Common use of Collateral In Possession; Deposit and Securities Accounts Clause in Contracts

Collateral In Possession; Deposit and Securities Accounts. (a) Each Secured Creditor agrees to hold any Collateral that can be perfected by the possession or control (within the meaning of the UCC) of such Collateral or of any deposit, securities or other similar account in which such Collateral is held, and if such Collateral or any such account is in fact in the possession or under the control of a Secured Creditor, or of agents or bailees of such Secured Creditor (such Collateral being referred to herein as the “Pledged Collateral”) as bailee and agent for and on behalf of the other Secured Creditors solely for the purpose of perfecting the security interest granted to the other Secured Creditors in such Pledged Collateral (including, but not limited to, any securities or any deposit accounts or securities accounts, if any) pursuant to the Revolving Loan Financing Documents or Term Loan Financing Documents, as applicable, subject to the terms and conditions of this Agreement. Prior to the Revolving Loan Termination Date, any Collateral (other than Term Loan Priority Collateral) in the possession or under the control of any Term Loan Creditor shall be forthwith delivered to the Revolving Agent, except as otherwise may be required by applicable law or court order. Prior to the Term Loan Termination Date, any Collateral (other than Revolving Loan Priority Collateral) in the possession or under the control of any Revolving Loan Creditor shall be forthwith delivered to the Term Loan Agent, except as otherwise may be required by applicable law or court order. (b) Until the Revolving Loan Termination Date has occurred, the Revolving Loan Creditors shall be entitled to deal with the Pledged Collateral consisting of Revolving Loan Priority Collateral in accordance with the terms of the Revolving Loan Financing Documents as if the Liens of the Term Loan Agent did not exist. The rights of the Term Loan Agent under this Section 3.4 shall at all times be subject to the terms of this Agreement and to the Revolving Loan Creditors’ rights under the Revolving Loan Financing Documents. Until the Term Loan Termination Date has occurred, the Term Loan Creditors shall be entitled to deal with the Pledged Collateral consisting of Term Loan Priority Collateral in accordance with the terms of the Term Loan Financing Documents as if the Liens of the Revolving Agent did not exist. The rights of the Revolving Agent under this Section 3.4 shall at all times be subject to the terms of this Agreement and to the Term Loan Creditors’ rights under the Term Loan Financing Documents. (c) Each Secured Creditor shall have no obligation whatsoever to the other Secured Creditors to assure that the Pledged Collateral is genuine or owned by any of the Obligors or to preserve rights or benefits (including perfection of any Lien) of any Person except as expressly set forth in this Section 3.4. The duties or responsibilities of each Secured Creditor under this Section 3.4 shall be limited solely to holding the Pledged Collateral as bailee and agent for and on behalf of the other Secured Creditors for purposes of perfecting the Lien held by such other Secured Creditors. (d) Each Secured Creditor shall not have by reason of the Revolving Loan Financing Documents, the Term Loan Financing Documents or this Agreement or any other document a fiduciary relationship in respect of the other Secured Creditors and shall not have any liability to the other Secured Creditors in connection with its holding the Pledged Collateral, other than for its gross negligence or willful misconduct as determined by a final, non-appealable order of a court of competent jurisdiction. (e) Revolving Agent agrees that (i) in connection with any Pledged Collateral consisting of Deposit Accounts, Securities Accounts or similar Collateral for which perfection is obtained by control (within the meaning of the UCC) which is under Revolving Agent’s control, upon Revolving Agent’s receipt of a Term Loan Default Notice, Revolving Agent shall, at the request of Term Loan Agent, instruct the depository bank, securities intermediary or other financial institution where such account is maintained to remit funds or other Pledged Collateral in such accounts consisting of identifiable Term Loan Priority Collateral (or Proceeds thereof) to Term Loan Agent to be applied in accordance with Section 4. (f) Term Loan Agent agrees that in connection with any Pledged Collateral consisting of Deposit Accounts, Securities Accounts or similar Collateral for which perfection is obtained by control (within the meaning of the UCC) which is under Term Loan Agent’s control, upon Term Loan Agent’s receipt of a Revolving Loan Default Notice, Term Loan Agent shall, at the request of Revolving Agent, instruct the depository bank, securities intermediary or other financial institution where such account is maintained to remit funds or other Pledged Collateral in such accounts consisting of identifiable Revolving Loan Priority Collateral (or Proceeds thereof) to Revolving Agent to be applied in accordance with Section 4. (g) Upon the Revolving Loan Termination Date, to the extent permitted under applicable law, upon the request of the Term Loan Agent, the Revolving Agent shall, without recourse or warranty, transfer the possession and control of the Pledged Collateral, if any, then in its possession or control to Term Loan Agent, except in the event and to the extent (i) the Revolving Loan Creditors have retained or otherwise acquired such Collateral in full or partial satisfaction of any of the Revolving Loan Obligations and otherwise not in contravention of this Agreement, (ii) such Collateral is sold or otherwise disposed of free of Term Loan Agent’s Liens thereon by Revolving Loan Creditors or by an Obligor as provided herein or (iii) they are required to do otherwise by any order of any court or other governmental authority or applicable law. The foregoing provision shall not impose on Revolving Loan Creditors any obligations which would conflict with prior perfected claims therein in favor of any other Person or any order or decree of any court or other governmental authority or any applicable law. In connection with any transfer described herein to Term Loan Agent, Revolving Agent agrees to take reasonable actions in its power (with all reasonable costs and expenses in connection therewith to be for the account of the Term Loan Creditors and to be paid by Borrower) as shall be reasonably requested by the Term Loan Agent to permit the Term Loan Agent to obtain, for its benefit and the benefit of the Term Loan Creditors, a first priority perfected security interest in such Pledged Collateral. (h) Upon the Term Loan Termination Date, to the extent permitted under applicable law, upon the request of Revolving Agent, the Term Loan Agent shall, without recourse or warranty, transfer the possession and control of the Pledged Collateral, if any, then in its possession or control to Revolving Agent, except in the event and to the extent (i) the Term Loan Creditors have retained or otherwise acquired such Collateral in full or partial satisfaction of any of the Term Loan Obligations and otherwise not in contravention of this Agreement, (ii) such Collateral is sold or otherwise disposed of free of Revolving Agent’s Liens by Term Loan Creditors or by an Obligor as provided herein or (iii) they are required to do otherwise by any order of any court or other governmental authority or applicable law. The foregoing provision shall not impose on Term Loan Creditors any obligations which would conflict with prior perfected claims therein in favor of any other Person or any order or decree of any court or other governmental authority or any applicable law. In connection with any transfer described herein to Revolving Agent, Term Loan Agent agrees to take reasonable actions in its power (with all reasonable costs and expenses in connection therewith to be for the account of the Revolving Loan Creditors, to be due and payable by Borrower and constitute Revolving Loan Obligations) as shall be reasonably requested by the Revolving Agent to permit the Revolving Agent to obtain a first priority security interest in such Pledged Collateral.