Common use of Collateral Matters; Swap Agreements Clause in Contracts

Collateral Matters; Swap Agreements. The benefit of the Security Instruments and of the provisions of this Agreement relating to any collateral securing the Indebtedness shall also extend to and be available to any Lender or any Affiliate of a Lender that is counterparty to any Swap Agreement with the Borrower or any of its Subsidiaries (including any Swap Agreement between such Persons in existence prior to the date hereof) on a pro rata basis in respect of any obligations of the Borrower or any of its Subsidiaries which arise under any such Swap Agreement; provided that such benefits shall cease to extend to and be available to any such Lender or Affiliate in respect of obligations under such Swap Agreements if such Person or its Affiliate, as the case may be, ceases to be Lender. For the avoidance of doubt, a Person ceases to be a Lender hereunder if (a) pursuant to an assignment, such Person ceases to have any Commitment, Loans and LC Exposure hereunder or (b) the Commitments of all of the Lenders hereunder have been terminated and all principal, interest and other amounts outstanding under this Agreement have been paid in full in cash (whether as a result of repayment at maturity, prepayment in connection with the refinancing of this Agreement or otherwise). No Lender or any Affiliate of a Lender shall have any voting rights under any Loan Document as a result of the existence of obligations owed to it under any such Swap Agreements.

Collateral Matters; Swap Agreements. (a) The benefit of the Security Instruments and of the provisions of this Agreement relating to any collateral securing the Indebtedness shall also extend to and be available to any Lender or any Affiliate of a Lender that is counterparty to any Secured Swap Agreement with the Borrower or any of its Subsidiaries (including any Swap Agreement between such Persons in existence prior to the date hereof) Parties on a pro rata basis (but subject to the terms of the Loan Documents, including provisions thereof relating to the application and priority of payments to the Persons entitled thereto) in respect of any obligations of the Borrower or any of its Subsidiaries which arise under any such Secured Swap Agreement; provided that such benefits shall cease to extend to and be available to any such Lender or Affiliate Obligations. Except as expressly set forth in respect of obligations under such Section 12.02(b), no Secured Swap Agreements if such Person or its Affiliate, as the case may be, ceases to be Lender. For the avoidance of doubt, a Person ceases to be a Lender hereunder if (a) pursuant to an assignment, such Person ceases to have any Commitment, Loans and LC Exposure hereunder or (b) the Commitments of all of the Lenders hereunder have been terminated and all principal, interest and other amounts outstanding under this Agreement have been paid in full in cash (whether as a result of repayment at maturity, prepayment in connection with the refinancing of this Agreement or otherwise). No Lender or any Affiliate of a Lender Party shall have any voting rights under any Loan Document as a result of the existence of obligations any Secured Swap Obligations owed to it. (b) The Borrower hereby guarantees the payment and performance of all Indebtedness of each other Loan Party and absolutely, unconditionally and irrevocably undertakes to provide such funds or other support as may be needed from time to time by each Benefiting Guarantor in order for such Benefiting Guarantor to honor its obligations under the Guaranty Agreement and any other Security Instruments including obligations with respect to Swap Agreements (provided, however, that the Borrower shall only be liable under this Section 12.14(b) for the maximum amount of such liability that can be hereby incurred without rendering its obligations under this Section 12.14(b), or otherwise under this Agreement or any other Loan Document, as it relates to such Benefiting Guarantor, voidable under applicable law relating to fraudulent conveyance or fraudulent transfer, and not for any such Swap Agreementsgreater amount). The obligations of Borrower under this Section 12.14(b) shall remain in full force and effect until all Indebtedness is paid in full, and all of the Lenders’ Commitments are terminated. The Borrower intends that this Section 12.14(b) constitute, and this Section 12.14(b) shall be deemed to constitute, a “keepwell, support, or other agreement” for the benefit of each Benefiting Guarantor for all purposes of Section 1a(18)(A)(v)(II) of the Commodity Exchange Act.

Collateral Matters; Swap Agreements. (a) The benefit of the Security Instruments and of the provisions of this Agreement relating to any collateral Collateral securing the Indebtedness shall also extend to and be available to any Lender or any Affiliate of a Lender that is counterparty to any the Cash Management Providers and the Secured Swap Agreement with the Borrower or any of its Subsidiaries (including any Swap Agreement between such Persons in existence prior to the date hereof) Parties on a pro rata basis (but subject to the terms of the Loan Documents, including, without limitation, provisions thereof relating to the application and priority of payments to the Persons entitled thereto) in respect of any obligations of the Parent, the Borrower or any of its Subsidiaries which arise under any such Secured Swap Agreement; provided that such benefits shall cease to extend to and be available to any such Lender or Affiliate in respect of obligations under such Swap Agreements if such Person or its Affiliate, as the case may be, ceases to be Lender. For the avoidance of doubt, a Person ceases to be a Lender hereunder if (a) pursuant to an assignment, such Person ceases to have any Commitment, Loans and LC Exposure hereunder or (b) the Commitments of all of the Lenders hereunder have been terminated and all principal, interest and other amounts outstanding under this Agreement have been paid in full in cash (whether as a result of repayment at maturity, prepayment in connection with the refinancing of this Agreement or otherwise)Agreements. No Lender or any Affiliate of a Lender Secured Swap Party shall have any voting rights under any Loan Document as a result of the existence of obligations owed to it under any such Swap Agreements. (b) The Borrower hereby guarantees the payment and performance of all Indebtedness of each other Credit Party and absolutely, unconditionally and irrevocably undertakes to provide such funds or other support as may be needed from time to time by each Benefiting Guarantor in order for such Benefiting Guarantor to honor its obligations under the Guaranty and Security Agreement and any other Security Instruments including obligations with respect to Swap Agreements (provided, however, that the Borrower shall only be liable under this Section 12.14(b) for the maximum amount of such liability that can be hereby incurred without rendering its obligations under this Section 12.14(b), or otherwise under this Agreement or any other Loan Document, as it relates to such Benefiting Guarantor, voidable under applicable law relating to fraudulent conveyance or fraudulent transfer, and not for any greater amount). The obligations of Borrower under this Section 12.14(b) shall remain in full force and effect until all Indebtedness is paid in full, and all of the Lenders’ Commitments are terminated. The Borrower intends that this Section 12.14(b) constitute, and this Section 12.14(b) shall be deemed to constitute, a “keepwell, support, or other agreement” for the benefit of each Benefiting Guarantor for all purposes of Section 1a(18)(A)(v)(II) of the Commodity Exchange Act.

Collateral Matters; Swap Agreements. (a) The benefit of the Security Instruments and of the provisions of this Agreement relating to any collateral securing the Indebtedness shall also extend to and be available to any Lender or any Affiliate of a Lender that is counterparty to any Secured Swap Agreement with the Borrower or any of its Subsidiaries (including any Swap Agreement between such Persons in existence prior to the date hereof) Parties on a pro rata basis (but subject to the terms of the Loan Documents, including provisions thereof relating to the application and priority of payments to the Persons entitled thereto) in respect of any obligations of the Borrower or any of its Subsidiaries which arise under any such Secured Swap Agreement; provided that such benefits shall cease to extend to and be available to any such Lender or Affiliate Obligations. Except as expressly set forth in respect of obligations under such Section 12.02(b), no Secured Swap Agreements if such Person or its Affiliate, as the case may be, ceases to be Lender. For the avoidance of doubt, a Person ceases to be a Lender hereunder if (a) pursuant to an assignment, such Person ceases to have any Commitment, Loans and LC Exposure hereunder or (b) the Commitments of all of the Lenders hereunder have been terminated and all principal, interest and other amounts outstanding under this Agreement have been paid in full in cash (whether as a result of repayment at maturity, prepayment in connection with the refinancing of this Agreement or otherwise). No Lender or any Affiliate of a Lender Party shall have any voting rights under any Loan Document as a result of the existence of obligations any Secured Swap Obligations owed to it. (b) The Borrower hereby guarantees the payment and performance of all Indebtedness of each other Loan Party and absolutely, unconditionally and irrevocably undertakes to provide such funds or other support as may be needed from time to time by each Benefiting Guarantor in order for such Benefiting Guarantor to honor its obligations under the Guaranty Agreement and any other Security Instruments including obligations with respect to Swap Agreements (provided, however, that the Borrower shall only be liable under this Section 12.14(b) for the maximum amount of such liability that can be hereby incurred without rendering its obligations under this Section 12.14(b), or otherwise under this Agreement or any other Loan Document, as it relates to such Benefiting Guarantor, voidable under applicable law relating to fraudulent conveyance or fraudulent transfer, and not for any such Swap Agreementsgreater amount). The obligations of Borrower under this Section 12.14(b) shall remain in full force and effect until all Indebtedness is paid in full, and all of the Lenders’ Commitments are terminated. The Borrower intends that this Section 12.14(b) constitute, and this Section 12.14(b) shall be deemed to constitute, a “keepwell, support, or other agreement” for the benefit of each Benefiting Guarantor for all purposes of Section 1a(18)(A)(v)(ii) of the Commodity Exchange Act.

Collateral Matters; Swap Agreements. (a) The benefit of the Security Instruments and of the provisions of this Agreement relating to any collateral securing the Indebtedness shall also extend to and be available to any Lender or any Affiliate of a Lender that is counterparty to any Swap Agreement with the Borrower or any of its Subsidiaries (including any Swap Agreement between such Persons in existence prior to the date hereof) Hedge Banks on a pro rata basis in respect of any obligations of Hedge Obligations (to the Borrower or any of its Subsidiaries which arise under any such Swap Agreement; provided that such benefits shall cease extent limited in the definition thereof) and to extend to the Lenders and be available to any such Lender or Affiliate their respective Affiliates on a pro rata basis in respect of obligations under such Swap Agreements if such Person or its Affiliate, as the case may be, ceases to be Lender. For the avoidance of doubt, a Person ceases to be a Lender hereunder if (a) pursuant to an assignment, such Person ceases to have any Commitment, Loans and LC Exposure hereunder or (b) the Commitments of all of the Lenders hereunder have been terminated and all principal, interest and other amounts outstanding under this Agreement have been paid in full in cash (whether as a result of repayment at maturity, prepayment in connection with the refinancing of this Agreement or otherwise)Bank Product Obligations. No Lender or any Affiliate of a Lender shall have any voting rights under any Loan Document as a result of the existence of obligations owed such Hedge Obligations or such Bank Production Obligations. No Lender or any Affiliate of a Lender, in its capacity as a Hedge Bank or as the provider of Bank Products, that obtains the benefits of any Guarantee and Collateral Agreement or any Security Instrument by virtue of the provisions hereof or of any Guarantee and Collateral Agreement or any Loan Document shall have any right to it notice of any action or to consent to, direct or object to any action hereunder (including under Section 12.02) or under any other Loan Document or otherwise in respect of any collateral or Mortgaged Property (including the release or impairment of any collateral or Mortgaged Property) other than in its capacity as a Lender and, in such Swap Agreementscase, only to the extent expressly provided in the Loan Documents. Notwithstanding anything to the contrary contained herein or in any other Loan Document, no Hedge Obligations and no Bank Product Obligations shall be Indebtedness hereunder or under any other Loan Document or “Obligations” as defined in any Loan Documents after all Commitments have terminated or expired, all Indebtedness (other than Hedge Obligations, Bank Product Obligations and indemnities and other contingent obligations not then due and payable and as to which no claim has been made as of the time of determination) have been paid in full in cash and all Letters of Credit have expired or terminated or the LC Exposure has been cash collateralized (or as to which other arrangements satisfactory to the Administrative Agent and the Issuing Bank shall have been made) as provided for herein.

Collateral Matters; Swap Agreements. The benefit of the Security Instruments and of the provisions of this Agreement relating to any collateral securing the Indebtedness shall also extend to and be available to any Lender those Lenders or any Affiliate of a Lender that is counterparty their Affiliates which are counterparties to any Swap Agreement with the Borrower or any of its Subsidiaries (including any Swap Agreement between such Persons in existence prior to the date hereof) on a pro rata basis in respect of any obligations of the Borrower or any of its Subsidiaries which arise under any such Swap Agreement; provided that such benefits shall cease to extend to and be available to any such Lender or Affiliate in respect of obligations under such Swap Agreements if Agreement while such Person or its AffiliateAffiliate is a Lender, as but only while such Person or its Affiliate is a Lender, including any Swap Agreements between such Persons in existence prior to the case may be, ceases to be Lender. For the avoidance of doubt, date hereof; provided that if a Person or its Affiliate ceases to be a Lender hereunder if (a) pursuant to an assignment, such Person ceases to have any Commitment, Loans and LC Exposure hereunder or (b) solely because the Commitments of all of the Lenders hereunder have been terminated and all principal, interest and other amounts outstanding under this Agreement Revolving Credit Exposures have been paid in full and the Commitments terminated, then the Liens securing such Swap Agreements shall continue in favor of such Person until those obligations are paid in full in cash (whether as a result of repayment at maturity, prepayment in connection with the refinancing of this Agreement or otherwise)otherwise expire or are terminated. No Lender or any Affiliate of a Lender shall have any voting rights under any Loan Document as a result of the existence of obligations owed to it under any such Swap Agreements. For the avoidance of doubt it is understood and agreed that all Swap Agreements between the Lenders (as defined in the Existing Credit Agreement) or their Affiliates and the Borrower or any of its Subsidiaries entered into prior to the date hereof shall be deemed Swap Agreements hereunder and the benefit of the Security Instruments and the provisions of this Agreement relating to any collateral securing the Indebtedness shall also extend to and be available to such Lenders or their Affiliates as provided herein and in the Security Instruments notwithstanding that any such Lender (as defined in the Existing Credit Agreement) is not a Lender hereunder.

Collateral Matters; Swap Agreements. The benefit of the Security Instruments and of the provisions of this Agreement relating to any collateral securing the Indebtedness shall also extend to and be available to those Lenders or their Affiliates which are counterparties to any Lender Swap Agreement with the Borrower or any Affiliate of a Lender that is counterparty its Subsidiaries, and those counterparties to any Swap Agreement with the Borrower or any of its Subsidiaries which were Lenders (including any or Affiliates of a Lender) when they entered into such Swap Agreement between such Persons but are no longer Lenders (or Affiliates of a Lender), in existence prior to the date hereof) each case on a pro rata basis in respect of any obligations of the Borrower or any of its Subsidiaries which arise under any such Swap Agreement with such Persons, including any Swap Agreements between such Persons in existence prior to the date hereof. In addition, it is understood and agreed that (a) all Swap Agreements between the Lenders (as defined in the Existing Credit Agreement; provided that such benefits ) or their Affiliates and the Borrower or any of its Subsidiaries entered into prior to March 27, 2009 shall cease be deemed Swap Agreements hereunder and (b) the benefit of the Security Instruments and the provisions of this Agreement relating to any collateral securing the Indebtedness shall also extend to and be available to such Lenders or their Affiliates as provided herein and in the Security Instruments notwithstanding that any such Lender or Affiliate (as defined in respect of obligations under such Swap Agreements if such Person or its Affiliate, as the case may be, ceases to be Lender. For the avoidance of doubt, a Person ceases to be Existing Credit Agreement) is not a Lender hereunder if hereunder. Except as set forth in Section 12.02(b)(viii), no Lender, any Lender (aas defined in the Existing Credit Agreement) pursuant to an assignment, such Person ceases to have any Commitment, Loans and LC Exposure hereunder or (b) the Commitments of all of the Lenders hereunder have been terminated and all principal, interest and other amounts outstanding under this Agreement have been paid in full in cash (whether as a result of repayment at maturity, prepayment in connection with the refinancing of this Agreement or otherwise). No Lender or any Affiliate of a Lender their Affiliates shall have any voting rights under any Loan Document as a result of the existence of obligations owed to it under any such Swap Agreements.”

Collateral Matters; Swap Agreements. (a) The benefit of the Security Instruments and of the provisions of this Agreement relating to any collateral Collateral securing the Indebtedness Obligations shall also extend to and be available to (in addition to Lenders and their Affiliates), each other Secured Party; provided that, notwithstanding anything to the contrary, with respect to any Lender or any Affiliate of a Lender Loan Party that is counterparty to not an Eligible Contract Participant, the Obligations of such Loan Party shall exclude any Excluded Swap Obligations of such Loan Party. Each Secured Priority Swap Provider, by its entry into a Swap Agreement with a Loan Party, and each Bank Product Provider, by its extension of a Bank Product to the Borrower or any of its Subsidiaries (including any Swap Agreement between such Persons Subsidiary, in existence prior to the date hereof) on a pro rata basis in respect of any obligations of the Borrower or any of its Subsidiaries which arise under any such Swap Agreement; provided that such benefits shall cease to extend to each case by virtue thereof and be available to any such Lender or Affiliate in respect of obligations under such Swap Agreements if such Person or its Affiliate, as the case may be, ceases to be Lender. For the avoidance of doubt, a Person ceases to be a Lender hereunder if (a) pursuant to an assignment, such Person ceases to have any Commitment, Loans and LC Exposure hereunder or (b) the Commitments of all of the Lenders hereunder have been terminated and all principal, interest and other amounts outstanding under this Agreement have been paid in full in cash (whether as a result of repayment at maturity, prepayment in connection with condition to obtaining the refinancing benefit of this Agreement and the Security Instruments, (i) agrees to be bound by the agreements and acknowledgements of the Secured Parties in this Agreement and the other Loan Documents, and (ii) makes each of the authorizations, directions and instructions of the Secured Parties specified in this Agreement and the other Loan Documents and so authorizes, directs and instructs the Administrative Agent, the Collateral Agent and the Collateral Trustee. Except as and to the extent (and only to the extent) expressly provided in Section 12.02(b) or otherwise). No Lender or any Affiliate of a Lender the Security Instruments, no Secured Party shall have any voting rights under any Loan Document as a result of the existence of obligations owed Secured Priority Swap Obligations or Secured Bank Product Obligations any right to it notice of, or to vote on, consent to, direct, or object to, any action, inaction or circumstance under this Agreement or under any other Loan Document or otherwise in respect of the Collateral (including the release or impairment of any Collateral) or any amendment or waiver of this Agreement or any other Loan Document, or any proposal with respect to any of the foregoing. Notwithstanding any other provision of this Agreement to the contrary, the Administrative Agent shall not be required to verify the payment of, or that other satisfactory arrangements have been made with respect to, any Secured Priority Swap Obligations or Secured Bank Product Obligations unless the Administrative Agent has received written notice of such Obligations, together with such supporting documentation as the Administrative Agent may reasonably request, from the applicable Secured Priority Swap AgreementsProvider or Bank Product Provider, as the case may be. (b) Each Secured Party authorizes and directs the Collateral Agent to enter into and assign to the Collateral Trustee, and authorizes and directs the Collateral Agent to authorize the Collateral Trustee to enter into, the Security Instruments (including any amendments thereto contemplated by Section 7.1 of the Collateral Trust Agreement and any security documents to secure additional Priority Lien Obligations (as defined in the Collateral Trust Agreement) in accordance with Section 3.8 of the Collateral Trust Agreement) and to perform its obligations and exercise its rights thereunder in accordance therewith, subject to the terms and conditions thereof, including the limitations on duties of the Collateral Trustee provided in Section 5.12 of the Collateral Trust Agreement. Each Secured Party acknowledges that, as more fully set forth in the Security Instruments, the Collateral as now or hereafter constituted shall be held for the benefit of all the holders of Priority Lien Obligations (as defined in the Collateral Trust Agreement), subject to the Collateral Trust Agreement, and the Lien of the Security Instruments is subject to and qualified and limited in all respects by the Collateral Trust Agreement. (c) The provisions of the other Security Instruments are subject to the terms, conditions and benefits set forth in the Collateral Trust Agreement. Each Secured Party (i) agrees that it will be bound by, and will take no actions contrary to, the provisions of the Collateral Trust Agreement and (ii) authorizes and instructs the Collateral Agent to authorize and instruct the Collateral Trustee on behalf of the Secured Parties and each other holder of “First-Out Obligations” (as defined therein) to enter into the Collateral Trust Agreement as Collateral Trustee on behalf of such holders of First-Out Obligations. In addition, each Secured Party authorizes and instructs the Collateral Agent to authorize and instruct the Collateral Trustee to enter into any amendments or joinders to the Collateral Trust Agreement, without the consent of any Secured Party, to add additional Debt as Priority Lien Obligations and add other parties (or any authorized agent or trustee therefor) holding such Debt thereto and to establish that the Lien on any Collateral securing such Debt ranks equally with the Liens on such Collateral securing the Priority Lien Debt then outstanding. (d) Each Secured Party (i) agrees that it will be bound by, and will take no actions contrary to, the provisions of the Intercreditor Agreement and (ii) authorizes and instructs the Collateral Agent to authorize and instruct the Collateral Trustee on its behalf to enter into the Intercreditor Agreement as Priority Lien Representative (as defined in the Intercreditor Agreement) on behalf of such Secured Party as a Priority Lien Secured Party (as defined in the Intercreditor Agreement). In addition, each Secured Party authorizes and instructs the Collateral Agent to authorize and instruct the Collateral Trustee to enter into any amendments or joinders to the Intercreditor Agreement, without the consent of any Secured Party, to add additional Priority Lien Debt or Junior Lien Debt (each as defined in the Intercreditor Agreement) and add other parties (or any authorized agent or trustee therefor) holding such Debt thereto and to establish that the Lien on any Collateral securing such Debt ranks equally with the Liens on such Collateral securing the Priority Lien Debt or Junior Lien Debt, as applicable, then outstanding.