junior Priority Obligations, as applicable) and, from and after the date on which the New Debt Notice is delivered to the appropriate Collateral Agents in accordance with the next sentence, the obligations under such Refinancing shall automatically be treated as Senior Priority Obligations or Junior Priority Obligations for all purposes of this Agreement, including for purposes of the Lien priorities and rights in respect of Collateral set forth herein, and the agent, representative or trustee for the holders of such Senior Priority Obligations under such new Senior Priority Documents or for the holders of such Junior Priority Obligations under such new Junior Priority Documents, this Agreement or any other document as applicable, shall be a fiduciary relationship with the Notes Senior Priority Collateral Agent or any Notes Claimholder with respect to a Junior Priority Collateral Agent, as applicable, for all purposes of this Agreement. Upon receipt of a notice (the “New Debt Notice”) stating that the Borrower has entered into new Senior Priority Documents or new Junior Priority Documents (which notice shall include a complete copy of the relevant new documents and provide the identity of the new collateral agent (such acts.
(d) Upon the Discharge of Revolving Credit Obligationsagent, the US Revolving Credit “New Agent”)), the other Collateral Agents shall promptly (a) enter into such documents and agreements (including amendments or supplements to this Agreement) as the Borrower or such New Agent shall reasonably request in order to provide to the New Agent the rights contemplated hereby, in each case consistent in all material respects with the terms of this Agreement and (b) deliver to the remaining New Agent any Pledged Collateral (if any) held by it together with any necessary endorsements, to the Notes Collateral Agent to the extent the Notes Obligations which are secured by such Pledged Collateral remain outstanding endorsements (so as to or otherwise allow the Notes Collateral New Agent to obtain possession or control of such Pledged Collateral). The US Revolving Credit New Agent shall agree in a writing addressed to the other Collateral Agent further agrees Agents, for the benefit of the Senior Priority Claimholders or the Junior Priority Claimholders, as the case may be, to take all other action reasonably requested be bound by the Notes terms of this Agreement. If the new Senior Priority Obligations under the new Senior Priority Documents or the new Junior Priority Obligations under the new Junior Priority Documents are secured by assets of the Grantors constituting Collateral Agent in connection with that do not also secure the Notes Collateral Agent obtaining other Obligations, then the other Obligations shall be secured at such time by a first-priority interest Lien on such assets to the same extent provided in the Collateral or as a court of competent jurisdiction may otherwise directSenior Priority Documents, Junior Priority Documents and this Agreement. 5.
Appears in 1 contract
Samples: Intercreditor Agreement
Bailees for Perfection. (a) The US Revolving Credit Collateral Agent, the Note Lien Collateral Agent agrees and each Note Lien Representative, as the case may be, agree to hold that part of the Collateral that is in its possession or control (or in the possession or control of its agents or bailees) to the extent that possession or control thereof is taken to perfect a Lien thereon under the UCC (such Collateral being the “"Pledged Collateral”") as collateral agent for the Revolving Credit Claimholders and Note Lien Claimholders, as the case may be, and as bailee for the Notes Revolving Credit Collateral Agent, the Note Lien Collateral Agent or the Note Lien Representative, as the case may be, (such bailment being intended, among other things, to satisfy the requirements of Sections 8-106(d)(3), 8-301(a)(2) and 9-313(c) of the UCC) and any assignee solely for the purpose of perfecting the security interest granted under the Revolving Credit Loan Documents and the Notes Note Lien Documents, as applicable, subject to the terms and conditions of this Section 5.4.
(b) The US Revolving Credit Collateral Agent No Person shall have no any obligation whatsoever to the Notes Collateral Agent or to any Notes Claimholder other Person to ensure that the Pledged Collateral is genuine or owned by any of the Grantors or to preserve rights or benefits of any Person except as expressly set forth in this Section 5.4. The duties or responsibilities of the US Revolving Credit Collateral Agent under this Section 5.4 shall be limited solely to holding the Pledged Collateral as bailee in accordance with this Section 5.4 and delivering the Pledged Collateral upon a Discharge of Revolving Credit Obligations or Discharge of Note Lien Obligations, as the case may be, as provided in paragraph (d) below, so that, subject to the terms of this Agreement, (A) until a Discharge of Revolving Credit Obligations, the US Revolving Credit Collateral Agent shall be entitled to deal with the Pledged Collateral or Collateral within its “"control” " in accordance with the terms of this Agreement and other Revolving Credit Loan Documents (but only to the extent that such Collateral constitutes Revolving Credit Primary Collateral) as if the Liens (if any) of the Notes Note Lien Collateral Agent or Note Lien Representatives did not exist and (B) until a Discharge of Note Lien Obligations, the Note Lien Collateral Agent shall be entitled to deal with the Pledged Collateral or Collateral within its "control" in accordance with the terms of this Agreement and other Note Lien Documents (but only to the extent that such Collateral constitutes Note Lien Collateral) as if the Liens (if any) of the Revolving Credit Collateral Agent did not exist.
(c) The Revolving Credit Collateral Agent No Person acting pursuant to this Section 5.4 shall not have by reason of the Revolving Credit Loan Documents, the Note Lien Documents, this Agreement or any other document document, a fiduciary relationship with the Notes Collateral Agent or any Notes Claimholder other Person with respect to such acts.
(d) Upon the Discharge of Revolving Credit Obligations, Obligations the US Revolving Credit Collateral Agent shall deliver the remaining Pledged Collateral (if any) together with any necessary endorsements, first, to the Notes Note Lien Collateral Agent to the extent the Notes Note Lien Obligations which are secured by such Pledged Collateral remain outstanding outstanding, and second, to the applicable Grantor (in each case, so as to allow the Notes Collateral Agent such Person to obtain possession or control of such Pledged Collateral). The US Revolving Credit Collateral Agent further agrees agree to take all other action reasonably requested by the Notes Note Lien Collateral Agent in connection with the Notes Note Lien Collateral Agent obtaining a first-priority interest in the Collateral or as a court of competent jurisdiction may otherwise direct.
(e) Upon the Discharge of the Note Lien Obligations, the Note Lien Collateral Agent shall deliver the remaining Pledged Collateral (if any) together with any necessary endorsements, first, to the Revolving Credit Collateral Agent to the extent any Revolving Credit Obligations which are secured by such Pledged Collateral remain outstanding, and second, to the applicable Grantor (in each case, so as to allow such Person to obtain possession or control of such Pledged Collateral). The Note Lien Collateral Agent further agrees to take all other action reasonably requested by the Revolving Credit Collateral Agent in connection with the Revolving Credit Collateral Agent obtaining a first-priority interest in the Collateral or as a court of competent jurisdiction may otherwise direct
Appears in 1 contract
Bailees for Perfection. (a) The US Each Revolving Credit Collateral Agent agrees to hold that part of the Collateral that is in its possession or control (or in the possession or control of its agents or bailees) to the extent that possession or control thereof is taken to perfect a Lien thereon under the UCC (such Collateral being the “Pledged Collateral”) as collateral agent for the Revolving Credit Claimholders, and as bailee for the Notes First Lien Term Loan Collateral Agent and the Second Lien Term Loan Collateral Agent (such bailment being intended, among other things, to satisfy the requirements of Sections 8-106(d)(3), 8-301(a)(2) and 9-313(c) of the UCC) and any assignee solely for the purpose of perfecting the security interest granted under the Revolving Credit Documents and the Notes Term Loan Documents, as applicable, subject to the terms and conditions of this Section 5.4.
(b) The US Revolving Credit Collateral Agent Agents shall have no obligation whatsoever to the Notes Term Loan Collateral Agent or to any Notes Term Loan Claimholder to ensure that the Pledged Collateral is genuine or owned by any of the Grantors or to preserve rights or benefits of any Person except as expressly set forth in this Section 5.4. The duties or responsibilities of the US Revolving Credit Collateral Agent Agents under this Section 5.4 shall be limited solely to holding the Pledged Collateral as bailee in accordance with this Section 5.4 and delivering the Pledged Collateral upon a Discharge of Revolving Credit Obligations, as provided in paragraph (d) below, so that, subject to the terms of this Agreement, until a Discharge of Revolving Credit Obligations, the US Revolving Credit Collateral Agent Agents shall be entitled to deal with the Pledged Collateral or Collateral within its “control” in accordance with the terms of this Agreement and other Revolving Credit Documents (but only to the extent that such Collateral constitutes Revolving Credit Primary Collateral) as if the Liens (if any) of the Notes Term Loan Collateral Agent did not exist.
(c) The Revolving Credit Collateral Agent acting pursuant to this Section 5.4 shall not have by reason of the Revolving Credit Documents, this Agreement or any other document a fiduciary relationship with the Notes Term Loan Collateral Agent or any Notes Term Loan Claimholder with respect to such acts.
(d) Upon the Discharge of Revolving Credit Obligations, the US Revolving Credit Collateral Agent Agents shall deliver the remaining Pledged Collateral (if any) together with any necessary endorsements, to the Notes First Lien Term Loan Collateral Agent to the extent the Notes First Lien Term Loan Obligations which are secured by such Pledged Collateral remain outstanding, and if no First Lien Term Loan Obligations are outstanding, to the Second Lien Term Loan Collateral Agent to the extent the Second Lien Term Loan Obligations which are secured by such Pledged Collateral remain outstanding (in each case, so as to allow the Notes Collateral Agent such Person to obtain possession or control of such Pledged Collateral). The US Each of the Revolving Credit Collateral Agent Agents further agrees to take all other action reasonably requested by the Notes First Lien Term Loan Collateral Agent or the Second Lien Term Loan Collateral Agent (where applicable) in connection with the Notes First Lien Term Loan Collateral Agent or the Second Lien Collateral Agent (where applicable) obtaining a first-priority interest in the Collateral or as a court of competent jurisdiction may otherwise direct.
Appears in 1 contract
Bailees for Perfection. (a) The US Revolving Credit Each Collateral Agent agrees to hold that part of the Collateral that is in its possession or control (or in the possession or control of its agents or bailees) to the extent that possession or control thereof is taken to perfect a Lien thereon under the UCC or the PPSA (such Collateral being the “Pledged Collateral”) as collateral agent for the Revolving Credit Claimholders or the Fixed Asset Claimholders, as the case may be, and as bailee for the Notes other Collateral Agent Agents (such bailment being intended, among other things, to satisfy the requirements of Sections 8-106(d)(3), 8-301(a)(2) and 9-313(c) of the UCC) and any assignee solely for the purpose of perfecting the security interest granted under the Revolving Credit Documents and the Notes Fixed Asset Documents, as applicablerespectively, subject to the terms and conditions of this Section 5.4.
(b) The US Revolving Credit No Collateral Agent shall have no any obligation whatsoever to the Notes other Collateral Agent Agents, to any Revolving Credit Claimholder, or to any Notes Fixed Asset Claimholder to ensure that the Pledged Collateral is genuine or owned by any of the Grantors or to preserve rights or benefits of any Person except as expressly set forth in this Section 5.4. The duties or responsibilities of the US Revolving Credit respective Collateral Agent Agents under this Section 5.4 shall be limited solely to holding the Pledged Collateral as bailee in accordance with this Section 5.4 and delivering the Pledged Collateral upon a Discharge of Revolving Credit Obligations or Discharge of Fixed Asset Obligations, as the case may be, as provided in paragraph (d) below.
(c) No Collateral Agent acting pursuant to this Section 5.4 shall have by reason of the Revolving Credit Documents, the Fixed Asset Documents, this Agreement or any other document a fiduciary relationship in respect of the other Collateral Agent, or any Revolving Credit Claimholders or any Fixed Asset Claimholders.
(d) Upon the Discharge of Revolving Credit Obligations or the Discharge of Fixed Asset Obligations, as the case may be, the Collateral Agent under the debt facility or indenture which has been discharged shall deliver the remaining Pledged Collateral (if any) together with any necessary endorsements and without recourse or warranty, first, to the other Collateral Agent (for the avoidance of doubt, in the case of the Discharge of Revolving Credit Obligations, to the Fixed Asset Collateral Agent) to the extent the other Obligations (other than Contingent Obligations) remain outstanding, and second, to the applicable Grantor to the extent no Revolving Credit Obligations or Fixed Asset Obligations, as the case may be, remain outstanding (in each case, so thatas to allow such Person to obtain possession or control of such Pledged Collateral). Each Collateral Agent further agrees, subject to the extent that any other Obligations (other than applicable Contingent Obligations) remain outstanding, to take all other commercially reasonable action as shall be reasonably requested by any other Collateral Agent, at the sole cost and expense of the Credit Parties, to permit such other Collateral Agent to obtain, for the benefit of the Revolving Credit Claimholders or Fixed Asset Claimholders, as applicable, a first-priority interest in the Collateral or as a court of competent jurisdiction may otherwise direct.
(e) Subject to the terms of this Agreement, until a (i) so long as the Discharge of Revolving Credit ObligationsObligations has not occurred, the US Revolving Credit Collateral Agent shall be entitled to deal with the Pledged Collateral or Collateral within its “control” in accordance with the terms of this Agreement and other Revolving Credit Documents (Documents, but only to the extent that such Collateral constitutes Revolving Credit Primary ABL Collateral) , as if the Liens (if any) of the Notes Fixed Asset Collateral Agent and Fixed Asset Claimholders did not exist.
exist and (cii) The so long as the Discharge of Fixed Asset Obligations has not occurred, the Fixed Asset Collateral Agent shall be entitled to deal with the Pledged Collateral or Collateral within its “control” in accordance with the terms of this Agreement and other Fixed Asset Documents, but only to the extent that such Collateral constitutes Fixed Asset Priority Collateral, as if the Liens of the Revolving Credit Collateral Agent acting pursuant to this Section 5.4 shall and Revolving Credit Claimholders did not have by reason exist. In furtherance of the Revolving Credit Documentsforegoing, this Agreement or any other document a fiduciary relationship with the Notes Collateral Agent or any Notes Claimholder with respect to such acts.
(d) Upon promptly following the Discharge of Revolving Credit Obligations, unless a New Debt Notice in respect of new Revolving Credit Documents shall have been delivered as provided in Section 5.5 below, the US Revolving Credit Collateral Agent hereby agrees to deliver, at the cost and expense of the Credit Parties, to each bank and securities intermediary, if any, that is counterparty to a deposit account control agreement or securities account control agreement, as applicable, written notice as contemplated in such deposit account control agreement or securities account control agreement, as applicable, directing such bank or securities intermediary, as applicable, to comply with the instructions of the Fixed Asset Collateral Agent, unless the Discharge of Fixed Asset Obligations has occurred (as certified to the Revolving Credit Collateral Agent by the Borrower), in which case, such deposit account control agreement or securities account control agreement, as the case may be, shall be terminated.
(f) Notwithstanding anything in this Agreement to the contrary:
(1) each of the Revolving Credit Collateral Agent, for itself and on behalf of the Revolving Credit Claimholders, agrees that any requirement under any Revolving Credit Collateral Document that any Grantor deliver any Collateral that constitutes Fixed Asset Priority Collateral to the Revolving Credit Collateral Agent, or that requires any Grantor to vest the Revolving Credit Collateral Agent with possession or “control” (as defined in the UCC or in the manner provided for in the STA) of any Collateral that constitutes Fixed Asset Priority Collateral, in each case, shall be deemed satisfied to the extent that, prior to the Discharge of Fixed Asset Obligations (other than Contingent Obligations), such Collateral is delivered to the Fixed Asset Collateral Agent, or the Fixed Asset Collateral Agent shall have been vested with such possession or (unless, pursuant to the UCC or the STA, as applicable, control may be given concurrently to the Revolving Credit Collateral Agent and the Fixed Asset Collateral Agent) “control,” in each case, subject to the provisions of this Section 5.4; and
(2) the Fixed Asset Collateral Agent, for itself and on behalf of the Fixed Asset Claimholders, agrees that any requirement under any Fixed Asset Collateral Document that any Grantor deliver any Collateral that constitutes ABL Collateral to the Fixed Asset Collateral Agent, or that requires any Grantor to vest the Fixed Asset Collateral Agent with possession or “control” (as defined in the UCC or in the manner provided for in the STA) of any Collateral that constitutes ABL Collateral, in each case, shall be deemed satisfied to the extent that, prior to the Discharge of Revolving Credit Obligations (other than Contingent Obligations), such Collateral is delivered to the Revolving Credit Collateral Agent, or the Revolving Credit Collateral Agent shall deliver the remaining Pledged Collateral have been vested with such possession or (if any) together with any necessary endorsementsunless, pursuant to the Notes UCC or STA, as applicable, control may be given concurrently to the Fixed Asset Collateral Agent and the Revolving Credit Collateral Agent) “control,” in each case, subject to the provisions of this Section 5.4.
(g) The parties hereto further agree that to the extent the Notes Obligations which are secured by such Pledged Collateral remain outstanding (so as to allow the Notes Collateral Agent to obtain possession or control of such Pledged Collateral). The US Revolving Credit Collateral Agent further agrees is specified as the lienholder on the certificates of title with respect to take all any Motor Vehicles (as defined in the Fixed Asset Security Agreement) of any Grantor, then (including for the purposes of the applicable state certificate of title laws and any other action reasonably requested applicable laws) the Revolving Credit Collateral Agent shall act as agent for both the Revolving Credit Claimholders and the Fixed Asset Claimholders in order to perfect and secure both the Revolving Credit Obligations and the Fixed Asset Obligations, provided that, notwithstanding that there may be only one lienholder noted on such certificate of title for such purposes, the priorities as between the rights of the Revolving Credit Claimholders and the Fixed Asset Claimholders shall be as if there were two separate Liens, subject to the priorities and other terms of this Agreement. In furtherance of the foregoing, (i) the Fixed Asset Collateral Agent hereby appoints the Revolving Credit Collateral Agent as its collateral agent for the limited purpose of acting as the agent on behalf of the Fixed Asset Claimholders with respect to the applicable Motor Vehicles solely for purposes of perfecting the Liens of such parties on such Motor Vehicles and releasing such Liens when required by the Notes terms of the Fixed Asset Documents and (ii) in order to secure the prompt payment and performance of the Fixed Asset Obligations, each Grantor hereby grants to the Revolving Credit Collateral Agent, as agent for the Fixed Asset Claimholders, a security interest in all right, title and interest of such Grantor in, to and under all Motor Vehicles and, for purposes of Section 5.4(a), all Deposit Accounts and Securities Accounts (other than any Fixed Asset Priority Collateral Proceeds Account), whether now owned or hereafter acquired by such Grantor. Such grant creates a security interest wholly separate from the security interest in such Motor Vehicles and such Deposit Accounts and Securities Account granted to the Revolving Credit Collateral Agent in connection with the Notes Revolving Credit Documents as security for the Revolving Credit Obligations. The duties or responsibilities of the Revolving Credit Collateral Agent obtaining under this Section 5.4(g) shall be limited solely to holding (either itself or through its appointment of a first-priority interest custodian or agent) a Lien on such Motor Vehicles (and releasing such Lien), or the Deposit Accounts and Securities Accounts, as applicable, as agent in the Collateral or as a court of competent jurisdiction may otherwise directaccordance with this Section 5.4(g).
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Bailees for Perfection. (a) The US Revolving Credit Each Senior Priority Collateral Agent agrees to hold that part of the Collateral that is in its possession or control (or in the possession or control of its agents or bailees) to the extent that possession or control thereof is taken to perfect a Lien thereon under the UCC or the PPSA (such Collateral being the “Pledged Collateral”) as collateral agent for the Revolving Credit Claimholders, Junior Priority Claimholders and as bailee for the Notes Junior Priority Collateral Agent (such bailment being intended, among other things, to satisfy the requirements of Sections 8-106(d)(3), 8-301(a)(2) and 9-313(c) of the UCC) and any assignee solely for the purpose of perfecting the security interest granted under the Revolving Credit Documents and the Notes Junior Priority Documents, as applicablerespectively, subject to the terms and conditions of this Section 5.4.
(b) The US Revolving Credit No Senior Priority Collateral Agent shall have no any obligation whatsoever to the Notes Junior Priority Collateral Agent or to any Notes Junior Priority Claimholder to ensure that the Pledged Collateral is genuine or owned by any of the Grantors or to preserve rights or benefits of any Person except as expressly set forth in this Section 5.4. The duties or responsibilities of the US Revolving Credit respective Senior Priority Collateral Agent Agents under this Section 5.4 shall be limited solely to holding the Pledged Collateral as bailee in accordance with this Section 5.4 and delivering the Pledged Collateral upon a the Discharge of Revolving Credit Obligations, Senior Priority Obligations as provided in paragraph (d) below.
(c) No Senior Priority Collateral Agent shall have by reason of the Junior Priority Collateral Documents, this Agreement, or any other document, a fiduciary relationship in respect of the Junior Priority Collateral Agent or any Junior Priority Claimholder.
(d) Upon the Discharge of Senior Priority Obligations, each Senior Priority Collateral Agent shall deliver the remaining Pledged Collateral (if any) in its possession together with any necessary endorsements and without recourse or warranty, first, to the Junior Priority Collateral Agent, to the extent the Junior Priority Obligations (other than Contingent Obligations) remain outstanding, and second, to the applicable Grantor to the extent no Junior Priority Obligations, as the case may be, remain outstanding (in each case, so thatas to allow such Person to obtain possession or control of such Pledged Collateral). Each Senior Priority Collateral Agent further agrees, subject to the extent that any Junior Priority Obligations (other than applicable Contingent Obligations) remain outstanding, to take all other commercially reasonable action as shall be reasonably requested by the Junior Priority Collateral Agent, at the sole cost and expense of the Credit Parties, to permit such the Junior Priority Collateral Agent to obtain, for the benefit of the Junior Priority Claimholders a first-priority interest in the Collateral or as a court of competent jurisdiction may otherwise direct.
(e) Subject to the terms of this Agreement, until a so long as the Discharge of Revolving Credit ObligationsSenior Priority Obligations has not occurred, the US Revolving Credit each Senior Priority Collateral Agent shall be entitled to deal with the Pledged Collateral or Collateral within its “control” in accordance with the terms of this Agreement and other Revolving Credit Documents (but only to the extent that such Collateral constitutes Revolving Credit Primary Collateral) Senior Priority Documents, as if the Liens (if any) of the Notes Junior Priority Collateral Agent and Junior Priority Claimholders did not exist.
(c) The . With respect to any deposit account control agreement or securities account control agreement executed by the Revolving Credit Collateral Agent, the Senior Priority Fixed Asset Collateral Agent, the Junior Priority Collateral Agent and any Grantor prior to the date the 2016 Secured Notes Obligations were initially incurred and with respect to which the Revolving Credit Collateral Agent acting pursuant to this Section 5.4 shall not have by reason of the Revolving Credit Documentshas, this Agreement or any other document a fiduciary relationship with the Notes Collateral Agent or any Notes Claimholder with respect to such acts.
(d) Upon upon the Discharge of Revolving Credit Obligations, notified the US applicable deposit bank or securities intermediary that the 2016 Secured Notes Collateral Agent constitutes the “Revolving Credit Collateral Agent” (or similar term) under such control agreement as a permitted successor of the Revolving Credit Collateral Agent shall in accordance with Section 5.4(e) of the ABL Intercreditor Agreement, the Junior Priority Collateral Agent agrees to take any further actions or execute and deliver such further documents within its power and authority, in each case pursuant to Section 8.8, as the remaining Pledged Collateral (if any) together with any necessary endorsements, to the 2016 Secured Notes Collateral Agent may reasonably request to effectuate the extent the Notes Obligations which are secured by foregoing under any such Pledged Collateral remain outstanding (so as to allow the Notes Collateral Agent to obtain possession or control of such Pledged Collateral). The US Revolving Credit Collateral Agent further agrees to take all other action reasonably requested by the Notes Collateral Agent in connection with the Notes Collateral Agent obtaining a first-priority interest in the Collateral or as a court of competent jurisdiction may otherwise direct.agreement
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Bailees for Perfection. (a) The US Revolving Credit Collateral Each Agent agrees to hold that part of the Collateral that is in its possession or control (or in the possession or control of its agents or bailees) to the extent that possession or control thereof is taken to perfect a Lien thereon under the UCC (such Collateral Collateral, which shall include, without limitation, Deposit Accounts, Securities Accounts and Capital Stock, being the “Pledged Collateral”) as (i) in the case of the ABL Collateral Agent, the collateral agent for the Revolving Credit ClaimholdersABL Secured Parties under the ABL Documents or, and as bailee in the case of the Term Collateral Agent, the collateral agent for the Notes Collateral Term Loan Secured Parties under the Term Loan Documents and (ii) gratuitous bailee and agent for the benefit and on behalf of the other Agent (such bailment and agency being intended, among other things, to satisfy the requirements of Sections 8-106(d)(3), 8-301(a)(2), 9-104(a) and 9-313(c) of the UCC) and any assignee solely for the purpose of perfecting the security interest granted under the Revolving Credit ABL Documents and the Notes DocumentsTerm Loan Documents (including, as applicablewithout limitation, perfecting by possession, delivery or control), respectively, subject to the terms and conditions of this Section 5.4.
(b) . The US Revolving Credit Term Collateral Agent shall have no obligation whatsoever to and the Notes Term Loan Secured Parties hereby appoint the ABL Collateral Agent or to as their agent for the purposes of perfecting their security interest in all Deposit Accounts and Securities Accounts of the Company and the Subsidiaries. The ABL Collateral Agent hereby accepts such appointment and acknowledges and agrees that it shall act for the benefit of the Term Collateral Agent and the other Term Loan Secured Parties under each control agreement and that any Notes Claimholder to ensure that Proceeds received by the ABL Collateral Agent under any control agreement shall be applied in accordance with Article IV. In furtherance of the foregoing, each Grantor hereby grants a security interest in the Pledged Collateral is genuine or owned by any to the ABL Collateral Agent for the benefit of the Grantors or to preserve rights or benefits of any Person except as expressly set forth in this Section 5.4. The duties or responsibilities of the US Revolving Credit Collateral Agent under this Section 5.4 shall be limited solely to holding the Pledged Collateral as bailee in accordance with this Section 5.4 and delivering the Pledged Collateral upon a Discharge of Revolving Credit Obligations, as provided in paragraph (d) below, so that, subject to the terms of this Agreement, until a Discharge of Revolving Credit Obligations, the US Revolving Credit Collateral Agent shall be entitled to deal with the Pledged Collateral or Collateral within its “control” in accordance with the terms of this Agreement and other Revolving Credit Documents (but only to the extent that such Collateral constitutes Revolving Credit Primary Collateral) as if the Liens (if any) of the Notes Collateral Agent did not existTerm Loan Secured Parties.
(c) The Revolving Credit Collateral Agent acting pursuant to this Section 5.4 shall not have by reason of the Revolving Credit Documents, this Agreement or any other document a fiduciary relationship with the Notes Collateral Agent or any Notes Claimholder with respect to such acts.
(d) Upon the Discharge of Revolving Credit Obligations, the US Revolving Credit Collateral Agent shall deliver the remaining Pledged Collateral (if any) together with any necessary endorsements, to the Notes Collateral Agent to the extent the Notes Obligations which are secured by such Pledged Collateral remain outstanding (so as to allow the Notes Collateral Agent to obtain possession or control of such Pledged Collateral). The US Revolving Credit Collateral Agent further agrees to take all other action reasonably requested by the Notes Collateral Agent in connection with the Notes Collateral Agent obtaining a first-priority interest in the Collateral or as a court of competent jurisdiction may otherwise direct.
Appears in 1 contract
Samples: Term Loan Credit Agreement (Ardent Health Partners, LLC)
Bailees for Perfection. (a) The US Revolving Credit Each Senior Priority Collateral Agent agrees to hold that part of the Collateral that is in its possession or control (or in the possession or control of its agents or bailees) to the extent that possession or control thereof is taken to perfect a Lien thereon under the UCC or the PPSA (such Collateral being the “Pledged Collateral”) as collateral agent for the Revolving Credit Claimholders, Junior Priority Claimholders and as bailee for the Notes Junior Priority Collateral Agent (such bailment being intended, among other things, to satisfy the requirements of Sections 8-106(d)(3), 8-301(a)(2) and 9-313(c) of the UCC) and any assignee solely for the purpose of perfecting the security interest granted under the Revolving Credit Documents and the Notes Junior Priority Documents, as applicablerespectively, subject to the terms and conditions of this Section 5.4.
(b) The US Revolving Credit No Senior Priority Collateral Agent shall have no any obligation whatsoever to the Notes Junior Priority Collateral Agent or to any Notes Junior Priority Claimholder to ensure that the Pledged Collateral is genuine or owned by any of the Grantors or to preserve rights or benefits of any Person except as expressly set forth in this Section 5.4. The duties or responsibilities of the US Revolving Credit respective Senior Priority Collateral Agent Agents under this Section 5.4 shall be limited solely to holding the Pledged Collateral as bailee in accordance with this Section 5.4 and delivering the Pledged Collateral upon a the Discharge of Revolving Credit Obligations, Senior Priority Obligations as provided in paragraph (d) below.
(c) No Senior Priority Collateral Agent shall have by reason of the Junior Priority Collateral Documents, this Agreement, or any other document, a fiduciary relationship in respect of the Junior Priority Collateral Agent or any Junior Priority Claimholder.
(d) Upon the Discharge of Senior Priority Obligations, each Senior Priority Collateral Agent shall deliver the remaining Pledged Collateral (if any) in its possession together with any necessary endorsements and without recourse or warranty, first, to the Junior Priority Collateral Agent, to the extent the Junior Priority Obligations (other than Contingent Obligations) remain outstanding, and second, to the applicable Grantor to the extent no Junior Priority Obligations, as the case may be, remain outstanding (in each case, so thatas to allow such Person to obtain possession or control of such Pledged Collateral). Each Senior Priority Collateral Agent further agrees, subject to the extent that any -22- Junior Priority Obligations (other than applicable Contingent Obligations) remain outstanding, to take all other commercially reasonable action as shall be reasonably requested by the Junior Priority Collateral Agent, at the sole cost and expense of the Credit Parties, to permit such the Junior Priority Collateral Agent to obtain, for the benefit of the Junior Priority Claimholders a first-priority interest in the Collateral or as a court of competent jurisdiction may otherwise direct.
(e) Subject to the terms of this Agreement, until a so long as the Discharge of Revolving Credit ObligationsSenior Priority Obligations has not occurred, the US Revolving Credit each Senior Priority Collateral Agent shall be entitled to deal with the Pledged Collateral or Collateral within its “control” in accordance with the terms of this Agreement and other Revolving Credit Documents (but only to the extent that such Collateral constitutes Revolving Credit Primary Collateral) Senior Priority Documents, as if the Liens (if any) of the Notes Junior Priority Collateral Agent and Junior Priority Claimholders did not exist.
(c) The . With respect to any deposit account control agreement or securities account control agreement executed by the Revolving Credit Collateral Agent, the Senior Priority Fixed Asset Collateral Agent, the Junior Priority Collateral Agent and any Grantor prior to the date the 2016 Secured Notes Obligations were initially incurred and with respect to which the Revolving Credit Collateral Agent acting pursuant to this Section 5.4 shall not have by reason of the Revolving Credit Documentshas, this Agreement or any other document a fiduciary relationship with the Notes Collateral Agent or any Notes Claimholder with respect to such acts.
(d) Upon upon the Discharge of Revolving Credit Obligations, notified the US applicable deposit bank or securities intermediary that the 2016 Secured Notes Collateral Agent constitutes the “Revolving Credit Collateral Agent” (or similar term) under such control agreement as a permitted successor of the Revolving Credit Collateral Agent shall in accordance with Section 5.4(e) of the ABL Intercreditor Agreement, the Junior Priority Collateral Agent agrees to take any further actions or execute and deliver such further documents within its power and authority, in each case pursuant to Section 8.8, as the remaining Pledged 2016 Secured Notes Collateral Agent may reasonably request to effectuate the foregoing under any such control agreement (if anyincluding, without limitation, notifying the applicable depositary bank or securities intermediary that the 2016 Secured Notes Collateral Agent is the successor “Revolving Credit Collateral Agent” (or similar term) together with any necessary endorsementsunder such control agreement and, to the extent required in order for the 2016 Secured Notes Collateral Agent to exercise its rights under such control agreement as the extent the Notes Obligations which are secured by such Pledged Collateral remain outstanding (so as to allow the Notes Collateral Agent to obtain possession or control of such Pledged Collateral). The US “Revolving Credit Collateral Agent further agrees Agent” (or similar term) thereunder, sending any notices to take all other action reasonably requested by the Notes Collateral Agent in connection with the Notes Collateral Agent obtaining a first-priority interest in the Collateral depositary bank or securities intermediary (as a court of competent jurisdiction may otherwise directapplicable) thereunder).
Appears in 1 contract
Samples: Intercreditor Agreement
Bailees for Perfection. (a) The US Revolving Credit Collateral Each Agent agrees to hold that part of the Collateral that is in its possession or control (or in the possession or control of its agents or bailees) to the extent that possession or control thereof is taken to perfect a Lien thereon under the UCC (such Collateral Collateral, which shall include without limitation Account Agreements, being the “Pledged Collateral”) as (i) in the case of the Revolving Credit Agent, the collateral agent for the Revolving Credit ClaimholdersClaimholders under the Revolving Credit Loan Documents or, in the case of the Noteholder Collateral Agent, the collateral agent for the Note Claimholders under the Note Documents and as (ii) gratuitous bailee for the Notes Collateral benefit of the other Agent (such bailment being intended, among other things, to satisfy the requirements of Sections 8-106(d)(3), 8-301(a)(2) and 9-313(c) of the UCC) and any assignee solely for the purpose of perfecting the security interest granted under the Revolving Credit Loan Documents and the Notes Note Documents, as applicablerespectively, subject to the terms and conditions of this Section 5.4. The Noteholder Collateral Agent and the Note Claimholders hereby appoint the Revolving Credit Agent as their gratuitous bailee for the purposes of perfecting their security interest in all Deposit Accounts and Securities Accounts of Holdings. The Revolving Credit Agent hereby accepts such appointment and acknowledges and agrees that it shall act for the benefit of the Collateral Agent and the Note Claimholders under each Account Agreement and that any proceeds received by the Revolving Credit Agent under any Account Agreement shall be applied in accordance with Section IV.
(b) The US Revolving Credit Collateral Neither Agent shall have no any obligation whatsoever to the Notes Collateral Agent other Agent, to any Revolving Credit Claimholder, or to any Notes Note Claimholder to ensure that the Pledged Collateral is genuine or owned by any of the Grantors Holdings or to preserve rights or benefits of any Person except as expressly set forth in this Section 5.4. The duties or responsibilities of the US Revolving Credit Collateral Agent respective Agents under this Section 5.4 shall be limited solely to holding the Pledged Collateral as bailee in accordance with this Section 5.4 and delivering the Pledged Collateral or proceeds thereof upon a Discharge of Revolving Credit Obligations or Discharge of Note Obligations, as the case may be, as provided in paragraph (d) below, so that, subject to the terms of this Agreement, until a Discharge of Revolving Credit Obligations, the US Revolving Credit Collateral Agent shall be entitled to deal with the Pledged Collateral or Collateral within its “control” in accordance with the terms of this Agreement and other Revolving Credit Documents (but only to the extent that such Collateral constitutes Revolving Credit Primary Collateral) as if the Liens (if any) of the Notes Collateral Agent did not exist.
(c) The Revolving Credit Collateral Neither Agent acting pursuant to this Section 5.4 shall not have by reason of the Revolving Credit Loan Documents, the Note Documents, this Agreement or any other document a fiduciary relationship with in respect of the Notes Collateral Agent other Agent, any Revolving Credit Claimholders or any Notes Claimholder with respect to such actsNote Claimholder.
(d) Unless and until the Discharge of Revolving Credit Obligations and whether or not any Insolvency or Liquidation Proceeding has been commenced by or against any Grantor, all Pledged Collateral shall be delivered to the Revolving Credit Agent. Upon the Discharge of Revolving Credit Obligations, Obligations the US Revolving Credit Collateral Agent shall deliver the remaining Pledged Collateral (if any) together with any necessary endorsements, first, to the Notes Noteholder Collateral Agent to the extent the Notes Note Obligations which are secured by such Pledged Collateral remain outstanding outstanding, and second, to Holdings to the extent the Discharge of Revolving Credit Obligations and the Discharge of Note Obligations have occurred (in each case, so as to allow the Notes Collateral Agent Holdings to obtain possession or control of such Pledged Collateral). The US Revolving Credit Collateral Each Agent further agrees to take all other action reasonably requested by the Notes Collateral other Agent in connection with the Notes Collateral other Agent obtaining a first-priority interest in the Collateral or as a court of competent jurisdiction may otherwise direct. Notwithstanding anything to the contrary contained in this Agreement, any obligation of the Agent under the credit facility, which has been discharged, to make any delivery to the other Agent under this Section 5.4(d) or Section 5.5 is subject to (i) the order of any court of competent jurisdiction, or (ii) any automatic stay imposed in connection with any Insolvency or Liquidation Proceeding with respect to any Grantor.
(e) Subject to the terms of this Agreement, so long as the Discharge of Revolving Credit Obligations has not occurred, the Revolving Credit Agent shall be entitled to deal with the Collateral within its “control” in accordance with the terms of this Agreement and other Revolving Credit Loan Documents as if the Liens of the Noteholder Collateral Agent and Note Claimholders did not exist.
(f) U.S. Bank National Association (“U.S. Bank”), to the extent it becomes the depository institution at which Deposit Accounts are maintained (the “Control Deposit Accounts”), the Noteholder Collateral Agent and Holdings agree that U.S. Bank, in such capacity, will comply with instructions originated by the Noteholder Collateral Agent directing disposition of any funds in the Control Deposit Accounts without further consent by Holdings; provided that the Noteholder Collateral Agent may not give any such instruction until the Discharge of Revolving Credit Obligations has occurred and at the time of such instructions a Note Default has occurred and is continuing and the Noteholder Collateral Agent has delivered a certification to U.S. Bank that such Note Default has occurred and is continuing. Notwithstanding the foregoing, nothing in this Section 5.4(f) shall obligate U.S. Bank to maintain, and U.S. Bank shall have the right to terminate at any time, the Control Deposit Accounts on behalf of Holdings. Except for acting on Holdings instructions in violation of an instruction of the Noteholder Collateral Agent as provided above, U.S. Bank shall have no responsibility or liability to the Note Claimholders for complying with instructions concerning the Control Deposit Accounts from Holdings or Holdings’ authorized representatives. U.S. Bank shall have no responsibility or liability to Holdings for complying with instructions from the Noteholder Collateral Agent, and shall have no responsibility to investigate the appropriateness of any such instruction, even if Holdings notifies X.X. Xxxx that the Noteholder Collateral Agent is not legally entitled to originate any such instruction. The Note Claimholders (exclusive of the Trustee and the Noteholder Collateral Agent) and Holdings hereby agree to indemnify and hold harmless U.S. Bank, its directors, officers, agents and employees against any and all claims, causes of action, liabilities, lawsuits, demands and damages, including without limitation, any and all court costs and reasonable attorney’s fees, in any way related to or arising out of or in connection with this Section 5.4(f) or any action taken or not taken pursuant hereto, except to the extent caused by U.S. Bank’s gross negligence or willful misconduct or U.S. Bank’s breach of any of the provisions hereof.
Appears in 1 contract
Samples: Intercreditor Agreement (Claymont Steel Holdings, Inc.)
Bailees for Perfection. (a) The US Revolving Credit Each Collateral Agent agrees to hold that part of the Collateral that is in its possession or control (or in the possession or control of its agents or bailees) to the extent that possession or control thereof is taken to perfect a Lien thereon under the UCC or the PPSA (such Collateral being the “Pledged Collateral”) as collateral agent for the Revolving Credit Claimholders or the Fixed Asset Claimholders, as the case may be, and as bailee for the Notes other Collateral Agent Agents (such bailment being intended, among other things, to satisfy the requirements of Sections 8-106(d)(3), 8-301(a)(2) and 9-313(c) of the UCC) and any assignee solely for the purpose of perfecting the security interest granted under the Revolving Credit Documents and the Notes Fixed Asset Documents, as applicablerespectively, subject to the terms and conditions of this Section 5.4.
(b) The US Revolving Credit No Collateral Agent shall have no any obligation whatsoever to the Notes other Collateral Agent Agents, to any Revolving Credit Claimholder, or to any Notes Fixed Asset Claimholder to ensure that the Pledged Collateral is genuine or owned by any of the Grantors or to preserve rights or benefits of any Person except as expressly set forth in this Section 5.4. The duties or responsibilities of the US Revolving Credit respective Collateral Agent Agents under this Section 5.4 shall be limited solely to holding the Pledged Collateral as bailee in accordance with this Section 5.4 and delivering the Pledged Collateral upon a Discharge of Revolving Credit Obligations or Discharge of Fixed Asset Obligations, as the case may be, as provided in paragraph (d) below.
(c) No Collateral Agent acting pursuant to this Section 5.4 shall have by reason of the Revolving Credit Documents, the Fixed Asset Documents, this Agreement or any other document a fiduciary relationship in respect of the other Collateral Agent, or any Revolving Credit Claimholders or any Fixed Asset Claimholders.
(d) Upon the Discharge of Revolving Credit Obligations or the Discharge of Fixed Asset Obligations, as the case may be, the Collateral Agent under the debt facility or indenture which has been discharged shall deliver the remaining Pledged Collateral (if any) together with any necessary endorsements and without recourse or warranty, first, to the otheranother Collateral Agent (for the avoidance of doubt, in the case of the Discharge of Revolving Credit Obligations, to the Fixed Asset Collateral Agent, and in the case of the Discharge of Fixed Asset Obligations, to the Designated Revolving Credit Collateral Agent) to the extent the other Obligations (other than Contingent Obligations) remain outstanding, and second, to the applicable Grantor to the extent no Revolving Credit Obligations or Fixed Asset Obligations, as the case may be, remain outstanding (in each case, so thatas to allow such Person to obtain possession or control of such Pledged Collateral). Each Collateral Agent further agrees, subject to the extent that any other Obligations (other than applicable Contingent Obligations) remain outstanding, to take all other commercially reasonable action as shall be reasonably requested by any other Collateral Agent, at the sole cost and expense of the Credit Parties, to permit such other Collateral Agent to obtain, for the benefit of the Revolving Credit Claimholders or Fixed Asset Claimholders, as applicable, a first-priority interest in the Collateral or as a court of competent jurisdiction may otherwise direct.
(e) Subject to the terms of this Agreement, until a (i) so long as the Discharge of Revolving Credit ObligationsObligations has not occurred, the US theeach Revolving Credit Collateral Agent shall be entitled to deal with the Pledged Collateral or Collateral within its “control” in accordance with the terms of this Agreement and other Revolving Credit Documents (Documents, but only to the extent that such Collateral constitutes Revolving Credit Primary ABL Collateral) , as if the Liens (if any) of the Notes Fixed Asset Collateral Agent and Fixed Asset Claimholders did not exist and (ii) so long as the Discharge of Fixed Asset Obligations has not occurred, the Fixed Asset Collateral Agent shall be entitled to deal with the Pledged Collateral or Collateral within its “control” in accordance with the terms of this Agreement and other Fixed Asset Documents, but only to the extent that such Collateral constitutes Fixed Asset Priority Collateral, as if the Liens of the Revolving Credit Collateral AgentAgents and Revolving Credit Claimholders did not exist.
(c) The . In furtherance of the foregoing, in connection with any deposit account control agreement or securities account control agreement to which any Revolving Credit Collateral Agent acting pursuant to this Section 5.4 shall not have by reason of and the Revolving Credit Documents, this Agreement or any other document a fiduciary relationship with the Notes Fixed Asset Collateral Agent or any Notes Claimholder with respect to such acts.
(d) Upon are parties, promptly following the Discharge of Revolving Credit Obligations, the US unless a New Debt Notice in respect of new Revolving Credit Documents shall have been delivered as provided in Section 5.5 below, thesuch Revolving Credit Collateral Agent shall deliver hereby agrees to deliver, at the remaining Pledged Collateral (cost and expense of the Credit Parties, to each deposit bank and securities intermediary, if any) together with any necessary endorsements, that is counterparty to a deposit account control agreement or securities account control agreement, as applicable, written notice as contemplated in such deposit account control agreement or securities account control agreement, as applicable, directing such deposit bank or securities intermediary, as applicable, to comply with the instructions of the Fixed Asset Collateral Agent, unless the Discharge of Fixed Asset Obligations has occurred (as certified to the Revolving Credit Collateral AgentAgents by the Borrower), in which case, such deposit account control agreement or securities account control agreement, as the case may be, shall be terminated. With respect to any deposit account control agreement or securities account control agreement executed by the ABL Collateral Agent and any Grantor pursuant to any ABL Credit Document prior to the date the 2016 Secured Notes Obligations were initially incurred and to the extent the same continues to be in favor of the ABL Collateral Agent, each party hereto agrees that unless the Liens on the applicable deposit account or securities account in favor of the 2016 Secured Notes Collateral Agent shall have been or concurrently are released, the ABL Collateral Agent, the 2016 Secured Notes Collateral Agent and the applicable Grantors shall, substantially concurrently with the Discharge of ABL Obligations, notify in writing the applicable deposit bank or securities intermediary that upon and following the date such written notice is delivered, the 2016 Secured Notes Collateral Agent shall constitute the “Revolving Credit Collateral Agent” (or similar term) under such control agreement as a permitted successor of the ABL Collateral Agent (which written notice shall (i) state that the 2016 Secured Notes Collateral Agent is the permitted successor of the ABL Collateral Agent under such control agreement, (ii) include the notice address for the 2016 Secured Notes Collateral Agent, (iii) include an agreement by the 2016 Secured Notes Collateral Agent to be bound by all of the extent terms and conditions of such control agreement in such capacity and (iv) be signed by the Notes Obligations which are secured by such Pledged ABL Collateral remain outstanding (so as to allow Agent, the 2016 Secured Notes Collateral Agent to obtain possession or control and the applicable Grantor), and, upon the occurrence of such Pledged Collateral). The US Revolving Credit Collateral Agent further agrees to take all other action reasonably requested by the Notes Collateral Agent in connection with the Notes Collateral Agent obtaining a first-priority interest in the Collateral or as a court of competent jurisdiction may otherwise direct.the
Appears in 1 contract
Bailees for Perfection. (a) The US Revolving Credit Except as provided in Section 2.5, each Collateral Agent agrees to hold that part of the Collateral that is in its possession or control (or in the possession or control of its agents or bailees) to the extent that possession or control thereof is taken to perfect a Lien thereon under the UCC (such Collateral being the “Pledged Collateral”) as collateral agent for the Revolving Credit Claimholders or the Fixed Asset Claimholders, as the case may be, and as bailee for the Notes other Collateral Agent Agents (such bailment being intended, among other things, to satisfy the requirements of Sections 8-106(d)(3), 8-301(a)(2) and 9-313(c) of the UCC) and any assignee solely for the purpose of perfecting the security interest granted under the Revolving Credit Documents and the Notes Fixed Asset Documents, as applicablerespectively, subject to the terms and conditions of this Section 5.4.
(b) The US Revolving Credit No Collateral Agent shall have no any obligation whatsoever to the Notes other Collateral Agent Agents, to any Revolving Credit Claimholder, or to any Notes Fixed Asset Claimholder to ensure that the Pledged Collateral is genuine or owned by any of the Grantors or to preserve rights or benefits of any Person except as expressly set forth in this Section 5.4. The duties or responsibilities of the US Revolving Credit respective Collateral Agent Agents under this Section 5.4 shall be limited solely to holding the Pledged Collateral as bailee in accordance with this Section 5.4 and delivering the Pledged Collateral upon a Discharge of Revolving Credit Obligations or Discharge of Fixed Asset Obligations, as the case may be, as provided in paragraph (d) below.
(c) No Collateral Agent acting pursuant to this Section 5.4 shall have by reason of the Revolving Credit Documents, the Fixed Asset Documents, this Agreement or any other document a fiduciary relationship in respect of the other Collateral Agent, or any Revolving Credit Claimholders or any Fixed Asset Claimholders. Each Collateral Agent, for itself and on behalf of each applicable Credit Party represented thereby, hereby waives and releases the other Collateral Agent from all claims and liabilities arising pursuant to such Collateral Agent’s role under this Section 5.4 as bailee with respect to the applicable Pledged Collateral.
(d) Upon the Discharge of Revolving Credit Obligations or the Discharge of Fixed Asset Obligations, as the case may be, the Collateral Agent under the debt facility which has been discharged shall deliver the remaining Pledged Collateral (if any) together with any necessary endorsements and without recourse or warranty, first, to the other Collateral Agent (for the avoidance of doubt, in the case of the Discharge of Revolving Credit Obligations, to the Controlling Fixed Asset Collateral Agent) to the extent the other Obligations (other than Contingent Obligations) remain outstanding, and second, to the applicable Grantor to the extent no Revolving Credit Obligations or Fixed Asset Obligations, as the case may be, remain outstanding (in each case, so thatas to allow such Person to obtain possession or control of such Pledged Collateral). Each Collateral Agent further agrees, subject to the extent that any other Obligations (other than applicable Contingent Obligations) remain outstanding, to take all other commercially reasonable action as shall be reasonably requested by the other Collateral Agent, at the sole cost and expense of the Credit Parties, to permit such other Collateral Agent to obtain, for the benefit of the Revolving Credit Claimholders or Fixed Asset Claimholders, as applicable, a first-priority interest in the Collateral or as a court of competent jurisdiction may otherwise direct.
(e) Subject to the terms of this Agreement, until a (i) so long as the Discharge of Revolving Credit ObligationsObligations has not occurred, the US Revolving Credit Collateral Agent shall be entitled to deal with the Pledged Collateral or Collateral within its “control” in accordance with the terms of this Agreement and other Revolving Credit Documents (Documents, but only to the extent that such Collateral constitutes Revolving Credit Primary ABL Collateral) , as if the Liens (if any) of the Notes Fixed Asset Collateral Agents and Fixed Asset Claimholders did not exist and (ii) so long as the Discharge of Fixed Asset Obligations has not occurred, the Controlling Fixed Asset Collateral Agent did not exist.
(c) The shall be entitled to deal with the Pledged Collateral or Collateral within its “control” in accordance with the terms of this Agreement and other Fixed Asset Documents, but only to the extent that such Collateral constitutes Fixed Asset Collateral, as if the Liens of the Revolving Credit Collateral Agent acting pursuant to this Section 5.4 shall and Revolving Credit Claimholders did not have by reason exist. In furtherance of the Revolving Credit Documentsforegoing, this Agreement or any other document a fiduciary relationship with the Notes Collateral Agent or any Notes Claimholder with respect to such acts.
(d) Upon promptly following the Discharge of Revolving Credit Obligations, unless a New Debt Notice in respect of new Revolving Credit Documents shall have been delivered as provided in Section 5.5 below, the US Revolving Credit Collateral Agent hereby agrees to deliver, at the cost and expense of the Credit Parties, to each bank and securities intermediary, if any, that is counterparty to a deposit account control agreement or securities account control agreement, as applicable, written notice as contemplated in such deposit account control agreement or securities account control agreement, as applicable, directing such bank or securities intermediary, as applicable, to comply with the instructions of the Controlling Fixed Asset Collateral Agent, unless the Discharge of Fixed Asset Obligations has occurred (as certified to the Revolving Credit Collateral Agent by the Borrower), in which case, such deposit account control agreement or securities account control agreement, as the case may be, shall be terminated.
(f) In the event the Revolving Credit Collateral Agent receives any money or other funds from any Governmental Authority as a result of the compliance by the Grantors with FACA, then the Revolving Credit Collateral Agent agrees to also hold all such money and funds as agent and bailee for the benefit of the Fixed Asset Claimholders and all such money and funds shall be applied in accordance with Section 4.1 of this Agreement. Upon the Discharge of the Revolving Credit Obligations, at the request of the Controlling Fixed Asset Collateral Agent, the Revolving Credit Collateral Agent shall deliver cooperate with the remaining Pledged Controlling Fixed Asset Collateral (if any) together with Agents to assign any necessary endorsements, government contracts that are at such time assigned to the Notes Collateral Agent to the extent the Notes Obligations which are secured by such Pledged Collateral remain outstanding (so as to allow the Notes Collateral Agent to obtain possession or control of such Pledged Collateral). The US Revolving Credit Collateral Agent further in compliance with the FACA to the Controlling Fixed Asset Collateral Agent.
(g) Notwithstanding anything in this Agreement to the contrary:
(1) each of the Revolving Credit Collateral Agent, for itself and on behalf of the Revolving Credit Claimholders, agrees that any requirement under any Revolving Credit Collateral Document that any Grantor deliver any Collateral that constitutes Fixed Asset Collateral to take all other action reasonably requested by the Notes Revolving Credit Collateral Agent, or that requires any Grantor to vest the Revolving Credit Collateral Agent with possession or “control” (as defined in connection the UCC) of any Collateral that constitutes Fixed Asset Collateral, in each case, shall be deemed satisfied to the extent that, prior to the Discharge of Fixed Asset Obligations (other than Contingent Obligations), such Collateral is delivered to the Controlling Fixed Asset Collateral Agents, or the Controlling Fixed Asset Collateral Agents shall have been vested with such possession or (unless, pursuant to the Notes UCC, control may be given concurrently to the Revolving Credit Collateral Agent obtaining a first-priority interest and the Controlling Fixed Asset Collateral Agent) “control,” in each case, subject to the provisions of Section 5.4; and
(2) each of the Fixed Asset Collateral Agents, for itself and on behalf of the applicable Fixed Asset Claimholders, agrees that any requirement under any Fixed Asset Collateral Document that any Grantor deliver any Collateral that constitutes ABL Collateral to such Fixed Asset Collateral Agent, or that requires any Grantor to vest such Fixed Asset Collateral Agent with possession or “control” (as defined in the UCC) of any Collateral that constitutes ABL Collateral, in each case, shall be deemed satisfied to the extent that, prior to the Discharge of Revolving Credit Obligations (other than Contingent Obligations), such Collateral is delivered to the Revolving Credit Collateral Agent, or as a court the Revolving Credit Collateral Agent shall have been vested with such possession or (unless, pursuant to the UCC, control may be given concurrently to the Fixed Asset Collateral Agent and the Revolving Credit Collateral Agent) “control,” in each case, subject to the provisions of competent jurisdiction may otherwise directSection 5.4.
Appears in 1 contract
Samples: Intercreditor Agreement (PAE Inc)
Bailees for Perfection. (a) The US Revolving Credit Each Collateral Agent agrees to hold that part of the Collateral that is in its possession or control (or in the possession or control of its agents or bailees) to the extent that possession or control thereof is taken to perfect a Lien thereon under the UCC (such Collateral being the “Pledged Collateral”) as collateral agent for the Revolving Credit ABL Claimholders or the Fixed Asset Claimholders, as the case may be, and as bailee for the Notes other Collateral Agent Agents (such bailment being intended, among other things, to satisfy the requirements of Sections 8-106(d)(3), 8-301(a)(2) and 9-313(c) of the UCC) and any assignee solely for the purpose of perfecting the security interest granted under the Revolving ABL Credit Documents and the Notes Fixed Asset Documents, as applicablerespectively, subject to the terms and conditions of this Section 5.45.04.
(b) The US Revolving Credit No Collateral Agent shall have no any obligation whatsoever to the Notes other Collateral Agent Agents, to any ABL Claimholder, or to any Notes Fixed Asset Claimholder to ensure that the Pledged Collateral is genuine or owned by any of the Grantors or to preserve rights or benefits of any Person except as expressly set forth in this Section 5.45.04. The duties or responsibilities of the US Revolving Credit respective Collateral Agent Agents under this Section 5.4 5.04 shall be limited solely to holding the Pledged Collateral as bailee in accordance with this Section 5.4 5.04 and delivering the Pledged Collateral upon a an occurrence of the Discharge of Revolving Credit ABL Obligations or Discharge of Fixed Asset Obligations, as the case may be, as provided in paragraph (d) below.
(c) No Collateral Agent acting pursuant to this Section 5.04 shall have by reason of the ABL Credit Documents, the Fixed Asset Documents, this Agreement or any other document a fiduciary relationship in respect of the other Collateral Agent, or any ABL Claimholders or any Fixed Asset Claimholders.
(d) Upon the occurrence of the Discharge of ABL Obligations or the Discharge of Fixed Asset Obligations, as the case may be, the Collateral Agent under the debt facility which has been discharged shall deliver the remaining Pledged Collateral (if any) together with any necessary endorsements and without recourse or warranty, first, to the other Collateral Agent (for the avoidance of doubt, in the case of the Discharge of ABL Obligations, to the Controlling Fixed Asset Collateral Agent) to the extent the other Obligations (other than contingent indemnification obligations for which no claim has been made) remain outstanding, and second, to the applicable Grantor to the extent no ABL Obligations or Fixed Asset Obligations, as the case may be, remain outstanding (in each case, so thatas to allow such Person to obtain possession or control of such Pledged Collateral). Each Collateral Agent further agrees, subject to the extent that any ABL Obligations or Fixed Asset Obligations (other than applicable contingent indemnification obligations for which no claim has been made) remain outstanding, to take all other commercially reasonable action as shall be reasonably requested by the other Collateral Agent or the Company, at the sole cost and expense of the Credit Parties, to permit such other Collateral Agent to obtain, to the extent required by the applicable ABL Credit Documents or Fixed Asset Documents, for the benefit of the ABL Claimholders or Fixed Asset Claimholders, as applicable, a first-priority interest in the Collateral or as a court of competent jurisdiction may otherwise direct.
(e) Subject to the terms of this Agreement, (i) until a the Discharge of Revolving Credit ObligationsABL Obligations has occurred, the US Revolving Credit ABL Collateral Agent shall be entitled to deal with the Pledged Collateral or Collateral within its “control” in accordance with the terms of this Agreement and other Revolving ABL Credit Documents (Documents, but only to the extent that such Collateral constitutes Revolving Credit Primary ABL Priority Collateral) , as if the Liens (if any) of the Notes Fixed Asset Collateral Agents and Fixed Asset Claimholders did not exist and (ii) until the Discharge of Fixed Asset Obligations has occurred, the Controlling Fixed Asset Collateral Agent shall be entitled to deal with the Pledged Collateral or Collateral within its “control” in accordance with the terms of this Agreement and other Fixed Asset Documents, but only to the extent that such Collateral constitutes Fixed Asset Priority Collateral, as if the Liens of the ABL Collateral Agent and ABL Claimholders did not exist. In furtherance of the foregoing, promptly following the occurrence of the Discharge of ABL Obligations, unless a New Debt Notice in respect of new ABL Credit Documents shall have been delivered as provided in Section 5.05, the ABL Collateral Agent hereby agrees to deliver, at the cost and expense of the Credit Parties, to each bank and securities intermediary, if any, that is counterparty to a deposit account control agreement or securities account control agreement, as applicable, written notice as contemplated in such deposit account control agreement or securities account control agreement, as applicable, directing such bank or securities intermediary, as applicable, to comply with the instructions of the Controlling Fixed Asset Collateral Agent, unless the Discharge of Fixed Asset Obligations has occurred (as certified to the ABL Collateral Agent by the Company), in which case, such deposit account control agreement or securities account control agreement, as the case may be, shall be terminated in accordance with its terms.
(cf) The Revolving Credit Notwithstanding anything in this Agreement to the contrary:
(i) each of the ABL Collateral Agent, for itself and on behalf of the ABL Claimholders, agrees that any requirement under any ABL Collateral Document that any Grantor deliver any Collateral that constitutes Fixed Asset Priority Collateral to the ABL Collateral Agent, or that requires any Grantor to vest the ABL Collateral Agent acting pursuant with possession or “control” (as defined in the UCC) of any Collateral that constitutes Fixed Asset Priority Collateral, in each case, shall be deemed satisfied to this Section 5.4 shall not have by reason the extent that, prior to the occurrence of the Revolving Credit Documents, this Agreement or any other document a fiduciary relationship with the Notes Collateral Agent or any Notes Claimholder with respect to such acts.
(d) Upon the Discharge of Revolving Credit ObligationsFixed Asset Obligations (other than contingent indemnification obligations for which no claim has been made), such Collateral is delivered to the US Revolving Credit Controlling Fixed Asset Collateral Agents, or the Controlling Fixed Asset Collateral Agents shall have been vested with such possession or (unless, pursuant to the UCC, control may be given concurrently to the ABL Collateral Agent and the Controlling Fixed Asset Collateral Agent) “control”, in each case, subject to the provisions of Section 5.04;
(ii) each Fixed Asset Collateral Agent, for itself and on behalf of the applicable Fixed Asset Claimholders, agrees that any requirement under any applicable Fixed Asset Collateral Document that any Grantor deliver any Collateral that constitutes ABL Priority Collateral to such Fixed Asset Collateral Agent, or that requires any Grantor to vest such Fixed Asset Collateral Agent with possession or “control” (as defined in the UCC) of any Collateral that constitutes ABL Priority Collateral, in each case, shall be deemed satisfied to the extent that, prior to the occurrence of the Discharge of ABL Obligations (other than contingent indemnification obligations for which no claim has been made), such Collateral is delivered to the ABL Collateral Agent, or the ABL Collateral Agent shall deliver the remaining Pledged Collateral (if any) together have been vested with any necessary endorsementssuch possession or “control”, in each case, subject to the Notes provisions of Section 5.04;
(iii) each of the Fixed Asset Collateral Agents, for itself and on behalf of the applicable Fixed Asset Claimholders, agrees that any requirement under any Fixed Asset Collateral Document that any Grantor deliver any Collateral that constitutes Fixed Asset Collateral to such Fixed Asset Collateral Agent, or that requires any Grantor to vest such Fixed Asset Collateral Agent with possession or “control” (as defined in the UCC) of any Collateral that constitutes Fixed Asset Collateral, in each case, shall be deemed satisfied to the extent that, prior to the Notes occurrence of the Discharge of Initial Fixed Asset Obligations (other than contingent indemnification obligations for which are secured by no claim has been made), such Pledged Collateral remain outstanding (so as is delivered to allow the Notes Controlling Fixed Asset Collateral Agent, or the Controlling Fixed Asset Collateral Agent to obtain shall have been vested with such possession or control “control”, in each case, subject to the provisions of such Pledged Collateral). The US Revolving Credit Collateral Agent further agrees to take all other action reasonably requested by the Notes Collateral Agent in connection with the Notes Collateral Agent obtaining a first-priority interest in the Collateral or as a court of competent jurisdiction may otherwise directSection 5.04.
Appears in 1 contract
Bailees for Perfection. (a) The US Revolving Credit Collateral Each Agent agrees to hold or control that part of the Collateral (excluding any Deposit Accounts (as defined in the ABL Credit Agreement)) that is in its respective possession or control (or in the possession or control of its agents or bailees) ), if any, to the extent that possession or control thereof is taken to perfect a Lien thereon under the UCC or other applicable law (such Collateral being referred to as the “Pledged Collateral”) as collateral agent for each of the Revolving Credit Claimholders, Claimholders and as bailee for each of the Notes Collateral Agent Agents (such bailment being intended, among other things, to satisfy the requirements of Sections 8-106(d)(3301(a)(2), 89-301(a)(2) 313(c), 9-104, 9-105, 9-106, and 9-313(c) 107 of the UCC) and any assignee solely for the purpose of perfecting the security interest granted under the Revolving Credit ABL Loan Documents, the Senior Lien Loan Documents, the First Lien Loan Documents and the Notes Junior Lien Loan Documents, as applicable, subject to the terms and conditions of this Section 5.4. Unless and until the Discharge of ABL Priority Obligations, each other Agent agrees to promptly notify ABL Agent of any Pledged Collateral held by it or by any of its respective Claimholders, and, immediately upon the request of ABL Agent at any time prior to the Discharge of ABL Priority Obligations, each other Agent agrees to deliver to ABL Agent any such Pledged Collateral held by it or by any of its respective Claimholders, together with any necessary endorsements (or otherwise allow ABL Agent to obtain control of such Pledged Collateral). [ABL Agent hereby agrees that upon the Discharge of ABL Priority Obligations, upon the written request of any other Agent, to the extent that the applicable control agreement is in full force and effect and has not been terminated, ABL Agent shall continue to act as such a bailee and non-fiduciary agent for such other Agent (solely for the purpose of perfecting the security interest granted under the applicable Loan Documents and at the expense of such other Agent) with respect to the deposit account or securities account that is the subject of such control agreement, until the earlier to occur of (i) 30 days after the date when the Discharge of ABL Priority Obligations has occurred, and (ii) the date when a control agreement is executed in favor of such other Agent with respect to such deposit account or securities account.
(b) The US Revolving Credit Collateral Agent No Person shall have no any obligation whatsoever to the Notes Collateral Agent or to any Notes Claimholder other Person to ensure that the Pledged Collateral is genuine or owned by any of the Grantors or to preserve rights or benefits of any Person except as expressly set forth in this Section 5.4. The duties or responsibilities of the US Revolving Credit Collateral Agent under this Section 5.4 shall be limited solely to holding or controlling the Pledged Collateral as bailee or agent in accordance with this Section 5.4 and delivering the Pledged Collateral upon a Discharge of Revolving Credit ABL Priority Obligations, Discharge of Senior Lien Priority Obligations, Discharge of First Lien Priority Obligations or Discharge of Junior Lien Priority Obligations, as the case may be, as provided in paragraph clauses (dd)-(g) below, so that, subject to the terms of this Agreement, until a Discharge of Revolving Credit Obligations, the US Revolving Credit Collateral Agent shall be entitled to deal with the Pledged Collateral or Collateral within its “control” in accordance with the terms of this Agreement and other Revolving Credit Documents (but only to the extent that such Collateral constitutes Revolving Credit Primary Collateral) as if the Liens (if any) of the Notes Collateral Agent did not exist.
(c) The Revolving Credit Collateral Agent No Person acting pursuant to this Section 5.4 shall not have by reason of the Revolving Credit ABL Loan Documents, the Senior Lien Loan Documents, the First Lien Loan Documents, the Junior Lien Loan Documents or this Agreement or any other document Agreement, a fiduciary relationship with the Notes Collateral Agent or any Notes Claimholder other Person with respect to such acts.
(d) Upon the Discharge of Revolving Credit ABL Priority Obligations, the US Revolving Credit Collateral ABL Agent shall deliver the remaining Pledged Collateral (if any) together with any necessary endorsements, first, to the Notes Collateral Senior Lien Agent to the extent the Notes Senior Lien Obligations which are secured by such Pledged Collateral remain outstanding outstanding, second, if the Discharge of Senior Lien Priority Obligations has occurred, to the First Lien Agent to the extent the First Lien Obligations which are secured by such Pledged Collateral remain outstanding, third, if the Discharge of First Lien Priority Obligations has occurred, to the Junior Lien Agent to the extent the Junior Lien Obligations which are secured by such Pledged Collateral remain outstanding, fourth, if the Discharge of Junior Lien Priority Obligations has occurred, to the ABL Agent to the extent the ABL Obligations which are secured by such Pledged Collateral remain outstanding, fifth, to the Agent holding the most senior Prior Lien, to be applied in accordance with the relative priorities set out in Section 2.1 to the extent any Obligations secured by Pledged Collateral remain outstanding, and sixth, thereafter to the applicable Grantor (in each case, so as to allow the Notes Collateral Agent such Person to obtain possession or control of such Pledged Collateral). The US Revolving Credit Collateral ABL Agent further agrees to take all other action reasonably requested by the Notes Collateral Senior Lien Agent, First Lien Agent or Junior Lien Agent, as applicable, in connection with the Notes Collateral either such Agent obtaining a first-priority interest in the Collateral (to the extent provided herein) or as a court of competent jurisdiction may otherwise direct.
(e) Upon the Discharge of Senior Lien Priority Obligations, the Senior Lien Agent shall deliver the remaining Pledged Collateral (if any) together with any necessary endorsements, first, to the First Lien Agent to the extent the First Lien Priority Obligations which are secured by such Pledged Collateral remain outstanding, second, to the Junior Lien Agent to the extent the Junior Lien Priority Obligations which are secured by such Pledged Collateral remain outstanding, third, if the Discharge of Junior Lien Priority Obligations has occurred, to the ABL Agent to the extent the ABL Obligations which are secured by such Pledged Collateral remain outstanding, fourth, to the Agent holding the most senior Prior Lien, to be applied in accordance with the relative priorities set out in Section 2.1 to the extent any Obligations secured by Pledged Collateral remain outstanding, and fifth, thereafter to the applicable Grantor (in each case, so as to allow such Person to obtain possession or control of such Pledged Collateral). The Senior Lien Agent further agrees to take all other action reasonably requested by the First Lien Agent or Junior Lien Agent, as applicable, in connection with either such Agent obtaining a first- priority interest in the Collateral (to the extent provided herein) or as a court of competent jurisdiction may otherwise direct.
(f) Upon the Discharge of First Lien Priority Obligations, the First Lien Agent shall deliver the remaining Pledged Collateral (if any) together with any necessary endorsements, first, to the Junior Lien Agent to the extent the Junior Lien Priority Obligations which are secured by such Pledged Collateral remain outstanding, second, if the Discharge of Junior Lien Priority Obligations has occurred, to the ABL Agent to the extent the ABL Obligations which are secured by such Pledged Collateral remain outstanding, third, to the Agent holding the most senior Prior Lien, to be applied in accordance with the relative priorities set out in Section 2.1 to the extent any Obligations secured by Pledged Collateral remain outstanding, and fourth, thereafter to the applicable Grantor (in each case, so as to allow such Person to obtain possession or control of such Pledged Collateral). The First Lien Agent further agrees to take all other action reasonably requested by the Junior Lien Agent in connection with either such Agent obtaining a first-priority interest in the Collateral (to the extent provided herein) or as a court of competent jurisdiction may otherwise direct.
(g) Upon the Discharge of Junior Lien Priority Obligations, the Junior Lien Agent shall deliver the remaining Pledged Collateral (if any) together with any necessary endorsements, first, to the ABL Agent to the extent the ABL Obligations which are secured by such Pledged Collateral remain outstanding, second, to the Agent holding the most senior Prior Lien, to be applied in accordance with the relative priorities set out in Section 2.1 to the extent any Obligations secured by Pledged Collateral remain outstanding, and third, thereafter to the applicable Grantor (in each case, so as to allow such Person to obtain possession or control of such Pledged Collateral).
Appears in 1 contract
Samples: Intercreditor Agreement
Bailees for Perfection. (a) The US Revolving Credit Except as provided in Section 2.5, each Collateral Agent agrees to hold that part of the Collateral that is in its possession or control (or in the possession or control of its agents or bailees) to the extent that possession or control thereof is taken to perfect a Lien thereon under the UCC (such Collateral being the “Pledged Collateral”) as collateral agent for the Revolving Credit Claimholders or the Fixed Asset Claimholders, as the case may be, and as bailee for the Notes other Collateral Agent Agents (such agency and bailment being intended, among other things, to satisfy the requirements of Sections 8-106(d)(3), 8-301(a)(2), 9-104(a) and 9-313(c) of the UCC) and any assignee solely for the purpose of perfecting the security interest granted under the Revolving Credit Documents and the Notes Fixed Asset Documents, as applicablerespectively, subject to the terms and conditions of this Section 5.4.
(b) The US Revolving Credit No Collateral Agent shall have no any obligation whatsoever to the Notes other Collateral Agent Agents, to any Revolving Credit Claimholder, or to any Notes Fixed Asset Claimholder to ensure that the Pledged Collateral is genuine or owned by any of the Grantors or to preserve rights or benefits of any Person except as expressly set forth in this Section 5.4. The duties or responsibilities of the US Revolving Credit respective Collateral Agent Agents under this Section 5.4 shall be limited solely to holding the Pledged Collateral as agent and bailee in accordance with this Section 5.4 and delivering the Pledged Collateral upon a Discharge of Revolving Credit Obligations or Discharge of Fixed Asset Obligations, as the case may be, as provided in paragraph (d) below.
(c) No Collateral Agent acting pursuant to this Section 5.4 shall have by reason of the Revolving Credit Documents, the Fixed Asset Documents, this Agreement or any other document a fiduciary relationship in respect of the other Collateral Agent, or any Revolving Credit Claimholders or any Fixed Asset Claimholders. Each Collateral Agent, for itself and on behalf of each applicable Credit Party represented thereby, hereby waives and releases the other Collateral Agent from all claims and liabilities arising pursuant to such Collateral Agent’s role under this Section 5.4 as bailee with respect to the applicable Pledged Collateral.
(d) Upon the Discharge of Revolving Credit Obligations or the Discharge of Fixed Asset Obligations, as the case may be, the Collateral Agent under the debt facility which has been discharged shall deliver the remaining Pledged Collateral (if any) together with any necessary endorsements and without recourse or warranty, first, to the other Collateral Agent (for the avoidance of doubt, in the case of the Discharge of Revolving Credit Obligations, to the Controlling Fixed Asset Collateral Agent) to the extent the other Obligations (other than Contingent Obligations) remain outstanding, and second, to the applicable Grantor to the extent no Revolving Credit Obligations or Fixed Asset Obligations, as the case may be, remain outstanding (in each case, so thatas to allow such Person to obtain possession or control of such Pledged Collateral). Each Collateral Agent further agrees, subject to the extent that any other Obligations (other than applicable Contingent Obligations) remain outstanding, to take all other commercially reasonable action as shall be reasonably requested by the Revolving Credit Collateral Agent or Controlling Fixed Asset Collateral Agent, as the case may be, at the sole cost and expense of the Credit Parties, to permit such Collateral Agent to obtain, for the benefit of the Revolving Credit Claimholders or Fixed Asset Claimholders, as applicable, a first-priority interest in the Collateral or as a court of competent jurisdiction may otherwise direct.
(e) Subject to the terms of this Agreement, until a (i) so long as the Discharge of Revolving Credit ObligationsObligations has not occurred, the US Revolving Credit Collateral Agent shall be entitled to deal with the Pledged Collateral or Collateral within its “control” in accordance with the terms of this Agreement and other Revolving Credit Documents (Documents, but only to the extent that such Collateral constitutes Revolving Credit Primary ABL Collateral) , as if the Liens (if any) of the Notes Fixed Asset Collateral Agents and Fixed Asset Claimholders did not exist and (ii) so long as the Discharge of Fixed Asset Obligations has not occurred, the Controlling Fixed Asset Collateral Agent did not exist.
(c) The shall be entitled to deal with the Pledged Collateral or Collateral within its “control” in accordance with the terms of this Agreement and other Fixed Asset Documents, but only to the extent that such Collateral constitutes Fixed Asset Collateral, as if the Liens of the Revolving Credit Collateral Agent acting pursuant to this Section 5.4 shall and Revolving Credit Claimholders did not have by reason exist. In furtherance of the Revolving Credit Documentsforegoing, this Agreement or any other document a fiduciary relationship with the Notes Collateral Agent or any Notes Claimholder with respect to such acts.
(d) Upon promptly following the Discharge of Revolving Credit Obligations, unless a New Debt Notice in respect of new Revolving Credit Documents shall have been delivered as provided in Section 5.5 below, the US Revolving Credit Collateral Agent hereby agrees to deliver, at the cost and expense of the Credit Parties, to each bank and securities intermediary, if any, that is counterparty to a Blocked Account Agreement, written notice as contemplated in such Blocked Account Agreement, directing such bank or securities intermediary, as applicable, to comply with the instructions of the Controlling Fixed Asset Collateral Agent, unless the Discharge of Fixed Asset Obligations has occurred, in which case, such Deposit Account Control Agreement or Securities Account Control Agreement, as the case may be, shall be terminated.
(f) Notwithstanding anything in this Agreement to the contrary:
(1) each of the Revolving Credit Collateral Agent, for itself and on behalf of the Revolving Credit Claimholders, agrees that any requirement under any Revolving Credit Collateral Document that any Grantor deliver any Collateral that constitutes Fixed Asset Collateral to the Revolving Credit Collateral Agent, or that requires any Grantor to vest the Revolving Credit Collateral Agent with possession or “control” (as defined in the UCC) of any Collateral that constitutes Fixed Asset Collateral, in each case, shall be deemed satisfied to the extent that, prior to the Discharge of Fixed Asset Obligations (other than Contingent Obligations), such Collateral is delivered to the Controlling Fixed Asset Collateral Agent, or the Controlling Fixed Asset Collateral Agent shall have been vested with such possession or (unless, pursuant to the UCC, control may be given concurrently to the Revolving Credit Collateral Agent and the Controlling Fixed Asset Collateral Agent) “control,” in each case, subject to the provisions of Section 5.4; and
(2) each of the Fixed Asset Collateral Agents, for itself and on behalf of the applicable Fixed Asset Claimholders, agrees that any requirement under any Fixed Asset Collateral Document that any Grantor deliver any Collateral that constitutes ABL Collateral to such Fixed Asset Collateral Agent, or that requires any Grantor to vest such Fixed Asset Collateral Agent with possession or “control” (as defined in the UCC) of any Collateral that constitutes ABL Collateral, in each case, shall be deemed satisfied to the extent that, prior to the Discharge of Revolving Credit Obligations (other than Contingent Obligations), such Collateral is delivered to the Revolving Credit Collateral Agent, or the Revolving Credit Collateral Agent shall deliver the remaining Pledged Collateral have been vested with such possession or (if any) together with any necessary endorsementsunless, pursuant to the Notes UCC, control may be given concurrently to the Controlling Fixed Asset Collateral Agent to and the extent the Notes Obligations which are secured by such Pledged Collateral remain outstanding (so as to allow the Notes Collateral Agent to obtain possession or control of such Pledged Collateral). The US Revolving Credit Collateral Agent further agrees Agent) “control,” in each case, subject to take all other action reasonably requested by the Notes Collateral Agent in connection with the Notes Collateral Agent obtaining a first-priority interest in the Collateral or as a court provisions of competent jurisdiction may otherwise directSection 5.4.
Appears in 1 contract
Samples: Intercreditor Agreement (Petco Health & Wellness Company, Inc.)
Bailees for Perfection. (a) The US Revolving Credit Each Collateral Agent agrees to hold that part of the Collateral that is in its possession or control (or in the possession or control of its agents or bailees) to the extent that possession or control thereof is taken to perfect a Lien thereon under the UCC (such Collateral being the “Pledged Collateral”) as collateral agent for the Revolving Credit Claimholders or the Fixed Asset Claimholders, as the case may be, and as bailee for the Notes other Collateral Agent Agents (such bailment being intended, among other things, to satisfy the requirements of Sections 8-106(d)(3), 8-301(a)(2) and 9-313(c) of the UCC) and any assignee solely for the purpose of perfecting the security interest granted under the Revolving Credit Documents and the Notes Fixed Asset Documents, as applicablerespectively, subject to the terms and conditions of this Section 5.4.
(b) The US Revolving Credit No Collateral Agent shall have no any obligation whatsoever to the Notes other Collateral Agent Agents, to any Revolving Credit Claimholder, or to any Notes Fixed Asset Claimholder to ensure that the Pledged Collateral is genuine or owned by any of the Grantors or to preserve rights or benefits of any Person except as expressly set forth in this Section 5.4. The duties or responsibilities of the US Revolving Credit respective Collateral Agent Agents under this Section 5.4 shall be limited solely to holding the Pledged Collateral as bailee in accordance with this Section 5.4 and delivering the Pledged Collateral upon a Discharge of Revolving Credit Obligations or Discharge of Fixed Asset Obligations, as the case may be, as provided in paragraph (d) below.
(c) No Collateral Agent acting pursuant to this Section 5.4 shall have by reason of the Revolving Credit Documents, the Fixed Asset Documents, this Agreement or any other document a fiduciary relationship in respect of the other Collateral Agent, or any Revolving Credit Claimholders or any Fixed Asset Claimholders.
(d) Upon the Discharge of Revolving Credit Obligations or the Discharge of Fixed Asset Obligations, as the case may be, the Collateral Agent under the debt facility which has been discharged shall deliver the remaining Pledged Collateral (if any) together with any necessary endorsements and without recourse or warranty, first, to the other Collateral Agent (for the avoidance of doubt, in the case of the Discharge of Revolving Credit Obligations, to the Controlling Fixed Asset Collateral Agent) to the extent the other Obligations (other than Contingent Obligations) remain outstanding, and second, to the applicable Grantor to the extent no Revolving Credit Obligations or Fixed Asset Obligations (in each case, other than Contingent Obligations not yet due and payable), as the case may be, remain outstanding (in each case, so thatas to allow such Person to obtain possession or control of such Pledged Collateral). Each Collateral Agent further agrees, subject to the extent that any other Obligations (other than applicable Contingent Obligations) remain outstanding, to take all other commercially reasonable action as shall be reasonably requested by the other Collateral Agent, at the sole cost and expense of the Credit Parties, to permit such other Collateral Agent to obtain, for the benefit of the Revolving Credit Claimholders or Fixed Asset Claimholders, as applicable, a first-priority interest in the Collateral or as a court of competent jurisdiction may otherwise direct.
(e) Subject to the terms of this Agreement, until a (i) so long as the Discharge of Revolving Credit ObligationsObligations has not occurred, the US Revolving Credit Collateral Agent shall be entitled to deal with the Pledged Collateral or Collateral within its “control” in accordance with the terms of this Agreement and other Revolving Credit Documents (Documents, but only to the extent that such Collateral constitutes Revolving Credit Primary ABL Collateral) , as if the Liens (if any) of the Notes Fixed Asset Collateral Agents and Fixed Asset Claimholders did not exist and (ii) so long as the Discharge of Fixed Asset Obligations has not occurred, the Controlling Fixed Asset Collateral Agent did not exist.
(c) The shall be entitled to deal with the Pledged Collateral or Collateral within its “control” in accordance with the terms of this Agreement and other Fixed Asset Documents, but only to the extent that such Collateral constitutes Fixed Asset Collateral, as if the Liens of the Revolving Credit Collateral Agent acting pursuant to this Section 5.4 shall and Revolving Credit Claimholders did not have by reason exist. In furtherance of the Revolving Credit Documentsforegoing, this Agreement or any other document a fiduciary relationship with the Notes Collateral Agent or any Notes Claimholder with respect to such acts.
(d) Upon promptly following the Discharge of Revolving Credit Obligations, unless a New Debt Notice in respect of new Revolving Credit Documents shall have been delivered as provided in Section 5.5 below, the US Revolving Credit Collateral Agent hereby agrees to deliver, at the cost and expense of the Credit Parties, to each Approved Deposit Account Bank and Approved Securities Intermediary, if any, that is counterparty to a Deposit Account Control Agreement or Securities Account Control Agreement, as applicable, written notice as contemplated in such Deposit Account Control Agreement or Securities Account Control Agreement, as applicable, directing such Approved Deposit Account Bank or Approved Securities Intermediary, as applicable, to comply with the instructions of the Controlling Fixed Asset Collateral Agent, unless the Discharge of Fixed Asset Obligations has occurred (as certified to the Revolving Credit Collateral Agent by the Borrower), in which case, such Deposit Account Control Agreement or Securities Account Control Agreement, as the case may be, shall be terminated.
(f) Notwithstanding anything in this Agreement to the contrary:
(1) each of the Revolving Credit Collateral Agent, for itself and on behalf of the Revolving Credit Claimholders, agrees that any requirement under any Revolving Credit Collateral Document that any Grantor deliver any Collateral that constitutes Fixed Asset Collateral to the Revolving Credit Collateral Agent, or that requires any Grantor to vest the Revolving Credit Collateral Agent with possession or “control” (as defined in the UCC) of any Collateral that constitutes Fixed Asset Collateral, in each case, shall be deemed satisfied to the extent that, prior to the Discharge of Fixed Asset Obligations (other than Contingent Obligations), such Collateral is delivered to the Controlling Fixed Asset Collateral Agents, or the Controlling Fixed Asset Collateral Agents shall have been vested with such possession or (unless, pursuant to the UCC, control may be given concurrently to the Revolving Credit Collateral Agent and the Controlling Fixed Asset Collateral Agent) “control,” in each case, subject to the provisions of Section 5.4; and
(2) each of the Fixed Asset Collateral Agents, for itself and on behalf of the applicable Fixed Asset Claimholders, agrees that any requirement under any Fixed Asset Collateral Document that any Grantor deliver any Collateral that constitutes ABL Collateral to such Fixed Asset Collateral Agent, or that requires any Grantor to vest such Fixed Asset Collateral Agent with possession or “control” (as defined in the UCC) of any Collateral that constitutes ABL Collateral, in each case, shall be deemed satisfied to the extent that, prior to the Discharge of Revolving Credit Obligations (other than Contingent Obligations), such Collateral is delivered to the Revolving Credit Collateral Agent, or the Revolving Credit Collateral Agent shall deliver the remaining Pledged Collateral have been vested with such possession or (if any) together with any necessary endorsementsunless, pursuant to the Notes UCC, control may be given concurrently to the Fixed Asset Collateral Agent to and the extent the Notes Obligations which are secured by such Pledged Collateral remain outstanding (so as to allow the Notes Collateral Agent to obtain possession or control of such Pledged Collateral). The US Revolving Credit Collateral Agent further agrees Agent) “control,” in each case, subject to take all other action reasonably requested by the Notes Collateral Agent in connection with the Notes Collateral Agent obtaining a first-priority interest in the Collateral or as a court provisions of competent jurisdiction may otherwise directSection 5.4.
Appears in 1 contract
Bailees for Perfection. (ai) The US Revolving Credit Collateral Each Agent agrees to hold that part of the Collateral that is in its possession or control (or in the possession or control of its agents or bailees) to the extent that possession or control thereof is taken to perfect a Lien thereon under the UCC (such Collateral being the “Pledged Collateral”) as collateral agent for the Revolving Credit Claimholders or the Term Loan Claimholders or the Additional Pari Passu Claimholders, as the case may be, and as bailee on behalf of and for the Notes Collateral benefit of each other Agent (such bailment being intended, among other things, to satisfy the requirements of Sections 8-106(d)(3), 8-301(a)(2) and 9-313(c) of the UCC) and any assignee of such other Agent’s assignees solely for the purpose of perfecting the security interest granted under the Revolving Credit Facility Credit Documents, the Term Loan Credit Documents and the Notes applicable Additional Pari Passu Credit Documents, as applicablerespectively, subject to the terms and conditions of this Section 5.4.
(bii) The US Revolving Credit To the extent a junior pledge of or junior lien on any Fixed Asset Collateral (solely under clause (g) of such definition) is prohibited or unenforceable under the law of any applicable jurisdiction outside the United States, the Term Loan Collateral Agent shall accept a Lien on any such Fixed Asset Collateral as sub-agent for the Revolving Credit Facility Collateral Agent, for the benefit of the Revolving Credit Claimholders, solely for the purpose of the creation and/or perfection of Liens in such Fixed Asset Collateral to secure the Revolving Credit Obligations, and subject to the terms and conditions of this Agreement, it being expressly understood and agreed that the claims of the Revolving Credit Claimholders in respect of such Fixed Asset Collateral shall be subordinated to the claims of the Term Loan Claimholders and any Additional Pari Passu Claimholders in respect of such Fixed Asset Collateral on the same basis as the Liens on the other Fixed Asset Collateral securing any Revolving Credit Obligations are subordinated to the Liens on such other Fixed Asset Collateral securing any Term Loan Obligations and any Additional Pari Passu Obligations, and nothing in this Section 5.4 shall affect the status of such Collateral as Fixed Asset Collateral.
(iii) In the event the Term Loan Collateral Agent becomes subject to liability, or suffers any costs, damages or expenses as a result of acting in any such capacity under Section 5.4(a)(ii) for the Revolving Credit Facility Collateral Agent or the Revolving Credit Claimholders, (A) the Grantors shall pay, reimburse, indemnify and hold harmless the Term Loan Collateral Agent for any such liabilities, costs, damages or expenses subject to the limitation set forth in Section 9.05 of the Term Loan Agreement (but without giving effect to clause (B) of the first proviso to Section 9.05(b)) to the extent applicable and (B) in the event the Grantors fail to so pay, reimburse, indemnify and hold harmless the Term Loan Collateral Agent, the Revolving Credit Claimholders shall pay, reimburse, indemnify and hold harmless the Term Loan Collateral Agent for any such liabilities, costs, damages or expenses.
(iv) To the extent a junior pledge of or junior lien on any Current Asset Collateral is prohibited or unenforceable under the law of any applicable jurisdiction outside the United States, the Revolving Credit Facility Collateral Agent may, in its sole discretion, elect to accept a Lien on any such Current Asset Collateral as sub-agent for the Term Loan Collateral Agent, for the benefit of the Term Loan Claimholders, and for any applicable Additional Pari Passu Debt Representative, for itself and on behalf of the Additional Pari Passu Claimholders, solely for the purpose of the creation and/or perfection of Liens in such Current Asset Collateral to secure the Term Loan Obligations or the Additional Pari Passu Obligations, as the case may be, and subject to the terms and conditions of this Agreement, it being expressly understood and agreed that the claims of the Term Loan Claimholders and the Additional Pari Passu Claimholders in respect of such Current Asset Collateral shall be subordinated to the claims of the Revolving Credit Claimholders in respect of such Current Asset Collateral on the same basis as the Liens on the other Current Asset Collateral securing any Term Loan Obligations and any Additional Pari Passu Obligations are subordinated to the Liens on such other Current Asset Collateral securing any Revolving Credit Obligations, and nothing in this Section 5.4 shall affect the status of such Collateral as Current Asset Collateral.
(v) In the event the Revolving Credit Facility Collateral Agent becomes subject to liability, or suffers any costs, damages or expenses as a result of acting in any such capacity under Section 5.4(a)(iv) for the Term Loan Collateral Agent, the Term Loan Claimholders, the Additional Pari Passu Debt Representative or the Additional Pari Passu Claimholders, (A) the Grantors shall pay, reimburse, indemnify and hold harmless the Revolving Credit Facility Collateral Agent for any such liabilities, costs, damages or expenses subject to the limitation set forth in Section 9.05 of the Revolving Credit Agreement (but without giving effect to clause (B) of the first proviso to Section 9.05(b)) to the extent applicable and (B) in the event the Grantors fail to so pay, reimburse, indemnify and hold harmless the Revolving Credit Facility Collateral Agent, the Term Loan Claimholders or Additional Pari Passu Claimholders, as applicable, shall pay, reimburse, indemnify and hold harmless the Revolving Credit Facility Collateral Agent for any such liabilities, costs, damages or expenses.
(b) No Agent shall have no any obligation whatsoever to the Notes Collateral Agent any other Agent, to any Revolving Credit Claimholder, to any Term Loan Claimholder or to any Notes Claimholder Additional Pari Passu Claimholders to ensure that the Pledged any Collateral is genuine or owned by any of the Grantors or to preserve rights or benefits of any Person except as expressly set forth in this Section 5.4. The duties or responsibilities of the US Revolving Credit Collateral Agent respective Agents under this Section 5.4 shall be limited solely to (i) holding the Pledged Collateral as collateral agent and/or bailee in accordance with this Section 5.4 and delivering the Pledged Collateral upon a Discharge of Revolving Credit Obligations, a Discharge of Term Loan Obligations or a Discharge of Additional Pari Passu Obligations, as the case may be, as provided in paragraph (d) belowbelow and (ii) holding a Lien on Fixed Asset Collateral (in the case of the Term Loan Collateral Agent) or Current Asset Collateral (in the case of the Revolving Credit Facility Collateral Agent) as sub-agent for the other Agent in accordance with this Section 5.4.
(c) No Agent acting pursuant to this Section 5.4 shall have by reason of the Revolving Credit Facility Credit Documents, the Term Loan Credit Documents, the Additional Pari Passu Credit Documents, this Agreement or any other document a fiduciary relationship in respect of any other Agent, or any Revolving Credit Claimholders, any Term Loan Claimholders or any Additional Pari Passu Claimholders.
(d) Upon the Discharge of Revolving Credit Obligations, the Discharge of Additional Pari Passu Obligations or the Discharge of Term Loan Obligations, as the case may be, the Agent under the credit facility which has been discharged shall deliver the remaining Pledged Collateral in its (or its agents’) possession or control (if any) together with any necessary endorsements and without recourse or warranty, first, (i) in the case of the Additional Pari Passu Debt Representative to the Term Loan Collateral Agent to the extent the Term Loan Obligations (other than Contingent Obligations) remain outstanding and if not, then to the Revolving Credit Facility Agent, (ii) in the case of the Revolving Credit Facility Agent to the Designated Fixed Asset Collateral Representative on behalf of the Term Loan Collateral Agent to the extent the Term Loan Obligations (other than Contingent Obligations) remain outstanding and the Additional Pari Passu Debt Representatives to the extent of any outstanding Additional Pari Passu Obligations, and (iii) in the case of the Term Loan Collateral Agent, to the Designated Fixed Asset Collateral Representative on behalf of the applicable Additional Pari Passu Debt Representatives to the extent any Additional Pari Passu Obligations remains outstanding, and second, to the applicable Grantor to the extent no Revolving Credit Obligations, no Additional Pari Passu Obligations and no Term Loan Obligations remain outstanding (in each case, so thatas to allow such Person to obtain possession or control of such Pledged Collateral). Each Agent further agrees, subject to the extent that any other Obligations (other than Contingent Obligations) remain outstanding, to take all other commercially reasonable action as shall be reasonably requested by the Agent obtaining possession or control, at the sole cost and expense of such Agent obtaining possession or control or of the Credit Parties, to permit such other Agent to obtain, for the benefit of the Revolving Credit Claimholders, the Term Loan Claimholders or the Additional Pari Passu Claimholders, as applicable, a first-priority security interest in the Collateral or as a court of competent jurisdiction may otherwise direct.
(e) Subject to the terms of this Agreement, until a (i) so long as the Discharge of Revolving Credit ObligationsObligations has not occurred, the US Revolving Credit Facility Collateral Agent shall be entitled to deal with the Pledged Collateral or Collateral within its “control” in accordance with the terms of this Agreement and other Revolving Credit Documents (Facility Credit Documents, but only to the extent that such Collateral constitutes Revolving Credit Primary Current Asset Collateral) , as if the Liens (if any) of the Notes Term Loan Collateral Agent, the Term Loan Claimholders, the Additional Pari Passu Debt Representative and the Additional Pari Passu Claimholders did not exist and (ii) so long as the Discharge of Term Loan Obligations and the Discharge of Additional Pari Passu Obligations have not occurred, the Designated Fixed Asset Collateral Representative shall be entitled to deal with the Pledged Collateral or Collateral within its “control” on behalf of the Term Loan Collateral Agent did not exist.
(c) The Revolving and the applicable Additional Pari Passu Debt Representatives in accordance with the terms of this Agreement, the other Term Loan Credit Documents and the other Additional Pari Passu Credit Documents, but only to the extent that such Collateral Agent acting pursuant to this Section 5.4 shall not have by reason constitutes Fixed Asset Collateral, as if the Liens of the Revolving Credit Documents, this Agreement or any other document a fiduciary relationship with the Notes Facility Collateral Agent or any Notes Claimholder with respect to such acts.
(d) Upon and Revolving Credit Claimholders did not exist. In furtherance of the foregoing, promptly following the Discharge of Revolving Credit Obligations, the US unless a New Debt Notice in respect of new Revolving Credit Facility Credit Documents shall have been delivered as provided in Section 5.5 below, the Revolving Credit Facility Collateral Agent hereby agrees to deliver, at the cost and expense of the Grantors, to each financial institution depository or securities intermediary, if any, that is counterparty to an Account Agreement, written notice as contemplated in such Account Agreement, directing such financial institution depository or securities intermediary, as applicable, to comply with the instructions of the Designated Fixed Asset Collateral Representative on behalf of the Term Loan Collateral Agent and the applicable Additional Pari Passu Debt Representative, unless the Discharge of Term Loan Obligations and the Discharge of Additional Pari Passu Obligations has occurred (as notified to the Revolving Credit Facility Collateral Agent by the Term Loan Collateral Agent and applicable Additional Pari Passu Debt Representatives), in which case, such Account Agreement shall be terminated.
(f) Notwithstanding anything in this Agreement to the contrary:
(1) the Revolving Credit Facility Collateral Agent, for itself and on behalf of the Revolving Credit Claimholders, agrees that any requirement under any Revolving Credit Facility Security Document that any Grantor deliver any Collateral that constitutes Fixed Asset Collateral to the Revolving Credit Facility Collateral Agent, or that requires any Grantor to vest the Revolving Credit Facility Collateral Agent with possession or “control” (as defined in the UCC) of any Collateral that constitutes Fixed Asset Collateral, in each case, shall be deemed satisfied to the extent that, prior to the Discharge of Term Loan Obligations and Discharge of Additional Pari Passu Obligations, such Collateral is delivered to the Designated Fixed Asset Collateral Representative, or the Designated Fixed Asset Collateral Representative shall have been vested with such possession or (unless, pursuant to the UCC, control may be given concurrently to the Revolving Credit Facility Collateral Agent and the Designated Fixed Asset Collateral Representative) “control”, in each case, subject to the provisions of Section 5.4; and
(2) the Term Loan Collateral Agent, for itself and on behalf of the Term Loan Claimholders, and Additional Pari Passu Debt Representative, for itself and on behalf of the Additional Pari Passu Claimholders, in each case agrees that any requirement under any Term Loan Security Document or under any Additional Pari Passu Credit Documents that any Grantor deliver any Collateral that constitutes Current Asset Collateral to the Term Loan Collateral Agent or to an Additional Pari Passu Debt Representative, or that requires any Grantor to vest the Term Loan Collateral Agent or such Additional Pari Passu Debt Representative with possession or “control” (as defined in the UCC) of any Collateral that constitutes Current Asset Collateral, in each case, shall be deemed satisfied to the extent that, prior to the Discharge of Revolving Credit Obligations, such Collateral is delivered to the Revolving Credit Facility Collateral Agent, or the Revolving Credit Facility Collateral Agent shall deliver the remaining Pledged Collateral have been vested with such possession or (if any) together with any necessary endorsementsunless, pursuant to the Notes Collateral Agent UCC, control may be given concurrently to the extent Designated Fixed Asset Collateral Representative and the Notes Obligations which are secured by such Pledged Collateral remain outstanding (so as to allow the Notes Collateral Agent to obtain possession or control of such Pledged Collateral). The US Revolving Credit Facility Collateral Agent further agrees Agent) “control”, in each case, subject to take all other action reasonably requested by the Notes Collateral Agent in connection with the Notes Collateral Agent obtaining a first-priority interest in the Collateral or as a court provisions of competent jurisdiction may otherwise directSection 5.4.
Appears in 1 contract
Bailees for Perfection. (a) The US Revolving Credit Collateral Each Agent agrees to hold that part of the Collateral that is in its possession or control (or in the possession or control of its agents or bailees) to the extent that possession or control thereof is taken to perfect a Lien thereon under the UCC (such Collateral being the “Pledged Collateral”) as collateral agent for the Revolving Credit Claimholders or the Second Lien Term Loan Claimholders, as the case may be, and as bailee for the Notes Collateral other Agent (such bailment being intended, among other things, to satisfy the requirements of Sections 8-106(d)(3), 8-301(a)(2) and 9-313(c) of the UCCUCC and any other similar provision of similar laws) and any assignee solely for the purpose of perfecting the security interest granted under the Revolving Credit Facility Credit Documents and the Notes Second Lien Term Loan Credit Documents, as applicablerespectively, subject to the terms and conditions of this Section 5.4.
(b) The US Revolving Credit Collateral Neither Agent shall have no any obligation whatsoever to the Notes Collateral Agent other Agent, to any Revolving Credit Claimholder, or to any Notes Second Lien Term Loan Claimholder to ensure that the Pledged Collateral is genuine or owned by any of the Grantors or to preserve rights or benefits of any Person except as expressly set forth in this Section 5.4. The duties or responsibilities of the US Revolving Credit Collateral Agent respective Agents under this Section 5.4 shall be limited solely to holding the Pledged Collateral as bailee in accordance with this Section 5.4 and delivering the Pledged Collateral upon a Discharge of Revolving Credit Obligations or Discharge of Second Lien Term Loan Obligations, as the case may be, as provided in paragraph (d) below.
(c) Neither Agent acting pursuant to this Section 5.4 shall have by reason of the Revolving Credit Facility Credit Documents, the Second Lien Term Loan Credit Documents, this Agreement or any other document a fiduciary relationship in respect of the other Agent, or any Revolving Credit Claimholders or any Second Lien Term Loan Claimholders.
(d) Upon the Discharge of Revolving Credit Obligations or the Discharge of Second Lien Term Loan Obligations, as the case may be, the Agent under the credit facility which has been discharged shall deliver the remaining Pledged Collateral (if any) together with any necessary endorsements and without recourse or warranty, first, to the other Agent to the extent the other Obligations (other than Contingent Obligations) remain outstanding, and second, to the applicable Grantor to the extent no Revolving Credit Obligations or Second Lien Term Loan Obligations, as the case may be, remain outstanding (in each case, so thatas to allow such Person to obtain possession or control of such Pledged Collateral). Each Agent further agrees, subject to the extent that any other Obligations (other than applicable Contingent Obligations) remain outstanding, to take all other commercially reasonable action as shall be reasonably requested in writing by the other Agent, at the sole cost and expense of such other Agent or the Credit Parties, to permit such other Agent to obtain, for the benefit of the Revolving Credit Claimholders or Second Lien Term Loan Claimholders, as applicable, a first-priority interest in the Collateral or as a court of competent jurisdiction may otherwise direct.
(e) Subject to the terms of this AgreementAgreement (including the provisions of Sections 3.1, until a 3.2 and 3.3), (i) so long as the Discharge of Revolving Credit ObligationsObligations has not occurred, the US Revolving Credit Collateral Agent shall be entitled to deal with the Pledged Collateral or Collateral within its “control” in accordance with the terms of this Agreement and other Revolving Credit Documents (Facility Credit Documents, but only to the extent that such Collateral constitutes Revolving Credit Primary Priority Collateral) , as if the Liens (if any) of the Notes Second Lien Term Loan Collateral Agent and Second Lien Term Loan Claimholders did not exist.
exist and (cii) The Revolving Credit so long as the Discharge of Second Lien Term Loan Obligations has not occurred, the Second Lien Term Loan Collateral Agent acting pursuant shall be entitled to deal with the Pledged Collateral or Collateral within its “control” in accordance with the terms of this Section 5.4 shall not have by reason Agreement and other Second Lien Term Loan Credit Documents, but only to the extent that such Collateral constitutes Second Lien Term Loan Priority Collateral, as if the Liens of the Revolving Credit Documents, this Agreement or any other document a fiduciary relationship with the Notes Collateral Agent or any Notes Claimholder with respect to such acts.
(d) Upon the Discharge of and Revolving Credit Obligations, the US Revolving Credit Collateral Agent shall deliver the remaining Pledged Collateral (if any) together with any necessary endorsements, to the Notes Collateral Agent to the extent the Notes Obligations which are secured by such Pledged Collateral remain outstanding (so as to allow the Notes Collateral Agent to obtain possession or control of such Pledged Collateral). The US Revolving Credit Collateral Agent further agrees to take all other action reasonably requested by the Notes Collateral Agent in connection with the Notes Collateral Agent obtaining a first-priority interest in the Collateral or as a court of competent jurisdiction may otherwise direct.Claimholders did not
Appears in 1 contract
Samples: Intercreditor Agreement (Dura Automotive Systems Inc)
Bailees for Perfection. (a) The US Revolving Credit Collateral Agent agrees to hold that part of the Collateral that is in its possession or control (or in the possession or control of its agents or bailees) to the extent that possession or control thereof is taken to perfect a Lien thereon under the UCC (such Collateral being the “Pledged Collateral”) as non-fiduciary collateral agent for the Revolving Credit Claimholders, Term Priority Lien Claimholders and as gratuitous bailee for the Notes Term Collateral Agent (such bailment being intended, among other things, to satisfy the requirements of Sections 8-106(d)(3301(a)(2), 89-301(a)(2) 104, 9-106 and 9-313(c) of the UCC) and any assignee solely for the purpose of perfecting the security interest granted under the Revolving Credit Documents and the Notes Term Priority Lien Documents, as applicable, subject to the terms and conditions of this Section 5.4.
(b) The US Revolving Credit Collateral Agent shall have no obligation whatsoever to the Notes Collateral Agent or to any Notes Claimholder other Person to ensure that the Pledged Collateral is genuine or owned by any of the Grantors or to preserve rights or benefits of any Person except as expressly set forth in this Section 5.4. The duties or responsibilities of the US Revolving Credit Collateral Agent under this Section 5.4 shall be limited solely to holding the Pledged Collateral as bailee in accordance with this Section 5.4 and delivering the Pledged Collateral upon a Discharge of Revolving Credit Obligations, Obligations as provided in paragraph (d) belowbelow (or, if applicable, delivering Pledged Collateral constituting Term Priority Lien Collateral prior to the Discharge of Revolving Credit Obligations), so that, subject to the terms of this Agreement, until a Discharge of Revolving Credit ObligationsObligations (or such earlier date), the US Revolving Credit Collateral Agent shall be entitled to deal with the Pledged Collateral or Collateral within its “control” in accordance with the terms of this Agreement and other Revolving Credit Loan Documents (but only to the extent that such Collateral constitutes Revolving Credit Primary Collateral) as if the Liens (if any) of the Notes Term Collateral Agent did not exist.
(c) The Revolving Credit Collateral Agent acting pursuant to this Section 5.4 shall not have by reason of the Revolving Credit Loan Documents, the Term Priority Lien Documents, this Agreement or any other document document, a fiduciary relationship with the Notes Collateral Agent or any Notes Claimholder other Person with respect to such acts.
(d) Upon the Discharge of Revolving Credit Obligations, the US Revolving Credit Collateral Agent shall deliver the remaining Pledged Collateral (if any) together with any necessary endorsements, first, to the Notes Term Collateral Agent to the extent the Notes Term Priority Lien Obligations which are secured by such Pledged Collateral remain outstanding outstanding, and second, to the applicable Grantor (in each case, so as to allow the Notes Collateral Agent such Person to obtain possession or control of such Pledged Collateral). If the Revolving Credit Collateral Agent shall at any time hold any Pledged Collateral constituting solely Term Priority Lien Collateral, then the Revolving Credit Collateral Agent shall promptly deliver the remaining Pledged Collateral (if any) together with any necessary endorsements to the Term Collateral Agent to the extent the Term Priority Lien Obligations which are secured by such Pledged Collateral remain outstanding. If the Term Collateral Agent shall at any time hold any Collateral constituting Revolving Credit Collateral, then the Term Collateral Agent shall promptly deliver such Revolving Credit Collateral (if any) together with any necessary endorsements to the Revolving Credit Collateral Agent to the extent the Revolving Credit Obligations which are secured by such Revolving Credit Collateral remain outstanding. The US Revolving Credit Collateral Agent further agrees to take all other action reasonably requested by the Notes Term Collateral Agent in connection with the Notes Term Collateral Agent obtaining a first-priority interest in the Collateral or as a court of competent jurisdiction may otherwise direct.
Appears in 1 contract
Bailees for Perfection. (a) The US Revolving Credit Each Collateral Agent agrees to hold that part of the Collateral that is in its possession or control (or in the possession or control of its agents or bailees) to the extent that possession or control thereof is taken to perfect a Lien thereon under the UCC (such Collateral being the “Pledged Collateral”) as collateral agent for the Revolving Credit Claimholders or the Fixed Asset Claimholders, as the case may be, and as bailee for the Notes other Collateral Agent Agents (such bailment being intended, among other things, to satisfy the requirements of Sections 8-106(d)(3), 8-301(a)(2) and 9-313(c) of the UCC) and any assignee solely for the purpose of perfecting the security interest granted under the Revolving Credit Documents and the Notes Fixed Asset Documents, as applicablerespectively, subject to the terms and conditions of this Section 5.4.
(b) The US Revolving Credit No Collateral Agent shall have no any obligation whatsoever to the Notes other Collateral Agent Agents, to any Revolving Credit Claimholder, or to any Notes Fixed Asset Claimholder to ensure that the Pledged Collateral is genuine or owned by any of the Grantors or to preserve rights or benefits of any Person except as expressly set forth in this Section 5.4. The duties or responsibilities of the US Revolving Credit respective Collateral Agent Agents under this Section 5.4 shall be limited solely to holding the Pledged Collateral as bailee in accordance with this Section 5.4 and delivering the Pledged Collateral upon a Discharge of Revolving Credit Obligations or Discharge of Fixed Asset Obligations, as the case may be, as provided in paragraph (d) below.
(c) No Collateral Agent acting pursuant to this Section 5.4 shall have by reason of the Revolving Credit Documents, the Fixed Asset Documents, this Agreement or any other document a fiduciary relationship in respect of the other Collateral Agent, or any Revolving Credit Claimholders or any Fixed Asset Claimholders.
(d) Upon the Discharge of Revolving Credit Obligations or the Discharge of Fixed Asset Obligations, as the case may be, the Collateral Agent under the debt facility which has been discharged shall deliver the remaining Pledged Collateral (if any) together with any necessary endorsements and without recourse or warranty, first, to the other Collateral Agent (for the avoidance of doubt, in the case of the Discharge of Revolving Credit Obligations, to the Controlling Fixed Asset Collateral Agent) to the extent the other Obligations (other than Contingent Obligations) remain outstanding, and second, to the applicable Grantor to the extent no Revolving Credit Obligations or Fixed Asset Obligations, as the case may be, remain outstanding (in each case, so thatas to allow such Person to obtain possession or control of such Pledged Collateral). Each Collateral Agent further agrees, subject to the extent that any other Obligations (other than applicable Contingent Obligations) remain outstanding, to take all other commercially reasonable action as shall be reasonably requested by the other Collateral Agent, at the sole cost and expense of the Credit Parties, to permit such other Collateral Agent to obtain, for the benefit of the Revolving Credit Claimholders or Fixed Asset Claimholders, as applicable, a first-priority interest in the Collateral or as a court of competent jurisdiction may otherwise direct.
(e) Subject to the terms of this Agreement, until a (i) so long as the Discharge of Revolving Credit ObligationsObligations has not occurred, the US Revolving Credit Collateral Agent shall be entitled to deal with the Pledged Collateral or Collateral within its “control” in accordance with the terms of this Agreement and other Revolving Credit Documents (Documents, but only to the extent that such Collateral constitutes Revolving Credit Primary ABL Collateral) , as if the Liens (if any) of the Notes Fixed Asset Collateral Agents and Fixed Asset Claimholders did not exist and (ii) so long as the Discharge of Fixed Asset Obligations has not occurred, the Controlling Fixed Asset Collateral Agent did not exist.
(c) The shall be entitled to deal with the Pledged Collateral or Collateral within its “control” in accordance with the terms of this Agreement and other Fixed Asset Documents, but only to the extent that such Collateral constitutes Fixed Asset Collateral, as if the Liens of the Revolving Credit Collateral Agent acting pursuant to this Section 5.4 shall and Revolving Credit Claimholders did not have by reason exist. In furtherance of the Revolving Credit Documentsforegoing, this Agreement or any other document a fiduciary relationship with the Notes Collateral Agent or any Notes Claimholder with respect to such acts.
(d) Upon promptly following the Discharge of Revolving Credit Obligations, unless a New Debt Notice in respect of new Revolving Credit Documents shall have been delivered as provided in Section 5.5 below, the US Revolving Credit Collateral Agent hereby agrees to deliver, at the cost and expense of the Credit Parties, to each Approved Deposit Account Bank and Approved Securities Intermediary, if any, that is counterparty to a Deposit Account Control Agreement or Securities Account Control Agreement, as applicable, written notice as contemplated in such Deposit Account Control Agreement or Securities Account Control Agreement, as applicable, directing such Approved Deposit Account Bank or Approved Securities Intermediary, as applicable, to comply with the instructions of the Controlling Fixed Asset Collateral Agent, unless the Discharge of Fixed Asset Obligations has occurred (as certified to the Revolving Credit Collateral Agent by the Parent Borrower), in which case, such Deposit Account Control Agreement or Securities Account Control Agreement, as the case may be, shall be terminated.
(f) Notwithstanding anything in this Agreement to the contrary:
(1) each of the Revolving Credit Collateral Agent, for itself and on behalf of the Revolving Credit Claimholders, agrees that any requirement under any Revolving Credit Collateral Document that any Grantor deliver any Collateral that constitutes Fixed Asset Collateral to the Revolving Credit Collateral Agent, or that requires any Grantor to vest the Revolving Credit Collateral Agent with possession or “control” (as defined in the UCC) of any Collateral that constitutes Fixed Asset Collateral, in each case, shall be deemed satisfied to the extent that, prior to the Discharge of Fixed Asset Obligations (other than Contingent Obligations), such Collateral is delivered to the Controlling Fixed Asset Collateral Agents, or the Controlling Fixed Asset Collateral Agents shall have been vested with such possession or (unless, pursuant to the UCC, control may be given concurrently to the Revolving Credit Collateral Agent and the Controlling Fixed Asset Collateral Agent) “control,” in each case, subject to the provisions of Section 5.4; and
(2) each of the Fixed Asset Collateral Agents, for itself and on behalf of the applicable Fixed Asset Claimholders, agrees that any requirement under any Fixed Asset Collateral Document that any Grantor deliver any Collateral that constitutes ABL Collateral to such Fixed Asset Collateral Agent, or that requires any Grantor to vest such Fixed Asset Collateral Agent with possession or “control” (as defined in the UCC) of any Collateral that constitutes ABL Collateral, in each case, shall be deemed satisfied to the extent that, prior to the Discharge of Revolving Credit Obligations (other than Contingent Obligations), such Collateral is delivered to the Revolving Credit Collateral Agent, or the Revolving Credit Collateral Agent shall deliver the remaining Pledged Collateral have been vested with such possession or (if any) together with any necessary endorsementsunless, pursuant to the Notes UCC, control may be given concurrently to the Fixed Asset Collateral Agent to and the extent the Notes Obligations which are secured by such Pledged Collateral remain outstanding (so as to allow the Notes Collateral Agent to obtain possession or control of such Pledged Collateral). The US Revolving Credit Collateral Agent further agrees Agent) “control,” in each case, subject to take all other action reasonably requested by the Notes Collateral Agent in connection with the Notes Collateral Agent obtaining a first-priority interest in the Collateral or as a court provisions of competent jurisdiction may otherwise directSection 5.4.
Appears in 1 contract
Samples: Intercreditor Agreement (CommScope Holding Company, Inc.)
Bailees for Perfection. (a) The US Revolving Credit Except as provided in Section 2.5, each Collateral Agent agrees to hold that part of the Collateral that is in its possession or control (or in the possession or control of its agents or bailees) to the extent that possession or control thereof is taken to perfect a Lien thereon under the UCC (such Collateral being the “Pledged Collateral”) as collateral agent for the Revolving Credit Claimholders or the Fixed Asset Claimholders, as the case may be, and as bailee for the Notes other Collateral Agent Agents (such bailment being intended, among other things, to satisfy the requirements of Sections 8-106(d)(3), 8-301(a)(2) and 9-313(c) of the UCC) and any assignee solely for the purpose of perfecting the security interest granted under the Revolving Credit Documents and the Notes Fixed Asset Documents, as applicablerespectively, subject to the terms and conditions of this Section 5.4.
(b) The US Revolving Credit No Collateral Agent shall have no any obligation whatsoever to the Notes other Collateral Agent Agents, to any Revolving Credit Claimholder, or to any Notes Fixed Asset Claimholder to ensure that the Pledged Collateral is genuine or owned by any of the Grantors or to preserve rights or benefits of any Person except as expressly set forth in this Section 5.4. The duties or responsibilities of the US Revolving Credit respective Collateral Agent Agents under this Section 5.4 shall be limited solely to holding the Pledged Collateral as bailee in accordance with this Section 5.4 and delivering the Pledged Collateral upon a Discharge of Revolving Credit Obligations or Discharge of Fixed Asset Obligations, as the case may be, as provided in paragraph (d) below.
(c) No Collateral Agent acting pursuant to this Section 5.4 shall have by reason of the Revolving Credit Documents, the Fixed Asset Documents, this Agreement or any other document a fiduciary relationship in respect of the other Collateral Agent, or any Revolving Credit Claimholders or any Fixed Asset Claimholders. Each Collateral Agent, for itself and on behalf of each applicable Credit Party represented thereby, hereby waives and releases the other Collateral Agent from all claims and liabilities arising pursuant to such Collateral Agent’s role under this Section 5.4 as bailee with respect to the applicable Pledged Collateral.
(d) Upon the Discharge of Revolving Credit Obligations or the Discharge of Fixed Asset Obligations, as the case may be, the Collateral Agent under the debt facility which has been discharged shall deliver the remaining Pledged Collateral (if any) together with any necessary endorsements and without recourse or warranty, first, to the other Collateral Agent (for the avoidance of doubt, in the case of the Discharge of Revolving Credit Obligations, to the Controlling Fixed Asset Collateral Agent) to the extent the other Obligations (other than Contingent Obligations) remain outstanding, and second, to the applicable Grantor to the extent no Revolving Credit Obligations or Fixed Asset Obligations, as the case may be, remain outstanding (in each case, so thatas to allow such Person to obtain possession or control of such Pledged Collateral). Each Collateral Agent further agrees, subject to the extent that any other Obligations (other than applicable Contingent Obligations) remain outstanding, to take all other commercially reasonable action as shall be reasonably requested by the other Collateral Agent, at the sole cost and expense of the Credit Parties, to permit such other Collateral Agent to obtain, for the benefit of the Revolving Credit Claimholders or Fixed Asset Claimholders, as applicable, a first-priority interest in the Collateral or as a court of competent jurisdiction may otherwise direct.
(e) Subject to the terms of this Agreement, until a (i) so long as the Discharge of Revolving Credit ObligationsObligations has not occurred, the US Revolving Credit Collateral Agent shall be entitled to deal with the Pledged Collateral or Collateral within its “control” in accordance with the terms of this Agreement and other Revolving Credit Documents (Documents, but only to the extent that such Collateral constitutes Revolving Credit Primary ABL Collateral) , as if the Liens (if any) of the Notes Fixed Asset Collateral Agents and Fixed Asset Claimholders did not exist and (ii) so long as the Discharge of Fixed Asset Obligations has not occurred, the Controlling Fixed Asset Collateral Agent did not exist.
(c) The shall be entitled to deal with the Pledged Collateral or Collateral within its “control” in accordance with the terms of this Agreement and other Fixed Asset Documents, but only to the extent that such Collateral constitutes Fixed Asset Collateral, as if the Liens of the Revolving Credit Collateral Agent acting pursuant to this Section 5.4 shall and Revolving Credit Claimholders did not have by reason exist. In furtherance of the Revolving Credit Documentsforegoing, this Agreement or any other document a fiduciary relationship with the Notes Collateral Agent or any Notes Claimholder with respect to such acts.
(d) Upon promptly following the Discharge of Revolving Credit Obligations, unless a New Debt Notice in respect of new Revolving Credit Documents shall have been delivered as provided in Section 5.5 below, the US Revolving Credit Collateral Agent shall deliver hereby agrees to deliver, at the remaining Pledged Collateral (cost and expense of the Credit Parties, to each bank and securities intermediary, if any) together with any necessary endorsements, that is counterparty to a deposit account control agreement or securities account control agreement, as applicable, written notice as contemplated in such deposit account control agreement or securities account control agreement, as applicable, directing such bank or securities intermediary, as applicable, to comply with the Notes instructions of the Controlling Fixed Asset Collateral Agent (to the extent a party thereto), unless the Notes Discharge of Fixed Asset Obligations which are secured by such Pledged Collateral remain outstanding has occurred (so as certified to allow the Notes Collateral Agent to obtain possession or control of such Pledged Collateral). The US Revolving Credit Collateral Agent further agrees to take all other action reasonably requested by the Notes Collateral Agent Borrower), in connection with which case, such deposit account control agreement or securities account control agreement, as the Notes Collateral Agent obtaining a first-priority interest case may be, shall be terminated.
(f) Notwithstanding anything in this Agreement to the Collateral or as a court of competent jurisdiction may otherwise direct.contrary:
Appears in 1 contract
Samples: First Lien Term Loan Credit Agreement (VERRA MOBILITY Corp)
Bailees for Perfection. (a) The US Revolving Credit Each Senior Priority Collateral Agent agrees to hold that part of the Collateral that is in its possession or control (or in the possession or control of its agents or bailees) to the extent that possession or control thereof is taken to perfect a Lien thereon under the UCC or the PPSA (such Collateral being the “Pledged Collateral”) as collateral agent for the Revolving Credit Claimholders, Junior Priority Claimholders and as bailee for the Notes Junior Priority Collateral Agent (such bailment being intended, among other things, to satisfy the requirements of Sections 8-106(d)(3), 8-301(a)(2) and 9-313(c) of the UCC) and any assignee solely for the purpose of perfecting the security interest granted under the Revolving Credit Documents and the Notes Junior Priority Documents, as applicablerespectively, subject to the terms and conditions of this Section 5.4.
(b) The US Revolving Credit No Senior Priority Collateral Agent shall have no any obligation whatsoever to the Notes Junior Priority Collateral Agent or to any Notes Junior Priority Claimholder to ensure that the Pledged Collateral is genuine or owned by any of the Grantors or to preserve rights or benefits of any Person except as expressly set forth in this Section 5.4. The duties or responsibilities of the US Revolving Credit respective Senior Priority Collateral Agent Agents under this Section 5.4 shall be limited solely to holding the Pledged Collateral as bailee in accordance with this Section 5.4 and delivering the Pledged Collateral upon a the Discharge of Revolving Credit Obligations, Senior Priority Obligations as provided in paragraph (d) below.
(c) No Senior Priority Collateral Agent shall have by reason of the Junior Priority Collateral Documents, this Agreement, or any other document, a fiduciary relationship in respect of the Junior Priority Collateral Agent or any Junior Priority Claimholder.
(d) Upon the Discharge of Senior Priority Obligations, each Senior Priority Collateral Agent shall deliver the remaining Pledged Collateral (if any) in its possession together with any necessary endorsements and without recourse or warranty, first, to the Junior Priority Collateral Agent, to the extent the Junior Priority Obligations (other than Contingent Obligations) remain outstanding, and second, to the applicable Grantor to the extent no Junior Priority Obligations, as the case may be, remain outstanding (in each case, so thatas to allow such Person to obtain possession or control of such Pledged Collateral). Each Senior Priority Collateral Agent further agrees, subject to the extent that any Junior Priority Obligations (other than applicable Contingent Obligations) remain outstanding, to take all other commercially reasonable action as shall be reasonably requested by the Junior Priority Collateral Agent, at the sole cost and expense of the Credit Parties, to permit such the Junior Priority Collateral Agent to obtain, for the benefit of the Junior Priority Claimholders a first-priority interest in the Collateral or as a court of competent jurisdiction may otherwise direct.
(e) Subject to the terms of this Agreement, until a so long as the Discharge of Revolving Credit ObligationsSenior Priority Obligations has not occurred, the US Revolving Credit each Senior Priority Collateral Agent shall be entitled to deal with the Pledged Collateral or Collateral within its “control” in accordance with the terms of this Agreement and other Revolving Credit Documents (but only to the extent that such Collateral constitutes Revolving Credit Primary Collateral) Senior Priority Documents, as if the Liens (if any) of the Notes Junior Priority Collateral Agent and Junior Priority Claimholders did not exist.
(cf) Notwithstanding anything in this Agreement to the contrary, the Junior Priority Collateral Agent, for itself and on behalf of the Junior Priority Claimholders, agrees that any requirement under any Junior Priority Collateral Document that any Grantor deliver any Collateral to the Junior Priority Collateral Agent, or that requires any Grantor to vest the Junior Priority Collateral Agent with possession or “control” (as defined in the UCC or in the manner provided for in the PPSA) of any Collateral, in each case, shall be deemed satisfied to the extent that, prior to the Discharge of Senior Priority Obligations, such Collateral is delivered to the Designated Senior Priority Collateral Agent, or the Designated Senior Priority Collateral Agent shall have been vested with such possession or (unless, pursuant to the UCC or the PPSA, as applicable, control may be given concurrently to the Senior Priority Collateral Agents and the Junior Priority Collateral Agent) “control,” in each case, subject to the provisions of this Section 5.4; and
(g) The parties hereto further agree that to the extent the Revolving Credit Collateral Agent acting pursuant to this Section 5.4 shall not have by reason is specified as the lienholder on the certificates of the Revolving Credit Documents, this Agreement or any other document a fiduciary relationship with the Notes Collateral Agent or any Notes Claimholder title with respect to such acts.
any Motor Vehicles (das defined in the Junior Priority Security Agreement) Upon of any Grantor, then (including for the Discharge purposes of Revolving Credit Obligations, the US applicable state certificate of title laws and any other applicable laws) the Revolving Credit Collateral Agent shall deliver act as agent for both the remaining Pledged Collateral (Senior Priority Claimholders and the Junior Priority Claimholders in order to perfect and secure both the Senior Priority Obligations and the Junior Priority Obligations, provided that, notwithstanding that there may be only one lienholder noted on such certificate of title for such purposes, the priorities as between the rights of the Junior Priority Claimholders and the Senior Priority Claimholders shall be as if any) together with any necessary endorsementsthere were two separate Liens, subject to the Notes priorities and other terms of this Agreement. In furtherance of the foregoing, (i) the Junior Priority Collateral Agent to hereby appoints the extent the Notes Obligations which are secured by such Pledged Collateral remain outstanding (so as to allow the Notes Collateral Agent to obtain possession or control of such Pledged Collateral). The US Revolving Credit Collateral Agent further agrees as its collateral agent for the limited purpose of acting as the agent on behalf of the Junior Priority Claimholders with respect to take the applicable Motor Vehicles solely for purposes of perfecting the Liens of such parties on such Motor Vehicles and (ii) in order to secure the prompt payment and performance of the Junior Priority Obligations, each Grantor hereby grants to the Revolving Credit Collateral Agent, as agent for the Junior Priority Claimholders, a security interest in all other action reasonably requested right, title and interest of such Grantor in, to and under all Motor Vehicles and, for purposes of Section 5.4(a), all Deposit Accounts and Securities Accounts, whether now owned or hereafter acquired by such Grantor. Such grant creates a security interest wholly separate from the Notes security interest in such Motor Vehicles and such Deposit Accounts and Securities Account granted to the Revolving Credit Collateral Agent in connection with the Notes Revolving Credit Documents as security for the Revolving Credit Obligations. The duties or responsibilities of the Revolving Credit Collateral Agent obtaining under this Section 5.4(g) shall be limited solely to holding (either itself or through its appointment of a first-priority interest custodian or agent) a Lien on such Motor Vehicles (and releasing such Lien), or the Deposit Accounts and Securities Accounts, as applicable, as agent in the Collateral or as a court of competent jurisdiction may otherwise directaccordance with this Section 5.4(g).
Appears in 1 contract
Bailees for Perfection. (a) The US Revolving Credit ABL Agent and each Priority Lien Debt Collateral Agent agrees Agent, as the case may be, agree to hold that part of the Collateral that is in its possession or control (or in the possession or control of its agents or bailees) to the extent that possession or control thereof is taken to perfect a Lien thereon under the UCC (such Collateral being the “Pledged Collateral”) as collateral agent for the Revolving Credit ABL Claimholders and Priority Lien Claimholders, as the case may be, and as bailee for the Notes ABL Agent or Priority Lien Debt Collateral Agent Agents, as the case may be (such bailment being intended, among other things, to satisfy the requirements of Sections 8-106(d)(3), 8-301(a)(2) and 9-313(c) of the UCC) and any assignee ), solely for the purpose of perfecting the security interest granted under the Revolving Credit ABL Loan Documents and the Notes Priority Lien Documents, as applicable, subject to the terms and conditions of this Section 5.4. Solely with respect to any Deposit Accounts under the control (within the meaning of Section 9-104 of the UCC) of the ABL Agent, the ABL Agent agrees to also hold control over such Deposit Accounts as gratuitous agent for the Controlling Priority Lien Collateral Agent, subject to the terms and conditions of this Section 5.4. Solely with respect to any Deposit Accounts under the control (within the meaning of Section 9-104 of the UCC) of any Priority Lien Debt Collateral Agent, such Priority Lien Debt Collateral Agent agrees to also hold control over such Deposit Accounts as gratuitous agent for the ABL Agent, subject to the terms and conditions of this Section 5.4.
(b) The US Revolving Credit ABL Agent and each Priority Lien Debt Collateral Agent shall have no obligation whatsoever to the Notes Collateral Agent or to any Notes Claimholder other Person to ensure that the Pledged Collateral is genuine or owned by any of the Grantors or to preserve rights or benefits of any Person except as expressly set forth in this Section 5.4. The duties or responsibilities of the US Revolving Credit Collateral Agent under this Section 5.4 shall be limited solely to holding the Pledged Collateral as bailee (and with respect to Deposit Accounts, agent) in accordance with this Section 5.4 and delivering the Pledged Collateral upon a Discharge of Revolving Credit ABL Obligations or Discharge of Priority Lien Obligations, as the case may be, as provided in paragraph (d) below.
(c) No Person acting pursuant to this Section 5.4 shall have by reason of the ABL Loan Documents, the Priority Lien Documents, this Agreement, the Collateral Trust Agreement, the Senior-Junior Intercreditor Agreement (if any) or any other document, a fiduciary relationship with any other Person with respect to such acts.
(d) Upon the Discharge of ABL Obligations, the ABL Agent shall deliver the remaining Pledged Collateral (if any) together with any necessary endorsements, first, to the Controlling Priority Lien Collateral Agent to the extent the Priority Lien Obligations which are secured by such Pledged Collateral remain outstanding, and second, to the Company (in each case, so thatas to allow such Person to obtain possession or control of such Pledged Collateral). The ABL Agent further agrees to take all other action reasonably required in connection with the Priority Lien Debt Collateral Agents obtaining a first-priority interest in such Pledged Collateral or as a court of competent jurisdiction may otherwise direct.
(e) Upon the Discharge of the Priority Lien Obligations, subject the Controlling Priority Lien Collateral Agent (or any other applicable Priority Lien Debt Collateral Agent) shall deliver the remaining Pledged Collateral (if any), together with any necessary endorsements, first, to the ABL Agent to the extent any ABL Obligations which are secured by such Pledged Collateral remain outstanding, and second, to the Company (in each case, so as to allow such Person to obtain possession or control of such Pledged Collateral). The Controlling Priority Lien Collateral Agent further agrees to take all other action reasonably requested by the ABL Agent in connection with the ABL Agent obtaining a first-priority interest in such Pledged Collateral or as a court of competent jurisdiction may otherwise direct.
(f) Subject to the terms of this Agreement, until a (i) so long as the Discharge of Revolving Credit ObligationsABL Obligations has not occurred, the US Revolving Credit Collateral ABL Agent shall be entitled to deal with the Pledged Collateral or Collateral within its “control” in accordance with the terms of this Agreement and other Revolving Credit Documents (ABL Loan Documents, but only to the extent that such Collateral constitutes Revolving Credit Primary ABL Collateral) , as if the Liens (if any) of the Notes Priority Lien Debt Collateral Agents in such ABL Collateral did not exist and (ii) so long as the Discharge of Priority Lien Obligations has not occurred, any Priority Lien Debt Collateral Agent shall be entitled to deal with the Pledged Collateral or Collateral within its “control” in accordance with the terms of this Agreement, the Collateral Trust Agreement, the Senior-Junior Intercreditor Agreement (if any) and other Priority Lien Documents, but only to the extent that such Collateral constitutes Shared Collateral, as if the Liens of the ABL Agent in such Shared Collateral did not exist.
(c) The Revolving Credit Collateral Agent acting pursuant to this Section 5.4 shall not have by reason of the Revolving Credit Documents, this Agreement or any other document a fiduciary relationship with the Notes Collateral Agent or any Notes Claimholder with respect to such acts.
(d) Upon the Discharge of Revolving Credit Obligations, the US Revolving Credit Collateral Agent shall deliver the remaining Pledged Collateral (if any) together with any necessary endorsements, to the Notes Collateral Agent to the extent the Notes Obligations which are secured by such Pledged Collateral remain outstanding (so as to allow the Notes Collateral Agent to obtain possession or control of such Pledged Collateral). The US Revolving Credit Collateral Agent further agrees to take all other action reasonably requested by the Notes Collateral Agent in connection with the Notes Collateral Agent obtaining a first-priority interest in the Collateral or as a court of competent jurisdiction may otherwise direct.
Appears in 1 contract
Bailees for Perfection. (a) The US Revolving Credit Senior Priority Collateral Agent agrees to hold that part of the Collateral that is in its possession or control (or in the possession or control of its agents or bailees) to the extent that possession or control thereof is taken to perfect a Lien thereon under the UCC or the PPSA (such Collateral being the “Pledged Collateral”) as collateral agent for the Revolving Credit Claimholders, Junior Priority Claimholders and as bailee for the Notes Junior Priority Collateral Agent (such bailment being intended, among other things, to satisfy the requirements of Sections 8-106(d)(3), 8-301(a)(2) and 9-313(c) of the UCC) and any assignee solely for the purpose of perfecting the security interest granted under the Revolving Credit Documents and the Notes Junior Priority Documents, as applicablerespectively, subject to the terms and conditions of this Section 5.4.
(b) The US Revolving Credit Senior Priority Collateral Agent shall not have no any obligation whatsoever to the Notes Junior Priority Collateral Agent or to any Notes Junior Priority Claimholder to ensure that the Pledged Collateral is genuine or owned by any of the Grantors or to preserve rights or benefits of any Person except as expressly set forth in this Section 5.4. The duties or responsibilities of the US Revolving Credit Senior Priority Collateral Agent under this Section 5.4 shall be limited solely to holding the Pledged Collateral as collateral agent and bailee in accordance with this Section 5.4 and delivering the Pledged Collateral upon a the Discharge of Revolving Credit Obligations, Priming Senior Priority Obligations as provided in paragraph (d) below.
(c) The Senior Priority Collateral Agent shall not have by reason of the Junior Priority Collateral Documents, this Agreement, or any other document, a fiduciary relationship in respect of the Junior Priority Collateral Agent or any Junior Priority Claimholder. Each Junior Priority Collateral Agent and Junior Priority Claimholder hereby waives and releases the Senior Priority Collateral Agent from all claims and liabilities arising pursuant to the Senior Priority Collateral Agent’s roles under this Section 5.4 as collateral agent and bailee with respect to the Pledged Collateral.
(d) Upon the Discharge of Priming Senior Priority Obligations, the Senior Priority Collateral Agent shall deliver the remaining Pledged Collateral (if any) in its possession together with any necessary endorsements and without recourse or warranty, first, to the Junior Priority Collateral Agent, to the extent the Junior Priority Obligations (other than Contingent Obligations) remain outstanding, and second, to the applicable Grantor to the extent no Junior Priority Obligations, as the case may be, remain outstanding (in each case, so thatas to allow such Person to obtain possession or control of such Pledged Collateral). The Senior Priority Collateral Agent further agrees, to the extent that any Junior Priority Obligations (other than applicable Contingent Obligations) remain outstanding, to take all other commercially reasonable action as shall be reasonably requested by the Junior Priority Collateral Agent, at the sole cost and expense of the Credit Parties, to permit the Junior Priority Collateral Agent to obtain, for the benefit of the Junior Priority Claimholders, a first-priority security interest in the Pledged Collateral or as a court of competent jurisdiction may otherwise direct, subject to the terms of the ABL Intercreditor Agreement.
(e) Subject to the terms of this Agreement and the ABL Intercreditor Agreement, until a so long as the Discharge of Revolving Credit ObligationsPriming Senior Priority Obligations has not occurred, the US Revolving Credit Senior Priority Collateral Agent shall be entitled to deal with the Pledged Collateral or Collateral within its “control” in accordance with the terms of this Agreement and other Revolving Credit Documents (but only to the extent that such Collateral constitutes Revolving Credit Primary Collateral) Senior Priority Documents, as if the Liens (if any) of the Notes Junior Priority Collateral Agent and Junior Priority Claimholders did not exist.
(cf) The Revolving Credit Notwithstanding anything in this Agreement to the contrary, the Junior Priority Collateral Agent, for itself and on behalf of the Junior Priority Claimholders, agrees that any requirement under any Junior Priority Collateral Document that any Grantor deliver any Collateral to the Junior Priority Collateral Agent, or that requires any Grantor to vest the Junior Priority Collateral Agent acting pursuant with possession or “control” (as defined in the UCC or in the manner provided for in the PPSA) of any Collateral, in each case, shall be deemed satisfied to this Section 5.4 shall not have by reason of the Revolving Credit Documentsextent that, this Agreement or any other document a fiduciary relationship with the Notes Collateral Agent or any Notes Claimholder with respect prior to such acts.
(d) Upon the Discharge of Revolving Credit Priming Senior Priority Obligations, such Collateral is delivered to the US Revolving Credit Senior Priority Collateral Agent, or the Senior Priority Collateral Agent shall deliver the remaining Pledged Collateral have been vested with such possession or (if any) together with any necessary endorsementsunless, pursuant to the Notes UCC or the PPSA, as applicable, control may be given concurrently to the Senior Priority Collateral Agent and the Junior Priority Collateral Agent) “control,” in each case, subject to the extent the Notes Obligations which are secured by such Pledged Collateral remain outstanding (so as to allow the Notes Collateral Agent to obtain possession or control provisions of such Pledged Collateral). The US Revolving Credit Collateral Agent further agrees to take all other action reasonably requested by the Notes Collateral Agent in connection with the Notes Collateral Agent obtaining a first-priority interest in the Collateral or as a court of competent jurisdiction may otherwise direct.this Section 5.4; and
Appears in 1 contract
Bailees for Perfection. (a) The US Revolving Credit Collateral Agent agrees to hold that part of the Collateral that is in its possession or control (or in the possession or control of its agents or bailees) to the extent that possession or control thereof is taken to perfect a Lien thereon under the UCC (such Collateral being the “Pledged Collateral”) as collateral agent for the Revolving Credit Claimholders, Term Priority Lien Claimholders and Subordinated Lien Claimholders and as bailee for the Notes Collateral Agent Trustee (such bailment being intended, among other things, to satisfy the requirements of Sections 8-106(d)(3), 8-301(a)(2) and 9-313(c) of the UCC) and any assignee solely for the purpose of perfecting the security interest granted under the Revolving Credit Term Priority Lien Documents and the Notes Subordinated Lien Documents, as applicable, subject to the terms and conditions of this Section 5.4.
(b) The US Revolving Credit Collateral Agent shall have no obligation whatsoever to the Notes Collateral Agent or to any Notes Claimholder other Person to ensure that the Pledged Collateral is genuine or owned by any of the Grantors or to preserve rights or benefits of any Person except as expressly set forth in this Section 5.4. The duties or responsibilities of the US Revolving Credit Collateral Agent under this Section 5.4 shall be limited solely to holding the Pledged Collateral as bailee in accordance with this Section 5.4 and delivering the Pledged Collateral upon a Discharge of Revolving Credit Obligations, Obligations as provided in paragraph (d) below, so that, subject to the terms of this Agreement, until a Discharge of Revolving Credit Obligations, the US Revolving Credit Collateral Agent shall be entitled to deal with the Pledged Collateral or Collateral within its “control” in accordance with the terms of this Agreement and other Revolving Credit Loan Documents (but only to the extent that such Collateral constitutes Revolving Credit Primary Collateral) as if the Liens (if any) of the Notes Collateral Agent Trustee did not exist.
(c) The Revolving Credit Collateral Agent acting pursuant to this Section 5.4 shall not have by reason of the Revolving Credit Loan Documents, the Term Priority Lien Documents, the Subordinated Lien Documents, this Agreement or any other document document, a fiduciary relationship with the Notes Collateral Agent or any Notes Claimholder other Person with respect to such acts.
(d) Upon the Discharge of Revolving Credit Obligations, the US Revolving Credit Collateral Agent shall deliver the remaining Pledged Collateral (if any) together with any necessary endorsements, first, to the Notes Collateral Agent Trustee to the extent the Notes Term Priority Lien Obligations or the Subordinated Lien Obligations which are secured by such Pledged Collateral remain outstanding outstanding, and second, to the applicable Grantor (in each case, so as to allow the Notes Collateral Agent such Person to obtain possession or control of such Pledged Collateral). The US Revolving Credit Collateral Agent further agrees to take all other action reasonably requested by the Notes Collateral Agent Trustee in connection with the Notes Collateral Agent Trustee obtaining a first-priority interest in the Collateral or as a court of competent jurisdiction may otherwise direct.
Appears in 1 contract
Samples: Loan, Security and Guarantee Agreement (MRC Global Inc.)
Bailees for Perfection. (a) The US Revolving Credit Except as provided in Section 2.5, each Collateral Agent agrees to hold that part of the Collateral that is in its possession or control (or in the possession or control of its agents or bailees) to the extent that possession or control thereof is taken to perfect a Lien thereon under the UCC (such Collateral being the “Pledged Collateral”) as collateral bailee and non-fiduciary agent for the benefit or on behalf of the other Collateral Agent, the Revolving Credit Claimholders or the Fixed Asset Claimholders, and as bailee for the Notes Collateral Agent case may be (such bailment or agency being intended, among other things, to satisfy the requirements of Sections 8-106(d)(3), 8-301(a)(2) and 9-313(c) of the UCC) and any assignee solely for the purpose of perfecting the security interest granted under the Revolving Credit Documents and the Notes Fixed Asset Documents, as applicablerespectively, subject to the terms and conditions of this Section 5.4.
(b) The US Revolving Credit No Collateral Agent shall have no any obligation whatsoever to the Notes other Collateral Agent Agents, to any Revolving Credit Claimholder, or to any Notes Fixed Asset Claimholder to ensure that the Pledged Collateral is genuine or owned by any of the Grantors or to preserve rights or benefits of any Person except as expressly set forth in this Section 5.4. The duties or responsibilities of the US Revolving Credit respective Collateral Agent Agents under this Section 5.4 shall be limited solely to holding possession or control of the Pledged Collateral as bailee and non-fiduciary agent in accordance with this Section 5.4 and delivering the Pledged Collateral upon a Discharge of Revolving Credit Obligations or Discharge of Fixed Asset Obligations, as the case may be, as provided in paragraph (d) below.
(c) No Collateral Agent acting pursuant to this Section 5.4 shall have by reason of the Revolving Credit Documents, the Fixed Asset Documents, this Agreement or any other document a fiduciary relationship in respect of the other Collateral Agent, or any Revolving Credit Claimholders or any Fixed Asset Claimholders. Each Collateral Agent, for itself and on behalf of each applicable Grantor represented thereby, hereby waives and releases the other Collateral Agent from all claims and liabilities arising pursuant to such Collateral Agent’s role under this Section 5.4 as bailee with respect to the applicable Pledged Collateral.
(d) Upon the Discharge of Revolving Credit Obligations or the Discharge of Fixed Asset Obligations, as the case may be, the Collateral Agent under the debt facility which has been discharged shall deliver the remaining Pledged Collateral (if any) together with any necessary endorsements and without recourse or warranty, first, to the other Collateral Agent (for the avoidance of doubt, in the case of the Discharge of Revolving Credit Obligations, to the Controlling Fixed Asset Collateral Agent) to the extent the other Obligations (other than Contingent Obligations) remain outstanding, and second, to the applicable Grantor to the extent no Revolving Credit Obligations or Fixed Asset Obligations, as the case may be, remain outstanding (in each case, so thatas to allow such Person to obtain possession or control of such Pledged Collateral). Each Collateral Agent further agrees, subject to the extent that any other Obligations (other than applicable Contingent Obligations) remain outstanding, to take all other commercially reasonable action as shall be reasonably requested by the other Collateral Agent, at the sole cost and expense of the Loan Parties, to permit such other Collateral Agent to obtain, for the benefit of the Revolving Credit Claimholders or Fixed Asset Claimholders, as applicable, a first-priority interest in the Collateral or as a court of competent jurisdiction may otherwise direct.
(e) Subject to the terms of this Agreement, until a (i) so long as the Discharge of Revolving Credit ObligationsObligations has not occurred, the US Revolving Credit Collateral Agent shall be entitled to deal with the Pledged Collateral or Collateral within its “control” in accordance with the terms of this Agreement and other Revolving Credit Documents (Documents, but only to the extent that such Collateral constitutes Revolving Credit Primary ABL Collateral) , as if the Liens (if any) of the Notes Fixed Asset Collateral Agents and Fixed Asset Claimholders did not exist and (ii) so long as the Discharge of Fixed Asset Obligations has not occurred, the Controlling Fixed Asset Collateral Agent did not exist.
(c) The shall be entitled to deal with the Pledged Collateral or Collateral within its “control” in accordance with the terms of this Agreement and other Fixed Asset Documents, but only to the extent that such Collateral constitutes Fixed Asset Collateral, as if the Liens of the Revolving Credit Collateral Agent acting pursuant to this Section 5.4 shall and Revolving Credit Claimholders did not have by reason exist. In furtherance of the Revolving Credit Documentsforegoing, this Agreement or any other document a fiduciary relationship with the Notes Collateral Agent or any Notes Claimholder with respect to such acts.
(d) Upon promptly following the Discharge of Revolving Credit Obligations, unless a New Debt Notice in respect of new Revolving Credit Documents shall have been delivered as provided in Section 5.5 below, the US Revolving Credit Collateral Agent hereby agrees to deliver, at the cost and expense of the Loan Parties, to each bank and securities intermediary, if any, that is counterparty to a deposit account control agreement or securities account control agreement, as applicable, written notice as contemplated in such deposit account control agreement or securities account control agreement, as applicable, directing such bank or securities intermediary, as applicable, to comply with the instructions of the Controlling Fixed Asset Collateral Agent (to the extent a party thereto), unless the Discharge of Fixed Asset Obligations has occurred (as certified to the Revolving Credit Collateral Agent by the Term Loan Borrower), in which case, such deposit account control agreement or securities account control agreement, as the case may be, shall be terminated.
(f) Notwithstanding anything in this Agreement to the contrary:
(1) each of the Revolving Credit Collateral Agent, for itself and on behalf of the Revolving Credit Claimholders, agrees that any requirement under any Revolving Credit Collateral Document that any Grantor deliver any Collateral that constitutes Fixed Asset Collateral to the Revolving Credit Collateral Agent, or that requires any Grantor to vest the Revolving Credit Collateral Agent with possession or “control” (as defined in the UCC) of any Collateral that constitutes Fixed Asset Collateral, in each case, shall be deemed satisfied to the extent that, prior to the Discharge of Fixed Asset Obligations (other than Contingent Obligations), such Collateral is delivered to the Controlling Fixed Asset Collateral Agent, or the Controlling Fixed Asset Collateral Agent shall have been vested with such possession or (unless, pursuant to the UCC, control may be given concurrently to the Revolving Credit Collateral Agent and the Controlling Fixed Asset Collateral Agent) “control,” in each case, subject to the provisions of Section 5.4; and
(2) each of the Fixed Asset Collateral Agents, for itself and on behalf of the applicable Fixed Asset Claimholders, agrees that any requirement under any Fixed Asset Collateral Document that any Grantor deliver any Collateral that constitutes ABL Collateral to such Fixed Asset Collateral Agent, or that requires any Grantor to vest such Fixed Asset Collateral Agent with possession or “control” (as defined in the UCC) of any Collateral that constitutes ABL Collateral, in each case, shall be deemed satisfied to the extent that, prior to the Discharge of Revolving Credit Obligations (other than Contingent Obligations), such Collateral is delivered to the Revolving Credit Collateral Agent, or the Revolving Credit Collateral Agent shall deliver the remaining Pledged Collateral have been vested with such possession or (if any) together with any necessary endorsementsunless, pursuant to the Notes UCC, control may be given concurrently to the Fixed Asset Collateral Agent to and the extent the Notes Obligations which are secured by such Pledged Collateral remain outstanding (so as to allow the Notes Collateral Agent to obtain possession or control of such Pledged Collateral). The US Revolving Credit Collateral Agent further agrees Agent) “control,” in each case, subject to take all other action reasonably requested by the Notes Collateral Agent in connection with the Notes Collateral Agent obtaining a first-priority interest in the Collateral or as a court provisions of competent jurisdiction may otherwise directSection 5.4.
Appears in 1 contract
Bailees for Perfection. (ai) The US Revolving Credit Except as provided in Section 2.5 and subject to Section 2.6, each Collateral Agent agrees to hold that part of the Collateral that is in its possession or control (or in the possession or control of its agents or bailees) to the extent that possession or control thereof is taken to perfect a Lien thereon under the UCC (such Collateral being the “Pledged Collateral”) as collateral agent for the Revolving Credit Claimholders or the Fixed Asset Claimholders, as the case may be, and as bailee for the Notes other Collateral Agent Agents (such bailment being intended, among other things, to satisfy the requirements of Sections 8-106(d)(3), 8-301(a)(2) and 9-313(c) of the UCC) and any assignee solely for the purpose of perfecting the security interest granted under the Revolving Credit Documents and the Notes Fixed Asset Documents, as applicablerespectively, subject to the terms and conditions of this Section 5.4.
(bii) The US Revolving Credit No Collateral Agent shall have no any obligation whatsoever to the Notes other Collateral Agent Agents, to any Revolving Credit Claimholder, or to any Notes Fixed Asset Claimholder to ensure that the Pledged Collateral is genuine or owned by any of the Grantors or to preserve rights or benefits of any Person except as expressly set forth in this Section 5.4. The duties or responsibilities of the US Revolving Credit respective Collateral Agent Agents under this Section 5.4 shall be limited solely to holding the Pledged Collateral as bailee in accordance with this Section 5.4 and delivering the Pledged Collateral upon a Discharge of Revolving Credit Obligations or Discharge of Fixed Asset Obligations, as the case may be, as provided in paragraph (d) below.
iii) No Collateral Agent acting pursuant to this Section 5.4 shall have by reason of the Revolving Credit Documents, the Fixed Asset Documents, this Agreement or any other document a fiduciary relationship in respect of the other Collateral Agent, or any Revolving Credit Claimholders or any Fixed Asset Claimholders. Each of the Fixed Asset Collateral Agents, for itself and on behalf of the applicable Fixed Asset Claimholders, hereby waives and releases the Revolving Credit Collateral Agent from all claims and liabilities arising pursuant to the Revolving Credit Collateral Agent’s role under this Section 5.4 as gratuitous bailee with respect to the ABL Collateral. The Revolving Credit Collateral Agent, for itself and on behalf of the Revolving Credit Claimholders, hereby waives and releases each Fixed Asset Collateral Agent from all claims and liabilities arising pursuant to the Fixed Asset Collateral Agents’ roles under this Section 5.4 as gratuitous bailees with respect to the Fixed Asset Collateral.
iv) Subject to Section 2.6, upon the Discharge of Revolving Credit Obligations or the Discharge of Fixed Asset Obligations, as the case may be, the Collateral Agent under the debt facility which has been discharged shall deliver the remaining Pledged Collateral (if any) together with any necessary endorsements and without recourse or warranty, first, to the other Collateral Agent (for the avoidance of doubt, in the case of the Discharge of Revolving Credit Obligations, to the Controlling Fixed Asset Collateral Agent) to the extent the other Obligations (other than Contingent Obligations) remain outstanding, and second, to the applicable Grantor to the extent no Revolving Credit Obligations or Fixed Asset Obligations, as the case may be, remain outstanding (in each case, so thatas to allow such Person to obtain possession or control of such Pledged Collateral). Each Collateral Agent further agrees, subject to the extent that any other Obligations (other than applicable Contingent Obligations) remain outstanding, to take all other commercially reasonable action as shall be reasonably requested by the other Collateral Agent, at the sole cost and expense of the Credit Parties, to permit such other Collateral Agent to obtain, for the benefit of the Revolving Credit Claimholders or Fixed Asset Claimholders, as applicable, a first-priority interest in the Collateral or as a court of competent jurisdiction may otherwise direct.
v) Subject to the terms of this Agreement, until a (i) so long as the Discharge of Revolving Credit ObligationsObligations has not occurred, the US Revolving Credit Collateral Agent shall be entitled to deal with the Pledged Collateral or Collateral within its “control” in accordance with the terms of this Agreement and other Revolving Credit Documents (Documents, but only to the extent that such Collateral constitutes Revolving Credit Primary ABL Collateral) , as if the Liens (if any) of the Notes Fixed Asset Collateral Agents and Fixed Asset Claimholders did not exist and (ii) so long as the Discharge of Fixed Asset Obligations has not occurred, the Controlling Fixed Asset Collateral Agent did not exist.
(c) The shall be entitled to deal with the Pledged Collateral or Collateral within its “control” in accordance with the terms of this Agreement and other Fixed Asset Documents, but only to the extent that such Collateral constitutes Fixed Asset Collateral, as if the Liens of the Revolving Credit Collateral Agent acting pursuant to this Section 5.4 shall and Revolving Credit Claimholders did not have by reason exist. In furtherance of the Revolving Credit Documentsforegoing, this Agreement or any other document a fiduciary relationship with the Notes Collateral Agent or any Notes Claimholder with respect to such acts.
(d) Upon promptly following the Discharge of Revolving Credit Obligations, unless a New Debt Notice in respect of new Revolving Credit Documents shall have been delivered as provided in Section 5.5 below, the US Revolving Credit Collateral Agent hereby agrees to deliver, at the cost and expense of the Credit Parties, to each bank and securities intermediary, if any, that is counterparty to a deposit account control agreement or securities account control agreement (other than with respect to any Foreign Collateral), as applicable, written notice as contemplated in such deposit account control agreement or securities account control agreement, as applicable, directing such bank or securities intermediary, as applicable, to comply with the instructions of the Controlling Fixed Asset Collateral Agent (to the extent a party thereto), unless the Discharge of Fixed Asset Obligations has occurred (as certified to the Revolving Credit Collateral Agent by the Borrower), in which case, such deposit account control agreement or securities account control agreement, as the case may be, shall be terminated.
vi) Notwithstanding anything in this Agreement to the contrary:
(1) each of the Revolving Credit Collateral Agent, for itself and on behalf of the Revolving Credit Claimholders, agrees that any requirement under any Revolving Credit Collateral Document that any Grantor deliver any Collateral that constitutes Fixed Asset Collateral to the Revolving Credit Collateral Agent, or that requires any Grantor to vest the Revolving Credit Collateral Agent with possession or “control” (as defined in the UCC) of any Collateral that constitutes Fixed Asset Collateral, in each case, shall be deemed satisfied to the extent that, prior to the Discharge of Fixed Asset Obligations (other than Contingent Obligations), such Collateral is delivered to the Controlling Fixed Asset Collateral Agents, or the Controlling Fixed Asset Collateral Agents shall have been vested with such possession or (unless, pursuant to the UCC, control may be given concurrently to the Revolving Credit Collateral Agent and the Controlling Fixed Asset Collateral Agent) “control,” in each case, subject to the provisions of Section 5.4; and
(2) each of the Fixed Asset Collateral Agents, for itself and on behalf of the applicable Fixed Asset Claimholders, agrees that any requirement under any Fixed Asset Collateral Document that any Grantor deliver any Collateral that constitutes ABL Collateral to such Fixed Asset Collateral Agent, or that requires any Grantor to vest such Fixed Asset Collateral Agent with possession or “control” (as defined in the UCC) of any Collateral that constitutes ABL Collateral, in each case, shall be deemed satisfied to the extent that, prior to the Discharge of Revolving Credit Obligations (other than Contingent Obligations), such Collateral is delivered to the Revolving Credit Collateral Agent, or the Revolving Credit Collateral Agent shall deliver the remaining Pledged Collateral have been vested with such possession or (if any) together with any necessary endorsementsunless, pursuant to the Notes UCC, control may be given concurrently to the Fixed Asset Collateral Agent to and the extent the Notes Obligations which are secured by such Pledged Collateral remain outstanding (so as to allow the Notes Collateral Agent to obtain possession or control of such Pledged Collateral). The US Revolving Credit Collateral Agent further agrees Agent) “control,” in each case, subject to take all other action reasonably requested by the Notes Collateral Agent in connection with the Notes Collateral Agent obtaining a first-priority interest in the Collateral or as a court provisions of competent jurisdiction may otherwise directSection 5.4.
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